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EXHIBIT 6.i
VALUE-ADDED RESELLER AGREEMENT
This Value-Added Reseller Agreement ("Agreement"), effective as of the
___ day of _________, 199_ (the "Effective Date"), is entered into by and
between GEMPLUS Corporation, having offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("GEMPLUS"), and Neighborhood Box Office , Inc..
a Utah Corporation , with its principle place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. ("Value-Added Reseller" or
"VAR").
1. LICENSE
(a) Grant. Subject to the terms and conditions of this Agreement,
GEMPLUS hereby grants to VAR (i) a non-exclusive, nontransferable,
non-sublicenseable, limited license to incorporate the GEMPLUS products listed
on Exhibit A ("Gemplus Products") into the VAR products listed on Exhibit A
("VAR Products"); and (ii) a non-exclusive, nontransferable, non-sublicensable
license to distribute GEMPLUS Products only as incorporated into VAR Products in
Canada and the United States of America (the "Territory"). The parties agree to
discuss expansion of the Territory to include additional geographic areas in the
future.
(b) Limitations on License VAR shall not, and shall not permit any third
party to, alter, modify, adapt, translate, prepare derivative works from,
decompile, reverse engineer, disassemble, or otherwise attempt to derive
computer source code from any GEMPLUS Product or Documentation, except to the
extent such restriction on reverse engineering is expressly prohibited by
applicable local law.
(c) VAR Certification. VAR Product(s) into which any GEMPLUS Product is
incorporated will include the addition of hardware and/or software supplied by
VAR which, by an objective examination of such factors as cost, product
features, and pricing, represent a significant enhancement and transformation of
the GEMPLUS Products (with regard to both value and function) and result in a
system substantially different from GEMPLUS Products, and any other GEMPLUS
systems or products. Prior to any sale or distribution of any VAR Product
hereunder, VAR shall submit to GEMPLUS exact samples of such VAR Product for
inspection and written approval by GEMPLUS.
(d) Reservation of Rights. Except as expressly provided herein, no
right, title or interest with respect to GEMPLUS Products or any GEMPLUS
intellectual property is granted to VAR and all rights not expressly granted to
VAR herein are reserved to GEMPLUS.
(e) End-User License Agreement. VAR shall include a copy of an End-User
License Agreement with each GEMPLUS Product which such license shall be no less
protective of GEMPLUS' rights in the GEMPLUS Products as this Agreement.
2. OBLIGATIONS OF VAR
(a) Diligence. VAR shall vigorously promote and market the VAR Products
to maximize sales of the VAR Products. Except as expressly set forth herein, VAR
shall be solely responsible for all costs and expenses related to the
advertising, marketing, promotion, and distribution of the VAR Products and for
performing its obligations hereunder.
(b) Reports. VAR shall send to GEMPLUS, within thirty (30) working days
after the end of each month, a sales activities report including the names of
Customers, quantities of GEMPLUS Products purchased, dollar amounts invoiced to
the said purchasers, and Customer backlog and inventory status of GEMPLUS
Products. GEMPLUS and VAR agree to hold meetings at quarterly intervals to
review the relationship and progress on specific initiatives. Those meetings
will be held via conference call where practical, or alternately at each other's
locations where conference calls are not practical.
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(c) Source. VAR shall not obtain GEMPLUS Products from any other source
than GEMPLUS or a GEMPLUS designee without GEMPLUS' prior written approval.
(d) Product Support.
(i) VAR shall be solely responsible for supporting all VAR Products
distributed hereunder. To the extent that any such support involves support of
GEMPLUS Products, VAR shall at all times comply with all GEMPLUS support,
maintenance and repair policies and guidelines then in effect. VAR shall ensure
that VAR's technical and engineering support personnel attend any training made
available by GEMPLUS to VAR with respect to the GEMPLUS Products per the
applicable terms outlined in Exhibit C.
(ii) VAR shall ensure that all Customer questions regarding the use
or operation of VAR Products are initially addressed to and answered by VAR.
(iii) Without limiting the foregoing, VAR shall (a) provide
sufficient information to GEMPLUS for GEMPLUS to duplicate any reported error in
the GEMPLUS Products; (b) incorporate Updates into the VAR Products promptly
upon receipt thereof; and (c) provide reasonable cooperation and full
information to GEMPLUS in the furnishing of support for the GEMPLUS Products.
(e) Minimum Purchase Commitment. During the term of this Agreement, VAR
agrees to purchase the quantity of GEMPLUS Products specified in Exhibit B.
(f) Sales Target Commitment. During the term of this Agreement, VAR
agrees to use its best efforts to meet the sales target as provided for in
Exhibit F (the "Sales Target"). For clarification purposes, year-end assessment
of achievement of the Sales Target shall be calculated by totaling VAR's net
total purchases of Gemplus Products for the term as reduced by any discounts,
taxes or the like applicable to such purchased products.
(g) Business Plan Presentation. Upon execution of this Agreement, VAR
agrees to submit a comprehensive Business Plan to Gemplus which describes VAR's
strategy for market deployment of VAR Products for the term of the Agreement
that justifies the Sales Target as provided for in Exhibit F.
(h) Education / Sales Training Participation Obligation. During the term
of this Agreement, VAR agrees to complete the Sales Training and Education
courses listed in Exhibit B.
(i) Participation Fee. Upon execution of this Agreement, VAR agrees to
pay to Gemplus the Program Participation Fee as described in Exhibit B.
3. OBLIGATIONS OF GEMPLUS
(a) Information and Support. GEMPLUS shall provide support to VAR in
accordance with the Support Program on Exhibit C. With respect to software,
GEMPLUS will provide support only for the then-current version of the software
that incorporates all updates to the software. Updates shall mean error
corrections and bug fixes (for software) or design and construction alterations
(for Hardware) that GEMPLUS generally makes available to its customers free of
charge, but excluding new versions of the Gemplus Products that contain
significant new features or functionality, as determined in GEMPLUS' sole
discretion.
(b) Marketing Protection. For the term of this agreement GEMPLUS agrees
not to compete directly with VAR by soliciting named NBO customers or prospects
(mutually agreeable list in Exhibit G). VAR agrees to update this list, submit
it to GEMPLUS for approval, periodically or at least once per quarter for the
term of this agreement.
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(c) Marketing Materials. GEMPLUS shall periodically provide VAR with
samples of GEMPLUS' advertising and promotional materials, pricing information
and technical data related to the GEMPLUS Products. VAR shall not modify the
materials described in this Article 3 without GEMPLUS' prior written approval.
(d) Translation; Localization. At GEMPLUS' sole option, GEMPLUS will
translate or localize the documentation provided with the Gemplus Products
("Documentation"). VAR may not translate the Documentation without GEMPLUS'
prior written consent.
4. PRICE AND PAYMENT
(a) Price. VAR shall purchase GEMPLUS Products at GEMPLUS then-current
list prices at the time of order, less a percentage discount as set forth in
Exhibit D hereto ("VAR Purchase Price").
(b) Price Changes Generally. List prices are subject to change by
GEMPLUS at any time in its sole discretion. Price changes shall apply to all
Gemplus Products ordered from Gemplus following the date of notification of the
change of prices to VAR.
(c) Payment Terms. Payment shall be in U.S. Dollars. Until credit terms
have been approved by Gemplus, VAR shall pay for GEMPLUS Products in advance by
wire transfer to GEMPLUS' designated account. All exchange, interest, banking,
collection and other charges shall be at VAR's expense. Upon credit approval by
Gemplus, payment terms for all amounts due and payable to Gemplus shall be net
thirty (30) days from the date of invoice. Gemplus reserves the right to charge
interest on overdue accounts at a rate of 1&1/2% per month or to the maximum
extent as may be permitted under law.
(d) VAR Rebate.
(1) Calculation. In the event VAR's accepted Sales Target equals or
is greater than one hundred thousand US dollars ($100,000) and VAR achieves or
exceeds the Sales Target during the term of the Agreement, VAR shall be entitled
to receive a five percent (5%) rebate assessed against the amount of the Sales
Target (the "Rebate"). In determining whether achievement of the Sales Target
has occurred for purposes of assessment of the Rebate, only Gemplus Products
purchased by VAR at prices listed in the applicable then-current price list
shall be considered. Any amounts received by Gemplus from VAR for software
maintenance services or support services outside the scope of the Support
Program described in Exhibit C shall not be considered for purposes of
determining whether achievement of the Sales Target has occurred.
(2) Usage. Notwithstanding anything to the contrary herein, the
Rebate shall only be available to VAR in the form of either (i) a credit against
future purchases of Gemplus Products pursuant to the conditions listed below, or
(ii) co-marketing funds to be reimbursed to VAR by Gemplus for expenses incurred
as a result of Gemplus-approved marketing, promotional or advertising activities
in support of VAR Products. Rebate amounts shall be accrued by Gemplus and
maintained for a period of six (6) months from the end of the then-current term.
Any Rebate amounts unused by VAR within six (6) months from the end of the
then-current term shall be reduced from the accrued account of VAR. VAR shall
obtain authorization for reimbursement of co-marketing funds described in
Section 4(d)(ii) above by obtaining prior written consent from Gemplus. For
purposes of usage of the Rebate pursuant to subsection (i) above, only fifty
percent (50%) of the Rebate shall be available for credit against future
purchase of Gemplus Products by VAR.
5. TAXES AND OTHER CHARGES Prices do not include and are net of any foreign or
domestic governmental taxes or charges of any kind that may be applicable to the
sale, licensing, marketing or distribution of the GEMPLUS Products, including
without limitation withholding, excise, sales, use, or value-added taxes;
customs or other import duties; or other taxes, tariffs or duties. VAR shall be
responsible for, and shall pay in a timely manner, all such taxes and charges
levied against GEMPLUS, excluding taxes on the income of GEMPLUS. When GEMPLUS
has the legal
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obligation to pay or collect such taxes the appropriate amount shall be invoiced
to VAR, excluding taxes on the income of GEMPLUS, and paid by VAR within thirty
(30) days of the date of invoice unless VAR provides GEMPLUS with a valid tax
exemption certificate authorized by the appropriate taxing authority.
6. FORECASTS, ORDERS, SHIPMENT, AND ACCEPTANCE
(a) Forecasts. By the end of the second month of each calendar quarter,
VAR shall provide GEMPLUS with a non-binding six (6) month rolling forecast
commencing with the next calendar quarter showing VAR's prospective requirements
for the GEMPLUS Products.
(b) Order and Acceptance. All orders for GEMPLUS Products submitted by
VAR shall be initiated by written purchase order sent to GEMPLUS and requesting
a shipment date during the term of this Agreement. All orders for GEMPLUS
Products are subject to acceptance by GEMPLUS in writing, and GEMPLUS shall have
no liability to VAR with respect to purchase orders that are not accepted. No
partial acceptance of a purchase order shall constitute the acceptance of an
entire order, absent the written acceptance of such entire order.
(c) Shipment/Risk of Loss. Risk of loss shall pass to VAR upon Gemplus'
delivery to carrier. Unless otherwise instructed in writing by VAR in VAR's
purchase order, GEMPLUS shall select the carrier. All freight, insurance, and
other shipping expenses, as well as expenses for any special packing requested
by VAR and provided by GEMPLUS, shall be paid by VAR.
(d) Order Changes. Purchase orders for GEMPLUS Products may be canceled
or rescheduled only with GEMPLUS' prior written approval. Cancellation of
purchase orders for GEMPLUS Products are subject to a restocking charge of
twenty percent (20%) of the VAR Purchase Price of the GEMPLUS Products.
(e) Acceptance. VAR shall inspect all GEMPLUS Products promptly upon
receipt thereof and may reject any defective GEMPLUS Product within 10 days of
receipt of such product by notifying GEMPLUS of its rejection and requesting a
Return Material Authorization ("RMA") number, and within ten (10) days of
receipt of the RMA number from GEMPLUS returning such rejected GEMPLUS Product
to GEMPLUS, freight prepaid to such location as GEMPLUS may instruct VAR.
Returned products shall be packed in its original packing material. GEMPLUS
Products not rejected within the foregoing time periods shall be deemed accepted
by VAR. For defective Products, GEMPLUS shall at its option, repair or replace
such defective GEMPLUS Products, or accept return for credit of such defective
GEMPLUS Products. GEMPLUS shall return to VAR, freight prepaid, all repaired or
replaced GEMPLUS Products properly rejected by VAR.
7. GEMPLUS PRODUCT CHANGES GEMPLUS reserves the right from time to time in its
sole discretion, without incurring any liability to VAR with respect to any
order, to discontinue or to limit its production of any GEMPLUS Product; to
allocate, terminate or limit deliveries of any GEMPLUS Product in time of
shortage; to alter the design or construction of any GEMPLUS Product; and upon
reasonable notice to VAR, to change its sales and distribution policies in a
manner consistent with the terms of this Agreement.
8. LIMITED WARRANTY
(a) Limited Warranty. GEMPLUS warrants to VAR that GEMPLUS Products, as
delivered, will perform substantially in accordance with the Documentation under
normal use for a period of ninety (90) days from the date of delivery ("Warranty
Period"). GEMPLUS does not warrant that the functions contained in any Gemplus
Products supplied to VAR will meet VAR's or its customer's requirements or that
the operation of any software supplied hereunder will be uninterrupted or
error-free. GEMPLUS' sole liability and VAR's exclusive remedy for breach of the
foregoing warranty shall be limited to repair or replacement at Gemplus' option.
The foregoing warranty is contingent upon proper use of the GEMPLUS Products in
the applications for which they were intended and shall not apply to GEMPLUS
Products that are modified or subjected to unusual or inappropriate physical or
electrical stress, misuse, abuse, or unauthorized repair.
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(b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION
8(a) ABOVE, GEMPLUS MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY,
IMPLIED, OR OTHERWISE, AND GEMPLUS SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES
AND CONDITIONS OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(c) VAR Restrictions. Warranties provided by Gemplus herein may not be
passed through by VAR to any VAR customer or end user and VAR shall indemnify,
defend and hold harmless GEMPLUS from any claim or liability arising out of or
relating to breach of this provision.
(c) GEMPLUS Product Returns. In order to return GEMPLUS Product that
fails to conform to the foregoing warranty, VAR shall (i) notify GEMPLUS in
writing that such GEMPLUS Product failed to conform with the warranty set forth
in this Article 8 and furnish a detailed explanation of any alleged
nonconformity; (ii) obtain a RMA number for the nonconforming GEMPLUS Product
from GEMPLUS; and (iii) within ten (10) days of receipt of the RMA number,
return such GEMPLUS Product to GEMPLUS, freight pre-paid, with the RMA number
prominently attached.
9. TERM AND TERMINATION
(a) Term. This Agreement shall commence upon the Effective Date and
continue in full force and effect for a fixed term of one (1) year, unless
earlier terminated in accordance with the provisions of this Agreement. This
Agreement may be renewed for subsequent one (1) year terms only by mutual
written agreement of the parties.
(b) Termination for Cause. Notwithstanding anything to the contrary
herein, GEMPLUS shall have the right to immediately terminate this Agreement
upon VAR's breach of either of Sections 10 or 14. Either party may terminate
this Agreement in the event the other party: (i) ceases to function as a going
concern or to conduct operations in the normal course of business, or (ii) has a
petition filed by or against it under any state or federal bankruptcy or
insolvency law which petition has not been dismissed or set aside within sixty
(60) days of its filing; or (iii) fails to perform any of its obligations under
this Agreement so as to be in default hereunder and fails to cure such default
within thirty (30) days after written notice of such default.
(c) Purchase Orders; No Waiver. VAR shall be obligated to pay for and
accept deliveries of GEMPLUS Products for which purchase orders were accepted by
GEMPLUS prior to the effective date of termination. After any notice of
termination has been delivered by either party hereunder, deliveries of GEMPLUS
Product from GEMPLUS to VAR, unless otherwise agreed in writing by GEMPLUS in
its sole discretion, shall require prepayment by wire transfer by VAR to
GEMPLUS.
(d) No Liability for Termination. Except as expressly required by law,
in the event of termination of this Agreement by either party in accordance with
any of the provisions of this Agreement, neither party shall be liable to the
other, because of such termination, for compensation, reimbursement or damages
on account of the loss of prospective profits or anticipated sales or on account
of expenditures, inventory, investments, leases or commitments in connection
with the business or goodwill of GEMPLUS or VAR. Termination shall not, however,
relieve either party of obligations incurred prior to such termination.
(e) Effect of Termination; Survival. VAR may sell GEMPLUS Products
existing in its inventory as of the effective date of termination of this
Agreement for a period of ninety (90) days after the effective date of such
termination.
(f) Return of Materials. All GEMPLUS Products, trademarks, data,
samples, literature, and sales and promotional aids of every kind shall remain
the property of GEMPLUS. Within thirty (30) days after the effective date of
termination of this Agreement, VAR shall return such materials to GEMPLUS. VAR
shall not make or retain any copies of any Confidential Information (as defined
in Article 10 below) which may have been entrusted to it.
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10. CONFIDENTIALITY AND PROPRIETARY RIGHTS The parties acknowledge that by
reason of their relationship hereunder each party will have access to certain
information and materials concerning the other party's business, plans,
customers, software and other technology and products that are confidential,
trade secret and of substantial value to such party, which value would be
impaired if such information were disclosed to third parties ("Confidential
Information"). Each party agrees that it (the "Receiving Party") will not use in
any way on Receiving Party's own behalf or on behalf of any third party, nor
disclose to any third party, any Confidential Information revealed to Receiving
Party by the other party (the "Disclosing Party") or otherwise obtained by the
Receiving Party. Receiving Party shall take every reasonable precaution to
protect the confidentiality and avoid unauthorized disclosure of all
Confidential Information. The term "Confidential Information" shall not be
deemed to include information which: (a) is now, or hereafter becomes, through
no act or failure to act on the part of the receiving party, generally known or
available; (b) is known by the receiving party at the time of receiving such
information as evidenced by its records; (c) is hereafter furnished to the
receiving party by a third party, as a matter of right and without restriction
on disclosure; (d) is independently developed by the receiving party without any
breach of this Agreement; or (e) is the subject of a written permission to
disclose provided by the disclosing Party.
11. PATENT/COPYRIGHT/TRADEMARK INDEMNIFICATION
(a) GEMPLUS Indemnification. GEMPLUS shall, at its own expense, defend
or at its option settle, any third party claim, suit or proceeding
(collectively, "Action") brought against VAR to the extent such Action results
from infringement by the GEMPLUS Products of any United States patent issued as
of the Effective Date subject to the limitations set forth herein Gemplus shall
have sole control of any such Action or settlement, and Gemplus agrees to pay
any final judgement entered against VAR in any such Action. VAR agrees that
GEMPLUS will be relieved of the foregoing obligations unless VAR notifies
GEMPLUS promptly in writing of such Action, gives GEMPLUS sole control and
authority to proceed as contemplated herein, and gives GEMPLUS proper and full
information and assistance to settle and/or defend any such Action. If it is
adjudicatively determined, or if GEMPLUS believes, that the GEMPLUS Products, or
any part thereof, infringe any United States patent, copyright or trademark, or
if the sale or use of the GEMPLUS Products, or any part thereof, is, as a
result, enjoined, then GEMPLUS may, at its election, option, and expense: (i)
procure for VAR the right under such United States patent, copyright or
trademark to sell or use, as appropriate, the GEMPLUS Products or such part
thereof; or (ii) replace the GEMPLUS Products, or part thereof, with other
noninfringing suitable GEMPLUS Products or parts; or (iii) suitably modify the
GEMPLUS Products, or part thereof to become noninfringing; or (iv) terminate
distribution or sale thereof and refund the payments paid by VAR for such
GEMPLUS Products less a reasonable amount for use. GEMPLUS will not be liable
for any costs or expenses incurred without its prior written authorization, or
for any installation costs of any replaced GEMPLUS Products.
(b) VAR Indemnification. VAR shall, at its own expense, defend or at its
option settle, any third party claim, suit or proceeding (collectively,
"Action") brought against GEMPLUS to the extent such Action results from
infringement by the VAR Products of any patent, copyright or trademark, except
to the extent such Action is covered by the provisions of Section 11(a) above,
and subject to the limitations hereinafter set forth. VAR will have sole control
of any such Action or settlement negotiations, and VAR agrees to pay, subject to
the limitations hereinafter set forth, any final judgment entered against
GEMPLUS on such issue in any such Action defended by VAR. GEMPLUS agrees that
VAR will be relieved of the foregoing obligations unless GEMPLUS notifies VAR
promptly in writing of such Action, gives VAR sole control and authority to
proceed as contemplated herein, and gives VAR proper and full information and
assistance to settle and/or defend any such Action. VAR will not be liable for
any costs or expenses incurred without its prior written authorization.
(c) Limitations. Notwithstanding the provisions of Section 11(a) above,
GEMPLUS shall have no liability for (i) any infringement claims not covering the
GEMPLUS Products standing alone; or (ii) any modification of the GEMPLUS
Products, or part thereof, (unless such modification was made by GEMPLUS) where
such infringement would not have occurred but for such modifications.
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(d) Disclaimer. THE FOREGOING PROVISIONS OF THIS ARTICLE 11 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF GEMPLUS AND THE EXCLUSIVE REMEDY OF VAR AND
ITS CUSTOMERS, WITH RESPECT TO ANY ALLEGED PATENT, COPYRIGHT OR TRADEMARK
INFRINGEMENT BY THE GEMPLUS PRODUCTS OR ANY PART THEREOF.
12. USE OF TRADEMARKS/TRADE NAMES Subject to the provisions of this Article 12,
during the term of this Agreement, VAR shall have the right to indicate to the
public that VAR Products contain GEMPLUS' Products, and to use the trademarks,
marks, and trade names of GEMPLUS set forth in Exhibit E, as same may be amended
in writing by GEMPLUS from time to time ("GEMPLUS' Trademarks"). In addition,
VAR shall affix and display GEMPLUS' Trademarks on the external casing,
packaging and labeling of VAR Products and as otherwise requested by GEMPLUS
during the term of this Agreement. VAR shall not alter or remove any of GEMPLUS'
Trademarks affixed to or otherwise contained on or within the GEMPLUS Products.
Except as set forth in this Article 12, nothing contained in this Agreement
shall grant or shall be deemed to grant to VAR any right, title or interest in
or to GEMPLUS' Trademarks. At no time during or after the term of this Agreement
shall VAR challenge or assist others to challenge GEMPLUS' Trademarks (except to
the extent expressly required by applicable law) or the registration thereof or
attempt to register any trademarks, marks or trade names confusingly similar to
those of GEMPLUS. All uses of GEMPLUS' Trademarks will inure solely to GEMPLUS,
and VAR shall obtain no rights with respect to any of GEMPLUS' Trademarks, other
than as expressly set forth herein, and VAR irrevocably assigns to GEMPLUS all
such right, title and interest, if any, in any of GEMPLUS' Trademarks. Neither
party may use the name or logo of, or refer to, the other party or any of its
affiliates, directly or indirectly, in any advertisement, sales presentation,
news release, report to a trade or professional group, or other publication
without the other party's prior written approval, which approval shall not be
unreasonably withheld or delayed.
13. LIMITATION OF LIABILITY GEMPLUS' liability arising out of or relating to
this Agreement shall not exceed the aggregate amounts paid by VAR to GEMPLUS
hereunder. EXCEPT FOR LIABILITY OF VAR TO GEMPLUS ARISING UNDER ARTICLES 1, 10
OR 11(B), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, INDIRECT, RELIANCE,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
14. COMPLIANCE WITH LAWS / EXPORT CONTROL VAR understands and acknowledges that
GEMPLUS is subject to regulation by agencies of the United States and French
Governments, including, but not limited to, the U.S. Department of Commerce,
which prohibit export or diversion of certain products and technology to certain
countries, including without limitation the U.S. Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the U.S. Department of Commerce, Bureau of Export
Administration (the "BXA"). Any and all obligations of GEMPLUS to provide the
GEMPLUS Products, as well as any other technical information or assistance,
shall be subject in all respects to such laws and regulations as shall from time
to time govern the license and delivery of technology and products abroad by
persons subject to the jurisdiction of the United States or France. VAR agrees
to cooperate with GEMPLUS including without limitation, providing required
documentation, in order to obtain export licenses or exemptions therefrom. VAR
warrants that it will comply with the U.S. Export Administration Regulations and
other laws and regulations governing exports and re-exports in effect from time
to time. VAR expressly acknowledges that the classification of products for
export control purposes is dependent upon the exact specifications and
functionality of such products and any modification or augmentation of the
functionalities of the GEMPLUS Products by VAR may result in a need for VAR to
re-classify resultant VAR Products for export control purposes. Any individual
export control obligations applicable to particular Gemplus Products are listed
in Annex 1 to Exhibit A, if applicable.
15. MISCELLANEOUS PROVISIONS
(a) Independent Contractors. The relationship of GEMPLUS and VAR
established by this Agreement is that of independent contractors, and neither
party is an employee, agent, partner or joint venturer of the other.
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(b) Assignment. VAR shall not transfer or assign its rights or
obligations under this Agreement without the prior written consent of GEMPLUS
and any purported assignment in violation of the foregoing shall be null and
void.
(c) No Implied Waivers. The failure of either party at any time to
require performance by the other of any provision hereof shall not affect the
right of such party to require performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision hereof be taken or held to
be a waiver of a provision itself.
(d) Severability. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect.
(e) Force Majeure. Except for payment of monies, neither party shall be
liable for failure to fulfill its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, material shortages, strikes,
delays in transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
(f) Conflicting Terms. The parties agree that the terms and conditions
of this Agreement shall prevail, notwithstanding contrary or additional terms,
in any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of GEMPLUS Products.
(g) Notice. Any notice required or permitted to be given under this
Agreement shall be delivered (i) by hand, (ii) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
first set forth above, or to such other address as a party may designate by
written notice, (iii) by overnight courier, or (iv) by fax with confirming
letter mailed under the conditions described in (ii) above. Notice so given
shall be deemed effective when received, or if not received by reason of fault
of addressee, when delivered.
(h) Governing Law. This Agreement shall be governed by and construed
under the law of the State of California, U.S.A., without regard to conflict of
laws principles or the U.N. Convention on Contracts for the International Sale
of Goods.
(i) Arbitration. Any dispute or claim arising out of or in relation to
this Agreement, or the interpretation, making, performance, breach or
termination thereof, shall be finally settled by binding arbitration under the
Rules of Conciliation and Arbitration of the International Chamber of Commerce
as presently in force ("Rules") and by three (3) arbitrators appointed in
accordance with said Rules. Judgment on the award rendered may be entered in any
court having jurisdiction thereof. The place of arbitration shall be San
Francisco, California, U.S.A. Any monetary award shall be in U.S. dollars and
the arbitration shall be conducted in the English language. The parties may
apply to any court of competent jurisdiction for temporary or permanent
injunctive relief without any abridgment of the powers of the arbitrator.
(j) Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
prior agreements relating thereto, written or oral, between the parties.
Amendments to this Agreement must be in writing, signed by the duly authorized
officers of the parties. The terms of any purchase order are expressly excluded.
(k) Government Use / Restricted Rights. If a user of the Gemplus
Products or VAR Products is an agency, department, or other entity of the United
States government ("Government"), the use, duplication, reproduction, release,
modification, disclosure or transfer of such product, or of any related
documentation of any kind, including technical data, is restricted in accordance
with Federal Acquisition Regulation ("FAR") 12.212, for civilian agencies and
Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202, for
military agencies. The Gemplus Product is commercial computer software and
commercial computer software documentation. The use of this product by the
Government is further
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restricted in accordance with the terms of this Agreement, or any modification
hereto and the Gemplus software license agreement provided with the products.
The following legend shall be affixed or attached to the VAR Products:
Use, duplication, reproduction, release, modification, disclosure or
transfer of this commercial product and accompanying documentation is restricted
in accordance with FAR 12.212 and DFARS 227.7202, and by a license agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the Effective Date.
GEMPLUS CORPORATION: Neighborhood Box Office
VAR
By: By:
----------------------------------- ---------------------------
Name: Name:
---------------------------------- ------------------------
(Typed or Printed) (Typed or Printed)
Title: Title:
--------------------------------- -----------------------
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EXHIBIT A
GEMPLUS PRODUCT LISTING
NEIGHBORHOOD BOX OFFICE VAR PRICING
SMART CARDS
ITEM NO. PRODUCT QUANTITY PRICE
-------- ------- -------- ------
1 MPCOS-EMV 8K [**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
2 MPCOS-EMV 16K [**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
3 GemClub Memo [**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
4 GemClub Micro [**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
READERS
ITEM NO. PRODUCT QUANTITY PRICE
-------- ------- -------- ------
1 GCI-410 [**] [**]
[**] [**]
[**] [**]
Larger Qty's will be [**]
quoted on an
as needed basis
2 GCR-410 [**] [**]
[**] [**]
[**] [**]
Larger Qty's will be [**]
quoted on an
as needed basis
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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ITEM NO. PRODUCT QUANTITY PRICE
-------- ------- -------- ------
3 GCR-420 [**] [**]
[**] [**]
[**] [**]
Larger Qty's will be [**]
quoted on an
as needed basis
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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EXHIBIT B
VAR PARTICIPATION OBLIGATIONS
SALES TRAINING: AMOUNT OWED
DESCRIPTION GEMPLUS
--------------- -----------
VAR will attend a two (2) day Partner Orientation course. No charge
EDUCATION AMOUNT OWED
COURSE DESCRIPTION GEMPLUS
------------------ -----------
Dev. 201 MPCOS EMV development class 3 Days ([**] list price/student) Minimum 1
student $[**]/student
Dev. 130 Gemclub Memo development class 1 Day ([**] list price/student) Minimum 1
student $[**]/student
Dev. 132 Gemclub Micro development class 2 Day ([**] list price/student) Minimum 1
student $[**]/student
Dev. 210 Readers (gemcore) development class 2 Day ([**] list price/student)
Minimum 1 student $[**]/student
MINIMUM PURCHASE COMMITMENT (GEMPLUS PRODUCTS) AMOUNT OWED
PRODUCT DESCRIPTION GEMPLUS
---------------------------------------------- -----------
MPCOS-EMV Kit, GDT Ref: RPF04474 B10 ($799 list price) $[**]
GemClub-Memo Evaluation Kit, GDT Ref: RPF12541 A10 ($799 list price) $[**]
GemClub-Micro Kit, GDT Ref: RPF07677 A10 ($799 list price) $[**]
GCI410 Development Kit, GDT Ref: RPF12661 ($5000 list price) $[**]
PROGRAM PARTICIPATION FEE TOTAL $US DOLLARS $[**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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EXHIBIT C
SUPPORT PROGRAM
SALES SUPPORT Account Manager assigned.
TECHNICAL SUPPORT
The Market Support Center is the primary interface for all product-related
questions generated from the VAR.
MSC HOT-LINE ACCESS:
> Phone at (▇▇▇) ▇▇▇-▇▇▇▇
> Email at ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ or
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
> Fax at (▇▇▇) ▇▇▇-▇▇▇▇
The MSC is available 5 days a week from 9:00am to 5:00pm EST.
Hot-line Access for all current and future software offerings are subject to an
Annual Maintenance fee. Currently this applies to, but is not limited to GemSafe
and GemSuite Loyalty solutions.
EXPERT NETWORK WEB SITE
Allows access to a secure and dedicated Web Site for VAR.
DEVELOPERS WEB SITE
Allows access to a Web site designed specifically for developers of Gemplus
products.
PROFESSIONAL SERVICES SUPPORT Gemplus will provide two(2) days of professional
consulting services (at a 40% discount) to the VAR during the term of the
contract. A Statement of Work will be developed by Gemplus and the VAR to
determine the scope of services for these two days. All T&E expenses will be
paid by the VAR.
MARKETING SUPPORT
Delivery of Welcome Kit
Subscription to Vantage Publication
Subscription to Stratagem Publication
Access to ▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇ Solutions
Invitation to the Partners Executive Forum Conference
Invitation to the Partner Advisory Board
Invitation to the Partner Technology Summit
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EXHIBIT D
VAR PERCENTAGE DISCOUNT
CARDS:
The discount to VAR is [**] off the then current list price up to [**] cards.
For quantities from [**] to [**], the discount is [**] off the then current list
price. For quantities greater than [**], the Gemplus Account manager must be
contacted to authorize discounts.
READERS:
The discount to VAR is [**] off the then current list price up to [**] readers.
For quantities greater than [**], the Gemplus Account manager must be contacted
to authorize discounts.
DEVELOPMENT KITS:
The discount to VAR is [**] off the then current list price and only applies to
Kits to be used for VAR's own internal usage and development. VAR shall not
resell any Development Kits to VAR customers without prior written approval by
Gemplus.
EDUCATION
The discount to VAR is [**] off the then current list price. The discount will
apply without limit to the number of persons trained.
PRINTING OPTIONS:
There is no discount on printing costs.
SET-UP OPTIONS:
For card quantities ordered below [**], a one-time setup cost is chargeable.
Refer to the current price list.
PERSONALIZATION SERVICES:
There is no discount on personalization services costs.
"INTERNAL USE ONLY" PROGRAM
Gemplus recognizes that a VAR may require cards for internal training, demos or
shows/exhibitions. Therefore, Gemplus offers its VAR an Internal Use Only
program. This program allows for a [**] discount off the then current price list
on quantities up to [**] cards, for internal use only (not to be resold to any
customer).
All set-up or personalization fees apply.
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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EXHIBIT E
GEMPLUS TRADEMARKS
The partner may publicly define its activities with the following statements and
logos "Gemplus Value Added Reseller" and "Member of the Gemplus Expert Network".
Additional Trademarks: ___ None_________________
___ None_________________
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EXHIBIT F
VAR SALES TARGET
UNITS PRODUCT DESCRIPTION VAR PRICE PER UNIT TOTAL
----- ------------------- ------------------ -----
[**] MPCOS-EMV 8K $[**] $[**]
[**] GEMCLUB MEMO $[**] $[**]
[**] GEMCLUB MICRO $[**] $[**]
[**] GCI 410 READER MODULES $[**] $[**]
TOTAL SALES TARGET IN $USD $[**]
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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EXHIBIT G
NBO CUSTOMERS / PROSPECTS
TO BE LISTED PER NBO/GEMPLUS AGREEMENT, SECTION 3 B, "OBLIGATIONS OF GEMPLUS"
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