Contract
*
CERTAIN
INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
concerning
the purchase
of
Handsets
and Accessories
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Contract
no.
of
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2004-1432
[*]
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valid
from
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[*]
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until
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[*]
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Contract
between
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[*]
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as
purchaser
hereinafter
referred to as "[*]"
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And
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IXI
MOBILE (EUROPE) LTD
00
Xxxxxxxxxx Xxxxxxx
Xxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
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as
Supplier
hereinafter
referred to as "Supplier”
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[*]
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Created
in: [*]
Printed
in: [*]
Created
by: Handset
Sourcing Team
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Supplier
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Page:
2
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Content:
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1
Introduction
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4
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2
Definitions
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5
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3
Subject of the Frame Agreement
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8
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4
Parts and Application of the Frame Agreement
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8
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5
Delimitation
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9
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5.1
Territory
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9
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5.2
Independent Trader
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9
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5.3
No Representation
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9
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6
Deliverables of Supplier
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9
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6.1
Products and Accessories
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9
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6.2
Software
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9
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6.3
Packages
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9
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6.4
Type Approval
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10
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6.5
Pre-Configuration of Handsets
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10
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6.6
Testing of the Products
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10
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6.7
Repair & Repair Services Management
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10
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6.8
Samples, Dummies and Accessories
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11
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6.9
Documentation
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11
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6.10
Training
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11
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7
Scheduling, Quantity Structure & Ordering
Procedures
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11
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7.1
[*]
and Ordering Procedures
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11
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7.2
Information Flow
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12
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8
Prices and Terms of Payments
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12
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8.1
Pricelist
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13
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8.2
Price Settings
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13
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8.3
Remuneration
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13
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8.4
Assignment and pledging of receivables
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13
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8.5
[*]
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13
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8.6
[*]
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13
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9
Benchmarking
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13
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9.1
[*]
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13
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9.2
[*]
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13
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10
Promotion Activities
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13
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10.1
Marketing, Advertising and Sales Promotion
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13
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10.2
Public Relations
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13
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11
Distributor
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14
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12
Import Details
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14
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13
Delay of Delivery and Shipping
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14
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13.1
Hard Milestones
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14
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13.2
Soft Milestones
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14
Warranty & Liability
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14
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14.1
Warranty
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14
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14.2
Interoperability between Network and Handsets
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15
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14.3
Epidemic Failure
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15
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14.4
Liability
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14.5
Force Majeure
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15
Intangibles
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15
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15.1
Software
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15
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15.2
Intellectual Property Rights
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16
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15.3
Trademark and Marking
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16
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16
Confidentiality
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18
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17
Frame Agreement Specifications
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20
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17.1
Terms and Termination of the Frame Agreement
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17.2
Amendments to the Frame Agreement
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17.3
Severability Clause
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17.4
Assignment of this Frame Agreement
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18
Applicable Law and Jurisdiction
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20
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19
Execution
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20
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Supplier
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Page:
4
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1
Introduction
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¨
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Whereas
the Parties have agreed to engage in a clear and effective business
relationship;
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¨
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Whereas
the Parties wish to have predefined terms and conditions, proceedings
and
ways of interacting in order to simplify contract handling by referencing
to this Frame Agreement;
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¨
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Whereas
Supplier intends to sell, market and distribute Mobile Handsets and
its
Accessories;
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¨
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Whereas
[*]
is
highly interested in selling, marketing and distributing Mobile Handsets
and its Accessories from Supplier;
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the
Parties agree as follows:
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Frame
Agreement
Supplier
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Page:
5
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2
Definitions
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Affiliate
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An
economic/juridical entity that is controlled by more than 50% of
voting
power by a Party, an economic/juridical entity that controls a
Party by
more than 50% of the voting power or an economic/juridical entity
that is
controlled by more than 50% of the voting power by the same
economic/juridical entity that controls a Party;
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Annex
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Document
attached to this Frame Agreement;
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Accessories
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All
equipment, that supports the use of a Handset and/or enlarges the
possibilities in using it according to Suppliers’ Accessries
List;
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[*]
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[*];
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Benchmarking
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Comparison
with other companies of the same market on measurable, specific
and
applicable indications of a defined technical or commercial
performance;
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Contract
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Any
binding set of documents which refers to a commercial agreement
entered
into between the parties such as the Commercial Agreement concerning
the
purchase of commercially traded Products, the Commercial Agreement
concerning the purchase of UMTS Products based on 3 GPP or
alike;
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Customised
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Any
function of/or a Deliverable that is developed, designed and made
for
Operator only;
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Date
of Delivery
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Latest
date of a day when Deliverables are to be or have been
delivered;
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Date
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Day,
month and year, where business is conducted. For deadlines shall
apply in
any case the date for a day. For a date on which no business is
conducted,
the deadline of the last day of business shall be
applied;
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Deliverable
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Any
Hardware, Software, Service(s), Maintenance including all related
Documentation and/or combination thereof;
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Delivery
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Actual
supply (Delivery) to the agreed address, always in physical form
either
document, tape, disk or equipment;
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Distributor
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Economic
entity with the contractually stipulated purpose to distribute
the
Products for Operator
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Documentation
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Information
concerning a Product or Deliverable with the purpose to explain,
to
specify, to document, to operate and to train it. It does not include
internal design documents for standard Deliveries;
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End-Users
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Customers
using UMTS/GSM/GPRS Infrastructure with Handsets;
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Epidemic
Failure
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Is
a failure, which appears above-average frequently by the same type
of
Handset. Above-average frequently means, that more than [*] percent
or [*]
units, whichever is [*] of the purchased volume of this Handset
type (sold
to end-user) is affected of this same failure during the period
of four
consecutive weeks.
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Frame
Agreement
Supplier
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Page:
6
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Forecast
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The
rolling planning part of the ordering procedure from the purchasing
unit
of Operator to Supplier;
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Frame
Agreement
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The
entire and signed agreement between Supplier and [*] related to
the
Delivery of Handsets represented by this Contract with all attached
contractual documents;
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GPRS
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General
Packet Radio Service enhanced mobile communication platform in
the
evolution to third generation;
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GSM
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Global
System for Mobile Telecommunication, the second generation of mobile
communication;
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Hard
Milestones
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Exact
deadline for performance with a specific reference to clause 13.1
of this
Frame Agreement;
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Intellectual
Property
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Shall
mean all intellectual property rights and proprietary rights including
but
not limited to any copyright, patent, registered industrial designs,
trade
marks, service marks, source codes, specifications, any logo(s)
or any
rights subsisting everywhere or any application for any of the
foregoing
and any modifications, improvements, developments or enhancements
thereto;
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Maintenance
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Improvements
performed on Deliverables to ensure their optimal
function;
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Milestone
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A
date specified as such in the time schedule by which Deliveries
and/or
activities indicated in the time schedule shall start at the latest
and/or
an event when Delivery of described results will take place. Milestones
may be detailed in "Delivery Milestones" (a day on which a product
is to
be delivered by one or the other party) and "start milestones"
(a day on
which an activity must have begun);
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Operator
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[*]
and all of its Affiliates;
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Order
Acceptance
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Written
confirmation to accept an Order;
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Order
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Receipt
of a duly signed document from Operator to Supplier, confirming
acceptance
of a quotation in full or in part for a Deliverable, stating quantities,
price, type of product, and requested delivery date;
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Party
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[*]
or Supplier;
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Parts
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A
basic Part of a system or sub-system, which cannot be usefully
subdivided;
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Pricelist
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Information
about list prices for Operator furnished and maintained by
Supplier;
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Product,
Product range
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Handsets
and Accessories;
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Quotation
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Duly
signed offer with itemised specifications for a Product/Deliverable
and
services from Supplier to Operator;
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Soft
Milestones
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Due
dates and deadlines without a specific reference to clause 14.1
of this
Frame Agreement;
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Specification
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Full
description of the functionality, the means and the purpose of
a
Deliverable;
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Frame
Agreement
Supplier
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Page:
7
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Standard
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Specification
set by the widespread use in a market (de facto) or by an accepted
body
(de iure);
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Handset
(2G)
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(also
Mobile Handset):
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An
End-User equipment according to 2GSM specifications and, where
applicable,
2+GSM specifications, that allows voice and/or data communication
over
GSM/GPRS networks and all equipment, which is necessary for a normal
and
continuous use of the Handset such as battery charger, external
software
(e.g. CD-ROM) and data-cable (if applicable). This term includes
devices
such as voice centric phones, smartphones, communicators, cardphones,
PC-cards, GSM-modules for specific applications. If there is a
built-in
mobile communication module or a jacket for GSM then organisers,
PDAs,
Pocket PCs, Mininotebooks, Web- or Screenpads are considered as
Handsets
as well. This list of devices is not exhaustive;
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Handset
(3G)
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(also
Mobile Handset):
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An
End-User equipment according to 3GPP, that allows voice or data
communication over 3G and GSM/GPRS networks and all equipment,
which is
necessary for a normal and continuous use of the Handset such as
battery
charger. This term includes devices such as voice centric phones,
smartphones, communicators, cardphones, PC-cards, 3G modules for
specific
applications. If there is a built in mobile communication module
for UMTS
then organisers, PDAs, Pocket PCs, Mini-notebooks, Web- or Screenpads
are
considered as Handsets as well. This list of devices is not
exhaustive;
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Territory
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Contractually
agreed geographical scope for reselling of Product delivered under
the
Frame Agreement and the Commercial Agreements;
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Universal
Mobile Telecommunications Systems, the third generation of mobile
communication;
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UMTS-Product(s)
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Products
related to the UMTS Project;
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Working
Days
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Mondays
to Fridays, with the exception of official public holidays in the
country
of the Operator and according to the Operator's working
time;
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Frame
Agreement
Supplier
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Page:
8
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3
Subject of the Frame Agreement
This
Frame Agreement states the terms and conditions applicable to all aspects in
connection to the Delivery of Mobile Handsets and its Accessories to [*] for
reselling.
4
Parts and Application of the Frame
Agreement
The
following documents form integral parts of the Frame Agreement in the order
they
are listed:
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i.
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This
Frame Agreement document
itself
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ii.
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Global
Annexes
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Global
Annex 1 "Scheme of Contractual Structure"
Global
Annex 2 "Shipping instructions for Suppliers of [*]"
Global
Annex 3 “Process of Product Change Management”
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iii.
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Commercial
Agreements
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Commercial
Agreements shall be concluded under the provisions of the Frame Agreement.
They
shall cover all economic terms and conditions for a period of [*]. They shall
be
supplementary to the Frame Agreement and consist of the “Commercial Agreement”
itself and its Local Annexes e.g.:
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-
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Commercial
Agreements concerning the purchase of commercially traded Products
&
Local Annexes Commercial Agreements for UMTS Products based on 3GPP
(Test
& Trial) & Local Annexes
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Both
Parties confirm, that they are in possession of the above-mentioned documents
of
the Frame Agreement. Supplier understands and accepts the Contractual Structure
as stated in the Global Annex 1 “Scheme of Contractual Structure”.
The
above-mentioned list of documents of the Frame Agreement is not exhaustive
as
new documents (Commercial Agreement, Annexes) may be added from time to time
upon the written agreement of the Parties.
In
case
of contradictions between the Frame Agreement document and the Global Annexes
they shall prevail in the order listed above.
In
case
of contradictions between the Frame Agreement and the Commercial Agreement
the
Frame Agreement shall prevail unless the Commercial Agreement states explicitly
a wilful deviation of the Parties from a specified clause of the Frame
Agreement.
The
general terms and conditions of Supplier and [*] are waived unless attached
to
this Agreement.
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Frame
Agreement
Supplier
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Page:
9
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5
Delimitation
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5.1
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Territory
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The
whole
territory of [*]
shall
be
the Territory for reselling of Product delivered under the Frame Agreement
and
the Commercial Agreements.
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5.2
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Independent
Trader
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[*]
shall
be an independent trader (reseller) of the Handsets and Accessories from
Supplier. [*] buys and sells the Products in its own name and for its own
account.
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5.3
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No
Representation
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This
Frame Agreement does not authorise either Party to engage in transactions in
the
name of the other.
6
Deliverables
of Supplier
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6.1
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Products
and Accessories
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The
range
of Deliverables for this Frame Agreement is defined as follows:
¨ The
whole
and actual Mobile Handset Product range of Supplier.
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¨
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Any
new and/or additional Product(s) and/or new versions of Products
and any
related Accessories therefore.
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6.2
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Software
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Releases
and updates of software associated with the operating system shall be delivered
free of charge over the lifetime of the Handset. Supplier shall support [*]
in
an appropriate way.
Releases
and updates of software used with the Handset type shall be delivered free
of
charge during the warranty period, provided however, that the software has
no
new or additional functionalities.
Major
software upgrades, which enhances Product functionalities will be chargeable
at
an agreed price.
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6.3
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Packages
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Product
packaging will be carried out by Supplier and shall basically not be modified
by
[*]. If required by certain circumstances [*] shall be authorised to modify
the
Packages with the written consent of Supplier, which Supplier shall not
unreasonably withhold. Modify means to add important information in any form
for
the End-user.
The
cost
of production of the packages shall be included in the prices of Handsets.
Bundles
shall be discussed and agreed case by case with Supplier and the respective
unit
of [*] with regard to co-branding, co-marketing and the determination of the
components.
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Frame
Agreement
Supplier
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Page:
10
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6.4
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Type
Approval
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Supplier
is responsible to [*] for ensuring that its Products meet the relevant
[*]
legal
regulations and EU conformity requirements. The Handset has to be certified
under the GCF (Global Certification Forum) scheme. [*] will inform Supplier
on
any Swiss legal regulation it is aware of.
The
CE
label must be added to the Products in a reasonably permanent and clearly
legible way. The Supplier shall undertake - at its own cost - SAR measurements
and shall appropriately publish the results as required by applicable law or
regulation.
If
any of
these obligations regarding type approval are not met and [*] contacts [*],
[*]
shall notify Supplier without delay. Supplier shall handle the issue directly
with [*] or any other competent authority at Supplier's own cost and risk.
Supplier shall hold [*] with regard to such type approval harmless of all costs
and damages awarded by a competent authority against [*] and shall give all
the
necessary support for a solution.
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6.5
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Pre-Configuration
of Handsets
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The
pre-configuration of Handsets is a basic necessity for [*]’s sales business.
Details concerning the pre-configuration are fixed in the respective Commercial
Agreement.
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6.6
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Testing
of the Products
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Handsets
delivered by Supplier, according to the HTS (Handset Term Sheet) as applicable
shall be subjected to tests in accordance with the international standards
and
the specific requirements of the [*] network. If the delivered Handsets fail
these tests [*] shall have the right to return them to Supplier. Returned
Handsets shall be counted as not delivered.
Any
major
technical deviations from international standards can be subject to fail the
tests performed by [*].
The
failure of [*] to identify faults of the Deliverables during the tests shall
not
relieve Supplier from correcting such faults once they have been found at no
additional cost for [*] according to clause 14.1 Warranty.
[*]
shall
either (1) approve the successfully passed tests, or (2) approve the test with
reservation listing as detailed as possible the tests which could not be done
due to technology limitations or (3) shall notify Supplier that the tests were
not passed. Such approvals and notices shall be made in writing. Supplier may
deliver a certain type of Handset only after having received an approval (with
or without reservation). Once such approval is given Supplier is authorised
to
ship the approved products.
Supplier
states hereinafter the standards (standards of ISO etc.) it applies for testing
its own Products in the area of production and Delivery:
- ISO
9001
certified
- ISO
14001certified
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6.7
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Repair
& Repair Services
Management
|
Supplier
shall provide a clear, efficient and economical repair cycle to handle warranty
cases, maintenance and to repair defective Products in a reasonable timeframe
as
well as to deliver spare parts if needed.
|
Frame
Agreement
Supplier
|
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Page:
11
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All
details concerning Repair & Repair Services Management are agreed between
Parties and are fixed in the Contract concerning After Sales
Services.
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6.8
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Samples,
Dummies and Accessories
|
Supplier
undertakes to deliver Samples, Dummies and new Accessories as requested by
[*]
and mutually agreed in the respective Commercial Agreement.
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6.9
|
Documentation
|
Supplier
shall provide complete Documentation of the Products including user instructions
and information concerning operation in a format, which can be reproduced by
[*]. On [*]’s request Supplier shall supply additional documentation against
special remuneration.
[*]
may
copy, use and distribute the user instructions for the purposes in accordance
with this Frame Agreement. No other license to intellectual property of Supplier
is granted to [*]. Supplier reserveseany and all rights not expressly granted
to
[*] hereunder.
Documentation
enclosed with the Product shall be in German/French/Italian and in English
or
otherwise agreed.
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6.10
|
The
copyrights, patents and any trademarks related to Products, manuals,
packages and other Documentation shall remain with Supplier.
Training
|
Supplier
shall provide training for [*]. The scope of this training shall be specified
more detailed in the Commercial Agreement or with the initial order. If [*]
staff can train itself sufficiently based on the Documentation, then the
Documentation and End-Users instructions are considered as
sufficient.
7
Scheduling,
Quantity Structure & Ordering
Procedures
|
7.1
|
[*]
and Ordering Procedures
|
The
objectives and predictions of the quantity structure or yearly sold amount
of
Handsets is defined and agreed with Supplier in the respective Commercial
Agreement.
[*]
The
Orders will be submitted with [*]’s Order form.
The
individual Orders shall be issued in writing exclusively by the sole [*] unit
entitled to purchase:
[*]
[*]
[*]
Supplier
shall refer all other organisational units of [*] to the entitled purchasing
unit of [*].
Supplier
shall confirm Orders and Delivery deadlines within [*]
starting
with the day of reception of the official Order from [*]. No order shall be
deemed accepted without Supplier’s written confirmation. The written
Confirmation shall become binding upon the date of the
confirmation.
|
Frame
Agreement
Supplier
|
|
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Page:
12
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7.2
|
Information
Flow
|
| 7.2.1 |
Product
Road Map of Supplier
|
Supplier
shall proactively inform [*] regarding existing and new products (e.g. Handsets
and accessories) and marketing and sales activities of the Supplier on the
Territory. .
| 7.2.2 |
Duty
to inform
|
Supplier
shall promptly provide information to [*] regarding relevant problems observed
world-wide in conjunction with the use of its products in the market which
the
Suppliers believes may have material impact in the Territory, as well as the
knowledge Supplier has obtained about possible causes and
workaround.
| 7.2.3 |
Information
Exchange
|
For
a
better strategic planning and coordination the Parties agree to participate
in
meetings upon invitation of [*]. The goal of such meetings is on the one hand
to
give Supplier some information about the stage of affairs, sales performance,
running projects including Products of Supplier and to present projections
and
trends of purchasing volumes in the future. On the other hand Supplier has
the
possibility to present new Products, which will be launched in the near future
and to give an overview over the strategic orientation of Supplier’s company in
the telecommunication market and over Supplier’s Product range (news and
trends).
8
Changes
to Products
The
contracting Parties may apply for changes to the standard Products in writing
at
any time. Should SCM require a change to be made, Supplier shall inform [*]
within [*]
whether
or not the change is feasible and what effect the change will have on the
Product to be delivered as well as on payments and deadlines. If necessary,
Supplier shall submit proposals for alternatives which could produce better
commercial or operational results. SCM shall decide by the same deadline whether
or not the change is to be carried out, if Supplier deems it feasible. If
Supplier requests a change, SCM shall accept or reject the request within the
same deadline. SCM shall not unreasonably deny cost reduction proposals from
Supplier.
Any
changes must be set down in writing in the form of a signed addendum to the
contract prior to execution. Any adjustment to payments shall be based on the
original cost base. The Parties shall apply the process as set out in Global
Annex 3 “Process of Product Change Management”
Unless
otherwise arranged, delivery of Products shall be continued and will not be
deemed to be restricted by the above.
|
Frame
Agreement
Supplier
|
|
|
Page:
13
|
9
Prices
and Terms of Payments
|
9.1
|
Pricelist
|
Prices
shall accord basically with the “[*]”
(if
existing) or “[*]”
from
Supplier as stated in the respective annexes of the Commercial Agreements.
In
the
event of price adjustments (lower prices for current Products) or new prices
for
new Products, [*] shall be contacted [*]
and
a new
Pricelist shall be issued and agreed between Parties.
[*]
|
9.2
|
Price
Settings
|
[*]
may
freely set its resale prices for all Deliverables.
|
9.3
|
Remuneration
|
The
remuneration shall cover all goods and services required for the due fulfilment
of the Frame Agreement. In particular, the remuneration shall include
Documentation, packaging, transport, insurance and unloading costs, and
configuration costs, including manual configuration for the first commercial
volumes. Any other costs, fiscal or other public duties shall be agreed in
the
Commercial Agreement.
|
9.4
|
Assignment
and pledging of
receivables
|
Receivables
due to Supplier may not be assigned or pledged to any third parties, which
is
not an Affiliate of the Supplier without [*]’s written permission.
|
9.5
|
[*]
|
[*]
|
9.6
|
[*]
|
[*]
10
Benchmarking
Information
on benchmarking is considered confidential information.
|
10.1
|
[*]
|
[*]
|
10.2
|
[*]
|
[*]
|
Frame
Agreement
Supplier
|
|
|
Page:
14
|
11
Promotion
Activities
|
11.1
|
Marketing,
Advertising and Sales
Promotion
|
As
an
independent trader [*] promotes the Products of Supplier actively at its own
risk and for its own account, whereby the regulations of article 15
(Intangibles) shall apply.
[*]
is
not obliged to disclose its strategic promotion activity, marketing, advertising
or sales promotion plans to Supplier.
A
cooperation shall be aimed at single projects and needs always the agreement
of
both Parties. [*] Projects may be agreed with [*] (Marketing Department) or
with
single trade/sales channels of [*]. Supplier shall use its reasonable efforts
to
inform [*] or the respective trade/sales channels about possible and potential
projects and activities.
If
Supplier plans a national promotion campaign in the Territory to launch a new
Product, Supplier shall inform [*] about these promotion activities and the
conditions for an [*].
|
11.2
|
Public
Relations
|
Neither
Party will advertise or publish any information related to the Frame Agreement
without the prior written approval of the other Party.
|
11.3
|
Investors
Relations
|
Notwithstanding
anything else, Supplier may disclose information related to this agreement
and
the sale of Products to [*] with existing and potential investors of Supplier.
12
Distributor
[*]
is
entitled to distribute Supplier’s Products via a contractually bound Distributor
where such contract includes substantially similar terms of this agreement
with
regard to confidentiality and IPR’s. Therefore, subject to the terms of this
agreement with regard to confidentiality and IPR’s, [*] is qualified to support
the designated Distributor with the necessary support, information and data
without infringing any confidentiality obligation or intellectual property
right
under this Frame Agreement. Especially the Distributor shall have the right
to
inspect the shipments in the name of [*] and to lead the inventory with all
appropriate and necessary means.
13
Import
Details
Supplier
shall procure all necessary approvals.
All
import details have to be settled according to [*]’s procedure as defined in the
respective Commercial Agreement.
14
Delay
of Delivery and Shipping
|
14.1
|
Hard
Milestones
|
If
the
Parties have, in the written definite order by [*], confirmed in writing by
Supplier, agreed upon Hard Milestones (exact deadline for performance with
a
specific reference to this clause), the Party which does not meet the deadline
so fixed shall be in default [*] upon the expiration of such deadline, except
to
the extent such delay is materially caused by the other party in which case
such
milestone will be extended accordingly. Unless [*] notifies Supplier to the
contrary, Supplier shall still be under obligation to supply the Products after
the Delivery date has expired.
|
Frame
Agreement
Supplier
|
|
|
Page:
15
|
If
Supplier is in default it shall be liable to pay a Contract penalty, unless
to
the extent it can prove that no fault is attributable to it. This penalty shall
be [*] of the [*] with a maximum of [*], settlement as mutually agreed. The
Contract penalty shall be payable even if the items are accepted by [*] without
reservation. Paying the Contract penalty shall not release Supplier from its
other contractual obligations.
However,
the penalty shall count towards any compensation payable.
|
14.2
|
Soft
Milestones
|
If
the
Parties have agreed upon Soft Milestones (all due dates and deadlines, which
are
not Hard Milestones), a Party shall only be in default after being reminded
thereof and after expiration of a [*] extension to be granted by the other
Party, except to the extent such delay is materially caused by the other party
in which case such milestone will be extended accordingly. Unless [*] notifies
Supplier to the contrary, Supplier shall still be under obligation to supply
the
Products after the Delivery date has expired.
If
Supplier is in default it shall be liable to pay a Contract penalty, unless
to
the extent it can prove that no fault is attributable to it. This penalty shall
be [*] of the [*], with a maximum of [*], settlement as mutually agreed. The
Contract penalty shall be payable even if the items are accepted by [*] without
reservation. Paying the Contract penalty shall not release Supplier from its
other contractual obligations. However, the penalty shall be the only remedy
for
a delay. Other compensation as a result of the delay are excluded.
|
14.3
|
Forecast
Process
|
Supplier
shall be in Delay, if it can not supply the volumes definitely ordered by [*]
and confirmed in writing by Supplier.
15
Warranty
& Liability
|
15.1
|
Warranty
|
Supplier
warrants that the Performance provided complies with the qualities agreed upon
and any other qualities that are customary in the mobile handset industry in
Europe and which [*] from an objective point of view may assume in good
faith.
The
warranty period shall be [*] for Device(s) and [*] for Accessories from [*]
or
[*] for Device(s) and [*] for Accessories from [*], which ever expires
[*].
Supplier
shall provide the service (repair or replacement of the same or a comparable
Device or Accessories) for hardware and software for at least [*] from
[*].
Claims
based on a warranty shall be exclusively handled pursuant to the "Contract
concerning After sales Services & Service Centre Management". Besides the
warranty claims agreed upon in the "Contract concerning After sales Services
& Service Centre Management"" and the Liability agreed upon in section 15.4
further warranty and/or liability claims are expressly excluded.
Where
defects are fraudulently concealed, the corresponding rights of [*] shall only
be time barred after [*] from [*].
|
Frame
Agreement
Supplier
|
|
|
Page:
16
|
The
warranty periods shall be extended for the period consumed by [*].
The
warranty period on repaired Products shall be the warranty period as stated
in
the Contract concerning After Sales Services, whichever is longer.
|
15.2
|
Interoperability
between Network and
Handsets
|
If
a
Handset is approved by [*] with reservations (see clause 6.6) and the Handset
does not work in [*]'s network system environment due to a failure at the fault
of Supplier which was not detected by [*] because the respective tests could
not
be done due to technology limitations, the following regulation shall apply
in
the following order:
|
1.
|
Supplier
shall give all the needed support at no additional costs to get a
solution;
|
and
if in
the opinion of Supplier no solution can be found in an appropriate
time:
|
2.
|
[*]
may revoke made and undelivered Orders for the particular Product
type
without any further obligations and
liabilities;
|
|
3.
|
[*]
may send back unsold Products of the particular Product type and
claim the
paid price of the product and the costs of
shipment;
|
|
15.3
|
Epidemic
Failure
|
If
an
Epidemic Failure should arise, the following regulations shall
apply:
|
1.
|
Supplier
commits to perform all the needed support to correct the
failure
|
and
if in
the opinion of Supplier no solution can be found in an appropriate
time:
|
2.
|
[*]
may revoke already made and undelivered Orders without any further
obligations and liabilities;
|
|
3.
|
[*]
may send back unsold Products at Supplier’s
expense;
|
|
4.
|
Supplier
shall be responsible for all costs directly arising from the Epidemic
Failure, including the cost to correct the failure, replace the defective
Handsets with new Handsets and shipping
costs.
|
|
Frame
Agreement
Supplier
|
|
|
Page:
17
|
|
15.4
|
Liability
|
Liability
in case of a defect of a Product
If
any
damage arises as a result of a defect, Supplier shall pay compensation except
to
the extent it proves that no fault is attributable to it. Supplier shall be
liable for any fault, i.e. intent and all degrees of negligence. Liability
shall
not exceed [*]. Liability for personal injury shall be [*]. Liability for damage
to property shall be [*]. Liability for purely pecuniary damage shall be
[*].
Liability
for other breaches of the Frame Agreement
Each
Party shall be liable for other breaches of the Frame Agreement and the
Commercial Agreements (e.g. breach of confidentiality, violation of the
obligation to inform the other Party, violation of first call exclusivity,
violation of general obligations of loyalty and due diligence), except to the
extent the Party proves that no fault is attributable to it. The Parties shall
be liable for any fault, i.e. intent and all degrees of negligence. Liability
shall not exceed the amount of damages, which have actually arisen. Liability
shall be [*]. The compensation for damages caused by a violation of intellectual
property rights and breach of first call exclusivity shall [*].
Liability
for Default
Each
Party shall be liable for any damages arising from failure to meet deadlines
or
due dates (default), except to the extent it proves that no fault is
attributable to it. The Parties shall be liable for any fault, i.e. intent
and
all degrees of negligence. Liability shall not exceed the amount of damages,
which have actually arisen. The liability for default shall be
[*].
Each
Party shall not be liable for loss of goodwill and loss of anticipated
savings.
No
further liability: Any liability other than as provided in this Section 15.4
shall be excluded.
|
15.5
|
Force
Majeure
|
Either
Party shall be excused from the performance or punctual performance of any
of
its obligations under this Frame Agreement in case the performance thereof
is
prevented or delayed by industrial disputes or any cause beyond the affected
Party’s reasonable control which, without in any way limiting the generality of
the foregoing, shall include acts of God, riots, wars, accidents, embargos
or
requisitions (acts of government), or delays in the performance of its
subcontractors only if caused by any such circumstances as referred to in this
Clause 14.5 Force Majeure. Such obligations shall be extended for a reasonable
period.
In
case
of Force Majeure, the affected Party shall promptly notify the other Party
in
writing and furnish all relevant information thereto.
|
Frame
Agreement
Supplier
|
|
|
Page:
18
|
16
Intangibles
|
16.1
|
Software
|
The
software in the Product(s) may only be used as an integrated part of the
Products in selling, marketing and distributing the Products and only in
accordance with and for the purpose of this Agreement. [*] is not entitled
to
distribute, sublicense, copy or otherwise use the software as a standalone
product or in any way except as expressly permitted by Supplier in
writing.
Supplier
or any third party, as applicable, shall retain the intellectual property rights
for the software. SUPPLIER reserves any and all rights not expressly granted
to
[*] hereunder.
Where
third party rights are involved, Supplier represents that it owns the necessary
rights to enable [*] to market and sell the Products
[*]
shall
be granted all rights necessary for the sale and distribution of the software
with the Product (under this agreement), including the right of sublicensing
to
the End User as xxxxxxxxxx.Xx addition to the restrictions set forth above,
[*]
shall not be entitled to, in particular, copy, reproduce, modify, reverse
engineer, disassemble, decompile, otherwise attempt to derive source codes
from
the object of the software nor to damage any software or make such software
available to third parties.
|
16.2
|
Intellectual
Property Rights
|
Supplier
or any third party, as applicable, shall retain the intellectual property rights
for the software. Supplier reserves any and all rights not expressly granted
to
[*] hereunder.
Supplier
shall contest at its own cost and risk any third party claims arising from
infringements of intellectual property rights and shall hold [*] harmless of
all
costs and damages awarded against either or both of them. To qualify for such
defense and payment of damages, [*] must: (i) give Supplier prompt written
notice of such claim; and (ii) allow Supplier to control, and cooperate with
IXI
in, the defense, settlement, and all related negotiations.
Supplier
will not be obligated to defend nor shall it be liable for any costs and damages
hereunder:
|
a)
|
if
the infringement arises out of modifications of the Products (including
software), if made - without prior written consent of Supplier -
by [*] or
any third party other than Supplier (other than a subcontractor of
Supplier), or
|
|
b)
|
if
the infringement arises out of modifications of the Products (including
software) if made by Supplier pursuant to the directions of [*],
except
for cases where, and only to the extent, the infringement concerns
intellectual property rights protected by license or other contracts
between Supplier and such 3rd
party claiming infringement or
|
|
c)
|
if
the infringement arises out of modifications of the products including
software made by Supplier in order to comply with [*]'s specifications,
except for cases where, and only to the extent, the infringement
concerns
intellectual property rights protected by license or other contracts
between Supplier and such 3rd
party claiming infringement, or
|
|
Frame
Agreement
Supplier
|
|
|
Page:
19
|
|
d)
|
if
the infringement arises out of modifications or a combination with
or an
addition to software or hardware developed or supplied by [*] or
with the
consent of [*] by a third party (other than a subcontractor of Supplier),
or,
|
|
e)
|
if
the infringement arises out of the manufacturing of Products pursuant
to
[*]’s specifications and/or requirements, except for cases where, and
only
to the extent, the infringement concerns intellectual property rights
protected by license or other contracts between Supplier and such
3rd
party claiming infringement, or
|
|
f)
|
if
[*] does not comply with the terms of this agreement regarding protection
of intellectual property rights.
|
If
the
Product is likely to, or does, become the subject of a claim of infringement,
Supplier will at its option and expense either procure for [*] the right to
continue selling the Product or modify the Product to make it non-infringing
or
replace it with substantially similar non-infringing Product, which will come
under this same Agreement. Supplier shall have no liability, and its
indemnification obligations hereunder shall cease, if [*] does not replace
the
infringing Product so modified or replaced by Supplier as per Supplier’s
instructions. Supplier will use commercially reasonable efforts to effectuate
one of these options, however, if none of the foregoing alternatives is
available to Supplier, then Supplier will refund the full purchase price paid
to
Supplier for those infringing Products returned to Supplier and [*] may
terminate this Agreement at its sole discretion.
Section
15.4 and the foregoing provisions state the entire liability of Supplier with
respect to infringement of any intellectual property rights by the products
or
documentation or any parts thereof and is in lieu of all warranties or
conditions, express or implied.
[*]
agrees to defend, indemnify and hold Supplier harmless from and against any
and
all claims and damages that Supplier may at any time suffer, or incur, or become
subject to as a result of or arising from acts of [*], its employees,
distributors or agents except for such acts undertaken due to instructions
of
Supplier. To qualify for such defence and payment of damages, Supplier must:
(i)
give [*] prompt written notice of such claim; and (ii) allow [*] to control,
and
cooperate with [*] in, the defence, settlement, and all related negotiations.
[*] will not be obligated to defend nor shall it be liable for any costs and
damages hereunder if these conditions are not fulfilled. Section 15.4 and the
foregoing provision state the entire liability of [*] with respect to
infringement of any intellectual property rights by [*] and is in lieu of all
warranties or conditions, express or implied.
|
16.3
|
Trademark
and Marking
|
[*]
may
use the trademark for the Products of Supplier only in connection with (re-)
selling and advertising purposes in the Territory. [*] complies with the fact,
that each use of the trademark shall serve the benefit of Supplier. If the
trademark of Supplier is used, e.g. for copies or for illustration on packages,
for advertising material or for other media, [*] shall apply the terms
regulating the rights of the use of the trademark, actually provided by Supplier
regarding the extent, design, positioning, colouring and other prescriptions
of
appearance of the trademark. Furthermore every additional use of the trademark
of Supplier needs the prior written approval of Supplier.
Supplier
is not authorised to use the trademarks and marking of [*] in any case without
the written consent of [*] such consent not to be unreasonably
withheld.
|
Frame
Agreement
Supplier
|
|
|
Page:
20
|
17
Confidentiality
[*]
and
Supplier
have entered into that certain Mutual Nondisclosure Agreement dated [*]
between
[*] and Supplier, (the “Nondisclosure Agreement”) incorporated herein by this
reference. Supplier and [*] hereby ratify and confirm their continuing duties,
rights and remedies under the Nondisclosure Agreement which shall continue
through the term of this Frame Agreement.
18
Frame
Agreement Specifications
|
18.1
|
Terms
and Termination of the Frame
Agreement
|
This
Frame Agreement shall come into effect when signed by both Parties and shall
be
valid as of the time of conclusion of the Frame Agreement without a time
specified of limitation and termination. Each Party is authorised to terminate
as a whole this Frame Agreement with all the Commercial Agreements together
by
the end of [*] by giving a [*] notice in writing to the other Party. Any
provisions of the Frame Agreement and the Commercial Agreements that impose
continuing obligations on the Parties shall survive the
termination.
|
18.2
|
Amendments
to the Frame Agreement
|
Supplements
and amendments to this Frame Agreement, its elements and the Commercial
Agreements shall only be valid, if agreed to in writing by both Parties. This
also shall apply for the waiver of this provision.
|
18.3
|
Severability
Clause
|
If
any
provision in the Frame Agreement or the Commercial Agreements is incomplete
or
legally invalid or not executable for legal reasons, the other provisions shall
remain in full force and effect. In such cases the Parties shall agree to
replace any void or invalid provisions by legally valid provisions, which are
as
equivalent as possible to the original provisions in terms of
economy.
|
18.4
|
Assignment
of this Frame Agreement
|
Either
Party consents to the assignment of this Frame agreement by the other Party
to a
third party upon a merger, acquisition, purchase of stock, sale of substantially
all assets or similar change in control transaction of other Party.
19
Applicable
Law and Jurisdiction
This
Frame Agreement and the Commercial Agreements are governed by the internal
substantive laws of [*] to the exclusion of the Vienna Convention on the
International Sale of Goods and any conflict of laws principles.
The
place
of jurisdiction shall be [*].
|
Frame
Agreement
Supplier
|
|
|
Page:
21
|
20
Execution
This
Frame Agreement document shall be executed in two copies. Each Party shall
receive one signed copy.
|
Signatures
of the Parties
|
|||||
|
For
Supplier:
|
|||||
|
/s/
|
|||||
|
Signature
and company stamp (Please write the name of the person signing in
CAPITALS)
|
|||||
|
Place
and date:
|
[*]
|
||||
|
For
[*]:
|
|||||
|
[*]
|
[*]
|
||||
|
[*]
|
[*]
|
||||
|
[*]
|
|||||
| Place and date: | [*] |
[*]
|
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|
|
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