EXHIBIT 10.16
DISTRIBUTION AGREEMENT
THIS AGREEMENT is entered into on this 10/th/ day of February, 2000.
between:
(1) METAWAVE COMMUNICATIONS (CAYMAN ISLANDS), a Cayman Islands company having
its registered office at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("Company"), which is a subsidiary of Metawave Communications
Corporation, a corporation incorporated in the state of Delaware, the United
States of America; with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇.
and
(2) SEENODE CO., LTD., a Korean company with its principal office at 6TH Fl.
Yonsu District Office ▇▇▇-▇, ▇▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇-▇▇, Inchon, 406-130, Korea
("Distributor").
RECITALS
(A) Company manufactures and markets Spotlight(R) 2000 systems and desires to
promote and distribute its products in the Territory, as defined below in
Article 1.1; and
(B) Distributor has represented that it possesses the necessary expertise and
marketing organization to promote and sell such products in the Territory;
and
(C) Company and Distributor have agreed that Distributor shall be appointed as
Company's exclusive distributor of its products in the Territory.
NOW THEREFORE, the parties in good faith agree to the following:
1. DEFINITIONS
For purposes of this Agreement, the following words, terms and phrases,
where written with an initial capital letter, shall have the meanings
assigned to them unless the context otherwise requires:
1.1 "End User"--a third party who purchases a Product for its own internal
business
[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
practices and not for distribution or resale.
1.2 "Products" - Spotlight 2000 CDMA-only systems, spares, documentation,
updates and upgrades.
1.3 "Territory" - South Korea, and End User accounts registered under
section 2.7 of this Agreement.
1.4 "Distributor List Prices" - the prices being quoted by Company for
sales of Products to its international distributors.
1.5 "Quota" - the minimum quantities of Products which Distributor shall
be expected to purchase from Company in accordance with the terms and
conditions of Article 7 of this Agreement.
2. APPOINTMENT
2.1 Scope. Company hereby appoints Distributor, and Distributor hereby
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accepts appointment, as Company's exclusive distributor of the Products to End
Users in the Territory during the term of this Agreement, under Company's name,
trade name, logotypes and trademarks, subject to all the terms and conditions of
this Agreement.
2.2 No Agency. The appointment hereunder by Company of Distributor as
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distributor of the Products in the Territory shall in no way
constitute, or be deemed to constitute, Distributor as the agent of
Company and Distributor shall have no authority to bind Company to any
contract or other undertaking or obligation, or to act, or to hold
itself out as entitled to act, for or on behalf of Company in any
other capacity than as distributor of the Products in the Territory.
2.3 Sub-distributors or sub-agents. Distributor shall not, without the
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prior written approval of Company, appoint any sub-distributors or
sub-agents to promote or distribute the Products in the Territory.
Further, notwithstanding any such appointment, or Company's approval
thereof, Distributor shall at all times remain fully liable for the
performance of its sub-distributors or sub-agents, and Distributor
hereby agrees to indemnify and hold harmless Company from all damages,
losses, costs or expenses arising in any manner from any act or
omission on the part of its sub-distributors or sub-agents.
2.4 Distributor Not to Deal with Competitive Products. Distributor shall
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not manufacture, sell or deal in an any manner with, directly or
indirectly, any products
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similar to the Products or in any manner competitive with the Products
without the prior written consent of the Company.
2.5 Territory. Distributor shall not sell nor attempt to sell the
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Products to customers outside the Territory or to customers within the
Territory who the Distributor knows intends to, or will likely, sell
the Products outside the Territory. Company reserves the right to
change the Territory by giving notice to the Distributor.
2.6 Referral of Inquiries. Distributor shall direct any inquiries
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originating from customers outside of the Territory, or within the
Territory, in respect of sales of the Products proposed to be made
outside of the Territory, to Company.
2.7 Identification of End User Accounts. Distributor shall provide
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Company in writing with the name, address and Territory of each
potential End User account at the time it identifies the account.
Company will then evaluate the End User account and recommend to
Distributor in writing whether or not it should work with that End
User account. Distributor will then keep the Company regularly
informed of its progress on each End User account. If Distributor has
not made substantial progress, Company may request that Distributor
cease working with that End User and may make other arrangements for
selling to such End User.
3. TERM
3.1 Term. This Agreement shall take effect with respect to the Territory
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as of the date first written and shall continue in force for a period
of one (1) year. Thereafter, this Agreement may be renewed in writing
by mutual agreement of the parties three (3) months prior to end of
the term.
4. GENERAL OBLIGATIONS OF DISTRIBUTOR
4.1 Marketing. Distributor shall have the following obligations with
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respect to the marketing and distribution of Company's Products:
(a) To use its best efforts to further the promotion, marketing, sale
and other distribution of Products in the Territory;
(b) To maintain an adequate and balanced inventory of Products;
(c) To promptly respond to all inquiries from customers, including
complaints, process all orders, and effect all shipments of the
Products located in the Territory directly sold by Distributor;
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(d) To diligently investigate all leads with respect to potential
customers referred to it by Company;
(e) To permit Company to visit Distributor's place of business and
inspect its inventories;
(f) To employ and maintain throughout the Territory an adequate sales
force dedicated on a full-time basis to the sale of the Products;
(g) To employ throughout the Territory qualified technicians who must
be certified by Company;
(h) To participate actively in sales or merchandising programs
prepared by Company; to participate in all fairs and exhibitions
in the Territory where such participation will, in the judgment
of Company, promote the Products; and to develop and implement
sales programs for the promotion of the Products;
(i) To provide Company with monthly sales reports, financial and
customer information, and direct access to customers for
marketing and product feedback purposes. Company shall have the
right to audit the sales records of Distributor;
(j) To provide after-sales service and support of any nature and
character, to a standard set by Company, of any and all Products
sold to customers; (Procedures To Be Decided).
(k) To generally to do all such other acts and things as the Company
may reasonably require which are in any way necessary or
incidental to sales of the Products in the Territory.
4.2 Advertising. Distributor shall diligently undertake to advertise,
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promote, and generally publicize the Products in the Territory.
4.3 Marketing Materials. Company shall furnish Distributor, free of
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charge, with an agreed minimum quantity of Company's marketing and
product literature, including brochures, pamphlets and other
information, in the English language, for use by Distributor in
preparing its own advertising materials. If Distributor requires
additional copies, they shall be paid for by Distributor and any
needed translations shall be completed by Distributor at its own
expense. All advertising,
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marketing materials and product literature must first be approved by
Company.
4.4 Expenses. Distributor and Company each assume full responsibility
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for all costs and expenses which each respectively incurs in carrying
out its obligations under this Agreement, including but not limited to
salaries, commissions, advertising, demonstration, travel and
accommodation expenses without the right to reimbursement for any
portion thereof from the other party.
5. COMPANY'S GENERAL OBLIGATIONS
5.1 Company shall have the following obligations with respect to the
marketing and distribution of Company's Products:
(a) Unless excused by circumstances beyond Company's control in
accordance with Article 16 hereof, deliver to Distributor those
Products for which Distributor places orders, and which Company
has accepted, by shipment to such locations within the Territory,
or to any person for direct use if delivery thereof will be made
to a location within the Territory;
(b) Provide support and assistance to Distributor in the advertising,
promotion, sales and distribution of the Products within the
Territory;
(c) Develop and offer training and technical assistance to
Distributor and its personnel in the sale and distribution of the
Products at the prices set forth in the pricing document provided
separately, including, at the option of Distributor, engineering
services such as sales proposals, site walks, and site
configurations at the prices set forth in Schedule B, all of
which expenses shall be borne by Distributor;
(d) Provide technical support for Distributor's first field trial
with an End User as determined by Company;
(e) Exercise its best efforts to maintain an international
advertising program to develop a name identification and quality
image for Company's Products, and supply Distributor with the
sales material and data relating to its Products, when and as
requested by Distributor, in reasonable quantities.
6. ORDERS FOR PRODUCTS AND SHIPMENT
6.1 Purchase Orders. Distributor shall submit purchase orders for the
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Products to Company's Cayman Islands affiliate company, who shall in
turn submit purchase
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orders to Company, all in writing by facsimile, mail, by telex,
telegram or cable which shall set forth, at a minimum:
(a) An identification of the Products ordered, including serial
numbers, if applicable;
(b) Quantity;
(c) Requested delivery dates; and
(d) Shipping instructions and shipping address.
Distributor shall ensure that its purchase orders are received by
Company at least [***] days prior to the delivery dates requested
in the order.
6.2 Provisional Confirmation of Orders. Each purchase order shall be
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deemed to be an offer by Distributor to purchase the Products pursuant
to the terms of this Agreement. Upon receipt of such purchase order,
Company shall have [***] business days with which to provisionally
confirm or reject the purchase order in writing by facsimile, or other
suitable transmission.
6.3 Final Confirmation. After receipt of an acceptable and proper letter
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of credit for the payment of the purchase order as detailed in Article
8 below, the Company shall provide in writing its final acceptance or
rejection of the purchase order. Acceptance of the purchase order
shall give rise to a contract under the terms set forth herein to the
exclusion of any additional or contrary terms set forth in the
purchase order. Company shall not unreasonably withhold its acceptance
of the purchase order.
Delivery Terms. Unless otherwise agreed to by written agreement
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between the parties, all deliveries of the Products shall be F.O.B.
Company (either Redmond, Washington or Taipei, Taiwan.).
6.4 Modification of Orders. No received purchase order shall be modified
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or cancelled except upon written agreement of both parties, which
shall not be unreasonably withheld. Distributor's purchase orders or
mutually agreed change orders shall be subject to provisions of this
Agreement, whether or not the purchase order or change order so
states.
6.5 Discharge of Company's Obligation. Company's obligation to ship the
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Products shall be fully and completely discharged, and ownership,
legal title, and all risk of loss or damage shall immediately pass to
Distributor at the time that the Products
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are delivered F.O.B. Company.
7. MINIMUM PURCHASE REQUIREMENT
7.1 Quotas. Distributor shall purchase and take delivery of a
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predetermined Quota of Products during each quarterly period during
the term of this Agreement, which Quotas shall be established by
mutual agreement of the parties. Such Quotas shall be in number of
systems for Spotlight 2000 CDMA systems. The Quota for timeframes
shown shall be as indicated.
[***]
Distributor understands and agrees that the establishment and
achievement of the Quota is the essence of this Agreement, and that
failure by Distributor to satisfy its obligation under this Article 7
shall constitute a failure of consideration on the basis of which
Company shall be entitled to terminate this Agreement pursuant to
Article 15 hereof.
7.2 Forecasts. Distributor shall provide to Company 12-month rolling
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forecasts for each month of the term of this Agreement.
7.3 Loss of Profits or Sales. Neither party shall be liable to the other
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for any losses in profits or sales of the Products in the Territory.
8. PRICES AND PAYMENTS
8.1 Prices. The prices to be paid by Distributor for Products purchased
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pursuant to this Agreement and discount levels are set forth in a
separate document, which shall be provided within two weeks of the
execution of the Agreement.
8.2 Price Increase, Decreases. Company may, at any time during the term
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of this Agreement, increase its prices for the Products by providing
Distributor with at least [***] days prior written notice. Increased
prices for the Products shall not apply to purchase orders accepted
prior to the effective date of the price increase unless such orders
provide for delivery more than [***] days after the date of acceptance
of the order. Price decreases with respect to all Products shall be
effective immediately upon written notice to the Distributor on all
such Products not yet delivered.
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8.3 Payment Terms. Payments by Distributor shall be made by irrevocable
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and confirmed letter of credit, in a form and substance satisfactory
to Company, at sight opened at Distributor's expense which must be
received by Company within two (2) weeks of the purchase order date.
[***]. In the event of the necessity of any amendment to the terms of
a letter of credit, or any extension of the letter of credit in order
for Company to obtain payment under the letter of credit, the
Distributor agrees to fully and completely cooperate with Company to
make such amendment or extension.
8.4 Failure to Pay. Should Distributor fail to arrange and have in place
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an acceptable letter of credit within the two (2) week deadline for
any order of the Products, the Company shall, in addition and without
prejudice to any other remedy hereunder, be entitled to refuse to
deliver or ship any order for the Products placed with Company by
Distributor and shall not be obliged to accept any further orders for
the Products from Distributor.
8.5 Resale Prices. Discount levels for sale to End Users recommended by
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Company are set forth in a separate document, which shall be provided
within two weeks of the execution of the Agreement.. List prices and
discount levels are to be recommended by Company and such
recommendations may be changed at any time on 30 days' written notice
to Distributor. The procedures for price changes set forth in section
8.2 above shall also apply to changes under this section.
9. WARRANTY
9.1 Product Warranty. Company warrants to Distributor that the Products,
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if properly handled and used only for the purpose they were designed
for, will be free of defects in workmanship and materials [***]
Company does not extend any warranty directly to End User. Company
reserves the right to change the terms and conditions of the said
warranty at its sole option. Any sales documents provided to the End
User by Distributor shall include the End-User restrictions relating
to warranty, intellectual property rights and liability limitations
attached hereto as Schedule A.
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9.2 Warranty Claims. Warranty claims hereunder must be made promptly in
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accordance with the procedures, terms and conditions specified by
Company in its Warranty Program Procedures to be provided to
Distributor. In the event of a warranty claim, Company shall either
repair the defective FRU or replace said FRU with a new or refurbished
FRU. The actions taken by Company under the Warranty Program
Procedures shall be the full extent of Company's liability and
Distributor's exclusive remedy with respect to a claim under this
Section 9.
9.3 After-Warranty Service. In addition to the warranty provided to
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Distributor, Distributor may purchase after-warranty service from
Company at the prices listed in the pricing document provided
separately. Distributor shall offer non-warranty technical service to
End Users on terms and conditions that have been approved by Company.
9.4 Non-Liability of Company. The Company shall not be liable for
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consequential damages of any kind, whether as a result of loss by
Distributor of present or prospective profits, anticipated sales,
expenditures, investments, or commitments made in connection with this
Agreement. Company's liability under this Agreement shall be limited
to the amount received from Distributor for the purchase of Products
and in no event shall Company be liable to the Distributor for any
consequential or indirect damages.
10. CONFIDENTIALITY
10.1 Confidential Information. During the term of this Agreement and
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thereafter it may be necessary for Company and Distributor to mutually
exchange certain information, data and proprietary material relating
to marketing, sales, technical, financial and other matters involving
the Products, this Agreement or the relationship between the Company
and Distributor. In order to be treated as confidential hereunder
("Confidential Information"), information disclosed in writing shall
be marked as confidential or proprietary, and the disclosing party
shall indicate the confidential nature of oral information at the time
of disclosure and provide written confirmation thereof within fifteen
(15) days following such disclosure.
10.2 All Confidential Information shall be received and retained in the
strictest confidence by the parties and will be deemed to be
proprietary information of the disclosing party and the recipient
agrees that it will not disclose it to third parties and further it
will treat such information, data or material as proprietary using the
same degree of care that it would normally use in protecting its own
proprietary
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information for a period of three years; and be used by the parties
hereto solely for the purpose of implementing this Agreement or for
discussions relating to other products of Company or other business
relationships between Distributor and Company.
10.3 This provision shall not apply to any Confidential Information that
(i) is known by the receiving party prior to the date of disclosure by
the disclosing party, and is not subject to or in violation of an
obligation of confidentiality; (ii) is or become public knowledge
other than by default of the receiving party; (iii) is obtained by the
receiving party from a bona-fide third party having free right of
disposal of such information; (iv) is wholly and independently
developed by the receiving party without reference to the Confidential
Information; or (v) the receiving party is required to disclose
pursuant to any law, regulation or a valid order of a court or other
government body or any political subdivision, or other legal
requirement thereof, provided, however, that the recipient of the
information shall first have given notice to the disclosing party and
made a reasonable effort to obtain a protective order requiring that
the information and/or documents so disclosed be used only for the
purposes for which the order was issued.
10.4 Subject to the foregoing, this Agreement shall also be treated
confidentially by all parties hereto. This section shall survive any
termination of the Agreement for a period of three (3) years.
11. TRADEMARKS
11.1 Use of Trademarks. Company hereby grants to Distributor a
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non-exclusive, non-transferable, and royalty-free right and license to
use Company's name, trademarks, trade names, and logos specified in
Exhibit I attached hereto, as such Exhibit may be modified from time
to time during the term of this Agreement, in connection with the sale
or other distribution, promotion, advertising, and maintenance of the
Products for so long as such name, trademarks, trade names, and logos
are used by the Distributor. Distributor shall afford Company
reasonable opportunities during the term hereof to inspect and monitor
the activities of Distributor in connection with the name, trademark,
trade name, and logo usage.
11.2 Restrictions. Distributor shall acquire no right, title or interest
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in such Company name, trademarks, trade name, and logos other than the
foregoing limited license and Distributor shall not use any Company
trademarks as part of Distributor's corporate or trade name or permit
any third party to do so without the prior written consent of Company.
Distributor shall not adopt, use or register any words, phrases or
symbols which are identical to or confusingly similar to any of
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Company's trademarks. Distributor shall not private label the
Products.
11.3 Infringements. Distributor shall promptly notify Company of any use
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by any third party of Company's name, trademarks, trade name, and
logos or any use by such third parties of similar marks which may
constitute an infringement or passing off of Company's name,
trademarks, trade name, and logos. Company reserves the right in its
sole discretion to institute any proceedings against such third party
infringers. Distributor agrees to cooperate fully with Company in any
action taken by Company against such third parties, provided that all
expenses of such action shall be borne by Company.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Ownership. Distributor hereby acknowledges Company's exclusive right,
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title and interest in and to any and all intellectual property rights
which Company may have at any time adopted, used, registered or been
issued in the United States or in any other location (the
"Intellectual Property Rights"). Distributor agrees that it shall not
do, or cause to be done, any acts or things contesting or in any way
impairing or tending to impair any portion of the Company's right,
title and interest in and to the Intellectual Property Rights.
Distributor further acknowledges that, in connection with any
reference to the Intellectual Property Rights, Distributor shall not
in any manner represent that is possesses any ownership interest in
the Intellectual Property Rights or the registration thereof, nor
shall any action taken by Distributor or on Distributor's behalf
create in Distributor's favour any right, title or interest in and to
the Intellectual Property Rights.
13. TAXES
Payment of Taxes. Company shall not be responsible for any local, state,
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federal and other governmental taxes, customs, duties, imposts, levies or
other charges or deductions or withholdings in the Territory whatsoever
imposed on Company or the Distributor as a result of the operation of this
Agreement or of the importation of the Products into the Territory and the
Distributor shall indemnify and hold Company harmless from and against any
such taxes, duties, imposts, levies or other charges or deductions or
withholdings all of which shall be for the sole and exclusive account of
the Distributor. Company is responsible for the payment of taxes outside
the Territory.
14. LICENSES AND PERMITS
14.1 Import Documentation. Distributor shall be responsible for obtaining
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all licenses and permits and for satisfying all formalities as may be
required to import Products
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into the Territory in accordance with then prevailing laws or
regulations.
14.2 Licenses and Permits. Distributor shall be responsible for obtaining
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all licenses and permits and for satisfying all formalities as may be
required to sell, install and operate Products in the Territory. If
this Agreement is not renewed pursuant to section 3.1, the fees for
any licensing and testing of the Products incurred by Distributor
shall be reimbursed by Company to Distributor in an amount [***] In
the event of nonrenewal and termination of this Agreement, all
licenses and permits obtained by Distributor for the Products shall be
transferred to Company or its assignee or otherwise terminated at
Company's option.
15. TERMINATION
15.1 Termination. Notwithstanding the provisions of Article 3 above, this
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Agreement may be terminated in accordance with the following
provisions:
(a) Either party hereto may terminate this Agreement at any time by
giving notice in writing to the other party, which notice shall
be effective upon dispatch, should the other party file a
petition of any type as to its bankruptcy, be declared bankrupt,
become insolvent, make an assignment for the benefit of
creditors, go into liquidation or receivership, or otherwise lose
legal control of its business, or should the other party or a
substantial party of its business come under control of a third
party;
(b) Either party may terminate this Agreement by giving notice in
writing to the other party should an event of Force Majeure
continue for more than six (6) months as provided in Article 6.2
above and Article 16 below;
(c) Either party may terminate this Agreement at any time without
notice in the event the other party is in breach of this
Agreement.
15.2 Rights and Obligations on Termination. In the event of termination
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of this Agreement for any reason, the parties shall have the following
rights and obligations:
(a) Obligation to Ship. For any orders already placed by
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Distributor and finally confirmed and accepted by Company on or
before the effective termination date, which acceptance includes
receipt of an acceptable and proper letter of credit pursuant to
the terms of Article 6.3, Company shall be obligated to ship
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such orders.
(b) Right to Re-purchase Products. For a period of ninety (90) days
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after the termination date, Distributor shall be entitled to sell
any remaining inventory of the Products at the resale prices set
by Company pursuant to Article 8.5. Upon the expiry of this
ninety (90) day period, Company shall have the right, at its sole
discretion, to buy back from Distributor any then remaining
inventory of the Products at one-half (1/2) the price paid by
Distributor.
(c) Confidentiality. Confidentiality obligations pursuant to
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Article 10 hereof shall survive the termination of this Agreement
and continue to be binding on both parties.
(d) Return of Materials. All trademarks, trade names, patents, copy
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rights, designs, drawings, formulas or other data, photographs,
samples, literature, and sales aids of every kind shall remain
the property of Company. Within thirty (30) days after the
termination of this Agreement, Distributor shall prepare all such
items in its possession for shipment to the Company, as Company
may direct, at Company's expense. Distributor shall not make or
retain any copies of any confidential items or information that
may have been entrusted to it.
16. FORCE MAJEURE
16.1 Definition. Force Majeure shall mean any event or condition, not
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existing as of the date of signature of this Agreement, not
reasonably foreseeable as of such date and not reasonably within the
control of either party, which prevents in whole or in material part
the performance of one of the parties of its obligations hereunder or
which renders the performance of such obligations so difficult or
costly as to make such performance commercially unreasonable. Without
limiting the foregoing, the following shall constitute events or
conditions of Force Majeure: acts of State or governmental action,
riots, disturbance, war, industry-related strikes, lockouts,
slowdowns, prolonged shortage of energy supplies, epidemics, fire,
flood, hurricane, typhoon, earthquake, lightning and explosion.
16.2 Notice. Upon giving notice to the other party, a party affected by
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an event of Force Majeure shall be released without any liability on
its part for the performance of its obligations under this Agreement,
except for the obligation to pay any amounts due and owing hereunder,
but only to the extent and only for the period that its performance
of such obligations is prevented by the event of Force Majeure. Such
notice shall include a description of the nature of the event of
Force Majeure, and
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its cause and possible consequences. The party claiming Force Majeure
shall promptly notify the other party of the termination of such
event.
16.3 Confirmation. The party invoking Force Majeure shall provide to
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the other party confirmation of the existence of the circumstances
constituting Force Majeure. Such evidence may consist of a statement
or certificate of an appropriate governmental department or agency
where available, or a statement describing in detail the facts
claimed to constitute Force Majeure.
16.4 Suspension of Performance. During the period that performance by
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one of the parties of its obligations under this Agreement has been
suspended by reason of an event of Force Majeure, the other party may
likewise suspend the performance of all or part of its obligations
hereunder to the extent that such suspension is commercially
reasonable.
16.5 Period of Force Majeure. Should the period of Force Majeure
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continue for more than [***] either party may terminate this
Agreement without liability to the other party upon giving written
notice to the other party.
17. DISPUTE RESOLUTION AND GOVERNING LAW
17.1 Dispute Resolution. Should any dispute, controversy or claim arise
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out of or relating to this Agreement, the parties shall endeavour to
reach an amicable settlement through negotiation. If the parties are
unable to reach an amicable settlement through negotiation within 20
days after receipt of notification from the other party of the
existence of the dispute, then each party shall have the right to
request non-binding mediation. In the event mediation is unsuccessful
within 20 days of the commencement of mediation proceedings, the
matter shall finally be settled by binding arbitration in Seattle,
Washington, U.S.A,in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce in effect on the
date of this Agreement and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof. The arbitration shall be conducted in the English language.
Notwithstanding the above, regarding intellectual property right
claims, the Company reserves the right to initiate and conduct
litigation proceedings in any court it deems appropriate.
17.2 Governing Law. The parties acknowledge that this Agreement shall be
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governed by, interpreted, and construed in accordance with the laws
of the state of Delaware, the United States of America, without
regard to its choice of law provisions. The terms and condition of
the United Nations Convention on the International Sale of Goods are
excluded from application under this Agreement.
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18. MISCELLANEOUS
18.1 No Foreign Corrupt Practices. Distributor hereby represents,
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warrants and agrees that Distributor shall be bound and abide by and
strictly comply with both the letter and the spirit of the Foreign
Corrupt Practices Act of 1977 and any amendments thereto as the same
is from time to time in force in the United States of America.
Without limiting the generality of the foregoing, Distributor has not
made and shall not make, in the performance of this Agreement, an
offer, payment, promise to pay or authorization of the payment of any
money, offer, gift, promise to give, or authorization of the giving
of anything of value, in order to assist with obtaining or retaining
business for or with, or directing business to, Company or any other
person or entity, directly or indirectly
(a) to or for the use or benefit of any official or employee of any
government or the agencies or instrumentalities of such
government or any international organization, political party or
candidate for political office;
(b) to any other person if Distributor or any partner, officer,
director, employee, agent, representative or shareholder of
Distributor knows or has reason to suspect or know that any part
of such money or thing of value will be directly or indirectly
offered, given or promised to any government officer or employee,
political party or official thereof, or candidate for political
office or any international organization; or
(c) to any other person or entity, the payment of which would violate
the laws or policies of the United States or of any other
government.
Upon request by Company, Distributor shall furnish a certificate
verifying compliance with this Article. Notwithstanding Article 15.2,
in the event of termination of this Agreement by Company for
Distributor's breach of this Article, Company shall have no liability
to Distributor under this Agreement for any loss, cost or damage
resulting, directly or indirectly, to Distributor from such
termination.
18.2 U.S. Export Restrictions. Distributor shall not sell any of the
------------------------
Products to end-users who are subject to U.S. export restrictions.
18.3 Relationship. This Agreement does not make either party the
------------
employee, agent or legal representative of the other for any purpose
whatsoever. Neither party is granted any right or authority to assume
or to create any obligation or responsibility, express or implied, on
behalf of or in the name of the other party. In
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fulfilling its obligations pursuant to this Agreement each party
shall be acting as an independent contractor.
18.4 Assignment. After obtaining written permission from Company,
----------
Distributor shall be entitled to assign any or all of its rights and
obligations hereunder, provided that such party shall remain fully
liable for the performance of all its obligations hereunder. Any
prohibited assignment shall be null and void. Company may assign the
Agreement to another company which acquires all or substantially all
of the assets, business, or stock of the Company.
18.5 Notices. Notices permitted or required to be given hereunder shall
-------
be deemed sufficient if given by facsimile transmission to the
respective party, or by registered or certified air mail, postage
prepaid return receipt requested, addressed to the respective address
of the parties as first above written or at such other addresses as
the respective parties may designate by like notice from time to
time. Notices so given shall be effective upon receipt by the party
to which notice is given.
18.6 Entire Agreement. This Agreement, including any Exhibits and
----------------
Schedules attached hereto and incorporated as an integral part of
this Agreement, constitute the entire agreement of the parties with
respect to the subject matter hereof, and supersede all previous
distributorship agreements by and between Company and the Distributor
as well as all proposals, oral or written, and all negotiations,
conversations or discussions between the parties related to this
Agreement. Each party acknowledges that it has not been induced to
enter into this Agreement by any representations or statements, oral
or written, not expressly contained herein.
18.7 Amendment. This Agreement shall not be deemed or construed to be
---------
modified, amended, rescinded, canceled or waived, in whole or in
part, except by written amendment signed by the parties hereto.
18.8 Severability. In the event that any of the terms of this Agreement
------------
are in conflict with any rule of law or statutory provision or are
otherwise unenforceable under the laws or regulations of any
government or subdivision thereof, such terms shall be deemed
stricken from this Agreement, but such invalidity or unenforceability
shall not invalidate any of the other terms of this Agreement and
this Agreement shall continue in force, unless the invalidity or
unenforceability of any such provisions hereof does substantial
violence to, or where the invalid or unenforceable provisions
comprise an integral part of, or are otherwise inseparable from, the
remainder of this Agreement.
18.9 Counterparts. This Agreement shall be executed in two or more
------------
counterparts in the
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English language, and each such counterpart shall be deemed an
original hereof. In case of any conflict between the English version
and any translated version of this Agreement, the English version
shall govern.
18.10 Waiver. No failure by either party to take any action or assert any
------
right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving
rise to such right.
18.11 Remedies. The remedies granted to either party hereunder are
--------
cumulative and are not intended to be exclusive of any other
remedies to which they may respectively be lawfully entitled in case
of any breach of threatened breach by the other party of the terms
and provisions hereof.
18.12 Subject Headings. The subject headings of the Articles of this
----------------
Agreement are included for the purpose of convenience only and shall
not affect the construction or interpretation of any of its
provisions.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Agreement on the
date first above written.
Metawave Communications
Cayman Islands Seenode Co., Ltd.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇
---------------------- -----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇
------------------- ---------------------
(please print) (please print)
Title: Sr. V.P. Title: Managing Director
------------------ --------------------
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EXHIBIT 1
---------
TRADEMARKS
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Metawave
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Cube Logo
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SpotLight
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SiteSculptor
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SCHEDULE A
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END USER RESTRICTIONS
---------------------
All End User sales and licenses of the Product shall include provisions
that:
(1) the End User is granted only a nontransferable, nonexclusive right to
use the Product only for its internal business purposes;
(2) the Company and its licensors (if any) retain all of their intellectual
property rights in the Products, and no title to such intellectual property is
transferred to the End User;
(3) the End User agrees not to reverse assemble, decompile, or otherwise
attempt to derive source code from the Products;
(4) the End User agrees to comply with all export and re-export
restrictions and regulations of the Department of Commerce or other United
States agency or authority, and not to transfer, or authorize the transfer, of
the Products to a prohibited country or otherwise in violation of any such
restrictions or regulations;
(5) the End User receives a warranty on the Product from the Distributor,
and the Company makes no warranties to the End User in connection with the
Product, and expressly disclaims any implied warranties of merchantability or
fitness for a particular use; and
(6) the Company shall not be liable to the End User for any indirect,
consequential, incidental or special damages arising out of the use or license
of the Product, regardless of the theory of liability (including negligence and
strict liability).
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PRICING DOCUMENT
----------------
To be provided separately by Company to Distributor, and updated on a regular
basis.
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