EXHIBIT 16.1
------------
SOLE AGENT AGREEMENT
THIS AGREEMENT IS MADE AS OF THE 28th DAY OF FEBRUARY, 2006, by and
between NeoMedia Technologies, Inc., a Delaware corporation with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇, ▇▇▇,
("Supplier") and Beijing Sino-US Jinche Yingang Auto Technological Services
Limited, a Joint Venture operating under the laws of the People's Republic of
China, with its principal place of business at ▇▇-▇-▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇
▇▇▇ ▇▇▇ Ji Yuan Xia Yuan, Haidian District, Beijing, China, ("Sole Agent").
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
indicated. The meanings shall be applied whether the singular or the plural form
of the term is used.
"Affiliate" means any company controlled by, controlling, or under common
control with Supplier.
"Agreement" means this agreement, and the exhibits, together with all amendments
thereto. "Attachment" means any form or exhibit attached to this agreement.
"Customer" means any person who purchases Products from Sole Agent.
"Shipping Point" means any facility designated by Supplier as the origination
point for shipment of the Products.
"Products" means the products described in the attached Attachment A. Products
may be deleted from or added to Attachment A and Supplier may change the
specifications and design of Products at its sole discretion at any time by
mailing written notice of such changes to Sole Agent.
"Territory" means the geographic area or areas set forth in Attachment B.
"Trademark" means any trademark, logo, or service ▇▇▇▇, whether or not
registered, used to represent or describe the Products of Supplier.
ARTICLE II
APPOINTMENT OF SOLE AGENT
1.1 Appointment. Supplier hereby appoints Beijing Sino-US Auto Technology
Services Ltd. (hereunder referred to as AutoMart) as Supplier's Sole Agent in
the Territory of China (including Taiwan, Hong Kong, and Macao); Supplier cannot
supply Products for sale or use with the non-exclusive portions of the Territory
to the other units or people.
1.2 Relationship of Parties. Supplier and Sole Agent are each independent
contractors and nothing in this Agreement will be construed or interpreted as
creating an employer/employee, agency, joint venture or any similar relationship
between the parties. Consequently, (a) Sole Agent is and will remain an
independent purchaser and user of the Products, (b) neither party will have or
exercise any right or authority to assume or create any obligations or
responsibilities, including without limitation contractual obligations, on
behalf of or in the name of the other party, and (c) each party hereto will be
exclusively responsible for paying all income and other taxes and costs and all
expenses relating to its respective business.
1.3 Sale of Products by Sole Agent. Sole Agent shall use its best efforts
to distribute the Products and to fully develop the market for the Products
within the Territory.
1.4 Competing Products. Sole Agent agrees that it will not distribute any
Products in the Territory that compete with the Products during the term of this
Agreement or any extensions thereof. Supplier agrees not to invest any other
party inside the Territory with full power of this agreement within the
agreement period or the extended period.
1.5 Advertising. Sole Agent shall be entitled, during the term of the
distributorship created by this Agreement and any extension thereof, to
advertise and hold itself out as an authorized Sole Agent of the Products. At
all times during the term of the distributorship created by this Agreement and
any extension thereof, Sole Agent shall use the Trademarks in all advertisements
and other activities conducted by Sole Agent to promote the sale of the
Products. Sole Agent shall submit samples of all proposed advertisements and
other promotional materials for the Products to Supplier for approval and Sole
Agent shall not use any such advertisements or promotional materials without
having received the prior written consent of Supplier to do so. Sole Agent shall
not, pursuant to this Agreement or otherwise, have or acquire any right, title
or interest in or to Supplier's Trademarks.
1.6 New Products. If Supplier or any Affiliate now or hereafter
manufactures or distributes, or proposes to manufacture or distribute, any
product other than the Products, Supplier shall immediately notify, or cause
such Affiliate to notify, Sole Agent of that fact and of all details concerning
that product. Sole Agent may request from Supplier distribution rights for that
product in the Territory, or any portion thereof, and if so requested, Supplier
shall grant, or shall cause the subject Affiliate to grant, such distribution
rights to Sole Agent on terms and conditions no less favorable than those
provided in this Agreement with respect to Products. If Sole Agent does not
obtain those distribution rights or obtains them only for a portion of the
Territory, and Supplier or an Affiliate later desires to offer those
distribution rights for the Territory or any portion thereof to another party,
Supplier shall first, or shall cause such Affiliate to first, make that offer in
writing to Sole Agent on terms and conditions which shall be specified fully in
that offer. That offer shall contain a full description of the subject product
and its operation. Sole Agent may request, and Supplier shall promptly provide,
or shall cause such Affiliate promptly to provide, further information
concerning the product or the offer. If Sole Agent fails to accept such offer,
Supplier or the Affiliate may then offer the product to another party for
distribution in the Territory, but may not offer it on terms and conditions more
favorable than those offered to Sole Agent. If Supplier or the Affiliate desires
to make a better offer to another party, Supplier shall first, or shall cause
the affiliate first to, make such better offer to Sole Agent in accordance with
the procedure set forth above.
1.7 Sole Agent Sales, Service and Storage Facilities. Sole Agent shall, at
its expense, engage and maintain a sales, service and storage organization in
the Territory, staffed with such experienced personnel as are necessary to
enable Sole Agent to perform its obligations under this Agreement. Sole Agent
shall, at its expense, maintain facilities and personnel in the Territory that
will enable it promptly and satisfactorily to perform, at a reasonable price,
all inspection, maintenance and other necessary servicing of Products sold by
Sole Agent. Sole Agent shall, at its expense, at all times store and maintain
its inventory of Products in accordance with current, applicable instructions
issued by Supplier from time to time. Sole Agent shall, at its expense, fully
explain and demonstrate to the customer the proper method of operating and
maintaining the Products.
1.8 Legal Compliance. Sole Agent and its affiliates shall each comply with
all national, state or provincial, and local or municipal laws, ordinances,
by-laws, rules, regulations, orders, rulings and permits applicable to its
performance under this Agreement. Sole Agent and its affiliates agree to
promptly make all reports to and filings with governmental agencies required by
applicable laws, by-laws, rules and regulations and to obtain all approvals,
licenses, permits and permissions necessary for its operations under this
Agreement. Sole Agent shall pay its own costs incurred in making such filings
and reports and in obtaining such approvals, licenses, permits and permissions.
1.9 period
Both parties agree on the period of cooperation to be 10 years, that is
from 1st January, 2006 to 31st December, 2016; on the expiration of the
agreement, Sole Agent has the prior in negotiation of the dealership.
ARTICLE III
TERMS OF PURCHASE AND SALE OF PRODUCTS
2.1 Purchase of Product. Sole Agent shall purchase its requirements for
the Products from Supplier. Such requirements shall include purchasing and
maintaining an inventory of Products that is sufficient to enable Sole Agent to
perform its obligations hereunder. Supplier shall supply to Sole Agent
sufficient Products to enable Sole Agent to meet the full demand for Products in
the Territory. All orders for Products transmitted by Sole Agent to Supplier
shall be deemed to be accepted by Supplier at the time such orders are received
by Supplier to the extent that they are in compliance with the terms of this
Agreement and Supplier shall perform in accordance with all accepted orders.
Supplier shall confirm its receipt and acceptance of each order within 3 days of
receipt of the order.
2.2 Purchases for Resale. All Products purchased by Sole Agent shall be
purchased solely for commercial resale to, or use by, retail facilities owned or
franchised by Sole Agent, excepting those Products reasonably required by Sole
Agent for advertising and demonstration purposes.
2.3 Order Procedure. Each order for Products issued by Sole Agent to
Supplier under this Agreement shall identify that it is an order and shall
further set forth the description and quantity of Products which are to be
delivered on each of such dates. The individual contracts for the sale of
Products formed by Sole Agent's submission of orders to Supplier pursuant to the
terms and conditions hereof shall automatically incorporate, to the extent
applicable, the terms and conditions hereof, shall be subject only to those
terms and conditions (together with all terms in orders which are contemplated
by this Agreement) and shall not be subject to any conflicting or additional
terms included in any documents exchanged in connection therewith.
Notwithstanding anything in this Section, Supplier and Sole Agent may, by
written agreement, modify the terms and conditions of this Agreement.
2.4 Cancellation of Orders. All cancellation of orders by Sole Agent shall
be in writing, or if not initially in writing, shall be confirmed in writing. If
Sole Agent cancels an order, which has been accepted by Supplier, Sole Agent
shall reimburse Supplier for any cost incident to such order incurred by
Supplier prior to the time it was informed of the cancellation.
2.5 Purchase Price. The prices for Products, and any discounts applicable
thereto, are set forth in Attachment A. All prices are F.O.B.the Shipping Point.
If the price for any Product is not set forth on Attachment A and Sole Agent
nevertheless orders such a Product from Supplier, the parties hereby evidence
their intention thereby to conclude a contract for the sale of that Product at a
reasonable price to be determined by the Parties mutually negotiating in good
faith.
2.6 Price Changes. Supplier reserves the right, in its sole discretion, to
change prices or discounts applicable to the Products. Supplier shall give
written notice to Sole Agent of any price change at least 30 days prior to the
effective date thereof. The price in effect as of the date of Sole Agent's
receipt of notice of such price change shall remain applicable to all orders
received by Supplier prior to that effective date.
2.7 Packing. Supplier shall, at its expense, pack all Products in
accordance with Supplier's standard packing procedure, which shall be suitable
to permit shipment of the Products to the Territory; provided, however, that if
Sole Agent requests a modification of those procedures, Supplier shall make the
requested modification and Sole Agent shall bear any reasonable expenses
incurred by Supplier in complying with such modified procedures which are in
excess of the expenses which Supplier would have incurred in following its
standard procedures.
2.8 Delivery: Title and Risk of Loss. All deliveries of Products sold by
Supplier to Sole Agent pursuant to this Agreement shall be made F.O.B. the
Shipping Point, and title to and risk of loss of Products shall pass from
Supplier to Sole Agent at the Shipping Point. Supplier shall be responsible for
arranging all transportation of Products, but if requested by Supplier, Sole
Agent shall, at Supplier's expense, assist Sole Agent in making such
arrangements. Supplier shall also procure insurance for the transportation of
the Products, and such insurance shall be of a kind and on terms current at the
port of shipment. In the event that
2.9 Inspection and Acceptance. Promptly upon the receipt of a shipment of
Products, Sole Agent shall examine the shipment to determine whether any item or
items included in the shipment are in short supply, defective or damaged. Within
10 days of receipt of the shipment, Sole Agent shall notify Supplier in writing
of any shortages, defects or damage, which Sole Agent claims existed at the time
of delivery. Within 30 days after the receipt of such notice, Supplier will
investigate the claim of shortages, defects or damage, inform Sole Agent of its
findings, and deliver to Sole Agent Products to replace any which Supplier
determines, were in short supply, defective or damaged at the time of delivery.
Unless notice is given as provided in this Section, Sole Agent shall be deemed
to have accepted such Products and to have waived all claims for shortages,
defect or damage.
2.10 Warranty. NMPR MAKES NO WARRANTY WHATSOEVER CONCERNING THE PRODUCTS
OR THE SYSTEM. THE PRODUCTS AND THE SYSTEM ARE SOLD "AS IS" WITHOUT EXPRESS OR
IMPLIED WARRANTY OF ANY KIND. NMPR FURTHER DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF
DEALING OR USAGE OF TRADE. SOLE AGENT ACKNOWLEDGES THAT THE ENTIRE RISK ARISING
OUT OF THE USE OR PERFORMANCE OF THE PRODUCTS AND THE SYSTEM REMAINS WITH
DISRIBUTOR. TO THE EXTENT THAT A PARTICULAR JURISDICTION DOES NOT ALLOW FOR THE
EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED WARRANTIES UNDER THIS AGREEMENT ARE
LIMITED TO THIRTY (30) DAYS WITHOUT AFFECTING ANY OTHER LIMITATION CONTAINED IN
THIS AGREEMENT
2.11 Payment. Supplier will invoice Sole Agent for each purchase order
received by Supplier upon the complete shipment of the Products specified in the
purchase order. All the shipment of products shall be delivered into Sole
Agent's warehouse, and Sole Agent will pay invoices after 60 days of their
receiving the products. All payments by Sole Agent under this Agreement shall be
payable to Supplier by Sole Agent in the official and legal currency of the
United States of America. Such payment shall be made by wire transfer of
immediately available funds to an account specified by Supplier. Without
prejudice to the other provisions of this Section or any other right or remedy
of Supplier , if Sole Agent is in arrears with respect to any payment due to
Supplier , or in the reasonable opinion of Supplier , Sole Agent is or will be
unable to pay its debts as they fall due, then: (a) Supplier may elect not to
deliver the Products except against contemporaneous payment by Sole Agent in
cash in full of all amounts due and owing to Supplier ; and (b) all amounts owed
to Supplier by Sole Agent shall become immediately due and payable.
2.12 Labeling. Supplier will deliver all Products to Sole Agent's common
carrier properly packaged and labeled in shipping cases. Sole Agent will
instruct Supplier at the time of placing its order as to whether the Product
containers themselves should be labeled by Supplier. If so instructed, Supplier
will apply labels supplied by Sole Agent to the Products at the sole cost of
Sole Agent. Sole Agent will provide a copy of each of the labels to Supplier for
its review and approval before final printing, such approval not to be
unreasonably withheld. Before final printing, Sole Agent will make all changes
to the label designated by Supplier in writing as necessary to comply with laws
or regulations. In the event that Sole Agent instructs Supplier not to label
containers, Sole Agent will be responsible for the cost of labeling the Products
at or en-route to their destination.
2.13 Condition of Agreement. Sole Agent agrees to give NeoMedia Micro
Paint 70% of their Macro Paint volumes purchased at any and all of the Sole
Agent facilities. According to international practice, NeoMedia shall provide
Sole Agent with technical support and share expenses for advertisement and
promotion of products to sell.
ARTICLE III
TERMINATION
3.1 Termination. Either party may terminate this Agreement for any reason
by providing 30 months notice of such termination to the other party. Such
notice will be in effect immediately upon the receipt of the notice by the other
party. The expiration or termination of this Agreement will not release or
affect the obligations of either party to timely pay all amounts then or
thereafter due to the other party. Upon the termination or expiration of the
Agreement with or without any reason, the Sole Agent shall disclose its
accounting information through financial reports, customer list and sales
information, and the logistic channels to Supplier within ten (10) days after
the termination or expiration of the Agreement.
3.2 Limitation of Liability. Neither Sole Agent will be liable to Supplier
nor Supplier will be liable to Sole Agent due to the termination or expiration
of this Agreement in accordance with its terms. Neither party will be entitled
to any compensation, reimbursement or damages from the other for: (a) loss of
prospective compensation, profits or income or other consequential damages; (b)
loss of anticipated sales; (c) goodwill or loss thereof; or (d) expenditures,
expenses, investments, leases or any type of commitment made in connection with,
or in reliance upon, this Agreement.
ARTICLE IV
CONFIDENTIAL INFORMATION AND AMANDMENT
4.1 Confidential Information. Sole Agent covenants and agrees that it
shall not, directly or indirectly, during the term of this Agreement, or at any
time thereafter, take any steps or induce any other party to reproduce, reverse
engineer or otherwise ascertain the formulas for any such Product, nor shall it
attempt or induce any other party to manufacture or produce such Product. Those
items shall at all times and for all purposes be held by Sole Agent in a
confidential capacity and shall not, without the prior written consent of
Supplier, (i) be disclosed by Sole Agent to any person, firm or corporation,
excepting those salaried employees of Sole Agent who are required to utilize
such items in connection with the sale, inspection, repair or servicing of
Products during the term of the distributorship created by this Agreement or any
extension thereof, or (ii) be disclosed to any person, firm or corporation, or
copied or used by Sole Agent, its employees or agents at any time following the
expiration or termination of this Agreement or any extension thereof. Supplier
may require as a condition to any disclosure by Sole Agent pursuant to this
Section that any salaried employee to whom disclosure is to be made sign a
confidentiality agreement, enforceable by Supplier, containing terms
satisfactory to Supplier.
4.2 Non-tampering Agreement. Sole Agent agrees to refrain from ,tempering
with, altering or modifying the Products without the express written consent of
Supplier. In order to ascertain that Sole Agent is complying with this
obligation, Supplier shall be entitled, at any reasonable time, to remove and
test samples of the Products from Sole Agent's inventory or the inventory of
Sole Agent's affiliates, sub-Sole Agents, franchisees or dealers. Supplier will
not be required to pay for these samples. Supplier will promptly replace all
such samples at its cost. Supplier will take the smallest quantities reasonably
necessary for testing and will not take a quantity of the Products at any
affiliate, sub-distributors, franchisees or dealers location that will impair
the ability of the affiliate, sub-distributors, franchisees or dealers to serve
its customers. An independent certified laboratory selected by Supplier will do
all testing of these samples. The cost of such testing will be borne by Supplier
unless the testing demonstrates that the Products sampled were not supplied to
Sole Agent by Supplier or have been tampered with, altered or modified without
the written consent of Supplier, in which case the cost of testing will be borne
by Sole Agent. All intellectual properties relating to any products that were
the result of any tampering conduct, such intellectual properties shall belong
to Supplier.
ARTICLE V
DISPUTE RESOLUTION
5.1 Unaided Negotiations. All disagreements, disputes and controversies
(each, a "dispute") between the parties arising from or relating to this
Agreement, including, but not limited to, allegations of fraud and
misrepresentation, shall be settled by the procedures specified in this Article.
If one party believes the other party has breached this Agreement, that party
shall promptly notify the other party in writing. The party receiving such a
notice shall respond in writing within seven (7) days after receipt. If the
dispute is not promptly resolved there shall follow, within twenty (20) days,
after written notice, a meeting of the representatives of the parties. The
purpose of the meeting shall be to discuss and negotiate in good faith, a
resolution of any outstanding dispute. All negotiations pursuant to this Article
are confidential and shall be treated as compromise and settlement negotiations.
5.2 Mediation. If unaided negotiations fail to bring about a prompt
resolution of the dispute, then within twenty (20) days following the meeting of
the parties, the parties shall initiate a voluntary, non-binding mediation
conducted by a mediator mutually-agreed upon by the parties. If the parties are
not able to agree upon a mediator, they shall request that the Canadian or
Chinese Arbitration Association appoint a capable mediator for them. The parties
shall bear equally the costs and expenses of this mediation and endeavor in good
faith to resolve their differences. Mediation pursuant to this Article is
confidential and shall be treated as compromise and settlement negotiations.
5.3 Choice of Law, Litigation. This Agreement will be construed under and
subject to the laws of the State of Florida, USA and the laws of China, but does
is entitled to other remedies under local laws and regulations. The parties
agree to waive any provision in the United Nations Convention on the Law
Applicable to the International Sale of Goods or any other treaty or
international convention to which Canada or the USA are or may become
signatories which might lead to a different choice of law. The parties hereto
agree to submit all disputes arising from or relating to this Agreement to the
Canadian or Chinese Arbitration Association for arbitration in accordance with
its rules and regulations. There shall be three (3) arbitrators, one selected by
Supplier, one selected by Sole Agent, and the third selected by the arbitral
institution with mutual consents of both Parties, who shall concurrently serve
as Chairman of the arbitration panel. The arbitration award shall be final and
binding upon the parties. The costs of arbitration shall be borne by the losing
party or as otherwise determined by the arbitration panel. Any award of the
arbitration shall be enforceable by any court having jurisdiction over the party
or parties against which the award has been rendered, or wherever assets of the
party or parties against which the award has been rendered are located. The
parties hereby waive any claim or right to immunity for itself, or any of its
assets, from the jurisdiction of any court with respect to enforcement of an
arbitral award rendered pursuant to this Agreement. An arbitration clause does
not prevent any party from requesting interim conservatory measures from the
courts. In resolving of the dispute, except for the disputed part, other parts
of the Contract shall be performed accordingly.
ARTICLE VI
INDEMNIFICATION AND LIABILITY LIMITATION
6.1 Sole Agent Indemnification of NMPR. Sole Agent agrees to comply with
all municipal, cities, Provincial and Federal laws, by-laws, regulations,
ordinances and any other regulations with which it must comply. Sole Agent shall
indemnify and hold Supplier, its officers, directors, employees, agents,
successors and assigns harmless against, and will reimburse Supplier for, all
losses, claims, damages, judgments, costs and expenses of whatever form and
nature, including, without limitation, attorneys' fees, court costs and
litigation expenses, whether direct or indirect, that Supplier, or any of is
officers, directors, employees, agents, successors or assigns, may sustain or
incur as a result of: (a) any failure by Sole Agent and/or its directors,
officers, employees, dealers, affiliates, franchisees and sub-distributors
(collectively, the "Sole Agent Parties") to comply with any municipal, city,
Provincial and Federal law, by-law, regulation, ordinance or any other
regulation, (b) any distribution, sale, use or misuse of the Products by the
Sole Agent Parties; (c) any loss, claim or action based on the negligence,
misfeasance or nonfeasance of the Sole Agent Parties, including, but not limited
to, actions by each or any Sole Agent Party involving or administering training
concerning the Products or any environmental liability involving, relating to or
arising from the Products, or (d) any liability arising due to or as a result of
the labeling of the Products.
(A) Supplier shall not be obligated or liable for any injury or death
of any person or damage to any property caused by the Sole Agent's action,
failure to act, negligence or willful conduct, nor for any liability of the Sole
Agent, whether or not the same be covered by insurance arranged pursuant to this
Agreement. For purposes of this Agreement, if the Sole Agent can control or
cause the actions or omissions of any Sole Agent Party, or can control or cause
any Sole Agent Party's to omit to take any action, Supplier shall not be
obligated or liable for any injury or death of any person or damage to any
property caused by the any Sole Agent Party's action, failure to act, negligence
or willful conduct, nor for any liability of the Sole Agent Party, whether or
not the same be covered by insurance arranged pursuant to this Agreement or
otherwise.
(B) The Sole Agent shall indemnify and save Supplier and its affiliates
and its and their respective shareholders, directors, officers, partners,
members, employees and agents harmless from:
(I) All fines, suits, proceedings, claims, demands or actions of any
nature or kind whatsoever, directly or indirectly arising out of, or in any
manner whatsoever associated or connected with the Sole Agent's operations,
including without limitation, all claims made in respect of loss of or damage to
customer's vehicles or the contents thereof;
(II) All costs, expenses and damages, including legal costs on a
solicitor and client basis incurred by Supplier in enforcing the provisions of
the Agreement against the Sole Agent; and against any and all damages, costs,
expenses and fees incurred by on behalf of any of the foregoing in the
investigation, prosecution or defense of any and all such suits, proceedings,
claims, demands or actions. NMPR shall have the right to pay, settle or
compromise any claim as it sees fit in its sole and unfettered discretion,
without in any way limiting its rights hereunder.
(C) The Sole Agent shall indemnify and hold Supplier and any of its
affiliates and its and their respective directors, shareholders, officers,
partners, members and employees harmless from and against any and all taxes that
the Sole Agent may be required by applicable law to pay.
(D) This Agreement, the documents incorporated by reference herein, and
the exhibits hereto constitute the entire agreement between the parties and all
prior negotiations, commitments, conditions, representations, warranties and
undertakings are merged herein. Except as herein provided, there are no oral or
written conditions, representations, warranties, undertakings or agreements made
by Supplier to the Sole Agent relating to the subject matter hereof. Supplier
and Sole Agent specifically acknowledge and agree that the Sole Agent has
entered into this Agreement after making an independent investigation of the
operations of Supplier and not upon any representation made by Supplier as to
the profits which the Sole Agent might expect to realize, nor has anyone made
any other representation which is not expressly set forth herein to induce the
Sole Agent to execute and deliver this Agreement. The Sole Agent hereby
represents and warrants to Supplier that all written statements made by the Sole
Agent to Supplier prior to the execution of the Agreement, including, without
limitation, all statements pertaining to the Sole Agent's financial standing,
were true when made and continue to be true at the time of execution of this
Agreement (unless subsequently corrected in writing), and in the event that such
representation or warranty is untrue, Supplier shall, at its option, be entitled
to terminate this Agreement without prejudice to any other remedies that it may
have.
(E) Nothing in this Agreement shall be interpreted as requiring the
Sole Agent to sell any product or provide any service at a price stipulated by
Supplier or any other person. However, Supplier may establish, maintain and
advertise a suggested schedule of retail prices, although the Sole Agent shall
be under no obligation whatsoever to comply with same, and shall suffer no
penalty from Supplier for non-compliance.
(F) The Sole Agent acknowledges that Supplier may receive compensation
from suppliers of Supplier or the Sole Agent in respect of purchases made by
Supplier or Sole Agent and expressly acknowledges and confirms that the Sole
Agent shall have no rights in respect of, or entitlement to, such rebates.
(G) This Agreement shall inure to the benefit of and be binding upon
the Sole Agent and its successors and assigns but shall be personal to and
non-assignable by the Sole Agent, except with the prior written consent of
Supplier, which may not be unreasonable withheld. Any purported assignment of
the rights of the Sole Agent hereunder without such consent by Supplier shall
permit NMP Supplier R to immediately terminate this Agreement without notice.
For the purpose of this provision the term "assignment" shall include any sale,
assignment, transfer, pledge, hypothecation, encumbrance or other disposition of
this Agreement or of the Sole Agent's rights hereunder, including, but not
limited to, any transfer or assignment resulting from the death of the Sole
Agent, bankruptcy of the Sole Agent, or otherwise resulting by operation of law.
In the event that this Agreement is made with or assigned to a corporation, the
term "assignment" shall also include any change in voting control of the Sole
Agent from the person or persons who hold(s) such control on the date of this
Agreement.
6.2 Right to Raise Claim. The right to raise a claim of the Sole Agent will be
reserved after the Supplier's violation of this agreement and all the
regulations in all the schedules.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers or employees.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------
Title: VP/GM, NeoMedia Micro Paint Repair
----------------------------------
SOLE AGENT:
Beijing Sino-US Jinche Yingang Auto Technological Services Limited
------------------------------------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Director - Vice President
-------------------------