EXHIBIT 10.11
DISTRIBUTOR AGREEMENT
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DISTRIBUTOR AGREEMENT
THIS TITANIUM TECHNOLOGY DISTRIBUTOR 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
DISTRIBUTOR 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: 1ST JANUARY, 2004
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2. DISTRIBUTOR: ELIXIR GROUP LIMITED
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Street Address: 38TH FLOOR, THE CENTRIUM, 60 WYNDHAM STREET, CENTRAL
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HONG KONG
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Company URL: HTTP://
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Telephone: +852 3151 3887 Facsimile: +852 2189 7898
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3. CONTACT PERSON: GORDON YUEN
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Title: CHIEF EXECUTIVE OFFICER
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Telephone: +852 3151 3887
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E-mail address: GORDONYUEN@ELIXIR.COM.HK
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4. START DATE OF
AGREEMENT: 1ST JANUARY, 2004
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5. END DATE OF
AGREEMENT: 31ST DECEMBER, 2004
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6. TERRITORY: MACAU
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7. INITIAL ORDER
VALUE: US$0
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8. MINIMUM ANNUAL
COMMITMENT: US$0
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9. PRODUCT SEE EXHIBIT A
SCHEDULE AND
DISCOUNT:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TITANIUM TECHNOLOGY LIMITED DISTRIBUTOR
By: /s/ JOHNNY NG By: /s/ GORDON YUEN
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Name: JOHNNY NG Name:
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Title: CEO Title:
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Date: 17 FEB 2004 Date:
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WITNESS WITNESS
By: By: /s/
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Name: Name:
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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. Withdrawal of Product(s) from this Agreement
shall not affect purchase orders placed by the Distributor before such
withdrawal becomes effective.
1.3 "Discount" shall mean the discount applicable to Unit Price for a
product as specified in the then current Distributor Price List. The now current
Distributor Price List is attached to this Agreement as Exhibit A. All
Distributor Price Lists are incorporated in this Agreement by this reference.
1.4 "distributor" means the company which sells only to resellers.
1.5 "end-users" means purchasers who purchase the Product(s) for their own
use.
1.6 "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.
1.7 "Territory" shall mean the distribution territory set forth on the Term
Sheet attached hereto.
1.8 "Trademarks" shall mean TITANIUM's registered and unregistered
trademarks, trade names and other commercial symbols.
2. APPOINTMENT AS DISTRIBUTOR
2.1 APPOINTMENT. Subject to the terms and conditions of this Agreement,
TITANIUM hereby appoints DISTRIBUTOR as an EXCLUSIVE distributor for the
Territory and as a non-exclusive reseller for Hong Kong under the TITANIUM
Program (the "Program"). Notwithstanding the different capacities held by the
Distributor hereunder, the parties agree that the Distributor Price List
attached hereto shall be applied to the Distributor whether as the said
exclusive distributor or the non-exclusive reseller. In connection with such
appointment, to the extent permitted by the laws of the Territory, TITANIUM
grants DISTRIBUTOR (i) an EXCLUSIVE and non-transferable right to promote,
market, and solicit orders in the Territory from resellers for the Products and
any related services described in the Term Sheet and (ii) a non-exclusive and
non-transferable right to promote, market, and solicit orders in Hong Kong from
end-users for the Products and any related services described in the Term Sheet.
2.2 AUTHORIZATION. DISTRIBUTOR may represent itself as a participant in the
Program and as a distributor or as the case may be, a reseller for the Products.
DISTRIBUTOR shall not represent that it is otherwise affiliated with TITANIUM.
DISTRIBUTOR is authorized to represent to resellers or as the case may be, the
end-users, 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 DISTRIBUTOR
is that of independent contractors. Neither party nor its employees,
consultants, contractors or agents (collectively "Related Persons") are agents,
employees, partners or joint venturers of the other party, nor do they have any
authority to bind the other party by contract or otherwise to any obligation.
Each party and its Related Personss will not represent to the contrary, either
expressly, implicitly, by appearance or otherwise.
3. MARKETING TITANIUM PRODUCTS
3.1 DISTRIBUTOR EFFORTS. During the term of this Agreement, DISTRIBUTOR
shall use its best efforts to market and promote the Products to (i) resellers
in the Territory and (ii) end-users in Hong Kong. Without limiting the
generality of the foregoing, during the subsistence of this Agreement,
DISTRIBUTOR shall undertake the specific marketing activities (if the same are
set forth in the Term Sheet or may from time to time mutually agreed by the
parties) for each Product.
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3.2 PRODUCT RESALE. Unless otherwise with the prior written approval from
TITANIUM (which such approval shall not be unreasonably withheld), DISTRIBUTOR
shall resell the Products only to (i) resellers in the Territory and (ii) end-
users in Hong Kong.
3.3 INITIAL ORDER. On the effective date of this Agreement, DISTRIBUTOR
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.
3.5 MINIMUM ANNUAL COMMITMENT. During each year of this Agreement,
DISTRIBUTOR shall accrue and timely pay to TITANIUM the net prices for the
Products licensed, sold or otherwise distributed under this Agreement.
DISTRIBUTOR 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. For the avoidance of doubt, failure to achieve the said
commitment will be considered by TITANIUM as a factor as to whether or not to
renew or terminate this Agreement only and will not otherwise entitle TITANIUM
to claim for any damages or compensation in relation to such failure or any
termination of this Agreement as a result of such failure.]
3.6 DISTRIBUTOR PERSONNEL. DISTRIBUTOR 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
resellers or end-users, as the case may be, properly concerning the features and
capabilities of the Products and, if necessary, competitive products; (ii)
service and support the Products in accordance with DISTRIBUTOR's obligations
under this Agreement; and (iii) otherwise carry out the obligations and
responsibilities of DISTRIBUTOR under this Agreement provided that during the
relevant training of the DISTRIBUTOR's technical and sales personnel, TITANIUM
shall, if requested by the DISTRIBUTOR, provide reasonable assistance including
but not limited to the provision of the operational manual or other relevant
documentation at no cost to the DISTRIBUTOR or appointing its technical staff to
give the relevant training to the DISTRIBUTOR's technical and sales personnel
(with the relevant cost of such appointment to be borne or shared by the party
or parties hereto under separate written arrangement).
3.7 TECHNICAL EXPERTISE. DISTRIBUTOR will use its reasonable endeavours
to ensure that its staff will be conversant with the technology contained in the
Products and similar technologies in general, and will develop reasonable
knowledge of the industry and products competitive with the Products (including
specifications, features and benefits provided that such information is
available in the public domain) so as to be able to explain reasonably to its
resellers or end-users, as the case may be, the differences between the Products
and competitive products, if any.
3.8 DISTRIBUTOR COVENANTS. DISTRIBUTOR will: (i) conduct business in a
manner that reflects favorable at all times on the Products and the good name,
goodwill 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.
3.9 COSTS AND EXPENSES. Except as expressly provided herein or agreed to in
writing by TITANIUM and DISTRIBUTOR, DISTRIBUTOR will pay all costs and expenses
incurred in the performance of DISTRIBUTOR's obligations under this Agreement.
3.10 MARKETING ACTIVITIES. DISTRIBUTOR shall develop and execute a marketing
plan sufficient to fulfill its obligations under this Agreement. To the extent
TITANIUM offers DISTRIBUTOR the opportunity to do so, DISTRIBUTOR agrees to use
its best endeavours to participate with TITANIUM in joint marketing activities
with respect to certain Products subject however to DISTRIBUTOR's budget
determined at its sole discretion.
3.11 COMPLIANCE WITH LAWS. DISTRIBUTOR 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.
3.12 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 DISTRIBUTOR 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, DISTRIBUTOR will
immediately take whatever steps may be necessary in this respect, and any
charges incurred in connection therewith will be for the account of DISTRIBUTOR.
DISTRIBUTOR 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 DISTRIBUTOR hereunder until DISTRIBUTOR has provided TITANIUM with
reasonable evidence that such approval, notification or registration is not
required or that it has been obtained.
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4. TECHNICAL SUPPORT
4.1 RESELLER SUPPORT. DISTRIBUTOR 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 Resellers and End-Users. DISTRIBUTOR shall
provide TITANIUM with a telephone number for TITANIUM to contact DISTRIBUTOR
directly for DISTRIBUTOR's support under this Section 4. If TITANIUM receives
such an inquiry, TITANIUM shall provide the inquiring party with the telephone
number of DISTRIBUTOR, and DISTRIBUTOR shall be responsible for providing
support to such party.
4.2 DISTRIBUTOR SUPPORT. TITANIUM shall provide DISTRIBUTOR with the
technical support services for each Product as set forth in the TERM SHEET.
5. PURCHASE AND PAYMENT TERMS
5.1 PURCHASE AND SALE. TITANIUM agrees to sell to DISTRIBUTOR those
Products ordered by DISTRIBUTOR 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 DISTRIBUTOR's issuance of a
purchase order. Unless otherwise agreed by the parties in writing, any
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. DISTRIBUTOR shall be responsible for
invoicing its resellers or end-users and collecting invoiced amounts from such
resellers or end-users for all Products licensed, sold or otherwise distributed
on the basis of orders solicited by DISTRIBUTOR. For the Products licensed, sold
or otherwise distributed based upon orders solicited by DISTRIBUTOR, DISTRIBUTOR
will pay TITANIUM the amounts set forth in the applicable Distributor 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
in the relevant purchase order placed by DISTRIBUTOR with TITANIUM. Such amounts
may be set forth as a percentage discount from TITANIUM's prices for the
applicable Products. DISTRIBUTOR's payments shall not be affected by its
resellers' or end-users' 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 Distributor 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
DISTRIBUTOR with fifteen (15) days' advance notice provided that price increases
shall not affect purchase orders placed by DISTRIBUTOR before such increases
become effective. Such changes shall not require DISTRIBUTOR's approval.
DISTRIBUTOR shall determine its own market prices for the Products and for other
products and services it sells, licenses or otherwise distributes or makes
available.
5.4 TERMS OF PAYMENT. Amounts due TITANIUM hereunder shall be paid by
DISTRIBUTOR to TITANIUM at the address set forth in paragraph 1 of this
Agreement. Payment will be made via prepayment to "TITANIUM TECHNOLOGY LIMITED".
DISTRIBUTOR 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
DISTRIBUTOR. Acceptance of a line of credit is at the sole discretion of
TITANIUM.
5.5 TAXES. DISTRIBUTOR 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 DISTRIBUTOR
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 DISTRIBUTOR'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
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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 DISTRIBUTOR 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 hereunder
or by separate written agreement of the parties. DISTRIBUTOR 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, DISTRIBUTOR 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. DISTRIBUTOR 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 DISTRIBUTOR from time to time.
7.4 NO CONTINUING RIGHTS. Upon expiration or termination of this Agreement,
DISTRIBUTOR 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 DISTRIBUTOR 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 DISTRIBUTOR translates,
or causes to be translated, any of TITANIUM's marketing materials, user manuals
or other documentation, DISTRIBUTOR 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 DISTRIBUTOR) 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. DISTRIBUTOR 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. DISTRIBUTOR shall notify TITANIUM of
infringements of TITANIUM's Intellectual Property Rights of which DISTRIBUTOR
becomes aware. DISTRIBUTOR shall reasonably assist TITANIUM, at no cost to
DISTRIBUTOR, 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. DISTRIBUTOR 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
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9.1 DISTRIBUTOR INDEMNITY. DISTRIBUTOR'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
DISTRIBUTOR 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 (not being the Products or
services of TITANIUM or any part thereof) provided by DISTRIBUTOR to 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 DISTRIBUTOR or any director,
officer, agent, or employee of DISTRIBUTOR.
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
DISTRIBUTOR and any of its directors, officers, agents, employees, contractors,
parent companies, affiliates, and/or subsidiaries (collectively, the
"DISTRIBUTOR 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 or services or any part
thereof provided to DISTRIBUTOR under this agreement; (ii) any unauthorized
representation or any misrepresentation of fact to any third party with respect
to one or more of DISTRIBUTOR 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 (such consent not to be unreasonably withheld or delayed). 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 end-user of a
Product that (i) the hardware is free from defects in materials and workmanship
and (ii) the software is free of any inherent contaminating or destructive
properties including but not limited to software virus, worm, virus macro,
Trojan Horse or other such component designed to permit unauthorized access, to
disable, erase or otherwise harm or maliciously alter software, hardware or
data, for a period of twelve (12) months from the date of shipment from TITANIUM
to the DISTRIBUTOR OR one (1) year from the date of physical delivery by the
DISTRIBUTOR ("the Warranty Period") to the DISTRIBUTOR's end-user or physical
delivery by the DISTRIBUTOR's reseller to the end-user of such reseller,
whichever the later. Should a Product fail to comply with this Limited Warranty
at any time during the Warranty Period, the original end-user'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
PRODUCT OR THE RELEVANT PART thereof has not been abused, misused, repaired or
modified without the authorization of TITANIUM. All products will be serviced
and returned via ground or sea at no charge to the original end-user. In the
event TITANIUM is unable to repair or replace the product within a reasonable
period of time, the original end-user's sole and exclusive remedy is to receive
reimbursement of the amount the original end-user 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) 2776-2311, E-mail: info@titanium-tech.com
10.3 SHIPPING. For any new orders, DISTRIBUTOR 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 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
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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. DISTRIBUTOR agrees to pay any applicable duties
sales taxes or similar charges in respect of the relevant orders. TITANIUM
products are supplied to the DISTRIBUTOR 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 DISTRIBUTOR 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 DISTRIBUTOR
OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT
PAID BY DISTRIBUTOR 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 DISTRIBUTOR has met its
minimum volume commitment as set forth in paragraph 3.5 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 termination of this Agreement by either party.
DISTRIBUTOR waives any right it may have to receive any compensation or
reparations by virtue only of the lawful 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, DISTRIBUTOR shall cease using, marketing, promoting and soliciting
orders for the Products. DISTRIBUTOR will discontinue the use of all Trademarks.
Upon the expiration or termination of this Agreement, TITANIUM will provide
support to Resellers, End Users, and Subscribers referred by DISTRIBUTOR. 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
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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. Any terminatin or expiration of this Agreement shall
be without prejudice to any rights or liabilities (subject always to Section
11.2 above) of either party to the other party accrued at the date of
termination or in respect of any breach of the other party of any conditions
herein contained or any amount owing, due or payable under this Agreement. The
covenants, conditions and provisions of this Agreement which are capable of
having effect after the termination or expiration of this Agreement shall remain
in full force and effect following the termination or expiration of this
Agreement.
13.7 NON-SOLICITATION. TITANIUM covenants with DISTRIBUTOR that it will not,
during the term of this Agreement and for a period of one year thereafter,
endeavour to entice away from DISTRIBUTOR and/or employ any person who has at
any time during the term of this Agreement been employed or engaged by
DISTRIBUTOR.
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 DISTRIBUTOR by operation of law (including as a
result of a merger or a transfer of a controlling interest in DISTRIBUTOR'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.
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
DISTRIBUTOR 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, DISTRIBUTOR 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
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other party, except (i) either party may disclose such terms to the extent
required by law, listing rules, regulations, court orders or orders of
governmental or other activities; (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 DISTRIBUTOR is a participant in the
Program and a DISTRIBUTOR 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. DISTRIBUTOR hereby represents and warrants to
TITANIUM that the individual executing this Agreement on behalf of DISTRIBUTOR
is duly authorized to execute this Agreement on behalf of DISTRIBUTOR and to
bind DISTRIBUTOR hereby.
14.13 CHOICE OF LANGUAGE. The original of this Agreement has been written in
English. DISTRIBUTOR 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.
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