EXHIBIT 10.47
CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
This Agreement is made between:
Motorola Ltd., trading as Motorola, Cellular Subscriber Division, UK, Midpoint,
Alencon Link, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX, Xxxxxx Xxxxxxx (Registered
Office: Jays Close, Xxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX,
Registration No. 912182, England) (hereinafter called "Motorola")
and
Cellstar UK Limited, Bushbury House, 000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxx
X00 0XX (hereinafter called the "Distributor").
Recitals
1. Appointment and Acceptance
2. Prices, Payment and Marketing
3. Order and Delivery
4. Distributor Responsibilities
5. Warranty, Customer Service and Type Approval
6. Duration and Termination
7. Remedies
8. Proprietary Rights
9. Confidentiality
10. Sales to the US Government
11. General
Schedules
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MOTOROLA CONFIDENTIAL PROPRIETARY
CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
RECITALS
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A. Whereas Motorola is a producer of cellular subscriber products of
international repute and wishes to appoint the distributor as a
distributor of these products;
B. Whereas the distributor is interested to obtain these products from
Motorola for marketing and sale;
Now it is agreed as follows:
1. APPOINTMENT AND ACCEPTANCE
--------------------------
1.1 Motorola appoints the Distributor as distributor of the cellular
telephone products listed in the Schedule A, (hereinafter
referred to as the "Products") and agrees to deliver the
Products to the Distributor in accordance with the terms of this
Agreement.
1.2 The Agreement is non-exclusive. Motorola may appoint additional
distributors, retailers, dealers or make direct sales itself or
through an affiliate in the Area of Prime Marketing
Responsibility (as defined below). As used in this Agreement the
term an "affiliate" of Motorola shall mean any corporation or
entity ultimately owned or controlled, directly or indirectly,
by Motorola Inc., USA.
1.3 The Distributor's area of prime marketing responsibility is the
UK ("the Area of Prime Marketing Responsibility"). Without
prejudice to the Distributors' right to unrestricted sales
distribution the Distributor recognises that his expertise in
and knowledge of the Area of Prime Marketing Responsibility is a
key factor to its appointment and as such performance in the
Area of Prime Marketing Responsibility to Motorola's
satisfaction is a condition of this Agreement. Specifically, the
Distributor shall maintain, for a period of 6 months from the
commencement of this Agreement, a supply of Products to those
Service Providers not trading directly with Motorola at any time
during this Agreement term.
1.4 Motorola may revise the list of Products from time to time
without any liability to the Distributor. At its sole discretion
Motorola may also at any time discontinue the production or
sale, or modify the design or material specifications of any
Products or parts thereof, without any liability or obligation
to the Distributor or its customers, including, without
limitation, any obligation to modify any Products previously
ordered by the Distributor.
2. PRICES, PAYMENT AND MARKETING
-----------------------------
2.1 The Product prices are listed in Schedule B. Motorola will
inform the Distributor of any change in Motorola prices without
delay and, notwithstanding the terms of Schedule B. Motorola
will apply any change to the prices for Products accordingly.
The change in price for Products shall apply for all orders
received prior to the price change and not yet despatched by
Motorola as well as orders received after the price change. Any
reduction in price will further apply to Products delivered
within 30 days prior to the date of introduction of the new
Motorola prices to the market and still in the Distributor's
inventory, unless 30 days notice of the price change has been
given by Motorola.
2.2 The Distributor shall pay Motorola in accordance with Schedule
C. If the Distributor fails to pay any invoice when due or if
Motorola, in its reasonable discretion, deems the Distributor's
financial condition inadequate, Motorola may, in addition and
without prejudice to its other rights, suspend shipments of the
Products. Without limiting the generality of the foregoing,
Motorola is entitled to terminate the Agreement immediately by
written notice should payments by the Distributor to Motorola be
more than two months overdue.
2.3 Motorola reserves the right at any time to decrease, eliminate,
or otherwise limit the amount or duration of any credit which
may be extended to the Distributor in general and/or with
respect to any single purchase order.
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MOTOROLA CONFIDENTIAL PROPRIETARY
CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
2.4 Motorola may provide marketing support as it deems necessary to
assist in promoting sales of the Products. This marketing
support will be at 1% of the net sales value on a 50/50 split
basis given similar expenditure from the Distributor.
Motorola's "Options" programme shall apply.
3. ORDER AND DELIVERY
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3.1 Commencing 1st April 1996 and subsequently by the 15th day of
each month the Distributor shall advise Motorola of its
requirements for Products based on a rolling 12 month programme.
The first three months of this programme is a fixed order for
Products which shall bind the Distributor. The next three months
can be modified by plus or minus 20% (by volume) from the prior
order and the remaining 6 months of this programme shall be used
only as a forecast.
3.2 The Distributor shall submit written Purchase Orders to Motorola
in respect of the binding element of clause 3.1 above. The
receipt of such orders will be acknowledged by Motorola but no
order will be binding on Motorola unless a further written
acceptance is submitted by Motorola, or Products are delivered
(whichever occurs first).
3.3 The delivery terms are as specified in Schedule B. Motorola will
endeavor to deliver the Products by the date(s) confirmed by
Motorola. However, Motorola shall in no event by liable for any
losses resulting from delays in the delivery of Products.
Motorola does not warrant to the Distributor the continued
availability of any of the Products, and the Distributor hereby
expressly releases Motorola from liability for any loss or
damage to the Distributor arising out of, or by virtue of, the
failure of Motorola to accept or fulfil any orders due to
particular shortages or general product unavailability howsoever
caused. In the event of such shortages the Distributor consents
to any apportionment of shipments that Motorola, at its sole
discretion, may determine to be appropriate.
3.4 All Products shall remain the property of Motorola until full
payment is made by the Distributor.
3.5 This Distributor agrees to comply with all applicable laws and
regulations regarding the exportation or re-exportation (direct
or indirect) of the Products or technical data supplied by
Motorola.
4. DISTRIBUTOR RESPONSIBILITIES
----------------------------
Without prejudice to any other obligations contained in this Agreement
the Distributor shall:
4.1 Use its best efforts to sell, advertise and promote the sale and
use of all of the Products throughout the Area of Prime
Marketing Responsibility.
4.2 In order to satisfy clause 4.1 above, purchase at least the
minimum annual volumes of the Products referred to in
Schedule A.
4.3 Conform to Motorola's service and engineering instructions when
providing services for Products in order to fully satisfy
customers.
4.4 Order and maintain at least the minimum stock of inventory of
the Products, parts, test equipment and installation equipment
which the parties determine necessary to support the
Distributor's sales effort in the Area of Prime Marketing
Responsibility.
4.5 Maintain a suitable place of business in a suitable location or
locations, as the market may require and co-operate with
Motorola to establish and maintain the standards and reputation
of the Products.
4.6 Appoint such sub-distributors, dealers, retailers in the Area of
Prime Marketing Responsibility for the term of this Agreement as
are necessary in order to provide adequate sales and service
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MOTOROLA CONFIDENTIAL PROPRIETARY
CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
coverage; instruct such sub-distributors as necessary in the
sale and servicing of Products and ensure they comply with
Motorola's rules and policies concerning trademarks and trade
names. The Distributor shall be liable to Motorola for the
activities or omissions of sub-distributors, dealers, retailers
appointed by the Distributor.
4.7 Furnish to Motorola information relating to orders, sales,
service, and inventory of Products and Product sales budgets and
forecasts, in such a manner as Motorola may from time to time
reasonably request and specifically sell through data on a
weekly basis, with respect to the Area of Prime Marketing
Responsibility.
4.8 Comply with all relevant legal requirements including but not
limited to all appropriate safety, environmental, type approval
and other requirements.
4.9 Provide a warranty for the Products to its customers which
complies with applicable warranty requirements under the laws
and competitive conditions of the country of resale.
5. WARRANTY, CUSTOMER SERVICE AND TYPE APPROVAL
--------------------------------------------
5.1 Motorola will provide the Distributor with warranty, customer
service and support as specified in Schedule D. The obligations
of the parties in respect of Type Approval are also specified in
Schedule D.
6. DURATION AND TERMINATION
------------------------
6.1 This Agreement shall commence on 1st April 1996 and will
continue in force for a period of one year, subject to the
provisions of this clause 6.
6.2 The duration of this Agreement is specified in clause 6.1 above
and it shall continue thereafter subject to Motorola terminating
it by a written three month notice to the other party, such
notice expiring at the end of the term in clause 6.1 above and
being served in accordance with clause 11.14.
6.3 Notwithstanding 6.2 above, either party may terminate this
Agreement upon 30 days written notice to the other party in the
case of a material breach by the other party of any obligation
specified in this Agreement.
6.4 Without prejudice to clause 2.2 above, the Agreement may be
terminated forthwith by either party on giving notice in writing
to the other if the other party, being a company, shall pass a
resolution for winding up (otherwise than for the purpose of a
solvent amalgamation or reconstruction where the resulting
entity assumes all of the obligations of the relevant party
under this Agreement), or a court shall make an order to that
effect, or being a partnership shall be dissolved, or if the
other party shall cease to carry on its business or
substantially the whole of its business, or becomes or is
declared insolvent or commits any act of bankruptcy or proposes
to make any arrangement or composition with its creditors, or if
a liquidator, administrator, receiver, or similar officer is
appointed of any of the assets of the other or any analogous
step is taken in connection with the others insolvency,
bankruptcy or dissolution.
6.5 On the expiration or termination of the Agreement, the
Distributor shall promptly return to Motorola:
6.5.1 all documents placed at its disposal by Motorola.
6.5.2 any type approvals held by the Distributor relating to
Products. Further, the Distributor agrees to render all
necessary assistance free of charge including but not
limited to the signing of the appropriate forms required
by the local type approval authorities, in connection
with the assignment of or re-application for type
approvals for Products.
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6.6 No claims for compensation can be lodged by reason of the
termination or expiry of the Agreement, unless these claims are
based on the breach of contractual provisions by one of the
parties.
6.7 In the case of any change in the ownership or structure of the
Distributor, the Distributor shall inform Motorola immediately.
If Motorola deems the change will materially affect its position
then Motorola reserves the right to terminate the Agreement with
immediate effect without liability on the part of Motorola.
6.8 Subject to clause 6.2 above, nothing contained in this Agreement
shall be deemed to create any express or implied obligation on
either party to renew or extend this Agreement or to create any
right to continue this Agreement on the same terms and
conditions contained in it.
6.9 All sums owed by either party to the other shall become due and
payable immediately upon the termination of this Agreement.
7. REMEDIES
--------
This clause defines the limits of Motorola's liability to the
Distributor in respect of this Agreement whether in contract or tort
including negligence and the Distributor's sole remedies in respect of
any act or default of Motorola.
7.1 Motorola will accept liability for death or personal injury
resulting from its negligence.
7.2 Motorola will accept liability for direct physical damage to the
tangible property of the Distributor to the extent that it is
caused by the negligence of Motorola subject to the exclusions
set out in clause 7.4 below and up to a maximum limit of (pound
sterling) 1 million sterling in the aggregate.
7.3 Except as provided in clause 7.1 and 7.2 above, Motorola's total
liability in respect of any one default shall not exceed 125% of
the total purchase price of all the Products in respect of which
Motorola is in default. If a number of defaults give rise to
substantially the same loss or are attributable to the same or
similar cause, then they shall be regarded as giving rise to
only one claim hereunder. Motorola will be afforded a reasonable
opportunity to remedy any such default.
7.4 Except as provided in clause 7.1 above, Motorola shall not be
liable for loss of profits, business, revenue, goodwill,
anticipated savings, special, indirect or consequential losses
even if foreseeable by or in the contemplation of Motorola or
any claim made against the Distributor by any other person.
7.5 Except as expressly stated herein, all conditions and warranties
implied, statutory or otherwise, are hereby excluded to the
maximum extent permitted by law.
8. PROPRIETARY RIGHTS
------------------
8.1 The Distributor will not impair Motorola's right, title or
interest in its corporate name(s) or logo(s), or any part
thereof, or to trademarks or trade names used on or in
connection with Motorola's Products. Nothing herein shall grant
to the Distributor any such right title or interest. The
Distributor shall not encourage any practice which might be
detrimental to the goodwill of Motorola or Motorola's Products.
8.2 For the purposes of advertising and selling the Products, the
Distributor may, during the term hereof, indicate that it is an
authorised Distributor of Motorola for the Products in which
case the Distributor will submit to Motorola specimens of its
letterhead, business cards, telephone directory listings, truck
markings and business establishment signs for approval of the
format by Motorola, and the Distributor shall follow Motorola's
specification with respect thereto. The
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CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
Distributor shall have no rights to use the trademarks of
Motorola without prior written permission.
8.3 The Distributor agrees, upon expiration or termination of this
Agreement to immediately discontinue (i) using or making
reference to Motorola's corporate name or to trade names and
trademarks of Motorola, and (ii) representing directly or
implicitly, that it is or was a Distributor of Motorola.
8.4 Motorola agrees to defend at its expense any suit brought
against the Distributor based upon a claim that any Products
furnished hereunder directly infringe a third party patent,
copyright or trademark and to pay costs and damages finally
awarded in any such suit, provided that Motorola is notified
promptly in writing of the suit and at Motorola's request and at
its expense is given control of said suit and all requested
assistance for defence of same. If the use or sale of any
Products furnished hereunder is prevented by injunction as a
result of suit. Motorola at its option and at its expense, shall
obtain for the Distributor the right to use or sell said
Products or shall substitute an equivalent Product reasonably
acceptable to the Distributor and extend this indemnity thereto
or shall advise the Distributor to return Products and
discontinue further sales and Motorola shall reimburse the
Distributor the purchase price thereof. This indemnity does not
extend to any suit based upon any infringement or alleged
infringement of any patent, copyright or trademark by the
combination of any Products furnished by Motorola and other
elements nor does it extend to any products of the Distributor's
design or formula. The foregoing states the entire liability of
Motorola for patent, copyright or trademark infringement.
8.5 Motorola has certain rights in Motorola software, firmware or
other computer programs or data residing in the Products
(hereinafter referred to collectively as "Software"), including
without limitation the right to prepare works derived from same
in copies and distribute copies of same. The Distributor shall
not prepare works derived from, reproduce in copies or
distribute copies of, any Motorola Software except for
demonstration purposes.
8.6 Whenever the term "Motorola" is used in this clause it also
covers affiliates of Motorola as defined in clause 1.2.
9. CONFIDENTIALITY
---------------
9.1 Confidential information is defined as information which
relates to the business activities of either party in
particular, but not limited to, all information relating to the
details of this Agreement and the prices at which the
Distributor purchases the Products from Motorola, as well as
information which it may receive in connection with this
Agreement concerning names of the business concerns using the
Products, and the organisation, business dealings or affairs of
Motorola, which is disclosed in oral, written, graphic, and/or
sample form, being clearly designated, labelled or marked as
confidential at the time of its disclosure.
9.2 The Distributor undertakes not to reproduce or distribute such
Confidential information, and to take all reasonable means to
prevent the dissemination of such information to anyone except
the Distributor's employees who may need it for the performance
of their duties, except as may be authorised by Motorola in
writing. The obligations of confidentiality provided for herein
shall survive the expiration or termination of this Agreement
for whatever reason, for a period of 5 years from the date of
such termination.
10. SALES TO THE US GOVERNMENT
--------------------------
10.1 If the Distributor sells Motorola's Products or services to the
US Government or to a prime contractor selling to the US
Government, the Distributor does so solely at its own option and
risk. The Distributor remains solely and exclusively responsible
for compliance with all statutes and regulations governing sales
to the US Government. Motorola makes no representations.
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MOTOROLA CONFIDENTIAL PROPRIETARY
CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
certifications or warranties whatsoever with respect to the ability
of its goods, services or prices to satisfy any such statutes or
regulations.
11. GENERAL
-------
11.1 Any obligations and responsibilities which by their nature extend
beyond the expiration or termination of this Agreement, including
but not limited to clauses 6.5, 7, 8 and 9, shall survive and
remain in effect.
11.2 The headings used in this Agreement are for convenience only and
shall not be used in order to construe the terms of this Agreement.
11.3 No waiver by either party of any of its rights hereunder shall
prejudice its ability to enforce such rights.
11.4 If any provision of this Agreement is found by any court or
competent authority to be void or unenforceable, such provision
shall be deemed to be deleted from this Agreement and the remaining
provisions shall be given effect so far as is possible.
Notwithstanding the foregoing the parties shall thereupon negotiate
in good faith in order to agree the terms of a mutually satisfactory
provision to be substituted for the provision so found to be void or
unenforceable.
11.5 Neither party shall be under any liability whatsoever in respect of
any breach of this Agreement to the extent that this is due directly
or indirectly to a cause beyond its reasonable control.
11.6 Unless expressly provided for elsewhere in this Agreement, any
revisions to this Agreement must be agreed upon in writing by both
the Distributor and Motorola and must be signed by authorised
representatives of both companies.
11.7 The Agreement and any amendments will be prepared in the English
language. If translated the English version shall be the only
legally binding version and the only version used for
interpretation.
11.8 No assignment of this Agreement by the Distributor or any right or
obligation hereunder shall be made by the Distributor without the
prior written consent of Motorola.
11.9 Motorola may from time to time assign the benefit and/or the burden
of this Agreement in whole or in part to its affiliate without the
consent of the Distributor and may from time to time authorise its
affiliates to have the benefit of any of its rights and/or to carry
out any of its obligations without the consent of the Distributor.
11.10 Motorola and the Distributor are independent contractors. Neither
party shall act or represent itself, as agent, partner, employee,
joint venture or representative of the other party or any of its
affiliates; nor shall either party assume or create any obligation
or liability on behalf of the other party or any of its affiliates
or hold itself out as entitled to do so.
11.11 The Distributor will refrain from any activities which are illegal,
unethical or which might bring Motorola into disrepute or which
constitute or could be made to be a serious conflict of interest or
which might give the appearance of impropriety. The Distributor will
co-operate fully in any investigation or evaluation of such matters.
Breach of this clause by the Distributor will entitle Motorola to
terminate this Agreement without notice.
11.12 All disputes between Motorola and the Distributor arising out of or
relating to this Agreement shall be referred first to senior
executives appointed by the parties who have the authority to settle
the same. If the dispute cannot be resolved through negotiation
within a maximum period of 14 days, or such other period as agreed
in writing by the parties, it may be referred to the exclusive
jurisdiction of the English courts.
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MOTOROLA CONFIDENTIAL PROPRIETARY
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11.13 This Agreement and the rights and duties of the parties shall be
governed and interpreted according to the laws of England. All
disputes shall be submitted to the exclusive jurisdiction of the
English courts.
11.14 All notices hereunder must be made in writing and sent to the
following address either by fax or first class or registered mail:
1. Motorola Ltd., trading as Cellular Subscriber Division, UK
Midpoint, Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX,
Xxxxxxx
Tel No: 00000 000000
Fax No: 00000 00000
For the Attention of: Xxx Xxxxx
2. Cellstar UK Limited, Bushbury House, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxx X00 0XX
Tel No: TBA
Fax No: TBA
For the Attention of: TBA
Notices shall be deemed to be received on the next business day
after transmission to the correct fax number in the case of faxes
and five business days after despatch in the case of messages sent
by post. All faxed notices shall be followed up by post.
11.15 This Agreement and its Schedules are the complete and exclusive
statement of the agreement of the parties relating to the subject
matter hereof and supersedes all proposals or prior agreements oral
or written and all other communications between the parties relating
thereto.
11.16 The Schedules outlined below, are an integral part of this Agreement
and may, where necessary, be modified by Motorola upon written
notice to the Distributor. In the event of any conflict between the
Agreement text and the Schedules, the Agreement shall take
precedence:
Schedule A - Products and Volume
Schedule B - Pricing
Schedule C - Payment and Credit Terms
Schedule D - Warranty, Customer Service and Type Approvals
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THE SIGNATORIES TO THIS AGREEMENT ARE FULLY AUTHORISED BY THEIR COMPANY TO SIGN
ON ITS BEHALF.
SIGNATURES TO THE AGREEMENT
---------------------------
CELLSTAR UK LIMITED MOTOROLA LTD
Signature: /s/ Xxxx X. Xxxxxxxxx Signature: /s/ Xxxxx Pin
------------------------ ------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxx Pin
------------------------ ------------------------
Title: Director Title: Corp. V.P.
------------------------ ------------------------
Date: April 3rd 1996 Date: 4/3/96
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MOTOROLA CONFIDENTIAL PROPRIETARY
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SCHEDULE A
PRODUCTS AND VOLUME
1. Motorola Product Description
----------------------------
ETACS and GSM Products, and accessories, as agreed in writing between the
parties from time to time.
It is the intention of both parties to explore the UK distribution
opportunities for PCN products and accessories. This will be done by
agreement with the relevant UK PCN Operators to ensure commercial viability
to all three parties of the product distribution channels to market.
2. Volume
------
Subject to favourable market conditions the minimum purchase commitment for
the Agreement year is 200,000 units of those Products (excluding
accessories) detailed in this Schedule.
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CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
SCHEDULE B
PRICING
1. All prices for Products are Ex-Works Motorola Distribution Centres, as
defined in Incoterms 1990 (and are exclusive of Tax, Import Duties).
2. Prices for Products and accessories are in Pounds Sterling and as advised in
writing by Motorola from time to time.
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SCHEDULE C
PAYMENT AND CREDIT TERMS
1. All payments will be made in UK Pounds Sterling as defined on the relevant
invoice
2. The due date for payment will be 30 days from the end of the month in which
the invoice is rendered.
3. The Distributor will not withhold payment for shipments which satisfy part
of an order.
4. Motorola reserves the right to claim interest in case of late payments. The
interest shall be compounded at 2% per month and will be charged monthly to
the account.
5. Motorola will give early settlement discount of 2% of the gross invoiced
amount for cash with order, and 1% for payment received by the end of the
fourteenth day following the invoice date.
6. Notwithstanding the above, Motorola may agree in writing alternative methods
of payment and credit terms. Motorola at all times reserves the right to
amend from time to time and without prior notice such payment/credit terms.
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SCHEDULE D
WARRANTY, CUSTOMER SERVICE AND TYPE APPROVAL
1 WARRANTY
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1.1 Subject as herein provided Motorola warrants to the Distributor that all
Products supplied hereunder will comply with the applicable Motorola
published specifications at the date of purchase for 12 months from the
date of purchase by the end-user.
1.2 In the event of any proven breach of Motorola's warranty set out in
clause 1.1 of this Schedule D (whether by reason of defective materials,
production faults or otherwise) Motorola's liability shall be limited to
the repair or replacement, at Motorola's option, of module/assemblies
only (where a module is defined as a product's transceiver or handset
and an assembly is defined as transceiver/handset printed circuit
boards).
1.3 This warranty provision is subject to the following exclusions and the
warranty shall not apply to products which Motorola determines have:
i) been subjected to testing for other than specified electrical
characteristics;
ii) been operated in abnormal working conditions or environmental
conditions in excess of the recommendations stipulated in the
relevant specifications;
iii) been mishandled, misused, wilfully damaged, neglected, improperly
tested, repaired, altered or defaced;
iv) been subjected to assembly or processing which alters physical or
electrical properties;
v) arisen as a result of the Distributor's own design, formula,
drawing or specification;
vi) arisen as a result of the Distributor failing to follow Motorola's
instructions.
1.4 Motorola cannot be responsible in any way for defects in any Products
arising as a result of non-Motorola accessories or ancillary equipment
attached to or being used in connection with the Products.
1.5 All faulty modules/assemblies shall be returned as complete modules/
assemblies to Motorola by the Distributor at no cost to Motorola to "the
designated Motorola Repair Centre". Motorola shall at its absolute
discretion repair failed modules/assemblies or provide replacement
module/assemblies as per clause 1.2 of this Schedule D within the
warranty period. Motorola shall pay the shipping cost for returning
repaired and or replacement modules/assemblies to the Distributor. The
Distributor shall forward the modudles/assemblies for repair to the
Motorola designated Repair Centre from a central point of despatch.
1.5.1 The Distributor shall notify Motorola on a monthly basis in
writing, of any faulty accessories. Motorola shall at its
absolute discretion repair / replace faulty accessories or
refund the value of the same at the current Distributor
purchase price.
1.5.2 The Mechanical Serial Number (MSN) of the Transceiver /
Handset is used as a criterion for warranty tracking. Proof of
purchase by the end user shall be utilised.
1.5.3 All units being returned for repair shall have undergone a
local test on an appropriate test set and shall be returned to
Motorola together with the test set printout detailing the
failure mode.
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1.6 Motorola shall use its reasonable endeavours to provide a maximum turn
around time of modules/assemblies sent to Motorola for repair, of
fifteen working days from the date of receipt at the designated
Motorola Repair Centre.
1.7 Warranty Failure Reporting - The Distributor will supply Motorola the
following information on a monthly basis:
1. Product Type 5. Repair Code
2. M.S.N. 6. Repair Description
3. Fault Code 7. Parts Used
4. Fault Description
2. SERVICE AND SUPPORT
-------------------
Service Procedures are available from the Customer Services Manager.
2.1 TRAINING
2.1.1 Motorola shall provide free of charge to the Distributor
technical training for repairs. The Distributor shall have the
option to nominate up to a maximum of 6 persons to attend. For
the duration of the Agreement Motorola undertakes to provide
this level of training for each new product family introduced.
Motorola shall at its sole discretion nominate the course
content and duration. The training shall take place at
Motorola's premises or if deemed necessary at the Distributor's
premises. The Distributor shall bear the travel, accommodation
and subsistence cost of the Distributor's personnel. The
Distributor shall also bear the costs of Motorola's personnel
including travel, accommodation and subsistence in the case
that the location is other than Motorola's designated premises.
The Distributor shall have the option to nominate more than 6
trainees. In this event Motorola shall charge the Distributor a
daily fee of xxxxx per trainee. The Distributor shall bear the
cost of travel, accommodation and subsistence of their own
personnel.
2.1.2 Once the training requirements in clause 2.1.1 of this Schedule
D have been met the Distributor shall be free to request
further training as it deems necessary. Motorola shall be free
to charge the Distributor full commercial rates for the
requested training as stated in clause 2.1.1 of this Schedule
above.
2.1.3 The training courses shall be based on the "Train The Trainer"
concept. Documentation will be provided to each of the
attendees.
2.2 TECHNICAL DOCUMENTATION
2.2.1 Such technical documentation shall be supplied by Motorola to
the Distributor's personnel during the training sessions as
Motorola deems appropriate.
2.2.2 The Distributor shall be entitled to use, duplicate and/or edit
Motorola's training documentation exclusively for its own
internal use. The Distributor must reproduce the relevant
Motorola copyright notice to accompany any such documentation.
2.3 SPARE PARTS
2.3.1 The recommended spares holding per product as advised by
Motorola shall apply.
2.3.2 Motorola's then current Spare Parts Price List, as may be
amended from time to time by the Service Department, shall
apply.
2.3.3 The Distributor shall be responsible for forecasting and
ordering the spare parts from Motorola.
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CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
2.3.4 The order point for spare parts orders shall be Customer
Support.
2.3.5 The contact point for spare parts forecasts shall be Logistics.
Forecasts shall be submitted monthly to Motorola on a three
month rolling basis.
2.3.6 Motorola shall provide the Distributor with five years support
for all Products from the date of the last delivery of the
Product to the Distributor.
When Motorola intends to terminate manufacture of a Product,
Motorola shall inform the Distributor and give them the
opportunity to order and receive a "last time buy" for spare
parts as may be available and required by the Distributor.
In addition to a "last time buy" Motorola may provide spare
parts for the Product for a maximum period of three years from
the date of Product termination.
In the event such spare parts may be unavailable for any reason
then Motorola shall offer a refurbishment or replacement
service (at its sole discretion) for a maximum period of five
years from the date of Product termination.
Such refurbishment/replacement shall be charged to the
Distributor at the then current equivalent repair rate for that
Product.
2.4 REPAIRS
2.4.1 Motorola shall supply the Distributor with a detailed listing
of Faults and Repair Codes as per this Schedule to be used when
sending product for repairs/repaired product.
2.4.2 At Motorola's sole discretion the Distributor may be allowed to
carry out repairs. In this event the Distributor shall comply
with Motorola's service guide lines as a M.A.S.C. (Motorola
Approved Service Centre) as may from time to time be
amended/advised.
2.5 OUT OF WARRANTY REPAIRS
2.5.1 Out of warranty repairs carried out by Motorola shall be
governed by Motorola's price list at the time and as may be
amended from time to time. Motorola shall notify the
Distributor, with 90 days notice, of any changes in prices for
out of warranty repairs. The Distributor shall bear the
transportation cost when returning faulty module/assemblies for
repair, and Motorola shall bear the transportation costs when
returning repaired module/assemblies to the Distributor.
2.6 EXPRESS EXCHANGE
At Motorola's sole discretion the Distributor may be permitted to
participate in Motorola's Express Exchange Programme.
2.6.1 Motorola shall provide to the Distributor such assistance as is
reasonably necessary in setting up an Express Exchange
Programme, or similar, to support the Distributor's own
customers and end users. The Distributor shall be responsible
for establishing the Express Exchange Centres and for
implementing the programme.
2.6.2 Motorola shall provide free of charge to the Distributor a "to
be determined" quantity of product transceivers on a loan basis
to support the warranty base, as well as a master copy of
promotional material and relevant documentation.
2.6.3 The Express Exchange pool of transceivers shall remain the
property of Motorola.
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CELLSTAR DISTRIBUTOR SUPPLY AGREEMENT
GSM 2.6.4 In the event that across-border visitor using a Motorola
branded transceiver experiences a warranty failure, service
assistance will be provided via the Express Exchange programme
providing the transceiver is in warranty. The Distributor shall
submit a warranty claim to Motorola to cover such assistance
giving details of the transceiver model and MSN - Customer Name
and Country of Origin - Customer's Telephone Number. Motorola
will reimburse the Distributor accordingly.
3. TYPE APPROVAL
-------------
3.1 All Products supplied under the terms of this Agreement shall have
type approval from the relevent competent authority which shall be the
responsibility of Motorola. The Distributor shall provide reasonable
assistance to Motorola in order to fulfil this responsibility; such
assistance shall not be unreasonably withheld.
3.2 Motorola warrants that the products meet the essential requirements of
NET 10 in effect as of the date of declaration (GSM11.10 vg 3.8.0).
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