Exhibit 10.2
MUTUAL NON-DISCLOSURE AGREEMENT & BUSINESS AGREEMENT
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(Contract #: 8C-AN050921-01)
This Agreement is made and entered into as of September 21, 2005 between S-CAM
Co., LTD duly organized and existing under the law of the Republic of Korea with
its place of business at #303, Gyenggi Venture building 1017, Ingae-dong,
Paldal-gu, Suwon-si, Gyenggi-do, Korea (hereinafter referred to as "SCAM") and
ANUBIS Electrinc GmbH, duly organized and existing under the law of the Germany
with its principal place of business at Am Xxxxxxxx 00, X-00000 Xxxxxxxxxxx,
Xxxxxxx (hereinafter referred to as "ANUBIS") with reference to the following
facts:
Whereas, SCAM (Manufacturer) wishes to appoint ANUBIS the exclusive distributor
for the Products in the Territory (as hereinafter defined),
Now, therefore, in consideration of the premises and mutual covenants contained
herein, the parties agree as follows:
ARTICLE 1. DEFINITIONS
In this agreement except where the context otherwise requires, the following
terms and expressions shall have the following meanings:
1.1 "Confidential Information" means any information, whether written or oral,
which ANUBIS learns about SCAM or the Products and which is not generally
available to the public or which is labeled by SCAM as confidential.
1.2 "Products" means the item listed in the Schedule and any additional
products expressly brought within the scope of this agreement by mutual written
consent of the parties.
1.3 "Performance Levels" means the annual minimum sales of the Products for the
Sales Territory as set forth in the Schedule or as may be amended by the parties
in writing from time to time.
1.4 "Sales Price" means, for Products delivered to the ANUBIS hereunder, an
amount in US Dollars, determined from SCAM's current applicable price list for
such Product as published by SCAM, in effect September 21, 2005 as mutually
agreed by both parties, and which shall only be changed with 30 days prior
written notice.
1.5 "Sales Territory" means that geographic area commonly referred to as Whole
Europe.
1.6 "Schedule" means that listing attached to this Agreement and made a part
hereof which contains certain pertinent provisions of this agreement.
ARTICLE 2. GRANT OF REPRESENTATION
2.1 EXTENT OF REPRESENTATION RIGHTS. Under the terms and conditions set forth
in this agreement, SCAM hereby appoints ANUBIS, and ANUBIS accepts such
appointment as the representative to sell the Products to customers in the Sales
territory. Unless specifically otherwise authorized in writing by SCAM, ANUBIS
shall not directly or indirectly by any means whatsoever contact or solicit any
customer or customers outside of Sales Territory or establish any branch or
depot for the purpose of selling the Products outside of the Sales Territory.
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2.2 ALL SALES BY ANUBIS COVERED. All Products sold by ANUBIS during the term
of this agreement shall be subject to the terms of this agreement.
2.3 OTHER PRODUCTS. This agreement shall not included, and ANUBIS does not by
this agreement obtain, the right to sell any item produced or sold by SCAM
except the Product.
2.4 ANUBIS NOT AGENT. ANUBIS is and shall act as an independent contractor.
ANUBIS is not an agent, franchisee, or employee of SCAM and has no power to act
for, bind, or otherwise create or assume any obligation on behalf of SCAM for
any purpose whatsoever. All financial obligations associated with ANUBIS's
business are the sole responsibility of ANUBIS.
ARTICLE 3. TITLE, RISK OF LOSS AND WWARRANTY LIMITATION
3.1 LIMITED WARRANTY. Any products purchased from SCAM which become defective
will be Warranted to ANUBIS for a period of 24 months from the date of shipment
to ANUBIS. Such warranted units will be repaired or replaced by SCAM.
3.2 NOTIFICATION. ANUBIS will notify SCAM in writing of any claim or
proceeding involving Products no later than fourteen (14) days after ANUBIS
learns of such claim or proceeding. SCAM will likewise notify ANUBIS. SCAM
will also report all claimed or suspected product defects to ANUBIS promptly.
ARTICLE 4. TRADEMARKS, TRADE NAMES AND GOODWILL
4.1 REPUTATION. Each of the parties will act and cooperate in all reasonable
ways to protect the reputation and goodwill of the other.
ARTICLE 5. CONFIDENTIAL INFORMATION
5.1 MAINTENANCE OF CONFIDENTIALITY. ANUBIS acknowledges that the processes
used by SCAM to develop and produce the Products involve confidential
information and data of substantial value to SCAM which value would be impaired
if said information and data were disclosed. ANUBIS agrees (1) to safeguard the
Confidential Information disclosed pursuant to this agreement (2) not to use the
Confidential Information disclosed pursuant to this agreement for any purpose
other than (to the extent necessary) to further the sale of and promotion of
Products and (3) to cooperate in any lawsuit involving the Confidential
Information. In implementation of the foregoing, ANUBIS shall not disclose any
of the Confidential Information to any person except those for whom disclosure
is necessary for the effective performance of their responsibilities as
employees of agents of ANUBIS, and, in each case, only to the extent required
for such effective performance of responsibilities.
5.2 OBLIGATION AFTER DISCLOSURE OR TERMINATION. The obligations undertaken by
ANUBIS pursuant to this Article 5 shall not apply to any Confidential
Information which hereafter shall become published or otherwise generally
available to the public, except in consequence of a willful or negligent act or
omission by ANUBIS orits employees or agents in contravention of the obligations
herein above set forth in this Article 5. Except as so limited all of the
obligations of this Article 5 survive expiration or termination of this
agreement.
5.3 This Agreement will apply to all confidential and proprietary information
disclosed by one party to the other party, including information listed in
Exhibit A and other information which the disclosing party identifies in writing
as confidential before or within thirty days after disclosure to the receiving
party ("CONFIDENTIAL INFORMATION")
5.4 Each party agrees (i) to hold the other party's Confidential Information in
strict confidence, (ii) not to disclose such Confidential Information to any
third parties, and (iii) not to use any Confidential Information for
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any purpose except for the Business Purpose. Each party may disclose the other
party's Confidential Information to its responsible employees with a bona fide
need to know, but only to the extent necessary to carry out the Business
Purpose. Each party agrees to instruct all such employees not to disclose such
Confidential Information to third parties, including consultants, without the
prior written permission of the disclosing party.
5.5 Confidential Information will not include information which:
(i) Is now, or hereafter becomes, through no act or failure to act on the
part of the receiving party, generally known or available to the public;
(ii) was acquired by the receiving party before receiving such information
from the disclosing party and without restriction as to use or disclosure;
(iii) is hereafter rightfully furnished to the receiving party by a third
party, without restriction as to use or disclosure;
(iv) is information which the receiving party can document was
independently developed by the receiving party;
(v) is required to be disclosed pursuant to law, provided the receiving
party uses reasonable efforts to give the disclosing party reasonable notice of
such required disclosure; or
(vi) is disclosed with the prior written consent of the disclosing party.
ARTICLE 6. REPRESENATIONS AND WARRANTIES; INDEMNIFICATION
6.1 POWER AND AUTHORITY. SCAM represents and warrants that it has full power
and authority to enter into and fulfill the terms of this agreement.
6.2 PRODUCT QUALITY. SCAM represents and warrants to ANUBIS that the Products
will be of good quality in all respects, that the materials comprising the
Products shall not be defective, and that the Products sold to ANUBIS hereunder
shall operate in conformance with SCAM's specifications with respect to such
Products as set forth in any literature or packaging accompanying or related to
such Products.
6.3 NECESSARY RIGHTS. SCAM represents and warrants to ANUBIS that SCAM has, or
has applied for all necessary rights to sell and all necessary copoyrights,
trademarks, service makes and patents for the Products. SCAM represents and
warrants, to the best of its knowledge and belief, that neither the Products nor
the use thereof infringes upon or violates any right of privacy of, or
constitutes a libel, slander or any unfair competition against, or infringes
upon or violates any trademark, trade name, service xxxx, copyright, trade
secret, invention, patent or any other right of any other person.
ARTICLE 7. OTHER COVENANTS OF DISTRIBUTOR
In addition to other duties set forth herein, during the term of this agreement
ANUBIS also covenants and agree:
7.1 PROMOTION. To diligently use it best efforts to introduce, promote the
sale of, and obtain orders for, the Products in the Sales Territory.
7.2 MAINTENANCE AND PROVISION OF INFORMATION. To maintain and to provide SCAM
with forecasts in such form as is reasonably requested by SCAM, relating to
expected orders for Products from the Sales Territory.
ARTICLE 8. TERM AND TERMINATION
8.1 TERM. The term of this agreement shall initially be twelve months
commencing as of the date and year first above written unless earlier terminated
in accordance with this Article 8. After such twelve month period, the
agreement shall continue on a year to year basis unless either party shall give
written notice to the other within sixty (60) days from the end of such period
or unless sooner terminated in accordance with the provisions of this paragraph
8.
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8.2 EVENTS OF DEFAULT. The following shall constitute and Event of Default:
(a) The breach by either party of any of the terms of this agreement
or of any other ancillary agreement between the parties hereto
including, but not limited to, timely payment of any sums due
hereunder or thereunder, and such breach continuing for a period of
thirty (30) days after notice from the non-breaching party.
(b) Any representation or warranty under this agreement or any other
agreement being materially false.
(c) The receipt by either party of an opinion of counsel that such
termination is necessary to avoid exposure to civil or criminal
liability under any federal, state or foreign laws.
(d) The failure of ANUBIS to meet under 70% of the Performance Levels
in the Sales Territory by mutual agreement; or
(e) A substantial change in the ownership or control of ANUBIS.
8.3 EFFECT OF TERMINATION. Should an Event of Default occur the non-defaulting
party might, so long as the Event of Default continues in effect, terminate this
agreement and pursue any right which may be available by law. In the event of
any termination arising as a result of a breach by ANUBIS:
(a) SCAM shall not be relieved of any obligation to make further shipments of
the Product hereunder and may not (even in the event that the contract was
terminated as a result of a breach by ANUBIS) cancel all ANUBIS's unshipped
orders for the Product. SCAM shall have an obligation to ANUBIS in connection
with of any unshipped orders pursuant to this paragraph.
(b) ANUBIS shall immediately discontinue representation of the Product and the
use of Confidential Information the Trademarks and any signs, stationary,
advertising, or anything else that might make it appear that ANUBIS is still
authorized to deal in the Product.
(c) ANUBIS shall immediately return all Confidential Information to SCAM along
with all literature, manual, price lists, and similar material related to the
Product.
ARTICLE 9. GENERAL PROVISIONS
9.1 COMPLETE AGREEMENT; MODIFICATIONS. This agreement and any documents
referred to herein or executed contemporaneously herewith constitute the entire
agreement among the parties with respect to the subject matter hereof and may
not be amended, altered or modified except by a writing signed by the parties.
This agreement supersedes all agreements, representations, warranties,
statements, promises and understandings, whether oral or written, with respect
to the subject matter hereof.
9.2 ADDITIONAL DOCUMENTS. Each party hereto agrees to execute any and all
further documents and writings and to perform such other actions which may be or
become necessary or expedient to effectuate and carry out this agreement.
9.3 NOTICES. Unless otherwise specifically permitted by this agreement, all
notices under this agreement shall be in writing and shall be delivered by
personal service, telegram, facsimile or certified or registered mail (if such
service is available, or, if not, by first class mail), postage prepaid, to such
address as may be designated from time to time by the relevant party, and which
shall initially be as set forth in the Schedule. Any notice sent by mail shall
be deemed to have been given fourteen (14) days after the date on which it is
mailed.
9.4 ASSIGNEMNT.
The parties may not assign or transfer this agreement or any of its rights,
duties or obligations hereunder and this agreement may not be involuntarily
assigned by operation of law without the prior written consent of each party.
9.5 EXCUSED NONPERFORMANCE. Neither SCAM nor ANUBIS shall be deemed to be in
default or for in breach of any provision of this agreement as a result of any
delay, failure in performances, or interruption of service resulting directly or
indirectly from acts of God, acts of civil or military authority, civil
disobedience, war, strikes or other labor disputes, fires, transportation
contingencies, laws, regulations, acts or orders of any government agency or any
government official, or any other occurrence beyond the reasonable control of
either
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party. It is expressly understood, however, that the obligations of either
party to perform under the terms of this agreement shall continue after the
passing of, or normalization of, any of the eventualities described above,
provided that the occurrence of any such eventuality shall in no event extend
the term of this agreement. In witness whereof, the parties hereof have caused
this agreement to be executed in duplicate for each party retaining one.
\s\ xxxxx
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SCHEDULE FOR BUSINESS AGREEMENT
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1. Product: NF1 (2.2" Navigation)
2. Tooling Cost Payment
a. Total: US$100,000.00
b. 30%: US$30,000.00 will be paid with complete the contract for starting
c. 30%: US$30,000.00 will be paid after ANUBIS received the Engineering
sample
d. 40%: US$40,000.00 will be paid when P.P sample is approved
3. Tooling Cost Depreciation
a. Quantity: 100,000 units
b. Deduct Price: US$1.00/unit up to 100,000 units
4. Development Schedule
a. Please refer to attached file for the development schedule
b. The Development Schedule is subject to be changed if there are any
unexpected happen
5. Sales Price for Player: US$11.00 (Included Tooling Cost Depreciation
US$1.00)
a. The price is only for the player without map data Nand Flash Memory,
Map Porting Cost and accessories.
b. SCAM provides the giftbox design, and ANUBIS provides the cosmetic
design for giftbox.
c. SCAM and ANUBIS double check the price for accessories.
d. The price will be discussed after 100,000 units production.
6. Performance Levels (Total 100,000 units from Jan 2006 to Dec 2006)
a. Quarter 1 (Jan. 2006 - Mar. 2006): 50,000 units
b. Quarter 2-4 (Apr. 2006 - Dec. 2006): 50,000 units
7. Sales Territory: Whole Europe
7. Shipment Terms: FOB KOREA
8. Payment: By an Irrevocable L/C at night in favor of SCAM or T/T in advance.
9. Placing order for Quarter 1
a. ANUBIS shall place the order for 50,000 units 6 weeks prior to mass
production for buying long term components.
The matters not mentioned herein in detail shall be amicably determined by/and
between the party.
September 21, 2005
For and on behalf of ANUBIS For and on behalf of SCAM
ANUBIS DIGITAL TECHNOLOGY CO., LTD SCAM CO., LTD.
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Signed: Signed:
\s\ Xxxxxxxxx Xxxx \s\ Bon Xxxx Xxx
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Name: Xxxxxxxxx Xxxx Name: Bon Xxxx Xxx
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Position: CEO Position: CEO
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S-Cam PROFORMA INVOICE
S-CAM Co., Ltd.
Xx. 00, Xxx-Xx, Xxxxx-Xxxx, Xxxxxx Xxxx INV. NO. : XXXX-XXX000000-00
Xxxxxxxx-xx, Xxxxx DATE : September 21, 2005
Tel: 00-00-000-0000 Fax: 00-00-000-0000 REF NO. :
MESSERS:
ATTN: XX. XXXXXXXX XXXX
ANUBIS ELECTRONIC GMBH
We have the pleasure of presenting the following goods in accordance with the
terms and conditions given below:
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H-S Code Description Q'ty U-Price (U$) Amount (U$)
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NF-1 (2.2" LCD) Navigation + MP3
Tooling Cost
- 30% with Starting $100,000.00
- 30% after received Engineering Sample $ 30,000.00
- 40% after pass P.P sample is approved $ 40,000.00
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* Origin : Republic of Korea
* Destination : Germany
* Packing : Export Standard Packing
* Payment : T/T
* Validity of Offer : 2 weeks after Issue this Offer
* Bank Information : Korea Exchange Bank, Samsung Electronics Br.
- Bank's Address : Maetan 0 xxxx 000, Xxxxxx-xx, Xxxxx Xxxx,
Xxxxxxxx-xx, Xxxxx
- Account No. : 148-JSD-100077-6
- SWIFT Code : XXXXXXXX
* Beneficiary : X.XXX Co., LTD.
00 Xxx-Xx, Xxxxx-Xxxx, Xxxxxx Xxxx,
Xxxxxxxx-xx, Xxxxx
Tel: 00-00-000-0000
* Remark
Accepted by Offered By
S-CAM Co., LTD.
\s\ Bon Xxxx Xxx
\s\ Xxxxxxxxx Xxxx Bon Xxxx, President
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S-CAM Co., Ltd.
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