Exhibit 10.36
EST DISTRIBUTOR AGREEMENT
This Agreement is entered into this _____ day of _____________, 2000 between
Embedded Support Tools Corp., a corporation duly organized under the laws of the
Commonwealth of Massachusetts, and having its principal place of business at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, XXX ("EST"), and New Level Telecom,
a corporation duly organized under the laws of Korea, with its principal place
of business at 0 xxxxx, Xxxxxxx Xxxxxxxx, 000-00, XxxxXxxxxxx-xxxx, Xxxxxxx-xx,
Xxxxx, Xxxxx ("Distributor").
IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES HEREIN CONTAINED, THE
PARTIES HERETO AGREE AS FOLLOWS:
1. APPOINTMENT AND ACCEPTANCE
EST hereby appoints Distributor and Distributor hereby accepts appointment as a
nonexclusive distributor for the sale of EST hardware products, and for the sale
of licenses and support services for the EST software products, in executable
form, specified in the attached Schedule B ("Products") to end-users located
within and for installation only within the geographical area specified in the
attached Schedule A ("Territory"). Additional EST products (including new
versions of the Products) may be included under this Agreement by the mutual
written consent of the parties in the form of an amendment to this Agreement.
EST reserves the right to delete any Product from this list of which
development, production, licensing or maintenance is discontinued by EST.
2. DISTRIBUTION RIGHTS
A. No Software Product shall be distributed to an end-user by Distributor, if
the Product is designated a shrink-wrapped product by EST, until (i) the
end-user executes an EST Software License Agreement, which identifies EST
as the licensor and the end-user as the licensee, or (ii) the Product is
packaged with an EST Software License Agreement, the terms and conditions
of which the end-user agrees to comply with by opening the shrink-wrap
package containing this same Agreement.
B. The EST Software License Agreement is attached to, and made part of this
Agreement as Schedule D. Any modification, deletion or change Distributor
desires to make in any particular licensing transaction shall require the
prior written approval of EST. EST reserves the right to change any of the
terms and conditions of the attached EST Software License Agreement, or its
licensing procedures, provided Distributor is given thirty (30) calendar
days" prior written notice of any such changes.
C. All orders submitted to EST by Distributor are subject to approval and
acceptance by EST in its sole discretion. Such approval shall not be
unreasonably withheld.
D. All shipments shall be made F.O.B. origin to Distributor at the above
address or to a forwarding agent as may be specified on orders received
from Distributor. It is the responsibility of Distributor to ship the
Product to the applicable end-user.
E. Nothing in this Agreement shall be construed as a grant to Distributor of
any right, title or interest in and to copyrights, patents or trade secrets
of the Products, all rights related thereto being reserved by EST.
F. Except for copying as may be specifically provided by Schedule E,
Distributor will not copy, in whole or in part, or modify, alter, reverse
engineer, decompile or disassemble any Product furnished Distributor,
without prior written consent of EST. Such consent shall not be
unreasonably withheld.
G. In the event that copying is authorized by Schedule E for the purpose of
making deliveries to Distributor"s customers, Distributor shall reproduce
and include EST copyright notice both in and on every copy made, in any
form, including partial copies. Distributor agrees to keep a record of
every copy made and to furnish such record to EST upon its request.
H. Distributor is hereby granted a non-exclusive, non-transferable right to
use as selling aids in the Territory, during the life of this Agreement,
the trademarks identifying the Products. Distributor shall not sublicense
or otherwise permit the use of said trademarks by other parties. All
rights in said trademarks shall, at all times during the life of this
Agreement and thereafter, be and remain the sole property of EST and
goodwill and other benefits associated therewith are hereby assigned and
shall inure to the benefit of EST. Distributor shall not use said
trademarks in any manner which would injure or destroy their value or
diminish EST"s property rights therein. Distributor shall promptly notify
EST of any infringement or suspected infringement of said trademarks that
may come to Distributor"s attention and assist EST, at EST"s expense, in
taking action against such infringement as EST, in its sole discretion, may
decide.
I. Distributor is hereby granted the right to translate into Chinese and
publish any of the technical or sales promotional materials for use in
promoting EST products in Korea. Distributor will retain sole rights to
such material.
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3. OBLIGATIONS OF DISTRIBUTOR
Distributor shall:
A. Submit to EST, if requested by EST* a marketing plan for the Products to be
distributed, including a twelve (12) month forecast of sales revenue
anticipated for these products.
B. Provide its best efforts to promote the licensing of and support services
for the Products within the Territory in accordance with terms and
conditions determined by EST, and provide evidence of such efforts if
requested to do so by EST.
C. Employ, on an ongoing basis, a fully trained and competent sales and
technical support organization sufficient to meet Distributor"s obligations
hereunder and to have such personnel complete, at Distributor"s expense,
any training deemed necessary by EST to meet this requirement.
D. Maintain adequate person-power and facilities to ensure prompt handling of
inquiries, orders, shipments and support services as described by Section
13 below to end-users of the Products in the Territory.
E. Assign a specific contact at the office of Distributor who will handle
inquiries and correspondence pertaining to this Agreement with reasonable
promptness.
F. In the conduct of its business under this Agreement, comply with all
applicable laws, regulations and orders in the Territory and shall not take
any action which will cause EST to be in violation of any such law,
regulation or order in the Territory or the United States including, but
not limited to the US Foreign Corrupt Practices Act, the US Export
Administration Regulations and the US Anti-Boycott Laws.
G. Not without prior written consent of EST, appoint any subrepresentatives,
agents, sub-distributors or dealers to carry out of any of the activities
covered by this Agreement.
H. Assume all responsibility for delivery of the Products to end-users in the
Territory, including shipping and like costs, taxes, compliance with and
expense of any import legalities and duties.
I. Bear exclusively all responsibility toward its employees imposed by
legislation within the Territory and shall hold EST harmless from and
indemnify EST against any and all claims by any such employee against EST
for payment of commissions, salaries, expenses, termination indemnities or
any other amounts payable under such legislation.
* Less than
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4. OBLIGATIONS OF EST
EST shall:
A. Furnish reasonable quantities of promotional literature at no charge to
Distributor. Additional quantities shall be available at cost.
B. Promptly advise Distributor when Products are shipped.
C. Assign a specific contact at EST in Canton, MA, USA who will handle
inquiries and correspondence pertaining to this Agreement with reasonable
promptness.
5. CHARGES AND PAYMENTS
A. Fees/Prices for the Products to be supplied to Distributor for unbundled
distribution by Distributor are in accordance with the EST Price List, for
the applicable product line, then in effect at the time of receipt of the
order by EST, minus the discount set forth in Schedule C. Fees/Prices for
bundled distribution, if applicable, are set forth in Exhibit E.
Discounted fees/prices are due and payable within thirty (30) calendar days
of shipment of the Product(s) to Distributor. Fees under the bundled
pricing arrangement are due as specified in Exhibit E. All payments are
due when specified, regardless of whether or not Distributor has received
payment from the end-user. All payments are to be made in United States
Dollars on drafts payable at a US bank to:
Accounts Receivable
Embedded Support Tools Corp.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
or wired directly to a bank designated by EST for credit to an EST account
at such bank.
B. EST reserves the right to change any fee/price set forth in the EST Price
List, provided Distributor is given sixty (60) calendar days" prior written
notice. EST reserves the right to increase fees for bundled pricing upon
sixty (60) days" written notice in the event there is a material increase
in the EST Price List or upon renewal of this Agreement. Distributor shall
pay or promptly reimburse EST for all property, sales, use and other taxes
or duties imposed on EST with respect to this Agreement and payments made
hereunder, including any withholding taxes withheld on payments made to EST
hereunder, but excluding taxes based on EST net income.
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C. Distributor shall cause true and accurate books of account and records
relating to the Products to be kept in such detail as to enable EST to
ascertain what fees are due hereunder, and all such books and records shall
be open to inspection and audit by EST or its duly authorized
representatives at all reasonable times during regular business hours, but
not more than twice in any single calendar year. In the event such audit
discloses any breach of this Agreement, Distributor shall pay the full cost
of the audit, in addition to other damages and rights available to EST as
the result of such breach.
D. For each end-user under a support services agreement, Distributor agrees to
pay to EST the applicable annual fee specified in EST"s Support Price List
then in effect, minus the discount set forth in Schedule C. Said fees are
due and payable by Distributor within thirty (30) calendar days from the
acceptance of a support services contract from the end-user.
6. TERM
This Agreement shall enter into effect on the date set forth above and shall
have an initial term of one year (365 days) from such date. Said initial term
shall be automatically renewed for successive terms of one year (365 days) each,
unless either party notifies the other in writing at least sixty (60) calendar
days prior to the date of expiration of the term in effect, of its election that
the Agreement not be renewed. This Agreement shall be interpreted as a definite
term Agreement.
7. TERMINATION
Either party may terminate this Agreement at any time after the initial term by
giving sixty (60) calendar days" prior written notice to the other party.
Either party may terminate this Agreement upon written notice if the other party
breaches any of its basic obligations hereunder and fails to cure such breach
within thirty (30) calendar days from the date of written notice if the other
party (i) becomes bankrupt or insolvent, or files a petition therefor; (ii)
makes an assignment for the benefit of its creditors; (iii) enters proceedings
for winding up or dissolution; (iv) is dissolved; (v) is nationalized or is
subject to the expropriation of all or substantially all of its business or
assets. EST may terminate this Agreement upon written notice in the event that
Distributor changes ownership either by sale, acquisition, merger or other
reason.
8. CONSEQUENCES OF TERMINATION
Upon the termination of this Agreement: (i) all orders submitted by Distributor
and not accepted by EST on or before the date of termination shall be canceled
or accepted at the sole option of EST; (ii) Distributor shall return all lists,
catalogs, samples, and promotional literature and Products furnished to it by
EST and any
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and all copies thereof; and (iii) EST shall not be liable to Distributor for,
and Distributor hereby expressly waives any claims for, extracontractual
compensation or damages of any kind whatsoever in connection with this Agreement
or its termination, expiration or modification, whether on account of the loss
by Distributor of anticipated profits or of expenditures, investments or
commitments made in connection with the establishment, development or
maintenance of Distributor"s business or for any cause whatsoever. Sections 3I,
5, 8, 10, 11, 14, 15 and 16 shall survive the termination, expiration or
cancellation of this Agreement.
9. NOTICES
All communication between parties shall be made by facsimile, telex, cable, or
regular airmail. Notices concerning termination or alleged breaches hereof
shall be made by registered mail, return receipt requested. Notices are to be
addressed to:
EST: Distributor:
President President
Embedded Support Tools Corp. NEW Level Telecom Co., Ltd.
000 Xxxxxx Xxxxxx 0 Xxxxx Xxxxxxx XX, 349-24
Xxxxxx, XX 00000 SinDaebang-dong, Dongjak-gu
USA Xxxxx, 000-000 Xxxxx
10. CONFIDENTIALITY
Distributor understands and recognizes the confidential and proprietary nature
of the Products and related business and technical information which may be
furnished from time to time to Distributor by EST under this Agreement. Except
that Distributor may ship Products to licensed end-users as provided by Section
3 above, Distributor shall not disclose, provide or otherwise make available the
Products or related information to any person other than Distributor employees
who have a need to know, without EST"s prior written consent, and shall use the
same only for purposes consistent with this Agreement. Distributor agrees to
take all the necessary steps to safeguard the proprietary and confidential
nature of the Products and related information and to ensure that no
unauthorized person has access to the Products and related information and that
no unauthorized copy, in whole or part, in any form, is made. Distributor
further agrees, at EST"s request, to assist EST in protecting the same against
unlawful appropriation by third parties. The obligations of this Article do not
apply to information that has become part of the public domain through no fault
of Distributor.
11. WARRANTIES
The only warranties which shall be granted by EST with respect to the Products
licensed to end-users within and for installation in the Territory, shall be
those
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expressly set forth in the EST Software License Agreements, Hardware Product
Users" Manual and Schedule F of this Agreement. IN NO EVENT SHALL NAY SUCH
WARRANTIES OR ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE BE DEEMED TO
HAVE BEEN EXTENDED TO DISTRIBUTOR.
12. PATENT AND COPYRIGHT INDEMNIFICATIONS
EST will defend at its own expense any action brought against Distributor to the
extent it is based on a claim that an unmodified Product used by an end-user
within the scope of the EST Software License Agreement infringes a United States
patent or copyright. EST will pay any costs, damages and attorney fees finally
awarded against Distributor in such action which are attributable to such claim
provided EST is given prompt written notice of the claim, information,
assistance, and authority over the control of the defense and/or settlement of
the same. In the event that the Product becomes or, in EST"s opinion, is likely
to become, the subject of a claim of infringement, EST may, at its option,
secure Distributor"s and any licensed end-user"s right to continue using the
Product, replace or modify the Product to make it non-infringing or remove the
Product and refund the license fee paid by Distributor thereof as depreciated or
amortized over the lifetime of the Product as established by EST in its sole
discretion. EST shall have no liability for any claim or patent copyright
infringement based upon the use of a combination of the Product with programs or
data not supplied by EST where the Product alone would not constitute an
infringement. THE FOREGOING STATES THE ENTIRE LIABILITY OF EST WITH RESPECT TO
INFRINGEMENT OF ANY COPYRIGHTS OR PATENTS OR OTHER PROPRIETARY RIGHTS BY THE
PRODUCTS OR ANY PART THEREOF.
13. SUPPORT SERVICES
A. EST shall provide Distributor support services which are equivalent to
those normally provided to EST"s end-user customers for the Products as
follows:
1. EST will use its reasonable efforts to correct deviations from the
Products" published specifications current at the time of shipment to
Distributor, within reasonable time of written notification from
Distributor of the deviation, such notification to include the
specific version number and parts list number of the Product that
showed the deviation and a complete and accurate description of the
deviation.
2. EST will provide Distributor updates, enhancements and documentation
or known deviations to the Products as generally made available by EST
to its customers under support services agreements with EST.
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3. EST will provide Distributor with reasonable telephone consultations
regarding the xxx and functionality of the Products.
B. Distributor agrees that it will provide support services for the Products
to its licensed end-users in accordance with EST"s standard practices as
set forth in Section 13A above, provided that the end-user has entered into
a support services agreement with Distributor. In no event shall
Distributor distribute support services provided by EST to an end-user who
is not under a support services agreement with Distributor and for which
Distributor has not paid EST a support services fee.
C. EST will make its best efforts to enable Distributor to carry out local
repairs to EST hardware products including in-warranty repairs. This will
include the supply by EST, at reasonable costs, of critical parts to enable
Distributor to maintain a local inventory. EST agrees to reimburse
Distribution for any parts used for in-warranty repairs. In the event that
it is agreed that a hardware product should be returned to EST for repair
or replacement, EST will make all reasonable effort to carry out the repair
or send a replacement within four (4) weeks of receiving the returned unit
a its place of business in the USA.
D. All communication from EST, including manuals and technical support
documents, shall be in English.
E. Distributor shall provide the first line of support to its customers such
as installation and operation assistance. For support issues requiring the
assistance of EST, Distributor shall use the standard EST procedure and
forms then in effect for documenting and communicating the support issues
to EST.
F. EST shall have no obligation under Section 13 to provide support services
for Product(s) altered or modified without EST prior written consent;
problems resulting from equipment malfunction or created by causes within
Distributor"s or its owner"s control; and, at EST option, Product(s) that
have been superseded by a new release for more than six (6) months.
G. Distributor shall, on a quarterly basis, provide EST with a record of all
end-users to which Distributor is providing support services.
H. Distributor will grant EST, reasonable access to any unique software,
equipment or information required by EST in carrying out its obligations
under Section 13A.
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14. GOVERNING LAW
The laws of the Commonwealth of Massachusetts, United States of America shall
apply to any interpretation of the terms and conditions of this Agreement.
15. LIMITATION OF LIABILITY
DISTRIBUTOR AGREES THAT EST"s LIABILITY, IF ANY, IN ANY ACTION REGARDLESS OF
FORM SHALL NOT EXCEED THE PAYMENTS MADE HEREUNDER BY DISTRIBUTOR TO EST. IN NO
EVENT SHALL EST BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
EVEN IF ITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR CLAIMS BY
THIRD PARTIES. DISTRIBUTOR AGREES TO INDEMNIFY AND HOLD EST HARMLESS FROM AND
AGAINST ANY SUIT, CLAIM, EXPENSE, LOSS OR LIABILITY (INCLUDING BUT NOT LIMITED
TO COUNSEL FEES AND EXPENSE) ARISING FROM THE ACT, OMISSION OR NEGLIGENCE OF
DISTRIBUTOR.
16. FOREIGN RESHIPMENT LIABILITY
This Agreement is made subject to any laws, regulations, orders or other
restrictions on export from the United States of America of controlled
commodities, technical data or information about such commodities or data, which
may be imposed from time to time by the Government of the Untied States of
America. Distributor will not export, directly or indirectly, any of the
Products or information pertaining thereto to any country for which the
Government of the United States or any agency thereof requires an export license
or other government approval or written assurance at the time of export without
first obtaining such license, approval or assurance and shall indemnify EST for
any failure to do so.
17. FORCE MAJEURE
EST will incur no liability arising out of any delay in delivery or non-delivery
of any Products or Support Services due to a force majeure. A force majeure is
defined as any circumstances beyond the reasonable control of EST including, but
not limited to, fire, floods, earthquakes, fuel shortages, acts of nature, war,
or acts of any Government.
18. DISPUTES
Any controversy or claim out of or pertaining to this Agreement or breach
thereof shall be resolved by arbitration in accordance with the rules of the
American Arbitration Association, then in effect, at the office of the American
Arbitration Association located closest to EST"s corporate address, and the
decision rendered by the American Arbitration Association shall be final and
binding upon both parties and judgement upon such decision may be entered in any
court of competent
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jurisdiction. Neither party shall be precluded hereby from seeking provisional
remedies in the courts of any jurisdiction, including but not limited to
temporary restraining orders and preliminary injunctions to protect its right
and interest, but such shall not be sought as a means to avoid or stay any
arbitration. Neither party shall institute a proceeding hereunder unless, at
least thirty (30) calendar days prior thereto, such party shall have provided to
the other party written notice of its intent to do so and the grounds therefor.
19. ASSIGNMENT
Distributor shall not assign or transfer this Agreement or any of its rights or
obligations hereunder, including assignment or transfer to a successor Company,
without the prior written consent of EST. EST may assign, transfer or delegate
any of its rights or obligations hereunder to any affiliated or subsidiary
company of EST or any company acquiring all or substantially all of the assets
of Embedded Support Tools Corp.
20. WAIVER
A waiver of any breach or acceptance of any order inconsistent with the terms of
this Agreement, or the making of deliveries pursuant to such order, shall effect
no modification of this Agreement. No waiver of any provision of this Agreement
shall be effective unless made in writing. Any waiver of any breach of any
provision of this Agreement shall not constitute a waiver of any subsequent
breach of the same of any other provision of the Agreement.
21. SEVERABILITY
In the event that any provision of this Agreement is declared invalid or becomes
unlawful in its operation, such provision shall be deemed to be omitted and
shall not affect that validity or enforceability of any of the other provisions.
22. RELATIONSHIP
Distributor shall perform its work as an independent contractor and not as an
employee, agent, or partner of EST. Distributor shall have no right or
authority to enter into any contracts in the name of, or for the account of EST,
nor to assume or create any obligation or liability of any kind, expressed or
implied, on behalf of EST, and shall not take any action which has the effect of
creating the appearance of its having such authority.
23. ENTIRE AGREEMENT
This Agreement, including the attached Schedules A, B, C, D and E, contains the
entire Agreement of the parties hereto. No verbal or oral statements or
representations by either party shall in any way modify, add to, delete or
otherwise
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amend this Agreement. This Agreement may be changed only a writing signed by
authorized representatives of the parties hereto.
Agreed to by:
Embedded Support Tools Corp. New Level Telecom
Signature:_____________________ Signature:________________________
Name:__________________________ Name:_____________________________
Title:___________________________ Title:____________________________
Date:___________________________ Date:_____________________________
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XXXXXXXX X
XXXXXXXXX
Xxxxxxxxx:
1. Korea
Initials:
EST:______________________ New Level Telecom __________________
SCHEDULE B
PRODUCTS
Products: (Exclusive for Term of this Agreement)
2. ALL PRODUCTS DEVELOPED, MANUFACTURED AND THE OWNERSHIP RIGHTS TOO
WHICH ARE THE PROPERTY OF EST.
3.
4.
5.
6.
Initials:
EST:______________________ New Level Telecom __________________
SCHEDULE C
Discount Schedule
This schedule is based on US Dollars sent to EST, net of commissions, in any
given calendar quarter.
Sales Volume US Dollars Discount Percentage
----------------------- -------------------
$0 and Above 30%
Initials:
EST:______________________ New Level Telecom __________________
