EXHIBIT 10.10
RESELLER AGREEMENT
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[GRAPHIC OMITTED]
RESELLER AGREEMENT
THIS TITANIUM TECHNOLOGY RESELLER AGREEMENT ("Agreement"), is entered
into as of the EFFECTIVE DATE set forth below by and between Titanium Technology
Limited, a Hong Kong Limited Company ("TITANIUM"), having its principal place of
business 6/F., Tianjin Building, 167 Connaught Road West, Hong Kong SAR and the
RESELLER identified below.
This Agreement consists of the following Term Sheet, the Standard Terms
and Conditions and the Exhibits attached hereto.
TERM SHEET
1. EFFECTIVE DATE:
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2. RESELLER:
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Street Address:
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Company URL:
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Telephone: Facsimile:
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3. CONTACT PERSON:
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Title:
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Contact Person's
Telephone:
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Contact Person's
E-mail address:
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4. START DATE OF
AGREEMENT:
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5. END DATE OF
AGREEMENT:
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6. TERRITORY:
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7. INITIAL ORDER $
VALUE:
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8. MINIMUM ANNUAL $
COMMITMENT:
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9. PRODUCT SCHEDULE
AND DISCOUNT:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TITANIUM TECHNOLOGY LIMITED RESELLER
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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STANDARD TERMS AND CONDITIONS
1. DEFINITIONS
Capitalized terms used and not otherwise defined in this Agreement or the
Schedules hereto shall have the meanings shown below:
1.1 "Intellectual Property" means all of the following owned by a party:
(i) trademarks and service marks (registered and unregistered) and trade names,
and goodwill associated therewith; (ii) patents, patentable inventions, computer
programs, and software; (iii) databases; (iv) trade secrets and the right to
limit the use or disclosure thereof; (v) copyrights in all works, including
software programs; and (vi) domain names. The rights owned by a party in its
Intellectual Property shall be defined, collectively, as "Intellectual Property
Rights."
1.2 "Product(s)" shall mean those TITANIUM products that have been
explicitly included in this agreement and specified on the term sheet. TITANIUM
shall have the right to withdraw any Product(s) from this Agreement upon fifteen
(15) days advance written notice.
1.3 "Discount" shall mean the discount applicable to Unit Price for a
product as specified in the then current Reseller Price List. The now current
Reseller Price List is attached to this Agreement as Exhibit A. All Reseller
Price Lists are incorporated in this Agreement by this reference.
1.4 "Reseller" means retail dealers only, that is companies which sell only
to end-users. The term "Reseller" does not include companies which sell to
distributors or purchase products for their own use.
1.5 "Territory" shall mean the distribution territory set forth on the Term
Sheet attached hereto.
1.6 "Trademarks" shall mean TITANIUM's registered and unregistered
trademarks, trade names and other commercial symbols.
2. APPOINTMENT AS RESELLER
2.1 APPOINTMENT. Subject to the terms and conditions of this Agreement,
TITANIUM hereby appoints RESELLER as a non-exclusive reseller for the Territory
under the TITANIUM Program (the "Program"). In connection with such appointment,
to the extent permitted by the laws of the Territory, TITANIUM grants RESELLER a
non-exclusive and non-transferable right to promote, market and solicit orders
in the Territory from Resellers for the Products and services described in the
Term Sheet.
2.2 AUTHORIZATION. RESELLER may represent itself as a participant in the
Program and as a reseller for the Products. RESELLER shall not represent that it
is otherwise affiliated with TITANIUM. RESELLER is authorized to represent to
Resellers only such facts about TITANIUM and the Products as TITANIUM posts on
its Web site or as are contained in other published advertising and promotional
materials.
2.3 INDEPENDENT CONTRACTORS. The relationship of TITANIUM and RESELLER is
that of independent contractors. Neither RESELLER nor RESELLER's employees,
consultants, contractors or agents are agents, employees, partners or joint
venturers of TITANIUM, nor do they have any authority to bind TITANIUM by
contract or otherwise to any obligation. They will not represent to the
contrary, either expressly, implicitly, by appearance or otherwise.
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3. MARKETING TITANIUM PRODUCTS
3.1 RESELLER EFFORTS. During the term of this Agreement, RESELLER shall use
its best efforts to market and promote the Products to End-Users in the
Territory. Without limiting the generality of the foregoing, RESELLER shall
undertake the specific marketing activities for each Product, which are set
forth in the Term Sheet.
3.2 COMPETITIVE PRODUCTS. In consideration of the appointment as reseller
extended in this agreement, the RESELLER agrees to the fullest extent permitted
by the laws of the Territory, that it will not handle or promote the sale of any
other product line which is competitive with the Products of TITANIUM. TITANIUM
will be the sole judge of whether any product is competitive with its own
Products.
3.3 PRODUCT RESALE. RESELLER shall resell the Products only to End-Users.
3.4 MARKET AREA. TITANIUM shall be the sole and final arbiter of any
question whether a specific Reseller is within the Territory.
3.5 INITIAL ORDER. On the effective date of this Agreement, RESELLER shall
place an irrevocable order with TITANIUM for products with a net order value
after discount of at least the amount specified in the term sheet.
3.6 MINIMUM ANNUAL COMMITMENT. During each year of this Agreement, RESELLER
shall accrue and timely pay to TITANIUM the net prices for the Products
licensed, sold or otherwise distributed under this Agreement RESELLER agrees to
a volume commitment for each year of this Agreement in the amount set forth in
the Term Sheet. Progress towards the annual commitment will be monitored
quarterly and failure to achieve this phased commitment will be taken into
account by TITANIUM when deciding about the renewal or termination of this
agreement.
3.7 RESELLER PERSONNEL. RESELLER will train and maintain a sufficient
number of capable technical and sales personnel, minimum of one full-time
employee, having the knowledge and training necessary to: (i) inform potential
End Users properly concerning the features and capabilities of the Products and,
if necessary, competitive products; (ii) service and support the Products in
accordance with RESELLER's obligations under this Agreement; and (iii) otherwise
carry out the obligations and responsibilities of RESELLER under this agreement.
3.8 TECHNICAL EXPERTISE. RESELLER warrants that its staff will be
conversant with the technology contained in the Products and similar
technologies in general, and will develop sufficient knowledge of the industry
and products competitive with the Products (including specifications, features
and benefits) so as to be able to explain in detail to its End Users the
differences between the Products and competitive products.
3.9 RESELLER COVENANTS. RESELLER will: (i) conduct business in a manner
that reflects favorable at all times on the Products and the good name, good
will and reputation of TITANIUM; (ii) avoid deceptive, misleading or unethical
practices that are or might be detrimental to TITANIUM, the Products and
services or the public; (iii) make no false or misleading representations with
regard to TITANIUM, or the Products; (iv) not publish or employ, or cooperate in
the publication or employment of, any misleading or deceptive advertising
material with regard to TITANIUM or the Products; and (v) make no
representation, warranties or guarantees to potential Resellers or End Users or
to the trade with respect to the specifications, features or capabilities of the
Products that are inconsistent with the literature distributed by TITANIUM.
3.10 COSTS AND EXPENSES. Except as expressly provided herein or agreed to in
writing by TITANIUM and RESELLER, RESELLER will pay all costs and expenses
incurred in the performance of RESELLER's obligations under this Agreement.
3.11 MARKETING ACTIVITIES. RESELLER shall develop and execute a marketing
plan sufficient to fulfill its obligations under this Agreement. To the extent
TITANIUM offers RESELLER the opportunity to do so, RESELLER agrees to
participate with TITANIUM in joint marketing activities with respect to certain
Products.
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3.12 COMPLIANCE WITH LAWS. RESELLER will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings with respect to the
Products.
3.13 GOVERNMENTAL APPROVAL. If any approval with respect to this Agreement,
or the notification or registration hereof, will be required at any time during
the term of this Agreement, with respect to giving legal effect to this
Agreement in any jurisdiction in which RESELLER is operating, or with respect to
compliance with exchange regulations or other requirements so as to assure the
right of remittance from abroad of H.K. Dollars, RESELLER will immediately take
whatever steps may be necessary in this respect, and any charges incurred in
connection therewith will be for the account of RESELLER. RESELLER will keep
TITANIUM currently informed of its efforts in this connection. TITANIUM will be
under no obligation to ship any Products or other materials to RESELLER
hereunder until RESELLER has provided TITANIUM with satisfactory evidence that
such approval, notification or registration is not required or that it has been
obtained.
4. TECHNICAL SUPPORT
4.1 END-USER SUPPORT. RESELLER shall provide all technical support relating
to its own products and services, and to the Products as described in the TERM
SHEET, directly to its End-Users. RESELLER shall provide TITANIUM with a
telephone number for TITANIUM to contact RESELLER directly for RESELLER's
support under this Section 4. If TITANIUM receives such an inquiry, TITANIUM
shall provide the inquiring party with the telephone number of RESELLER, and
RESELLER shall be responsible for providing support to such party.
4.2 RESELLER SUPPORT. TITANIUM shall provide RESELLER with the technical
support services for each Product as set forth in the TERM SHEET.
5. PURCHASE AND PAYMENT TERMS
5.1 FORECASTS, PURCHASE AND SALE. RESELLER shall submit quarterly forecasts
of its requirements for Products to TITANIUM at least forty-five (45) days in
advance of each calendar quarter. RESELLER will be required to maintain a
minimum stock level of two times the monthly forecast of its requirements for
Products. TITANIUM agrees to sell to RESELLER those Products order by RESELLER
at the prices and under the conditions specified in this Agreement and the
applicable Distributor Price List during the term of this Agreement. Product
orders will be placed by RESELLER's issuance of a purchase order. The terms and
conditions of this Agreement shall supersede the terms and conditions of any
purchase order issued by RESELLER. Any additional or conflicting purchase order
terms and conditions shall be deemed null and void and shall be of no force or
effect.
5.2 PAYMENTS FOR TITANIUM PRODUCTS. RESELLER shall be responsible for
invoicing End-Users and collecting invoiced amounts from End-Users for all
Products licensed, sold or otherwise distributed on the basis of orders
solicited by RESELLER. For the Products licensed, sold or otherwise distributed
based upon orders solicited by RESELLER, RESELLER will pay TITANIUM the amounts
set forth in the applicable Reseller Price List, (the invoiced amount will be
grossed-up to cover any withholding taxes to the applicable jurisdiction or
country) in the manner and at the time set forth therein. Such amounts may be
set forth as a percentage discount from TITANIUM's prices for the applicable
Products. RESELLER's payments shall not be affected by Resellers payments or
non- payment for the Products ordered.
5.3 PRICE CHANGES. TITANIUM's prices for the Products as of the date of
this Agreement are set forth in the applicable Reseller Price List. TITANIUM
reserves the right to change the prices for any TITANIUM Product or any other
product or service at any time. Price decreases shall take effect immediately
upon announcement. In the event of a price increase, TITANIUM shall provide
RESELLER with fifteen (15) days' advance notice. Such changes shall not require
RESELLER's approval. RESELLER shall determine its own market prices for the
Products and for other products and services it sells, licenses or otherwise
distributes or makes available.
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5.4 TERMS OF PAYMENT. Amounts due TITANIUM hereunder shall be paid by
RESELLER to TITANIUM at the address set forth in paragraph 1 of this Agreement.
Payment will be made via prepayment to TITANIUM TECHNOLOGY LIMITED. RESELLER may
elect to apply for a line of credit with TITANIUM. The credit limit established
by TITANIUM will be based on the credit worthiness of the RESELLER. Acceptance
of a line of credit is at the sole discretion of TITANIUM.
5.5 TAXES. RESELLER shall pay, indemnify and hold TITANIUM harmless from
(i) any sales, use, excise, import or export, value-added, or similar tax or
duty, and any other tax or duty not based on TITANIUM's income, and (ii) all
government permit fees, customs fees and similar fees which TITANIUM may incur
with respect to this Agreement. Such taxes, fees and duties paid by RESELLER
shall not be considered a part of, a deduction from, or an offset against,
payments due to TITANIUM hereunder.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. The parties acknowledge that in their
performance of their duties hereunder either party may communicate to the other
(or its designees) certain confidential and proprietary information, including
without limitation information concerning RESELLER's products and services,
TITANIUM's products and services, and the know-how, technology, techniques, or
business or marketing plans related thereto (collectively, the "Confidential
Information") all of which are confidential and proprietary to, and trade
secrets of, the disclosing party. Confidential Information does not include
information that: (i) is public knowledge at the time of disclosure by the
disclosing party; (ii) becomes public knowledge or known to the receiving party
after disclosure by the disclosing party other than by breach of the receiving
party's obligations under this Section 6 or by breach of a third party's
confidentiality obligations; (iii) was known by the receiving party prior to
disclosure by the disclosing party other than by breach of a third party's
confidentiality obligations; or (iv) is independently developed by the receiving
party.
6.2 PROTECTION OF CONFIDENTIAL INFORMATION. As a condition to the receipt
of the Confidential Information from the disclosing party, the receiving party
shall: (i) not disclose in any manner, directly or indirectly, to any third
party any portion of the disclosing party's Confidential Information; (ii) not
use the disclosing party's Confidential Information in any fashion except to
perform its duties hereunder or with the disclosing party's express prior
written consent; (iii) disclose the disclosing party's Confidential Information,
in whole or in part, only to employees and agents who need to have access
thereto for the receiving party's internal business purposes; (iv) take all
necessary steps to ensure that its employees and agents are informed of and
comply with the confidentiality restrictions contained in this Agreement; and
(v) take all necessary precautions to protect the confidentiality of the
Confidential Information received hereunder and exercise at least the same
degree of care in safeguarding the Confidential Information as it would with its
own confidential information, and in no event shall apply less than a reasonable
standard of care to prevent disclosure. The receiving party shall promptly
notify the disclosing party of any unauthorized disclosure or use of the
Confidential Information arising under this Agreement. The receiving party shall
cooperate and assist the disclosing party in preventing or remedying any such
unauthorized use or disclosure.
6.3 INJUNCTIVE RELIEF. Both parties acknowledge that the restrictions
contained in this Section 6 are reasonable and necessary to protect their
legitimate interests and that any violation of these restrictions will cause
irreparable damage to the other party. Each party agrees that damages are not an
adequate remedy for any such violation and that the other party will be entitled
to injunctive relief against each violation.
7. TRADEMARK RIGHTS
7.1 LICENSE. TITANIUM grants RESELLER the nonexclusive right and license to
use TITANIUM's trademarks during the term of this Agreement solely in
conjunction with the marketing, promotion and resale of the Products. TITANIUM
grants no rights in the Trademarks or in any other trademark, trade name,
service mark, business name or goodwill of TITANIUM except as licensed
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hereunder or by separate written agreement of the parties. RESELLER agrees that
it will not at any time during or after this Agreement assert or claim any
interest in or do anything that may adversely affect the validity of any
Trademark or any other trademark, trade name or product designation belonging to
or licensed to TITANIUM (including, without limitation registering or attempting
to register any Trademark or any such other trademark, trade name or product
designation).
7.2 NO CONFUSING USE. During the term of this Agreement, RESELLER agrees
not to use any trademark, trade name or product name confusingly similar to a
trademark, trade name or product name of TITANIUM, as expressly licensed in
Section 7.1.
7.3 MARKING REQUIREMENTS. RESELLER agrees to (i) use the appropriate
trademark, logo, product descriptor and trademark symbol (either "TM" or "(R)"
or local equivalents), (ii) clearly indicate TITANIUM's ownership of the
Trademarks whenever the Trademarks are first mentioned in any document, and
(iii) comply with the other usage requirements set forth in TITANIUM's Trademark
and Logo Usage Guide provided to RESELLER from time to time.
7.4 NO CONTINUING RIGHTS. Upon expiration or termination of this Agreement,
RESELLER will immediately cease all display, advertising and use of all of the
Trademarks and will not thereafter use, advertise or display any trademark,
trade name or product designation which is, or any part of which is, similar to
or confusing with any Trademark or with any trademark, trade name or product
designation associated with TITANIUM or any Product.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 OWNERSHIP. Other than the express licenses granted by this Agreement,
TITANIUM grants no right or license to RESELLER by implication, estoppel or
otherwise to the Products or any Intellectual Property Rights of TITANIUM. Each
party shall retain all ownership rights, title, and interest in and to its own
products and services (including in the case of TITANIUM, in the Products) and
all intellectual property rights therein, subject only to the rights and
licenses specifically granted herein. To the extent that RESELLER translates, or
causes to be translated, any of TITANIUM's marketing materials, user manuals or
other documentation, RESELLER agrees to assign all copyrights in such
translations to TITANIUM at the time of termination or expiration of this
Agreement.
8.2 OBTAINING RIGHTS. TITANIUM (and not RESELLER) shall have the sole
right, but not the obligation, to pursue copyright, patent and trademark
protection, in its sole discretion, for the Products and any Intellectual
Property Rights incorporated therein. RESELLER will cooperate with TITANIUM in
pursuing such protection, including without limitation executing and delivering
to TITANIUM such instruments as may be required to register or perfect
TITANIUM's interests in any Intellectual Property Rights and any assignments
thereof.
8.3 PURSUIT OF INFRINGERS. RESELLER shall notify TITANIUM of infringements
of TITANIUM's Intellectual Property Rights of which RESELLER becomes aware.
RESELLER shall reasonably assist TITANIUM, at no cost to RESELLER, in pursuing
TITANIUM's legal rights against any such infringers. TITANIUM, at its sole
discretion, shall determine whether to pursue any particular case of
infringement.
8.4 PROPRIETARY MARKINGS AND COPYRIGHT NOTICES. RESELLER shall not remove
or destroy any proprietary, confidentiality, trademark, service mark, or
copyright markings or notices placed upon or contained in any materials or
documentation received from TITANIUM in connection with this Agreement.
9. INDEMNITIES
9.1 RESELLER INDEMNITY. RESELLER's indemnity obligations under Section 9.3
shall apply to any claim, suit or proceeding by a third party against TITANIUM
and any of its directors, officers, agents, employees, contractors, parent
companies, affiliates, and/or subsidiaries (collectively, the "TITANIUM
Parties") based on or arising out of (i) the acts or omissions of RESELLER in
connection with (A) its performance or failure to perform any other obligations
in this Agreement or any agreement with an Reseller or Subscriber, and (B) any
other product or service provided by RESELLER to
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Resellers or Subscribers; and (ii) any unauthorized representation or any
misrepresentation of fact to any third party with respect to one or more of the
TITANIUM Parties or the TITANIUM Products made by RESELLER or any director,
officer, agent, or employee of RESELLER.
9.2 TITANIUM INDEMNITY. TITANIUM's indemnity obligations under Section 9.3
shall apply to any claim, suit or proceeding by a third party against RESELLER
and any of its directors, officers, agents, employees, contractors, parent
companies, affiliates, and/or subsidiaries (collectively, the "RESELLER
Parties") based on or arising out of (i) the acts or omissions of TITANIUM in
connection with (A) its performance or failure to perform the obligations in
this Agreement, and (B) any Products provided to RESELLER under this agreement;
(ii) any unauthorized representation or any misrepresentation of fact to any
third party with respect to one or more of RESELLER Parties made by TITANIUM or
any director, officer, agent, or employee of TITANIUM, or (iii) any third party
claims of copyright infringement or trade secret misappropriation to the extent
such claims arise directly from the TITANIUM proprietary components of the
Product.
9.3 NOTICES AND INDEMNITIES. Subject to the limitations set forth herein,
each party (the "Indemnifying Party"), at its own expense, shall (a) defend, or
at its option settle, any claim, suit, or proceeding against the other party
(the "Indemnified Party") for which it has an indemnification obligation under
this Agreement and (b) pay any final judgment entered or settlement against the
Indemnified Party in any such suit or proceeding defended by the Indemnifying
Party. An Indemnifying Party shall not take any action to settle or defend any
such claim, suit, or proceeding that would in any manner impose obligations
(monetary or otherwise) on an Indemnified Party without the Indemnified Party's
written consent. An Indemnified Party shall have the right to participate in the
defense of any claim with its own counsel and shall be responsible for all costs
associated therewith. An Indemnifying Party shall have the right to control and
direct the investigation, preparation, defense, and settlement of the claim, and
the Indemnified Party shall reasonably cooperate with the Indemnifying Party in
the defense of such claim at the Indemnifying Party's expense. In addition, an
Indemnified Party shall give the Indemnifying Party prompt written notice of any
claim, suit, or proceeding for which the Indemnifying Party has an
indemnification obligation under this Agreement. In the event such notice is not
promptly given, the Indemnifying Party's obligation hereunder shall not include
any additional expenses or damages to the extent attributable to such failure or
delay of notice.
10. LIMITED WARRANTY
10.1 LIMITED WARRANTY. TITANIUM warrants to the original purchaser of a
Product that the hardware is free from defects in materials and workmanship for
a period of twelve (12) months from the date of shipment from TITANIUM to the
RESELLER OR one (1) year from the date of purchase from the RESELLER ("the
Warranty Period") to the RESELLER'S customer, whichever comes first. Should a
Product fail to comply with this Limited Warranty at any time during the
Warranty Period, the purchaser's sole and exclusive remedy is for TITANIUM, at
its option, to either repair or replace the product as described below, provided
that in TITANIUM's sole determination the part or Product has not been abused,
misused, repaired or modified. All products will be serviced and returned via
ground or sea at no charge to the purchaser. In the event TITANIUM is unable to
repair or replace the product within a reasonable period of time, the
purchaser's sole and exclusive remedy is to receive reimbursement of the amount
the purchaser actually paid for the product.
10.2 RETURNS. All returns under this Limited Warranty require a Return
Merchandise Authorization number (RMA #) provided by TITANIUM Customer Service.
Products which require Limited Warranty service during the Warranty Period must
be delivered to TITANIUM at the address listed below. The RMA # should be
prominently displayed on the outside of the shipping container. Replacement
parts or complete products will be furnished on an exchange basis only. Replaced
parts or products become the property of TITANIUM.
Returns Department, TITANIUM TECHNOLOGY LIMITED
6/F., Tianjin Building, 167 Connaught Road West, Hong Kong
Tel (852) 3427 3177, E-mail: info@titanium-tech.com
10.3 SHIPPING. RESELLER agrees to pay shipping charges to TITANIUM or
directly to the carrier, insure the product or assume the risk of loss or damage
which may occur in transit, and to use a shipping container equivalent to the
original packaging. If any labor, repair or parts replacement is
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required because of accident, negligence, misuse, theft, vandalism, fire, water
or other peril, or because of conditions outside of specifications, including,
but not limited to, electric power, temperature, humidity, or dust; or by
moving, repair, relocation, or alteration not performed by TITANIUM, or by any
other cause other than normal use, this Limited Warranty shall be void and shall
not apply.
10.4 DUTY AND SALES TAX. RESELLER agrees to pay any applicable duties sales
taxes or similar charges. TITANIUM products are supplied to the RESELLER FOB,
Hong Kong.
10.5 APPLICABILITY. This Limited Warranty shall not be applicable to the
extent that any provision of this Limited Warranty is prohibited by or contrary
to, any international, federal, state or local law or regulation which cannot be
preempted. This Limited Warranty gives the purchaser specific legal rights, but
the purchaser may have different or additional legal rights, depending on the
jurisdiction in which the purchaser is located.
11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
11.1 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS
AGREEMENT, TITANIUM'S PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY
WARRANTY WHATSOEVER. TITANIUM DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, TO RESELLER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY TITANIUM OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR
IN ANY WAY INCREASE THE SCOPE OF TITANIUM'S OBLIGATIONS.
11.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TITANIUM PRODUCTS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND
WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF
ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL,
PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR
AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR
LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. UNDER NO CIRCUMSTANCES SHALL TITANIUM'S TOTAL LIABILITY TO RESELLER OR
ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT
PAID BY RESELLER UNDER THIS AGREEMENT TO A MAXIMUM OF ONE MILLION DOLLARS
(HK$1,000,000.00), REGARDLESS OF WHETHER AN ACTION OR CLAIM IS BASED ON
WARRANTY, CONTRACT, TORT OR OTHERWISE.
12. FORCE MAJEURE
In no event shall either party be responsible for delays in delivery or
performance when the same are the result of any cause beyond such party's
control.
13. TERM AND TERMINATION
13.1 TERM AND TERMINATION. The term of this Agreement shall commence on the
Start Date and, unless earlier terminated pursuant to the terms of this
Agreement, will continue until the termination date as set forth in the attached
"Term Sheet." Upon mutual agreement, this contract may be extended for a Renewal
Period as set forth in an updated "Term Sheet." If RESELLER has met its minimum
volume commitment as set forth in paragraph 3.7 of this Agreement the Agreement
can be renewed for an additional one 6 six (6) six month period, unless either
party notifies the other in writing of its intention not to renew at least
fifteen (15) days prior to the end of the term or the applicable renewal term.
The parties agree that the Limitation of Liability provision of Section 11.2
shall apply to any
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termination of this Agreement by either party. RESELLER waives any right it may
have to receive any compensation or reparations on termination or expiration of
this Agreement or any rights hereunder under the law of any jurisdiction, other
than as expressly provided in this Agreement.
13.2 TERMINATION FOR DEFAULT. Either party may terminate this Agreement at
any time on written notice to the other in the event of a material default by
the other party and a failure to cure such default within a period of fifteen
(15) days following receipt of written notice specifying that a default has
occurred.
13.3 INSOLVENCY. Either party may terminate this Agreement at any time upon
(i) the institution of any proceedings by or against the other party seeking
relief, reorganization or arrangement under any laws relating to insolvency,
which proceedings are not dismissed within sixty (60) days; (ii) the assignment
for the benefit of creditors, or the appointment of a receiver, liquidator or
trustee, of the other party's property or assets; or (iii) the liquidation,
dissolution or winding up of the other party's business.
13.4 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement, RESELLER shall cease using, marketing, promoting and soliciting
orders for the Products. RESELLER will discontinue the use of all Trademarks.
Upon the expiration or termination of this Agreement, TITANIUM will provide
support to End Users and Subscribers referred by RESELLER. Any expiration or
termination shall not discharge any obligation to make payments which have
accrued or are owing as of the effective date of such expiration or termination
or which accrue after expiration or termination for TITANIUM Products shipped or
invoiced upon orders placed before such expiration or termination. Expiration or
termination of this Agreement for any reason shall not affect any other TITANIUM
Agreements with Resellers or end-users.
13.5 RETURN OF CONFIDENTIAL INFORMATION. Upon expiration or termination of
this Agreement for any reason, each party shall return the other party's
Confidential Information to it, or, with the prior written consent of the other
party, shall destroy the other party's Confidential Information. Each party
shall certify to the other in writing within thirty (30) days of expiration or
termination that such party has returned or destroyed all of such Confidential
Information.
13.6 SURVIVAL OF TERMS. Expiration or termination of this Agreement shall
not relieve either party of any obligations that accrue prior to the date of
such expiration or termination. The provisions of Sections 3.11, 3.14, 5, 6, 7,
8, 9, 10, 11, 13.1, 13.4, 13.5, 13.6, 14.1, 14.6, 14.8, and 14.9 of these
Standard Terms and Conditions shall survive the expiration or termination of
this Agreement for any reason.
14. MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. This Agreement shall be
governed by and construed in accordance with the laws of Hong Kong Special
Administrative Region, PRC. (irrespective of its choice of law principles).
14.2 BINDING UPON SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall be binding upon, and inure to the benefit of, the
successors, representatives and assigns of the parties hereto. This Agreement
shall not be assignable by RESELLER by operation of law (including as a result
of a merger or a transfer of a controlling interest in RESELLER's voting
securities) or otherwise without the prior written authorization of TITANIUM,
which shall not be unreasonably withheld. Any such purported assignment shall be
void and of no effect and shall permit TITANIUM to terminate this Agreement.
14.3 SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable, the remainder of this Agreement shall be interpreted so as best
to reasonably effect the intent of the parties hereto. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF
DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER
PROVISION AND TO BE ENFORCED AS SUCH.
Rev 06012003 TITANIUM _______ RESELLER _______
Page 11 of 12
14.4 ENTIRE AGREEMENT. This Agreement, and the Exhibits and Distributor
Price Lists attached hereto constitute the entire understanding and agreement of
the parties with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements or understandings between the parties.
14.5 AMENDMENT AND WAIVERS. Except as otherwise expressly provided in this
Agreement, any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived, only by a writing signed
by the party to be bound.
14.6 ATTORNEYS' FEES. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and costs.
14.7 NOTICES. Any notice, demand, or request with respect to this Agreement
shall be in writing and shall be effective only if it is delivered by a courier
service that confirms delivery in writing, or mailed, certified or registered
mail, postage prepaid, return receipt requested, and in each case addressed to
the parties at the addresses set forth in paragraph 1, and in the case of
TITANIUM, to the attention of the Chief Executive Officer, and in the case of
RESELLER to the Contact Person as identified on the Term Sheet. Such
communications shall be effective when they are received. Any party may change
its address for such communications by giving notice thereof to the other party
in conformity with this Section.
14.8 FOREIGN RESHIPMENT LIABILITY. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT
TO ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT FROM HONG
KONG OF TECHNICAL INFORMATION, SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH
MAY BE IMPOSED FROM TIME TO TIME BY THE H.K.S.A.R. GOVERNMENT. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, RESELLER AGREES THAT IT
WILL NOT EXPORT OR RE-EXPORT, DIRECTLY OR INDIRECTLY, ANY TECHNICAL INFORMATION,
SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE TO ANY COUNTRY FOR WHICH SUCH
GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN EXPORT LICENSE OR OTHER
GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT OR RE-EXPORT WITHOUT FIRST OBTAINING
SUCH LICENSE OR APPROVAL.
14.9 PUBLICITY. Neither party will disclose to third parties, other than its
agents and representatives on a need-to-know basis, the terms of this Agreement
or any exhibits hereto without the prior written consent of the other party,
except (i) either party may disclose such terms to the extent required by law;
(ii) either party may disclose the existence of this Agreement, (iii) either
party may disclose such terms to the extent necessary in connection with the due
diligence review of such party by potential business partners, investors or
acquirers, or investment bankers, to such persons and to their employees,
agents, attorneys and auditors; and (iv) either party shall have the right to
disclose that RESELLER is a participant in the Program and a RESELLER of the
Products.
14.10 NO 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
provision.
14.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
14.12 DUE AUTHORIZATION. RESELLER hereby represents and warrants to TITANIUM
that the individual executing this Agreement on behalf of RESELLER is duly
authorized to execute this Agreement on behalf of RESELLER and to bind RESELLER
hereby.
14.13 CHOICE OF LANGUAGE. The original of this Agreement has been written in
English. RESELLER waives any right it may have under the law of any jurisdiction
to have this Agreement written in the language of such jurisdiction or any other
language.
## END OF TERMS AND CONDITIONS ##
Rev 06012003 TITANIUM _______ RESELLER _______
Page 12 of 12
EXHIBIT A
RESELLER/DISTRIBUTOR PRICE LIST
THE FOLLOWING PRICE LIST IS ATTACHED:
1) PROACCESS FACEOK
- -------------------------------------------------------------------------------------------------------
PRODUCT CODE DESCRIPTION LIST PRICE (US$) DISTRIBUTOR PRICE
(US$)
- -------------------------------------------------------------------------------------------------------
PAC-FOKP300 ProAccess FaceOK - Professional 89.00 30.00
- -------------------------------------------------------------------------------------------------------
PAC-FOKE300 ProAccess FaceOK - Enterprise 119.00 40.00
- -------------------------------------------------------------------------------------------------------
2) PROGUARD
- -------------------------------------------------------------------------------------------------------
PRODUCT CODE DESCRIPTION LIST PRICE (US$) DISTRIBUTOR PRICE
(US$)
- -------------------------------------------------------------------------------------------------------
PGD-DE300 ProGuard Detector 5,400.00 3,402.00
- -------------------------------------------------------------------------------------------------------
PGD-BU300 ProGuard Builder 4,400.00 2,772.00
- -------------------------------------------------------------------------------------------------------
PGD-SG300 ProGuard Storage 4,400.00 2,772.00
- -------------------------------------------------------------------------------------------------------
PGD-MA300 ProGuard Matcher 11,715.00 7,380.00
- -------------------------------------------------------------------------------------------------------
PGD-DB300-01K ProGuard DB 1,000-Image 4,228.00 2,664.00
- -------------------------------------------------------------------------------------------------------
PGD-DB300-05K ProGuard DB 5,000-Image 14,078.00 8,869.00
- -------------------------------------------------------------------------------------------------------
PGD-DB300-10K ProGuard DB 10,000-Image 25,343.00 15,966.00
- -------------------------------------------------------------------------------------------------------
PGD-DB300-30K ProGuard DB 50,000-Image 50,220.00 31,638.00
- -------------------------------------------------------------------------------------------------------
Rev 06012003 TITANIUM _______ RESELLER _______