EXHIBIT 10.10
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O E M A G R E E M E N T
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This OEM Agreement (hereinafter - "AGREEMENT") is entered into as of 8 JULY 2001
(hereinafter - "EFFECTIVE DATE").
BY AND BETWEEN
SPEEDWISE TECHNOLOGIES LTD. an Israeli
Corporation with its principal place of
business at 10 Hayetzira St. Raanana,
Israel (hereinafter - "INTEGRATOR")
OF THE FIRST PART
A N D
MARNETICS LTD. an Israeli Corporation,
having its principal place of business
at 10 Hayetzira St. Raanana, ISRAEL
(hereinafter - "Marnetics")
OF THE SECOND PART
R E C I T A L S
Integrator is engaged in the business of design, development, distribution and
sale of products used in the Internet and mobile data industries.
Marnetics is engaged in the development, distribution and sale of products used
in the Internet traffic management industry.
Integrator wishes to purchase certain of Marnetics' products, either for
integration into Integrator's own products, or for sale of a stand alone
products, in accordance with the terms of this Agreement.
NOW THEREFORE, IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE AND FOR OTHER
GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
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1. Definitions
As used in this Agreement, the following terms shall have the meaning specified
below:
1.1 "MARNETICS' PRODUCT(S)" - shall mean certain products developed by
Marnetics described in ATTACHMENT A attached hereto, as the same
may be amended from time to time in writing by mutual consent of
the Parties in accordance with this Agreement.
1.2 "INTEGRATOR'S PRODUCT(S)" - shall mean certain products developed
by Integrator described in ATTACHMENT B attached hereto, as the
same may be amended from time to time, in writing, by mutual
consent of the Parties in accordance with this Agreement.
2. SALE, PURCHASE AND RESALE OF PRODUCTS
2.1 SALE OF MARNETICS' PRODUCTS. Integrator will sell Marnetics'
Products under its own brand name. Integrator may sell Marnetic's
Product either integrated with Integrator's Products or as a stand
alone product, either to end-users or to Integrator's distribution
partners. Sales by Integrator of stand alone Products to
Integrator's OEM Customers will require the prior approval of
Marnetics.
2.2 Integrator will sell Marnetics' Product(s) at price determined by
Integrator. The minimum price set by Marnetics is US $25 per
concurrent user. Nevertheless, in the event that this price proves
to be too high, Integrator may lower the price subject to
Marnetics' prior agreement.
2.3 SALE OF INTEGRATOR'S PRODUCTS. Integrator agrees to sell to
Marnetics, at Marnetics' request, Integrator's Product(s) for
resale by Marnetics, on a worldwide basis, subject to the
provisions of this Agreement. The territories and customers to
which Marnetics will sell Integrator's products will be addressed
and agreed on a case by case basis. The terms and conditions of
sale with respect to Integrator's Product(s) shall be Integrator's
standard terms of sale, unless otherwise agreed, in writing,
separately between Integrator and Marnetics.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 EXISTING INTELLECTUAL PROPERTY OF INTEGRATOR. Integrator
specifically retains all rights, title and interest in and to the
designs of Integrator's Product(s) and all intellectual
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property rights embodied in Integrator's product(s), including,
without limitation, all copyrights, trade secret rights and other
proprietary rights, provided, however, that Marnetics specifically
retains all rights, title and interest in and to all elements of
Marnetics' Product(s) and other proprietary specifications or
technology developed and/or provided to Integrator by Marnetics.
Except as otherwise set forth herein, Marnetics is not receiving
any rights in Integrator's Product(s) other than the right to
purchase and resell Integrator's Product(s) in accordance with the
terms of this Agreement.
3.2 EXISTING INTELLECTUAL PROPERTY OF MARNETICS. Marnetics
specifically retains all rights, titles and interests in and to
the designs of Marnetics' Product(s), and all intellectual
property rights embodied in Marnetics' Product(s), including
without limitation, all copyrights, trade secret rights and other
proprietary rights with respect thereto. Integrator shall not use
Marnetics' Product(s) or any part thereof or any intellectual
property rights embodied therein, for the design, development,
manufacture, marketing, use or sale of any other products or
services.
3.3 NEWLY DEVELOPED INTELLECTUAL PROPERTY. Except as otherwise,
specifically provided in this Agreement, and subject to Section
3.1 and Section 3.2 above. each Party shall own and retain all
rights, title and interest in and to any and all products,
inventions, know-how, discoveries, improvements, designs,
programs, source code, circuit, designs, protocols and other
intellectual property rights which are made conceived or reduced
to practice independently by such Party, whether or not as part of
and in connection with the transaction contemplated in this
Agreement.
4. ADDITIONAL DUTIES AND OBLIGATIONS
4.1 SUPPORT MATERIALS. From time to time, Marnetics shall, without
requiring any compensation, supply Integrator with samples of
advertising and selling literature, drawings, engineering and
other non-proprietary product data as Marnetics may have available
and which would be helpful in advancing Integrator's sale of
Integrator's Product(s). Integrator may use any such items and
materials in preparing and distributing advertising and selling
literature developed by or on behalf of Integrator for purposes of
promoting the marketing and sale of Integrator's Product(s).
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4.2 Marnetics will be responsible for the technical content of Support
Materials, however the Integrator is responsible for production of
these materials. Marnetics will support up to $10,000 toward the
cost of these materials, and this amount will be deducted from
payments by the Integrator to Marnetics.
4.3 TRAINING AND SUPPORT.
4.3.1 TRAINING. Marnetics shall, from time to time, upon the
request of Integrator, but not more often than quarterly,
per a schedule that will be determined by Marnetics, and
at no charge to Integrator, conduct training courses at
Marnetics' facilities in Israel for a limited number of
Integrator's personnel with respect to the use,
installation, operation, maintenance and repair of
Marnetics' Product(s). All salary, travel and lodging
expenses of Integrator's personnel shall be borne by
Integrator.
4.3.2 TECHNICAL SUPPORT. During the term of this Agreement,
Marnetics shall, at no additional charge to Integrator,
provide Integrator with technical support of Marnetics'
Product(s), consisting of, limited to: (i) technical
consultation and support by phone and email, as well as
on-line support, when available and (ii) troubleshooting
assistance. During the first year as from the date of the
signature of this Agreement, the support will not be
limited, but during the second year and thereafter, the
support will be limited to up to eighty (80) hours per
annum for as long as the agreement is valid. This Support
will be made available by Integrator's employees who have
undergone training on BITmax for cellular carriers. Any
face-to-face meetings will take place in Israel, unless
coordinated between the Parties and financed by the
Integrator. Integrator may enter into a technical support
agreement with Marnetics for additional technical support
of Marnetics' Product(s), and all terms and conditions of
such additional technical support, and all charges related
thereto, shall be as set forth in such separate agreement
(field service will be charged separately).
4.3.3 PRODUCT CERTIFICATION/ APPROVAL. Integrator shall be
responsible for obtaining any and all certifications
and/or approvals necessary in
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connection with the marketing and sale of Integrator's
Product(s) such as, for example, FCC certification,
Underwriters Laboratories and equivalent foreign
certifications and approvals, for product safety,
emissions and the like, all at Integrator's expense. To
the extent necessary, Marnetics agrees to cooperate with
Integrator, at Integrator's expense, in obtaining such
certifications and approvals.
4.3.4 MAINTENANCE AGREEMENT. Simultaneous to the execution of
this Agreement, Integrator and Marnetics shall enter into
a separate maintenance agreement pertaining to Marnetics'
Product(s). Such maintenance agreement shall provide that,
upon payment of the maintenance fees specified therein,
Integrator shall be entitled to receive from Marnetics any
and all upgrades, patches, bug fixes and other releases
with respect to Marnetics' Product(s), including, but not
limited to, updates to the software drivers developed by
Marnetics for Marnetics' Product(s) The fees charged to
customers will be divided between Integrator and
Marnetics, proportionately to the sales fees, i.e.; 70/30.
5. PAYMENT TERMS
5.1 Integrator will pay Marnetics for Marnetics' Products, fees which
shall be generated from the revenues of Integrator, as detailed in
ATTACHMENT 5.1. Payment terms will be divided between Integrator
and Marnetics at a rate of 70/30, respectively, based on the
invoiced price. Payment must be transferred by the Integrator to
Marnetics within 15 days of receipt of payment from the client.
6. PROTECTION OF THE TECHNOLOGY
6.1 NOTICE OF INFRINGEMENT. Integrator and Marnetics shall each
promptly advise the other in writing of any claim, action, lawsuit
or proceeding that is threatened, made or brought against them, or
either of them, for violation of a third party's patent, trade
secret or other intellectual property rights based in any instance
upon Integrator's sale, use, lease or distribution of any of
Marnetics' product(s).
6.2 INFRINGEMENT BY TECHNOLOGY. In the event that Marnetics'
Product(s) are, or in the reasonable judgment of Marnetics are
likely to become, the subject of any legal action based, in
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whole or in part, on a claim that Marnetics' Product(s) infringe
the proprietary rights of any Party, Marnetics shall have the
right to defend and in such an event,, shall have control of the
defense of any such claim, action, lawsuit or proceeding and shall
pay the costs thereof, including but not limited to, any final
awards or settlement costs incurred by Integrator in connection
therewith; provided, however, that Integrator shall assist
Marnetics in the defense of such matter at Marnetics' expense, and
shall have the right to be represented by its attorney, at its own
expense, in any such controversy.
7. EXCLUSIVITY AND MINIMUM QUANTITY
7.1 Marnetics agrees to grant Integrator exclusivity for the first
year with no conditions.
7.2 This exclusivity for second year is subject to the following:
7.2.1 Integrator's net sales of Marnetics Products (including
maintenance) of not less than US $1,000,000 entitling
Marnetics to fees in the sum of not less than US $300,000
for the first year following the date of execution of this
Agreement; or
7.2.2 Integrator will pay Marnetics a sum of US $300,000 in the
aggregate for the first year following the date of the
execution of this Agreement, not withstanding Integrator's
sales.
7.3 This exclusivity for third year is subject to the following:
7.3.1 Integrator's net sales of Marnetics Products (including
maintenance) of not less than US $3,000,000 entitling
Marnetics to fees in the sum of not less than US $900,000
for the second year following the date of execution of
this Agreement.
7.4 The exclusivity for following years will be negotiated between the
Parties.
8. TERM AND TERMINATION
8.1 TERM. This Agreement shall take effect on the Effective Date
hereof and, subject to earlier termination as provided in this
Agreement, shall continue in full force for a period of 12 months,
and the terms of this Agreement shall be automatically renewed for
consecutive twelve (12) month periods thereafter, unless written
notice to the contrary is received by either Party from the other
Party at least one (1)
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months prior to the expiration of the then-current term As from
the end of the second 12 month period, each Party shall have the
right to terminate the agreement, regardless of reason, with
notification in writing, within 30 days.
8.2 TERMINATION.
8.2.1 TERMINATION FOR BREACH. In the event of a material breach
or default by a Party in the performance of its respective
duties, obligations or undertakings set forth in this
Agreement, the other Party shall have the right to give
written notice to the defaulting Party, notifying such
Party of the specific breach or default involved. If,
within (a) ten (10) days, in the case of any payment
default; or (b) thirty (30) days, in all other cases,
after such notice, the defaulting Party shall not have
remedied or commenced diligently to remedy the breach or
default and thereafter prosecute such remedy to completion
within a commercially reasonable time, the aggrieved Party
shall have the right, in addition to any other right,
remedy or benefit it may have under this Agreement or
applicable law, to terminate the Agreement by giving
written notice of such termination to the defaulting
Party.
8.2.2 TERMINATION FOR INSOLVENCY. In addition to the rights,
described in Section 9.2(a) above, either Party may
terminate this Agreement at any time by giving the other
Party written notice to that effect, effective on the date
of receipt of such notice, if such other Party enters into
compulsory liquidation or bankruptcy or suffers any
similar action in consequence of debt, or becomes unable
to pay its debts as they become due, or otherwise becomes
insolvent or ceases to conduct its business in the
ordinary course.
8.3 RIGHTS UPON TERMINATION OF THE AGREEMENT. Each Party understands
that the rights of termination hereunder are absolute and that it
has no rights to a continued relationship with the other after
termination, except as expressly stated herein. Neither Party
shall incur any liability whatsoever for any damage, loss or
expenses of any kind suffered or incurred by the other (or for any
other compensation to the other) arising from or incident to any
termination of this Agreement by such Party that complies with the
terms of this Agreement, whether or not such Party is aware of any
such damage, loss or expenses.
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8.4 RETURN OF MATERIALS. Upon the termination of the Agreement,
Integrator shall not use further, except as herein provided, and
shall return to Marnetics all specifications, data sheets,
drawings, designs, documentation, schematics, photographs,
recordings and other electronic records, and any other documents
or materials furnished to Integrator or otherwise obtained by
Integrator from Marnetics and relating to Marnetics' Product(s) or
other Marnetics technology, and all copies and reproductions
thereof and any and all similar materials in any way, in whole or
in part, based thereon.
8.5 OTHER RIGHTS. Each Party acknowledges and agrees that termination
of this Agreement is not the sole remedy under this Agreement and,
whether or not termination is effected, all other remedies
available to a Party as a result of any breach or nonperformance
by the other Party, shall remain available to the non-defaulting
Party.
9. WARRANTY
9.1 WARRANTY. Marnetics warrants that, for a period of thirty (30)
days after Integrator's receipt of a particular product, each of
Marnetics' Product(s) delivered hereunder shall perform in
accordance with the specifications for such product current as of
the date of such shipment, and shall be free from defects in
design, materials and workmanship. Prior to any return of a
defective product to Marnetics, Integrator shall first request a
Return Material Authorization (RMA) from Marnetics, which shall
also include a written description of the problem and reason for
return of such products. If Integrator rightfully and in a timely
manner returns any defective products to Marnetics pursuant to the
warranty provisions described herein, Marnetics' sole and
exclusive liability will be, at Marnetics' option, within twenty
(20) days after Marnetics' receipt of such defective products, to
repair or replace such products or to issue a full refund to
Integrator with respect to such products. Cost of return freight
for any defective product shall be at Marnetics' expense when
Products are returned to Integrator pursuant to the warranty
provisions herein, provided, however, that Marnetics reserves the
right to charge back to Integrator any reasonable costs incurred
in evaluating any RMA in which there has been no failure
identified and the applicable product(s) is deemed in satisfactory
working order and returned to Integrator .
9.2 DISCLAIMER OF WARRANTIES. Except as otherwise specifically
provided in this Agreement, the warranties in this Agreement are
in lieu of all other warranties, express,
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implied or statutory, including, but not limited to, the implied
warranties of merchantability or fitness for a particular purpose,
and the remedy provided in Section 10.1 shall be Integrator's sole
remedy in the event such warranties are breached .
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF DAMAGES. Neither Party shall be liable to the other
Party, or any other entity or person, for any loss of profits,
loss of use, interruption of business or for any indirect,
special, incidental, punitive or consequential damages of any
kind, whether under this Agreement or otherwise, resulting from
the use of any product shipped hereunder, even if advised of the
possibility of such damages.
10.2 RELIANCE ON DISCLAIMERS AND LIMITATIONS. The Agreement, and the
substance of the other rights and duties of Integrator and
Marnetics under this Agreement, have been negotiated in reliance
on, and are based upon the applicability and enforceability of the
disclaimer of warranties and limitations of liability contained in
Articles 10 and 11.
11. REPORTS
Integrator will deliver to Marnetics a quarterly report detailing sales made by
Integrator in the previous months and a forecast for the following quarter.
12. RELATIONSHIP BETWEEN THE PARTIES
Nothing in this Agreement shall be construed as constituting either Party as a
partner or an employee or an agent of the other Party. Neither Integrator nor
Marnetics shall have the authority to bind or act for the other in any respect.
Marnetics and Integrator shall each remain an independent contractor responsible
only for its own actions. Integrator shall not, without prior written approval
of Marnetics, make any representations or give any guarantees or warranties
concerning Marnetics' Product(s) on behalf of Marnetics.
13. APPROVAL
Marnetic's power and authority to enter into this Agreement and to execute and
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, shall be subject to the approval
of this Agreement by Marnetic's Board of Directors and of the Shareholders, if
such an approval by the Shareholders is required by any law.
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14. MISCELLANEOUS
14.1 SUCCESSORS AND ASSIGNS AND BINDING EFFECT. Without contradicting
the restrictions on transfer as set forth in Section 13.2 below,
the rights and benefits of the Parties under this Agreement shall
accrue to, and run in favor of each Party's successors and
assigns. The rights and obligations of the Parties under this
Agreement shall be binding upon their respective successors and
assigns.
14.2 ASSIGNMENTS. Neither Party shall make or purport to make any
assignment, transfer or conveyance, in whole or in part, of its
rights and obligations under this Agreement without the prior
written consent of the other Party, such consent to be at such
other Party's reasonable discretion.
14.3 GOVERNING LAW; JURISDICTION. This Agreement shall take effect
under, be construed and enforced according to, and be governed by
the laws in force in the State of Israel, without reference to
conflict of laws principles. The sole jurisdiction and venue for
actions related to the subject matter of this Agreement shall be
the Tel-Aviv-Yafo courts, and both Parties consent to the
jurisdiction of such courts.
14.4 SEVERABILITY. The provisions of this Agreement are severable. If
any provision or part of this Agreement shall be held by any court
or other official body of competent jurisdiction to be invalid or
unenforceable for any reason, the remaining provisions or parts
hereof shall continue to be given effect and shall bind the
Parties hereto unless the enforceability or illegality has the
consequence of substantially altering the respective rights and
obligations of the Parties hereto.
14.5 WAIVER. The failure of either Party to insist in any one or more
instances upon performance of any term, covenant or condition of
this Agreement, shall not be construed as a waiver of its future
performance. The obligations of either Party with respect to such
term, covenant or condition shall continue unchanged and in full
force and effect.
14.6 NOTICES. All notices, requests, demands and other communications
hereunder, shall be in writing and shall be deemed to have been
duly given if: (a) delivered by hand; (b) sent by electronic means
if confirmed and promptly followed by written confirmation,
inserted for convenience of reference only and shall in no way
affect the interpretation of any of the terms or conditions of
this Agreement.
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14.7 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original of this
Agreement, but all of which, taken together shall constitute but
one agreement.
14.8 NON-EXCLUSIVITY. This Agreement is a non-exclusive agreement and
does not limit either Party from developing or marketing its own
products, or cooperating with any third party in the development
of such products, provided that the provisions of this Agreement
regarding confidentiality, product and intellectual property
ownership rights, and all other provisions of this Agreement are
strictly observed and complied with.
INTEGRATOR: MARNETICS:
By: /S/ DAN GILAT By: /S/ MOSHE KESSNER
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Name: DAN GILAT Name: MOSHE KESSNER
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Title: DIRECTOR Title: DIRECTOR
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By: /S/ AMIT MATTATIA By: /S/ DAVID SHEETRIT
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Chief Executive Officer Acting Chief Executive
Officer
ATTACHMENT A
Bitmax(TM)
ATTACHMENT B
Speedwise Accellence(TM)
Speedwise OnTCP(TM)
Speedwise ISPower(TM)
Speedwise EnterPower(TM)
Speedwise WeBreeze(TM)