EXHIBIT 4.18
AGREEMENT
THIS AGREEMENT is made and entered into this 8th day of Jan 2003 by and
between:-
1. Jiang Xxxxx Xxxx Wireless Technology Ltd., a corporation duly organized
and existing under the laws of Hong Kong with its principal place of business at
Xxxx 0000X, Xxxxx x, Xxxxx HK City, 00 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
(hereinafter called "the Customer"); and
2. Nam Tai Telecom (Hong Kong) Co. Ltd., a corporation duly organized and
existing under the laws of Hong Kong, with its registered office at 00/X, Xxxxx
Merchants Tower, Shun Tak Centre, 000-000 Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx
(hereinafter called "NTT")
The parties agree as follows:
ARTICLE 1 DEFINITIONS
In this Agreement, the following terms shall have the following meanings:
(a) "Products" shall mean such products, articles or goods to be agreed
upon between the parties from time to time which are manufactured by or
for NTT according to the Purchase Orders placed by the Customer from
time to time and the Specification (as provided in the next paragraph)
for the purpose of supplying to the Customer.
(b) "Specification" shall mean the specification of the Products determined
and confirmed in writing between the parties hereto from time to time.
(c) "Purchase Order" shall mean a purchase order of the Products given
pursuant to this Agreement.
ARTICLE 2 SALE OF PRODUCTS
The Customer hereby agrees to purchase from NTT and NTT hereby agrees to sell to
the Customer the Products subject to and upon the terms and conditions set forth
herein. The Customer will place Purchase Orders with NTT for quantities of the
Products as and when required. NTT shall use its reasonable endeavours to supply
to
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the Customer all the quantity of Products described in the Purchase Order(s)
issued by the Customer according to Article 3 hereof.
ARTICLE 3 PURCHASE ORDERS
3.1 The Customer shall place Purchase Orders with NTT at least three months
prior to its scheduled shipment date "together with forecasts of
Purchase Orders to be placed with NTT for two consecutive months
thereafter. The terms and conditions of this Agreement shall apply to
such Purchase Orders (if accepted) and any contracts for the sale and
purchase of the Products concluded pursuant thereto.
3.2 Any Purchase Order sent to NTT by the Customer shall be accepted
entirely at only the discretion of NTT, by signing and returning the
duplicate of the Purchase Order to the Customer, and if only so
accepted, shall constitute an individual legally binding contract
between the Customer and NTT. Any Purchase Order not accepted by NTT
within 10 days of its receipt of such Purchase Order shall be deemed to
have been rejected by NTT. An accepted Purchase Order shall not be
allocated, changed or cancelled without the prior mutual written
agreement of both-parties.
ARTICLE 4 PRICE AND PAYMENT
The price and terms of payment of the Products shall be agreed by the parties
hereto from time to time in relation to the related Purchase Order. The prices
are payable in U.S. dollar and shall include all and any sales, use, or other
taxes in relation to the sale of the Products. The payment of such prices shall
be made by open account net 30 days credit from date of delivery of products to
the Customer by NTT.
ARTICLE 5 DELIVERY
NTT shall, after the inspection provided in Article 6.1 hereof, ship the
Products at its own cost and responsibility to the Customer's designated place
in Hong Kong on or prior to the date described in the Purchase Order, provided,
however, that without prejudice to Article 15, NTT shall not be liable for any
delay in delivery caused by the Customer or by any reason out of the control of
NTT.
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ARTICLE 6 INSPECTION
6.1 NTT shall, prior to the shipment of the Products, inspect the Products
to check if they meet with the Specification and other quality standard
agreed between the parties hereto from time to time in writing and
shall deliver the Products which pass such inspection.
6.2 The Customer shall, within fourteen (14) working days after the
delivery of the Products according to Article 5 hereof, inspect the
quality, quantity and function of such Products to verify that the
Products comply with the Specification and the terms of the contract of
sale and purchase concluded pursuant to the Purchase Order. The
Customer shall be deemed to have accepted the Products in all respects
if no complaint or objection is raised with NTT in writing within such
14 working days. In case any defect is found in the Products, NTT
shall, at the discretion of the Customer and upon notice being given by
the Customer, repair such defect(s) or re-deliver the replacement
Products to the Customer at its own costs and expenses. Rejected
Products shall be returned by the Customer to NTT and the costs and
expenses incurred therefrom shall be, in case the Customer returns such
Products by means of transportation specified by NTT, borne by NTT. Any
and all the Products shall be deemed to have passed the Customer's
inspection unless any notification of failure to the inspection is made
by the Customer within such fourteen (14) working days.
6.3 The Customer or its representative shall have during the term of this
Agreement the right to enter and inspect NTT's office, plants, factory
and other facilities at any reasonable time upon prior appointment and
to give NTT any instruction, if necessary, for the purpose of quality
control and smooth operation of the manufacture of Products.
ARTICLE 7 TITLE AND RISK OF LOSS
Title to any Products and risk of loss or damage thereto shall pass to the
Customer when the Products pass the inspection by the Customer or is deemed to
have been accepted by the Customer as provided in Article 6.2 hereof. NTT shall
thereafter be relieved from all liabilities for damage to or claims from the
Customer or any third parties caused by any defects in the Products.
ARTICLE 8 WARRANTY
NTT warrants that the Products conform to the Specification and other
requirements
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with respect to the function and quality made by the Customer and accepted by
NTT and that the materials and workmanship of the Products shall be free from
defects for a period of fifteen months from the date the title to such Products
passes to the Customer. During the said 15 months period, NTT shall repair the
defected Products and return them to the Customer, with rework costs borne by
NTT while transportation costs borne by Customer.
ARTICLE 9 MOLD, JIG, AND EQUIPMENT
9.1 The Customer may, if necessary, at the costs of the Customer, furnish
NTT with the molds, jigs and other tools and equipment which the
Customer deems necessary for the manufacture of the Products by NTT.
9.2 NTT shall receive and hold such molds and jigs furnished by the
Customer according to Article 9.1 and return to the Customer after the
termination or cancellation of this Agreement or upon the request from
the Customer.
9.3 To fulfill Customer production requirements, NTT will invest in the
testing equipment and toolings at NTT cost, and in return, NTT shall
charge Customer a mutually agreed machine leasing cost per unit which
leasing cost shall be paid by the Customer to NTT for the Products
ordered until a mutually agreed order quantity has been reached ("the
Target Quantity"). In the event Customer and NTT agree to terminate
this Agreement or otherwise while the Target Quantity has not yet been
fulfilled, Customer agrees to pay NTT the balance of testing equipment
and toolings investment cost which have not yet been recovered from the
leasing cost received from the Customer as aforesaid within 60 days
after termination on a pro-rata basis. For avoidance of doubt, any such
testing equipment and tooling invested by NTT shall remain properties
of NTT irrespective of the fulfillment of the Target Quantity and the
payment of the leasing cost therefor.
ARTICLE 10 SUPPLY OF MATERIALS
NTT shall procure materials which are necessary for the manufacture of the
Products at its own responsibility. However, the Customer may, if necessary,
supply materials to NTT at a rate from time to time agreed between the Customer
and NTT.
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ARTICLE 11 SUBCONTRACT
NTT may subcontract any part of the manufacturing process of the Products to any
third party with the Customer's prior written consent. In such event of
subcontracting, NTT shall use its reasonable endeavours to procure and ensure
that the subcontractor complies with and observes all the applicable terms and
conditions provided herein.
ARTICLE 12 CONFIDENTIALITY
Each of the parties hereto agrees to maintain in confidence and not to disclose
to any third party all the information disclosed by the other party to it
hereunder (except to the extent (i) reasonably necessary for such party to carry
out the terms and conditions of this Agreement and any matters ancillary thereto
or (ii) ordered to be disclosed pursuant to any order, decree or judgement made
or issued by any court of competent jurisdiction. Such information and the
confidentiality obligation imposed on the parties hereto shall not include or
extend to the information which:
(a) is already known to the other party at the time of the disclosure; or
(b) is generally available to public at the time of the disclosure.
ARTICLE 13 TERMS
13.1 This Agreement shall be effective from the date first written above and
shall continue in force for a period of one (1) year and shall be
renewed automatically thereafter on a year to year basis, unless either
of the parties hereto gives the other a 90 days written notice of
termination provided that the notice of termination shall not take
effect until the expiration of the first anniversary of this Agreement.
13.2 Notwithstanding the provision of Article 13.1 and Article 14, the
provisions of Article 8 Article 12 and Article 20 shall survive the
termination or cancellation of this Agreement.
ARTICLE 14 CANCELLATION AND TERMINATION
14.1 In case either party breaches or defaults any of the provisions hereof,
the other party may give to such breaching or defaulting party written
notice of such
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breach or default, and if such breaching or defaulting party does not
effect an adequate remedy thereof within thirty (30) days after the
date of dispatch of said notice, this Agreement shall be terminated at
the option of the complaining party by the dispatch of written notice
to that effect to such party within seven (7) days from the expiration
of said thirty (30) days period.
14.2 Upon the occurrence of any of the following events or circumstances,
either party may terminate this Agreement by written notice to the
other party:
(a) in case the other party attempts to assign or transfer the
rights or obligations hereunder without the prior written
consent of such party;
(b) if any distress or execution shall be levied upon any of the
other party's goods and remain unsatisfied for a period of 5
days;
(c) if the other party offers to make any arrangement with its
creditors;
(d) if the other party is unable to pay its debts as they fall
due;
(e) if any resolution or petition to wind up the other party
(other than for the purpose of amalgamation or reconstruction
without insolvency) shall be passed or presented;
(f) if a receiver or manager shall be appointed over the whole or
any part of the other party's business or assets;
(g) if the other party shall suffer any proceedings analogous to
those proceedings described in sub-paragraphs (b), (e) or (f)
above, under any foreign law.
ARTICLE 15 FORCE MAJEURE
No party shall be liable to the other party for inability, default or failure of
performance hereunder due to force majeure events, which shall include, but not
limited to, acts of God, storms, shipwreck, war, riots, strike, lockout,
industrial action, fire, flood, earthquake or other such unforeseeable calamity,
any law, rule, regulation or governmental action or other like xxxxx beyond the
reasonable control of the parties; provided that such party shall make every
reasonable effort to remove the obstacle and to resume performance at the
earliest practicable time.
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ARTICLE 16 SETTLEMENT
The parties will endeavor to settle amicably any and all disputes which may
arise under this Agreement.
ARTICLE 17 NON-WAIVER
Failure by either party to enforce any provision of this Agreement will not be
deemed a waiver of future enforcement of that or any other provisions.
ARTICLE 18 SEVERABILITY
In the event that any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, the parties hereto agree
that such holding shall not invalidate or render unenforceable any other
provision hereof.
ARTICLE 19 ASSIGNMENT
Neither party shall assign, transfer or otherwise dispose of this Agreement or
any rights or obligations hereunder to any third party without the prior written
consent of the other party.
ARTICLE 20 LIMITATION OF LIABILITY
20.1 Notwithstanding anything contained in this Agreement or any of the
Purchase Orders, in no circumstances shall NTT be liable, in contract,
tort (including negligence or breach of statutory duty) or otherwise
howsoever, and whatever the cause thereof (a) for any loss of profit,
business, contracts, revenues, or anticipated savings, or (b) for any
special indirect or consequential damage of any nature whatsoever.
20.2 Without affecting the generality of Article 20.1, and notwithstanding
anything contained in this Agreement or any of the Purchase Orders,
NTT's liability to the Customer, if any, in respect of any Purchase
Order, in contract, tort (including negligence or breach of statutory
duty) or howsoever otherwise arising, shall be limited to the price of
the Products specified in the
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relevant Purchase Order.
ARTICLE 21 NOTICES
All notices, certificates or other communications hereunder shall be deemed
given when delivered by hand, sent by overnight courier, or sent by certified or
registered mail, postage prepaid, return receipt requested addressed to the
address first above mentioned.
Each party hereto may by facsimile notice or by such other notice described
hereunder, designate any further or different address to which subsequent
notices, or other communications shall be sent without any requirement of
execution of any amendment to this Agreement.
ARTICLE 22 COUNTERPARTS
This Agreement may be executed in counterparts by the parties hereto, and each
such counterpart shall be considered an original and all such counterparts shall
constitute one and the same instrument.
ARTICLE 23 GOVERNING LAW
This Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of Hong Kong. Each of the parties hereto
hereby submits to the non-exclusive jurisdiction of the courts of Hong Kong.
ARTICLE 24 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof, and supersede and replace all prior or
contemporaneous understandings or agreements, written or oral, regarding such
subject matter.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
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Signed by: XXX XXX
For and on behalf of /s/ Xxx Xxx
Jiang Xxxxx Xxxx Wireless Technology Ltd.
in the presence of: For and on behalf of Xxxxxx Xxxx
NAM TAI TELECOM (HONG KONG) COMPANY LIMITED
Signed by: /s/ Xxxxxx Xxxx
-------------------------
Authorized Signature 23HA
For and on behalf of
Nam Tai Telecom (Hong Kong) Co. Ltd.
in the presence of: /s/ Xxxx Xxxxxx
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