Exhibit 10.3
PRODUCT SUPPLY AND PURCHASE AGREEMENT
This Product Supply and Purchase Agreement ("Agreement") is entered into this
1st day of October, 2009 ("Effective Date") by and between Franklin Wireless
Corporation, a Nevada corporation, with its principal office at 5440 Morehouse
Drive, Suite 1000, San Diego, CA 92121, USA (hereinafter referred to as
"Franklin"), and Diffon Corporation, a Republic of Korea corporation, with its
principal office at Digital Tower Aston Suite 1505 505-15 Gasan, Geumcheon,
Seoul 153803, Republic of Korea (hereinafter referred to as "Diffon"). Franklin
and Diffon are referred to individually as "Party" and collectively as the
"Parties."
RECITALS
Whereas, Diffon is in the business of designing, developing, and
manufacturing wireless technologies and communication products;
Whereas, Franklin desires to purchase the Products (as defined below) from
Diffon;
Whereas, Diffon desires to sell the Products and provide services related
thereto to Franklin on a world-wide exclusive basis, as described in, and in
accordance with the terms and conditions of, this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual obligations
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, Diffon and Franklin agree
as follows:
ARTICLE 1 - SCOPE OF AGREEMENT; DEFINITIONS
1.1 SCOPE. This Agreement is to define the general business relationship between
the Parties relating to (i) the Products supplied by Diffon to Franklin; (ii)
the terms and conditions by which both Parties must abide; and (iii) any
purchase by Franklin of the Products.
1.2 DEFINITIONS.
(a) "Products" means all wireless data products, including without limitation,
modems and modules designed, developed, produced, marketed and/or manufactured
by Diffon, including, but not limited to, those products specifically identified
in the attached EXHIBIT A.
(b) "Territory" means the entire world.
ARTICLE 2 - APPOINTMENT; RESPONSIBILITIES
2.1. APPOINTMENT AND RELATIONSHIP. Subject to the terms and conditions of this
Agreement, Diffon hereby appoints Franklin as the exclusive buyer for the
Products produced by Diffon, subject to Franklin selling the Products in the
Territory according to the terms and conditions in subsection 2.2 below.
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2.2. RESPONSIBILITIES OF FRANKLIN. Franklin hereby accepts such appointment as
the exclusive buyer for the Products in the Territory and agrees that it shall
use its commercially reasonable efforts to promote sales of the Products within
the Territory.
2.3. RESPONSIBILITIES AND REPRESENTATIONS AND WARRANTIES OF DIFFON.
(a) During the Term (as defined in Section 3 below):
(i) Diffon shall manufacture and supply the Products exclusively to
Franklin for the sales of Products in the Territory during the Term. Diffon
shall not manufacture, supply, sell, market, and/or distribute the Products to
any entity or individual other than Franklin or an affiliate of Franklin during
the Term; provided that, in the event that Franklin elects not to sell the
Products in a particular region or area in which it cannot effectively sell the
Products (the "Non Covered Region") Diffon may, upon receipt of written notice
by Franklin, distribute, market and sell the Products, using the Franklin
Wireless brand, only in the Non Covered Region.
(ii) The Products shall be branded as "Franklin Wireless," unless
otherwise agreed upon by the Parties in writing.
(iii) Diffon shall inform Franklin in writing of all inquiries and/or
orders for the Products that Diffon receives, directly or indirectly, from
potential customers in the Territory.
(iv) Franklin may dispatch Franklin's buyers and/or customers to Diffon's
factory for an inspection, study, and tour.
(v) Diffon shall furnish to Franklin, at no cost, a reasonable quantity
of available catalogues, quotation sheets, specifications and technical data for
use in the promotion and sales of the Products in the Territory.
(vi) Diffon shall supply the Products according to all reasonable
requirements of Franklin.
(vii) Diffon shall obtain Franklin's prior written approval for any OEM
business it desires to conduct with any entity or individual other than
Franklin.
(b) Diffon represents and warrants that the following are true and accurate as
of the Effective Date of this Agreement, and will survive the execution of this
Agreement:
(i) Diffon has the legal power, right and authority to enter into this
Agreement and to consummate the transactions contemplated by this Agreement. All
requisite action has been taken by Diffon in connection with entering into this
Agreement and the consummation of the transactions contemplated by this
Agreement. The individual executing this Agreement on behalf of Diffon has/have
the legal power, right, and actual authority to bind Diffon to the terms and
conditions of this Agreement.
(ii) Diffon has a staff of skilled employees or other laborers, tools,
and facilities necessary and appropriate to perform its obligations as and when
set forth in this Agreement.
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(iii) Neither the execution and delivery of this Agreement, nor the
incurrence of the obligations set forth in this Agreement, nor the consummation
of the transactions contemplated by this Agreement, nor compliance with the
terms of this Agreement, will conflict with or result in a breach of any of the
terms, conditions or provisions of, or constitute a default under, any bond,
note or other evidence of indebtedness or any contract, indenture, loan, or
other agreement or instrument of which Diffon is a party.
ARTICLE 3 - TERM & TERMINATION
3.1 TERM. This Agreement shall commence as of the Effective Date and continue
for a period of three (5) years ("Initial Term"). Following the expiration of
the Initial Term, and unless otherwise notified by Franklin in writing, this
Agreement shall automatically, without notice, renew for three (3) year periods
(each, a "Renewal Period"). For the avoidance of doubt, each three (3) year
period following the Initial Term is considered a Renewal Period. The Initial
Term and any Renewal Period(s) shall be collectively referred to as the "Term."
3.2 TERMINATION.
(a) Franklin may terminate this Agreement at any time upon written notice and
subject to the cure provisions set forth in clause (i) such termination will be
effective immediately upon the date set forth in the notice if Diffon: (i)
commits a material breach of any material provision of this Agreement and fails
to cure such breach within thirty (30) days after receiving written notice
describing such breach in reasonable detail from Franklin; provided, however, if
such breach is of a nature that it can not reasonably be cured within thirty
(30) days, then Diffon shall have an additional reasonable period, up to ninety
(90) days, to cure such breach, providing it immediately commences and
thereafter diligently prosecutes such cure to completion; or (ii) sells,
assigns, exchanges, transfers or otherwise disposes of (in one transaction or a
series of transactions) all or substantially all of its assets;
(b) Franklin may terminate this Agreement at any time upon written notice, and
such termination will be effective immediately upon the date set forth in the
notice, if (i) Diffon attempts to sell, assign, delegate or transfer any of its
rights and/or obligations under this Agreement including without limitation by
merger, operation of law or otherwise without having obtained Franklin's prior
written consent thereto, or (ii) if there is any material change in the
management, ownership or control of Diffon; and
(c) Diffon may terminate this Agreement at any time upon written notice, and
such termination will be effective immediately upon the date set forth in the
notice, if (i) C-Motech Co., Ltd acquires a majority interest in Franklin; or
(ii) during any six (6) month period Franklin does not sell any Products in the
Territory.
Notwithstanding the forgoing, Diffon's obligations under this Agreement shall
remain in full effect while any purchase order ("Purchase Order") is open and/or
unfulfilled.
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ARTICLE 4 - CERTIFICATION
4.1 PRODUCT CERTIFICATIONS. As required by all Purchase Orders issued by
Franklin to Diffon, Diffon shall ensure that the Products comply at all times
with any and all United States federal, state and municipal statutes, laws,
codes and regulations including any Federal Communications Commission ("FCC")
and CDG and GCF/PTCRB testing regulations and any other governmental
requirements of the countries in which Franklin sells and distributes the
Products that may apply to the content, composition, packaging, labeling,
shipment and operation of the Products.
4.2 PRODUCT CERTIFICATION AND TESTING COSTS. Diffon shall be responsible for the
costs of supporting all necessary testing of Products as required to approve the
Products on the carrier system. This includes, without limitation, CDG and
GCF/PTCRB, IOT tests, carrier prescribed tests, HAC, and any other industry
standard testing required by Franklin's customers. Diffon shall pay for all
certification and testing costs, including without limitation, FCC certification
and testing. Diffon shall be responsible for all costs associated with
supporting the testing, including engineering, staff, expenses, all other costs
related to the testing and approval of the Products, and the necessary testing
as described in Section 4.1 of this Agreement.
4.3 CERTIFICATION FAILURE. If any Product, in connection with this Agreement,
fails any certification that is required or requested and which is not an
elective certification, Diffon shall be responsible for and shall hold Franklin
harmless from any cost, claim or liability that arises from such failure,
including, without limitation, the retesting, reconfiguration, software,
development, and/ or any other technical or non-technical issue that arises from
the resolution of a failed certification test.
ARTICLE 5 - FORECASTS; FUTURE MANUFACTURING; PRICING AND PURCHASING
5.1 PRODUCT FORECASTS. Franklin shall work closely with Diffon to create and
communicate Product forecasts and planning efforts (each, a "Product Forecast").
Diffon shall begin the procurement process for all orders as Franklin requests.
All Product Forecasts shall be non-binding and for planning purposes only,
unless otherwise agreed in writing by both Parties. From time to time Franklin
may offer a firm Product Forecast for which the following rules apply, unless
otherwise agreed upon in writing: (a) quantities stated for the first month of
each Product Forecast must equal one hundred percent (100%) of the quantities
forecast for the second month of the immediately preceding Product Forecast; (b)
quantities stated for the second month of each Product Forecast must not be less
than seventy percent (70%), or more than one hundred thirty percent (130%), of
the quantities forecast for the third month of the immediately preceding Product
Forecast; and (c) quantities stated for the next four (4) months of each Product
Forecast shall be for planning purposes only and are non-binding.
5.2 FUTURE MANUFACTURING. All future manufacturing of the Products shall require
the prior written consent of Franklin. Diffon may use the C-Motech, Ltd.
facilities to manufacture the Products; provided that (a) the terms of
manufacturing are mutually beneficial to the Parties and (b) Franklin provides
its prior written approval, which may be conditioned, delayed or withheld in its
sole and absolute discretion.
5.3 PRICING. Pricing shall be on a Product by Product basis, as specified in
EXHIBIT B. EXHIBIT B may be amended from time to time to accommodate new
Products and or new pricing for any such Products as agreed upon by the Parties.
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5.4 PRODUCT LEAD TIME. Unless otherwise agreed upon in writing, Franklin shall
submit all Purchase Orders in writing at least forty (40) days prior to the
expected delivery date for Franklin's customer. Diffon shall provide updated and
detailed production information on all Purchase Orders which have been accepted.
5.5 PURCHASE ORDERS. All Purchase Orders shall be submitted with respect to the
lead time and shall be deemed accepted, if the Purchase Order is not rejected in
writing within twenty-four (24) hours of submission. Franklin reserves the right
to change and or modify any Purchase Order that has been submitted; provided
however, that any change and/or modification of the Purchase Order shall not
cause any monetary and/or financial burden to Diffon. In the event that Franklin
enters into an agreement with a significant customer, as determined by purchase
volume over a period of time by Franklin, Franklin shall negotiate a separate
agreement with that customer and Diffon shall be required to support Franklin in
order to meet any additional commercially reasonable terms and conditions as set
forth in any additional agreement(s) that Franklin may enter into with
individual customers.
5.6 PAYMENT. Diffon may submit an invoice to Franklin only for Products that are
delivered and received as described in this Agreement and in accordance with the
appropriate instructions contained in the applicable Purchase Order. Diffon
shall not provide an invoice for more than the Purchase Order amount.
5.7 PAYMENT TERMS. Unless otherwise agreed upon by both Parties in writing,
payment of thirty percent (30%) of the total purchase price must accompany the
Purchase Order and the remaining seventy percent (70%) will be paid within 30
days after shipment or Shipper's USANCE LC 60 days, whichever is earlier.
5.8 CURRENCY. All payments, pricing, and terms shall be calculated in US
Dollars.
ARTICLE 6 - SHIPPING AND TITLE; ACCEPTANCE
6.1 SHIPPING AND TITLE.
(a) All Products shipped to tier 1 carriers, including, without limitation,
Sprint, Time Warner, Comcast, Cox, Verizon, T-Mobile and AT&T (each, a "Tier 1
Carrier") shall be shipped DDP, as modified below. All Products shipped to other
than a Tier 1 Carrier shall be shipped FCA Korea airport, as modified below.
Title to the Products shall be transferred upon leaving Korea, unless otherwise
specified by both Parties in writing. FCA and DDP shall have the meanings set
forth in Incoterms.
(b) Diffon shall be responsible for proper shipping from Korea using
Franklin's preferred freight carrier (each, an "Authorized Freight Company").
Diffon shall only use an Authorized Freight Company that has been approved by
Franklin in writing. Diffon shall ship all Products in packaging and
configuration as specified by Franklin in writing. Diffon will bear and pay, and
otherwise take all responsibility for, causing the Products, and all shipments
of Products, to satisfy all customs, duty, and other laws and regulations
imposed by the United States or foreign customs authorities or other agencies,
including, without limitation, any liability for state and local sales, use or
other taxes, and will immediately indemnify Franklin and reimburse Franklin for
any amounts required to be disbursed by Franklin in connection with Diffon's
failure to perform any such obligations. Diffon will pay all expenses associated
with shipping Products, including without limitation expenses for
transportation.
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6.2 ACCEPTANCE. Franklin shall have fifteen (15) days from the time of receipt
to inspect the Products and provide written notice to Diffon of any shortages,
damaged goods, and or defective Products.
ARTICLE 7 - INVENTORY AND LAUNCH SUPPORT
7.1 NEW PRODUCT EVALUATION SAMPLES. For any new Product purchased by Franklin
for the first time, Diffon will, at no charge, provide Franklin with samples of
the new Product as it requires for any business purpose, including but not
limited to, for testing and utilization as a demonstration device.
7.2 PRODUCT LAUNCH SUPPORT. For any new Product provided by Diffon and launched
by any of Franklin's customers, Diffon will ensure that all accessories and/or
batteries that are provided as part of the original equipment configuration
ordered by Franklin's customers (i.e. contained in each fully kitted package),
are delivered to Franklin's customers prior to the Product launch date, as
required by Franklin, and at Diffon's expense. Diffon acknowledges that failure
to deliver any such accessories to Franklin or Franklin's customers prior to the
Product launch date may delay the Product launch, as determined by Franklin and/
or Franklin's customers. Diffon will reimburse and hold Franklin harmless for
and from any costs, claims or liabilities incurred by Franklin or its customers
that are associated with the delayed Product launch.
7.3 PACKAGING DESIGN. Diffon shall work with Franklin in dealing with the design
and printing specifications needed by Franklin's customers. This includes, but
is not limited to, items related to the customization of the Product, Product
gift box, and other brandable or designable items that come with the Product.
7.4 MARKETING. Except as provided herein, Franklin shall pay for any marketing
efforts in relation to the Products. Diffon shall provide service on an as
needed basis to execute certain marketing related deliverables, including
without limitation, printing and collateral tasks.
7.5 TECHNICAL SUPPORT. As required from time to time, Diffon may be required to
send technical engineering teams to Franklin's or its customer's facilities for
various reasons, including without limitation, field testing and certification
testing, training. Diffon agrees that it will use its best efforts to dispatch
any required staff as described herein on an as needed basis as requested by
Franklin.
ARTICLE 8 - INSPECTION AND WARRANTY
8.1 WARRANTY PERIOD. Unless otherwise agreed upon in writing, all Products shall
have a warranty period of not less than 15 months from the date of shipment to
Franklin's customers or end users (the "Warranty Period"). Within five (5)
business days of a warranty claim, Diffon shall repair,
replace, or refund the purchase price of any Product that has been returned to
Franklin due to failure, defects in workmanship or materials, or any other
failure resulting from the manufacture of the Product by Diffon, or other third
parties that are involved in the manufacture of the Product or that have been
engaged by Diffon to manufacture the Product (the "Warranty"), If Diffon fails
to comply with its obligations under this Section 8.1 Franklin shall have the
right to distribute, at its discretion, Safety Stock (as defined below) to
service the customer or end user.
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8.2 END OF PRODUCT LIFE SUPPORT. Diffon shall provide advance notice of at least
1 year prior to the End of Life ("EOL") of any Product supplied to Franklin.
Diffon agrees to support each Product for three (3) years after its EOL (the
"EOL Warranty Period"), by repairing, replacing or refunding the purchase price
of any Product that is identified to be defective or inoperable, due to failure,
defects in workmanship or materials, or any other failure deemed to be resulting
from the manufacture of the Product by Diffon or other third parties that are
involved in the manufacture of the Product or that have been engaged by Diffon
to manufacture the Product, so long as the Product identified is within the EOL
Warranty Period.
8.3 WARRANTY SAFETY STOCK. For each Product provided by Diffon, Diffon will make
available, free of charge, spare inventory ("Safety Stock") for any Product that
has been returned due to failure, defects in workmanship or materials, or any
other failure deemed to be resulting from the manufacture of the Product. Safety
Stock must be stored as directed by Franklin. Diffon may only charge Franklin
for the Safety Stock if it is sold to a customer, except as provided in Section
8.1, All Safety Stock will be new Products and the full Warranty will be
available on the Product. Diffon will provide Franklin with an inventory of
Safety Stock equal to two percent (2% of the number of units of each
Product sold during the previous 12 months. If there is not sufficient data to
calculate the two percent (2%) of unit sales or if demand requires, Diffon and
Franklin will work together to develop a plan to accurately forecast the Safety
Stock unit quantities.
8.4 EPIDEMIC FAILURE. A return ratio for defective Products under warranty that
exceeds two percent (2%) of the total amount of units of such Product delivered
during the previous six (6) months for the same cause shall be considered
"Epidemic Failure." Franklin shall notify Diffon in writing of any Epidemic
Failure.
8.5 RESOLVE. Upon receiving notice of an Epidemic Failure from Franklin, Diffon
must identify the cause within twenty-four (24) hours and provide a strategic
resolution within seventy-two (72) hours of identifying the cause of such
Epidemic Failure. Diffon shall work under the direction of Franklin to resolve
any Epidemic Failure that is identified by Franklin's customers or Franklin. If
Diffon is not able to provide a strategic resolution to the Epidemic Failure
which is acceptable to Franklin within the seventy-two (72) hour time period,
Diffon will reimburse and hold Franklin harmless for and from any costs, claims
or liabilities incurred by Franklin or its customers that are associated with
the Epidemic Failure, including without limitation, all expenses related to any
Product recall and shipping.
ARTICLE 9 - INDEMNIFICATION; CONFIDENTIALITY: INTELLECTUAL PROPERTY RIGHTS
9.1 INDEMNIFICATION. Notwithstanding anything to the contrary set forth in this
Agreement, Diffon agrees to indemnify, defend and hold harmless Franklin, its
officers, directors, employees, agents, shareholders, legal representatives,
successors and assigns from loss, liability, costs, damages, or expenses from
any and all claims, actions and suits instituted by Franklin or any third party,
whether groundless or otherwise, and from and against any and all such claims,
damages, losses, liabilities, judgments, expenses, and costs including, without
limitation, reasonable attorneys' fees arising from (a) the breach of this
Agreement by Diffon or its agents, employees, representatives, subcontractors,
or others acting on behalf of Diffon, (b) strict liability claims, including
without limitation, product liability claims, misrepresentations, or breach of
warranty, (c) negligence, errors or omissions on the part of Diffon or its
agents, employees, representatives, subcontractors or others acting on behalf of
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Diffon related to the design or manufacture of the Products, and (d) any claims
that any Product purchased from Diffon infringes any United States or foreign
patent, copyright or intellectual property right. In connection with Diffon's
indemnification obligations set forth in this Section 9.1 Franklin agrees to (i)
give written notice to Diffon of any such claim, action or suit, and (ii)
reasonably assist, at Diffon's expense, in such defense. Diffon shall defend
such claim, action or suit at Diffon's sole cost and expense. No settlement
negotiated by Diffon under this Section 9.1 shall be binding on Franklin without
Franklin's written consent. If Diffon fails to promptly defend or otherwise
settle or finally resolve any such claim, action, or suit, Franklin may defend
such claim, action, or suit using counsel selected by Franklin, and Diffon shall
reimburse Franklin for any resulting loss, damages, costs, charges, attorney's
fees, and other expenses and the related costs of defending such claim, action,
or suit.
9.2 Confidentiality. Each Party agrees to hold the other Party's Confidential
Information in strict confidence and not to disclose such Confidential
Information to any third parties. "Confidential Information" means all
information disclosed by one Party to the other Party that is not generally
known in such Party's trade or industry and shall include, without limitation,
(a) concepts and ideas relating to the development and distribution of content
in any medium or to the current, future and proposed products or services of a
Party or its affiliates; (b) trade secrets, drawings, inventions, know-how,
software programs, and software source documents; (c) information regarding
plans for research, development, new service offerings or products, marketing
and selling, business plans, business forecasts, budgets and unpublished
financial statements, licenses and distribution arrangements, prices and costs,
suppliers and customers; (d) existence of any business discussions, negotiations
or agreements between the parties; and (e) any information regarding the skills
and compensation of employees, contractors or other agents of a Party or its
affiliates. Confidential Information also includes proprietary or confidential
information of any third party who may disclose such information to Franklin or
Diffon in the course of Franklin's or Diffon's business. The obligations set
forth in this Section 9.2 shall not apply with respect to any portion of the
Confidential Information that a Party can document by competent proof that such
portion: (a) was in the public domain at the time it was communicated to one
Patty by the other Party; (b) entered the public domain through no fault of a
Party, subsequent to the time it was communicated to such Party; (c) was in a
Party's possession free of any obligation of confidence at the time it was
communicated to such Party; (d) was rightfully communicated to a Party free of
any obligation of confidence subsequent to the time it was communicated to such
Party; (e) was developed by employees or agents of a Party independently of and
without reference to any information communicated to such Party by the other
Part; or (f) was communicated by a Party to an unaffiliated third party free of
any obligation of confidence. In addition, a Party may disclose the other
Party's Confidential Information in response to a valid order by a court or
other governmental body, as otherwise required by law; ,provided, however, that,
to the extent reasonably practicable, the disclosing Party will provide prompt
prior written notice to the other Party and will reasonably cooperate with the
other Party if it seeks a protective order or takes other legal action to
prevent the disclosure of such Confidential Information (unless the disclosing
Party is specifically prohibited by law from so doing). The provisions of this
Section shall survive any expiration or termination of this Agreement and shall
remain in effect and be binding upon the Parties for the period of 60 months
following the date of such expiration or termination, as the case may be.
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9.3 RETURN OF CONFIDENTIAL INFORMATION AND MATERIALS. Upon request of a Party,
the other Party shall return to such Party all materials, in any medium, which
contain or reveal all or any Confidential Information of such Party. Each Party
acknowledges that a breach of this Section by it may result in irreparable harm
to the other Party, for which monetary damages would be an insufficient remedy,
and therefore that the other Party shall be entitled to seek injunctive relief
to enforce the provisions of this Section.
9.4 INTELLECTUAL PROPERTY RIGHTS. Each Party shall retain all right, tide and
interest in and to all of its intellectual property, including without
limitation trade names, trademarks, service marks, copyrights, proprietary
products and Confidential Information owned by each Party ("Intellectual
Property Rights"). Nothing in this Agreement confers any rights of ownership of
the other Party's (or any other party's) Intellectual Property Rights.
ARTICLE 10 - MISCELLANEOUS
10.1 FORCE MAJEURE.
(a) Except for the payments due for the Products delivered by Diffon, neither
Party shall be liable for any delays in delivery or failure to perform or other
loss due directly or indirectly to unforeseen circumstances or causes beyond
such Party's reasonable control (each, individually, a "Force Majeure Event")
including, without limitation: (i) acts of God, act (including failure to act)
of any governmental authority (de jure or de facto), wars (declared or
undeclared), governmental priorities, port congestion, riots, revolutions,
strikes or other labor disputes, fires, floods, sabotage, nuclear incidents,
earthquakes, storms, epidemics; or (ii) inability to timely obtain either
necessary and/or proper labor, materials, components, facilities, production
facilities, energy, fuel, transportation, governmental authorizations or
instructions, material or information, The foregoing shall apply even though any
Force Majeure Event occurs after such Party's performance of its obligations is
delayed for other causes but only during the period of the applicable Force
Majeure Event.
(b) The Party affected by a Force Majeure Event shall give written notice to
the other Party of the Force Majeure Event within five (5) days after the
occurrence thereof, stating therein the nature of the suspension of performance
and reasons therefore. Such Party shall use its commercially reasonable efforts
to resume performance as soon as reasonably possible. Upon restoration of the
affected Party's ability to perform its obligations hereunder, the affected
Party shall give written notice to the other Party within a reasonable time and
shall specify the time by which the performance of the obligations hereunder is
to be completed.
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10.2 INJUNCTIVE RELIEF. Each Party agrees that a breach of the terms of this
Agreement would represent substantial and irreparable harm and that monetary
damages would be inadequate. Therefore, the Parties agree that, in addition to
any other rights and/or remedies of the Parties, that the non-breaching Party
shall be entitled to injunctive relief to ensure compliance with the terms of
this Agreement.
10.3 GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in
all respects in accordance with the laws of California without regard to its
conflicts of law provisions. For purposes of venue and jurisdiction, this
Agreement will be deemed made and to be performed in San Diego County,
California, Venue for all purposes will lie exclusively with the state and
federal courts located in San Diego County, California, which courts have
personal jurisdiction and venue over each of the parties to this Agreement for
the purpose of adjudicating all matters arising out of or related to this
Agreement. Each Party authorizes and accepts service of process sufficient for
personal jurisdiction in any action against it as contemplated by this Section
by registered or certified mail, return receipt requested, postage prepaid, to
its address for the giving of notices set forth in this Agreement.
10.4 COMPLIANCE WITH UNITED STATES REGULATIONS. Nothing contained in this
Agreement will require or permit Franklin or Diffon to do any act inconsistent
with the requirements of (a) the regulations of the United States Department of
Commerce, (b) the foreign assets controls or foreign transaction control
regulations of the United States Treasury Department or (c) any applicable law,
regulation or executive order as may be in effect wherever the Products are
manufactured or sold from time to time.
10.5 ASSIGNMENT. Diffon shall not assign this Agreement to any other person or
entity without Franklin's prior written consent. In the event of assignment with
the prior written consent of Franklin, Diffon shall not be relieved from its
obligations under this Agreement and shall be held responsible for its
performance. Franklin may transfer or assign all or any part of its rights and
obligations under this Agreement.
10.6 NON-WAIVER. No claim or right of either Party under this Agreement shall be
deemed to be waived or renounced in whole or in part unless the waiver or
renunciation of such claim or right its acknowledged and confirmed in writing by
such Party.
10.7 MERGER. This Agreement and the attached Exhibits contains the entire
agreement between the Parties to this Agreement with respect to the subject
matter of this Agreement, is intended as a final expression of such Parties'
agreement with respect to such terms as are included in this Agreement, is
intended as a complete and exclusive statement of the terms of such agreement,
and supersedes all negotiations, stipulations, understandings, agreements,
representations and warranties, if any, with respect to such subject matter,
which precede the execution of this Agreement.
10.8 INTERPRETATION. In the event of any ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as drafted jointly by
the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. No provision of this Agreement shall be construed against any
Party on the grounds that such Party or its counsel drafted that provision.
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10.9 SEVERABILITY. Each provision of this Agreement will be valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement or the application of the provision to any person or circumstance
will, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of any provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, will not be affected
by such invalidity or =enforceability, unless the provision or its application
is essential to this Agreement. The Parties shall replace any invalid and/or
unenforceable provision with a valid and enforceable provision that most closely
meets the aims and objectives of the invalid and/or unenforceable provision.
10.10 FURTHER ASSURANCES. Each Party to this Agreement will execute all
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement upon demand.
10.11 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
document.
10.12 NOTICES. All notices or other communications required or permitted to be
given to a Party to this Agreement shall be in writing and shall be personally
delivered, sent by certified mail, postage prepaid, return receipt requested, or
sent by an overnight express courier service that provides written confirmation
of delivery, to such Party at the following respective address:
If to Franklin:
Franklin Wireless Corporation
5440 Morehouse Drive, Suite 1000
San Diego, California 92121 USA
Attention: President
Facsimile: __________________________
with a copy to (not constituting notice):
Solomon Ward Seidenwurm & Smith LLP
401 B Street, Suite 1200
San Diego, California 92101
Attention: Harry J. Proctor
Facsimile: (619) 231-4755
If to Diffon:
Diffon Corporation
Digital Tower Aston Suite 1505 505-15
Gasan, Geumcheon
11
Seoul 153803 Korea
Attention: President
Facsimile: __________________________
Each such notice or other communication shall be deemed given, delivered and
received upon its actual receipt, except that if it is sent by mail in
accordance with this Section, then it shall be deemed given, delivered and
received three (3) days after the date such notice or other communication is
deposited with the U.S. Postal Service in accordance with this Section. Any
Party to this Agreement may give a notice of a change of its address to the
other Party to this Agreement.
10.13 AMENDMENT. Except to the extent otherwise expressly permitted by this
Agreement, no amendment of, or addition to, this Agreement shall be effective
unless reduced to a writing executed by the duly authorized representatives of
both Parties.
10.14 NO AGENCY. The relationship between Franklin and Diffon is that of a
vendor to its vendee, and nothing herein contained shall be construed as
constituting either Party the employee, agent, independent contractor, partner
or co-venturer of the other Party. Neither Party shall have any authority to
create or assume any obligation binding on the other Party.
10.15 ETHICAL STANDARDS. Diffon will comply with the United States Foreign
Corrupt Practice Act and without derogating from the generality of the
foregoing, will not have its directors, officers or employees, directly or
indirectly, offer, promise or pay any bribes or other improper payments for the
purposes of promoting and/or selling Products to any individual, corporation,
government official or agency or other entity. No gift, benefit or contribution
in any way related to Franklin or the promotion and/or sale of Products will be
made to political or public officials or candidates for public office or to
political organizations, regardless of whether such contributions are permitted
by local laws.
10.16 CONTROLLING LANGUAGE. This Agreement is in the English language only,
which will be controlling in all respects. No translation, if any, of this
Agreement into any other language will be of any force or effect in the
interpretation of this Agreement or in a determination of the intent of either
Party hereto.
10.17 EFFECTIVENESS. This Agreement shall become effective when it has been
executed by all of the Parties to this Agreement.
IN WITNESS WHEREOF, the Parties hereto hereby execute this Agreement
effective as of the day and year first above written.
Franklin Diffon
By: /s/ OC Kim By: /s/ Ji Ho Cho
------------------ ------------------
Name: OC Kim Name: Ji Ho Cho
Title: President Title: CEO
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EXHIBIT A
Products
TBD
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EXHIBIT B
Pricing
TBD
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