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INTERNATIONAL DISTRIBUTION AGREEMENT EXHIBIT 10.1
BETWEEN
BEIJING ELAWCHINA NETWORK TECHNOLOGY CO., LTD.
AND
XXXXXXXXX.XXX, INC.
THIS AGREEMENT is entered into by and between Beijing Elawchina Network
Technology Co., Ltd., a Chinese Corporation with offices at Xxxxxxxxx Xxxx 0,
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx ("Company"), and xxxxxxxxx.xxx, Inc., a BVI
Corporation, with offices at 0xx Xxxxx, 000 Xxxx Xxxxxx, P.O. Box 3342 Road
Town, Tortola British Virgin Islands ("Distributor").
WHEREAS, Company has developed a legal educational and consulting information
network in the Chinese language and intends to market and sell all non-Chinese
translations of the content of said legal education and consulting network (the
Product); and
WHEREAS, Distributor has represented that it has the ability to sell, market,
and distribute the Product in all countries of the world outside China (the
Territory);
WHEREAS, Company is desirous to appoint Distributor as its exclusive distributor
to sell, market, and distribute the Product in the Territory, and Distributor
desires to accept such appointment; and
WHEREAS, both Company and Distributor have agreed to the terms and conditions
under which Distributor shall provide such services.
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound hereby, do promise and
agree as follows:
1. APPOINTMENT OF INTERNATIONAL DISTRIBUTOR
A. Company hereby appoints Distributor, for the Term of this Agreement,
as its exclusive distributor, for the sale and distribution of the Product in
all markets and channels of distribution in the Territory. The appointment shall
include, but not be limited to, a license under all of Company's patents,
trademarks, service marks, logos, and copyrights and any applications therefore
with respect to the Product and in which Company has rights.
B. Distributor shall have the right to appoint local Subdistributors
and Sales Representatives in the countries of the Territory to effect the sale
and distribution of the Product. Such Subdistributors and Sales Representatives
shall be selected by Distributor and shall be reasonably acceptable to Company.
Moreover, Distributor shall guarantee the performance and obligations of all
such Subdistributors and Sales Representatives.
C. It is expressly understood and agreed that Company hereby retains
all rights not expressly granted hereunder.
DISTRIBUTOR AGREEMENT 1 MARCH 14, 2000
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2. TERM
A. This Agreement shall be effective as of the date of execution by
both parties and shall extend for the 30 years (the Term).
B. This Agreement shall automatically renew for successive five-year
Extended Terms unless Company or Distributor shall state in writing to the other
party 30 days prior to the end of each Term its intent not to renew.
3. RECORD INSPECTION AND AUDIT
A. Company shall have the right, upon reasonable notice, to inspect
Distributor's books and records and all other documents and material in
Distributor's possession or control with respect to the subject matter of this
Agreement. In addition, Distributor shall contractually obligate its
Subdistributors and Sales Representatives to agree to make their books and
records available to Company for inspection. Company shall have free and full
access thereto for such purposes and may make copies thereof.
B. All books and records relative to Distributor's obligations
hereunder shall be maintained and made accessible to Company for inspection for
at least seven years after termination of this Agreement.
4. WARRANTIES AND OBLIGATIONS
A. Company represents and warrants that it has the right and power to
enter into the subject Agreement and that there are no other agreements with any
other party in conflict with such grant.
B. Company further represents and warrants that it has no actual
knowledge that the Product infringes any valid rights of any third party.
C. Distributor represents and warrants that it will use its best
efforts to promote, market, advertise, sell and distribute the Product in the
Territories and that its Subdistributors and Sales Representatives will use
their best efforts to promote, market, advertise, sell, and distribute the
Product in their respective territories. Distributor and its Subdistributors and
Sales Representatives shall be solely responsible for the sale and distribution
of the Product and will bear all costs associated therewith.
5. PRODUCT MARKINGS
A. Distributor and its Subdistributors and Sales Representatives shall
fully comply with the marking provisions of the intellectual property laws of
the applicable countries in the Territory.
B. In the event that Distributor or any of its Subdistributors or Sales
Representatives utilize any trademark, service xxxx, or other xxxx or logo of
Company, or to which Company has rights, title, or interest and that Company has
licensed the use of hereunder to Distributor with respect to promotional,
packaging, and advertising material, such use shall include all appropriate
legal notices as required by Company.
DISTRIBUTOR AGREEMENT 2 MARCH 14, 2000
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6. INCENTIVES
Four times each calendar year during the Term of this Agreement, Company shall
calculate sales by territory, product, and distributor/Subdistributor and, in
its unfettered discretion, may award a distributor and/or its salesperson(s)
with gifts or other incentives of Company's selection.
7. ROYALTIES
Commencing on 28 April, 2000 Company shall be paid, on a Quarterly basis, a
royalty of One Million two hundred fifty thousand ($1,250,000.00) USD for a
total period of four quarters, in addition to Twenty-five (25)% of gross
revenues of sales made by Distributor and Subdistributors].
10. OPTION
A. Subject to Section 13, Distributor shall have an exclusive option,
exercisable upon 30 days written notice to purchase 100% of the equity of
Company.
B. The cost to Distributor to exercise such option shall be Ten
thousand ($10,000.00) USD.
8. NOTICES
Any notice required to be given pursuant to this Agreement shall be in writing
in the English language and mailed by certified or registered mail, return
receipt requested, or delivered by a national overnight express service.
9. INTELLECTUAL PROPERTY RIGHTS
A. Company shall retain all rights, title, and interest in the original
Product and to any modifications or improvements made thereto. Distributor will
not obtain any rights in the Product as a result of its responsibilities
hereunder. The parties agree to execute any documents reasonably requested by
the other party to effect any of the above provisions.
B. Distributor acknowledges Company's exclusive rights in the Product
and that the Product is unique and original to Company and that Company is the
owner thereof. Unless otherwise permitted by law, neither Distributor nor any of
its Subdistributors or Sales Representatives shall, at any time during or after
the effective Term of the Agreement, dispute or contest, directly or indirectly,
Company's exclusive right and title to the Product or the validity thereof.
C. Neither Distributor nor any of its Subdistributors or Sales
Representatives shall have any right to duplicate, translate, decompile, reverse
engineer, or adapt the Product without Company's prior written consent, nor
shall they attempt to develop any products that contain the "look and feel" of
any of the Product.
10. PRODUCT WARRANTY
A. The warranty with respect to the Product is as described in the
warranty agreement provided with each Product. This is the only warranty offered
by Company. Company does not warrant that the Product will meet the requirements
of any end user.
DISTRIBUTOR AGREEMENT 3 MARCH 14, 2000
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B. Company does not extend to Distributor or any of its Subdistributors
or Sales Representatives any additional warranties, express or implied, and
Distributor and its Subdistributors and Sales Representatives waive any and all
claims to damages.
C. Upon receipt of any warranty claim that is made in a timely and
prompt fashion, Company shall make reasonable efforts to correct any significant
reproducible error in the Product, provided such error relates to the proper
functioning of the Product and has not been caused by negligence on the part of
Distributor or its Subdistributors or Sales Representatives or any third party,
computer malfunction, or other causes external to the Product. Company's
liability is limited to replacement of Product.
D. THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES
OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY
BE LIABLE FOR DAMAGES, DIRECT OR INDIRECT, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES SUFFERED BY DISTRIBUTOR, SUBDISTRIBUTOR, SALES REPRESENTATIVE, RETAILER,
END USER, OR OTHER THIRD PARTY ARISING FROM BREACH OF WARRANTY OR BREACH OF
CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL GROUND OF ACTION.
E. Distributor shall be liable for any representations or warranties
made by it or its Subdistributors or Sales Representatives without the approval
of Company in its advertising, brochures, manuals, or by its agents, employees,
or representatives, whether in writing or orally with respect to each Product.
11. CONFIDENTIALITY
A. It is recognized that during the course of its work with Company,
Distributor or its Subdistributors or Sales Representatives may have occasion to
conceive, create, develop, review, or receive information that is considered by
Company to be confidential or proprietary including information relating to the
Product, including inventions, patent, trademark and copyright applications,
improvements, know-how, specifications, drawings, cost data, process flow
diagrams, customer and supplier lists, bills, ideas, and/or any other written
material referring to same (the Confidential Information). Both during the Term
of this Agreement and thereafter, Distributor agrees to maintain in confidence
such Confidential Information unless or until:
1. It shall have been made public by an act or omission of a
party other than itself;
2. Distributor receives such Confidential Information from an
unrelated third party on a nonconfidential basis; or
3. The passage of one (1) year from the date of the disclosure of
such Confidential Information to Distributor, whichever shall
first occur.
B. Distributor further agrees to use all reasonable precautions to
ensure that all such Confidential Information is properly protected and kept
from unauthorized persons or disclosure.
DISTRIBUTOR AGREEMENT 4 MARCH 14, 2000
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C. If requested by Company, Distributor agrees to promptly return to
Company all materials, writings, equipment, models, mechanisms, and the like
obtained from or through Company including, but not limited to, all Confidential
Information, all of which Distributor recognizes is the sole and exclusive
property of Company.
D. Distributor agrees that it will not, without first obtaining the
prior written permission of Company do any of the following:
1. Directly or indirectly utilize such Confidential Information
in its own business;
2. Manufacture and/or sell any product that is based in whole or
in part on such Confidential Information; or
3. Disclose such Confidential Information to any third party.
E. Distributor shall have each of its Subdistributors and Sales
Representatives agree to be bound by the provisions of this paragraph.
12. COMPLIANCE WITH LOCAL LAWS
A. Distributor and its Subdistributors and Sales Representatives shall
ensure compliance with all applicable laws and regulations in each country in
the Territory.
B. Distributor and its Subdistributors and Sales Representatives shall
cooperate promptly with Company to assist Company in complying with all laws of
each country in the Territory, including but not limited to, all laws and
regulations relating to the control of exports or the transfer of technology.
13. GOVERNMENT APPROVAL
A. Where necessary, Distributor and its Subdistributors and Sales
Representatives shall be required to obtain all governmental approvals required
to fulfill its obligations under this Agreement. Such undertaking shall be at
Distributor's sole expense.
B. If approval by any governmental entity in any country in the
Territory is required before this Agreement is enforceable by Company, then such
government approval is a condition precedent to the validity of this Agreement.
It is expressly understood and agreed that Company shall have no obligations
under this Agreement until such governmental approval has been obtained and
evidence of such approval has been received by Company.
C. In the event that any governmental entity requires material changes
to be made to the terms of this Agreement or the relationship between the
parties, either party may terminate this Agreement upon ten (10) days written
notice.
14. NONCOMPETITION
During the term of this Agreement, neither Distributor nor any of its
Subdistributors or Sales Representatives shall serve as distributor or marketing
or sales representative in connection with any product that is directly or
indirectly competitive with the product or products that Distributor
DISTRIBUTOR AGREEMENT 5 MARCH 14, 2000
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is distributing, promoting, or selling on behalf of Company without first
obtaining Company's written consent.
15. TERMINATION
The following termination rights are in addition to the termination rights that
may be provided elsewhere in the Agreement.
A. Immediate Right of Termination. Company shall have the right to
immediately terminate this Agreement by giving written notice to Distributor in
the event that Distributor does any of the following:
1. Files a petition in bankruptcy or is adjudicated bankrupt or
insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant to any bankruptcy law,
or if Distributor discontinues or dissolves its business, or
if a receiver is appointed for Distributor or for
Distributor's business and such receiver is not discharged
within one hundred and eighty (180) days;
2. Makes any change in the current management of Distributor,
which in their opinion threatens to damage the reputation of
Company, or the Product; or
3. Engages in any illegal, unfair, or deceptive business
practices or unethical conduct whatsoever, whether or not
related to the Product.
B. Right to Terminate Upon Notice. Either party may terminate this
Agreement on thirty (30) days' written notice to the other party in the event of
a breach of any provision of this Agreement by the other party, provided that,
during the thirty-day period, the breaching party fails to cure such breach.
16. POSTTERMINATION RIGHTS
A. Not less than ten (10) days prior to the expiration of this
Agreement or immediately upon termination thereof, Distributor and its
Subdistributors and Sales Representatives shall provide Company with a complete
schedule of all inventory of Product then on hand (the Inventory).
B. Upon expiration or termination of this Agreement, except for reason
of a breach of Distributor's duty to comply with applicable laws, legal
notice/marking requirements, Distributor and its Subdistributors and Sales
Representatives shall, thereafter, cease the sale or distribution of the
Product. Company shall have the option of purchasing any of the existing
Inventory of Product then on hand as of the date of expiration or termination of
the Agreement.
C. Upon the expiration or termination of this Agreement, all rights
granted to Distributor under this Agreement shall forthwith terminate and
immediately revert to Company and Distributor and its Subdistributors and Sales
Representatives shall discontinue all use of the Product and the like.
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D. Upon expiration or termination of this Agreement, Company may
require that Distributor and its Subdistributors and Sales Representatives
transmit to Company, at no cost, all material relating to the Product.
E. It is understood and agreed that termination or expiration of this
Agreement shall not extinguish any of Distributor's obligations under this
Agreement that by their terms continue after the date of termination or
expiration.
17. INFRINGEMENTS
A. Distributor agrees to notify Company promptly in the event
Distributor and its Subdistributors and Sales Representatives become aware of
any infringements of the Product. Company shall have the right, in its sole
discretion, to prosecute lawsuits against third parties for infringement of
Company's rights in the Product. All costs and expenses associated with such
lawsuits shall be borne by Company, which shall be entitled to any recovery
received less damages to Distributor,as a result thereof, whether by
adjudication or settlement.
B. Distributor and its Subdistributors and Sales Representatives agree
to fully cooperate with Company and its representatives in the prosecution of
any such suit. Company shall reimburse Distributor for the expenses incurred as
a result of such cooperation.
18. INDEMNITY
A. Distributor agrees to defend, indemnify, and hold Company, and its
officers, directors, agents, and employees, harmless against all costs,
expenses, and losses (including reasonable attorney fees and costs) incurred
through claims of third parties against Company based on Distributor's breach of
any representations or warranties contained herein or as a result of any of
Distributor's actions or inactions.
B. Company agrees to defend, indemnify, and hold Distributor, and its
officers, directors, agents, and employees, harmless against all costs,
expenses, and losses (including reasonable attorney fees and costs) incurred
through claims of third parties against Distributor based on Company's breach of
any representations or warranties contained herein or as a result of any of
Company's actions or inactions.
19. INDEPENDENT CONTRACTOR
Distributor's performance of its duties and obligations under this Agreement and
the performance of its Subdistributors and Sales Representatives are in a
capacity as an independent contractor. Accordingly, nothing contained in this
Agreement shall be construed as establishing an employer/employee, a
partnership, agency, brokerage, or a joint venture relationship between
Distributor, and its Subdistributors and Sales Representatives, and Company.
20. JURISDICTION AND DISPUTES
A. This Agreement shall be governed by the laws of British Virgin
Islands,(BVI).
B. All disputes hereunder shall be resolved in the applicable courts of
BVI. The parties consent to the jurisdiction of such courts, agree to accept
service of process by mail, and waive any jurisdictional or venue defenses
otherwise available.
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21. AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of the parties
hereto, and their heirs, administrators, successors, and assigns.
22. WAIVER
No waiver by either party of any default shall be deemed as a waiver of any
prior or subsequent default of the same or other provisions of this Agreement.
23. SEVERABILITY
If any provision hereof is held invalid or unenforceable by a court of competent
jurisdiction, such invalidity shall not affect the validity or operation of any
other provision and such invalid provision shall be deemed to be severed from
the Agreement.
24. ASSIGNABILITY
The license granted hereunder is personal to Distributor and may not be assigned
by any act of Distributor or by operation of law except with the consent of
Company.
25. INTEGRATION
This Agreement constitutes the entire understanding of the parties, and revokes
and supersedes all prior agreements between the parties and is intended as a
final expression of their Agreement. It shall not be modified or amended except
in writing signed by the parties hereto and specifically referring to this
Agreement. This Agreement shall take precedence over any other documents that
may be in conflict therewith.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have each caused to be affixed hereto its or his/her hand and seal the day
indicated.
Beijing Elawchina Network Technology Co., Ltd.
/s/ Xxxxxx Xxx
Xxxxxx Xxx
President
14 March, 2000
xxxxxxxxx.xxx, Inc.
/s/ Xxxxxx Xxx
Xxxxxx Xxx
President
14 March, 2000
DISTRIBUTOR AGREEMENT 8 MARCH 14, 2000
