This Alliance Agreement (this "Agreement") is entered into between Dell Products
L.P. having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ("Dell") and the party executing this agreement below ("ICONIX
INTERNATIONAL INC."), as of the day on which it is accepted by Dell as set forth
below (the "Effective Date").
Whereas:
Dell is a manufacturer and distributor of computer hardware ("Dell Systems").
Whereas:
ICONIX INTERNATIONAL INC. is a developer of certain other computer-related
products or services ("ICONIX INTERNATIONAL INC, Products").
Whereas:
The parties recognize and agree that compatibility of the ICONIX INTERNATIONAL
INC. Products with Dell Systems will benefit both parties, as would the
marketing of such compatibility.
Now, Therefore, the parties agree as follows:
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Definitions:
1.
"Certification" and "Certified" means that ICONIX INTERNATIONAL INC. Products
listed on Addendum A have been tested by ICONIX INTERNATIONAL INC. in accordance
with ICONIX INTERNATIONAL INC.'s designated Testing Criteria and to the best of
ICONIX INTERNATIONAL INC.'s and, If requested by Dell, at Dell's reasonable
determination are free and clear of defect when used in conjunction with Dell
products.
2.
"Testing Criteria" means the criteria promulgated by ICONIX INTERNATIONAL INC.
(and, if requested by Dell, approved by Dell) from time to time for determining
certification of ICONIX INTERNATIONAL INC. Products with Dell Systems.
3.
"Change of Control" shall be deemed to have occurred if any person, entity or
group comes to own, directly or indirectly, beneficially or of record, voting
securities or any form of controlling interest which represents more than 50% of
the total voting power of one of the parties to this Agreement.
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A.
Alliance Relationship
Upon the Effective Date, ICONIX INTERNATIONAL INC. shall become a member of
Dell's Direct Effect(TM)Program, as modified by Dell from time to time in Dell's
sole discretion. ICONIX INTERNATIONAL INC. agrees that such participation shall
be subject to the following obligations:
1.
ICONIX INTERNATIONAL INC. must be and remain in the business oriented,
computer-related product business.
2.
ICONIX INTERNATIONAL INC. should have revenue of approximately U.S. $10,000,000
per year, or a demonstrated track record in the computer industry.
3.
The ICONIX INTERNATIONAL INC. Products must be deployable In a Microsoft
Windows(R), Microsoft Windows NT(R), Linux(R), SCO(R), Solaris(R), or Novell
Netware(R)environment.
4.
The ICONIX INTERNATIONAL INC. Products must be consistent with Dell's current
and anticipated products and activities, in Dell's discretion.
5.
The ICONIX INTERNATIONAL INC. warrants that (i) its Products can be marketed by
Dell to its customers as Certified; and (ii) that its Products on an ongoing
basis shall be able to accurately process date data (including, but not limited
to, calculating, comparing, and sequencing) between the twentieth and
twenty-first centuries (including, but not limited to, the change from December
31, 1999 to January 1, 2000 and recognition of the Year 2000 as a leap year) and
(iii) that ICONIX INTERNATIONAL INC.'S marketing and product information, direct
or implied, provided to Dell shall be accurate and truthful and supported by
competent and reliable tests or other objective data.
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B.
Testing
ICONIX INTERNATIONAL INC. shall perform Certification testing for each version
of the ICONIX INTERNATIONAL INC. Products at ICONIX INTERNATIONAL INC.'s sole
cost and expense. Dell agrees to provide ICONIX INTERNATIONAL INC. with
reasonable telephonic and documentary assistance in obtaining Certification.
ICONIX INTERNATIONAL INC. agrees to provide Dell (at Dell's written request)
with the results of all testing of each ICONIX INTERNATIONAL INC. Products
version upon completion of such testing, provided, that Dell shall not publish
such test results without obtaining ICONIX INTERNATIONAL INC.'s prior written
consent, which shall not be unreasonably withheld by ICONIX INTERNATIONAL INC..
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C.
Dell's Responsibilities
Provided that ICONIX INTERNATIONAL INC. is in compliance with the terms and
conditions of this Agreement and Dell's Direct Effect Program Guidelines, Dell
agrees to:
1.
List the ICONIX INTERNATIONAL INC. Products on Dell's Direct Effect Alliance
Catalogue web page. Dell will include a description of the ICONIX INTERNATIONAL
INC. Products and ICONIX INTERNATIONAL INC. contact information.
2.
Dell will provide ICONIX INTERNATIONAL INC. with alliance marketing materials in
soft copy form, for ICONIX INTERNATIONAL INC.'s use in trade shows, which
identify ICONIX INTERNATIONAL INC. as a Dell Direct Effect Program member.
ICONIX INTERNATIONAL INC. is responsible for its own costs in printing and
materials.
3.
Upon agreement of the parties and execution of all applicable licensing and/or
distribution agreements, Dell will include the ICONIX INTERNATIONAL INC.
Products in the DellWare Catalog.
4.
Provide ICONIX INTERNATIONAL INC. with all materials and product updates made
generally available to the Dell Direct Effect Program members.
5.
Permit ICONIX INTERNATIONAL INC. to use the Dell Direct Effect logo for ICONIX
INTERNATIONAL INC.'s marketing materials, provided that such use is in
accordance with the Guidelines attached as Addendum B.
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D.
ICONIX INTERNATIONAL INC.'s Responsibilities
ICONIX INTERNATIONAL INC. agrees to perform the following obligations:
1.
ICONIX INTERNATIONAL INC. hereby grants to Dell the right to use ICONIX
INTERNATIONAL INC.'s trademarks, trade names and product names, as listed in
Addendum A, on Dell's web site and in other marketing materials to indicate that
the ICONIX INTERNATIONAL INC. Products are compatible with the applicable Dell
Systems.
2.
ICONIX INTERNATIONAL INC. will be responsible for all end user support for the
ICONIX INTERNATIONAL INC. Products.
3.
ICONIX INTERNATIONAL INC. will provide Dell with a description of the ICONIX
INTERNATIONAL INC. Products and provide ICONIX INTERNATIONAL INC. contact
Information.
4.
ICONIX INTERNATIONAL INC. will, upon agreement of the parties, refer to the Dell
Direct Effect Program and post Dell URL or the Direct Effect Program URL on
ICONIX INTERNATIONAL INC.'s web site. ICONIX INTERNATIONAL INC. will immediately
cease use of the URL and Logo on its web site upon notification by Dell that it
is in material breach of this Agreement.
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E.
Confidentiality
ICONIX INTERNATIONAL INC. and Dell acknowledge that, in the course of dealings
between the parties, each party may acquire information or materials about the
other party, its business activities and operations, its technical information
and trade secrets, which are of a confidential or proprietary nature.
Information will be treated as confidential (x) if it is marked or accompanied
by documents clearly and conspicuously designating them as "confidential" or the
equivalent; or (y) if it is identified by the disclosing party as confidential
before, during or promptly after the presentation or communication. Each party
will use the same degree of care, but no less than a reasonable degree of care,
as the party uses with respect to its own similar information to protect the
information and to prevent (a) any use of information not authorized in this
Agreement, (b) dissemination of information to any employee of the party without
a need to know, (c) communication of information to any third party, or (d)
publication of information which (i) was known to the receiving party before
receipt from the disclosing party; (ii) is or becomes publicly available through
no fault of the receiving party; (iii) is rightfully received by the receiving
party from a third party without a duty of confidentiality; (iv) is disclosed by
the disclosing party to a third party without a duty of confidentiality on the
third party; (v) is independently developed by the receiving party without a
breach of this Agreement; or (vi) is disclosed by the receiving party with the
disclosing party's prior written approval. If a receiving party is required by a
government body or court of law to disclose information, the receiving party
agrees to give the disclosing party reasonable advance notice so that disclosing
party may contest the disclosure or seek a protective order. Each party warrants
that it has the right to disclose its confidential information. Each party
agrees to return to the other party, or to destroy (and to certify the
destruction in writing to the other party), all materials containing any
confidential information of the other party, regardless of the media and
regardless of by whom prepared, within ten (10) days after demand for the
materials or in any event within ten (10) days after termination or expiration
of this Agreement. The parties further agree that this section will remain in
effect for a period of 3 years from the termination date of this Agreement.
Each party agrees that by disclosing information under this Agreement, neither
party grants to the other party any express or implied right or license under
the disclosing party or affiliate's, patents, copyrights, trademarks, trade
names, service marks, proprietary designations, or other intellectual property.
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F.
No Representations
Neither party will make any representations or create any warranties, express or
implied, concerning the other party's products or services, other than those
stated in their respective product documentation. Neither party shall have any
obligation to license, install or provide technical support for the other's
products nor represent or infer any such support or maintenance obligation to
its customers or prospective customers.
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G.
Trademarks & Logos
All trademarks, service marks, trade names or other words or symbols ("Marks")
identifying each party's products and services are and will remain their
respective exclusive property. Neither party will take any action that
jeopardizes the other party's proprietary rights or acquire any rights in the
Marks. Any use of either party's marks as permitted hereunder, shall be made
only if the party clearly and properly identifies the other party's ownership of
such Marks and provided each party receives prior written consent to each such
use of the other party's Marks. The right to use the other party's Marks may be
terminated at any time upon written notice. No license to use any Dell or ICONIX
INTERNATIONAL INC. logo is granted in this section.
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H.
Approval of Press Releases
Neither party shall issue a press release or other public announcement
concerning the terms and conditions of this Agreement or its relationship with
the other party, without the prior written consent of such other party.
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I.
Termination
This agreement will automatically renew for 1-year terms unless one party
informs the other of its intent to terminate the agreement 30 days before the
end of the current term. Either party may terminate this agreement without cause
with 30 days prior written notice to the other party. If either party undergoes
a Change of Control, the other party shall have the option to immediately
terminate this Agreement.
Upon termination of this Agreement, each party shall return to the other (or
certify destruction of) all Confidential Information, including, but not limited
to, software and related materials, in its possession provided by the other
party for purposes of this Agreement.
In the event of expiration or termination of this Agreement, the terms of
Sections E, F, G, J, M, and N will survive.
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J.
Status of ICONIX INTERNATIONAL INC.
ICONIX INTERNATIONAL INC. is an independent contractor under this Agreement and
nothing in this Agreement authorizes ICONIX INTERNATIONAL INC. to act as an
agent of Dell or bind Dell to any transaction. Nothing in this Agreement
authorizes Dell to act as an agent of ICONIX INTERNATIONAL INC. or bind ICONIX
INTERNATIONAL INC. to any transaction. It is expressly understood that this
Agreement does not establish a franchise relationship, legal partnership or
joint venture. Each party is solely responsible for its employees, including
terms of employment, wages, hours, taxes and any required insurance. ICONIX
INTERNATIONAL INC. acts at its own risk and has not received nor is reliant upon
any representation by Dell as to anticipated profits or revenue from this
Alliance Agreement.
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K.
Purchase of Demonstration and Support Equipment
As a Direct Effect Program member, ICONIX INTERNATIONAL INC. shall be entitled
to purchase Dell Systems for the sole purpose of Certification, Demonstration
and Support of ICONIX INTERNATIONAL INC. Products as certified, at a Direct
Effect Program discount to be determined from Dell from time to time. Equipment
purchased under the Direct Effect Program, at the specified discount, shall not
include any additional discounts or special promotions that Dell may offer at
the time of purchase. Such Dell Systems shall not be sold or otherwise
transferred by ICONIX INTERNATIONAL INC. in the ordinary course of ICONIX
INTERNATIONAL INC.'s business (i.e. such Dell Systems are not to be sold as
ICONIX INTERNATIONAL INC.'s inventory in the ordinary course of business).
ICONIX INTERNATIONAL INC.'s purchases under this provision shall be limited to
the following maximum amounts in each 12 calendar month period under this
Agreement:
1. one (1) Dell PowerEdge(R) Server
2. one (1) Dell Precision(R) Workstation
3. one (1) Dell desktop computer (Optiplex(R)model)
4. one (1) Dell portable computer (either Latitude(R))
The ICONIX INTERNATIONAL INC. is permitted to use the Dell Premier Page(sm)
usernames and passwords and to place on-line orders for purchases of computer
systems and/or related products with Dell, provided that such use is in
accordance with the Guidelines attached as Addendum C.
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L.
Freedom of Action
Nothing in this Agreement shall be construed as prohibiting or restricting
either party from independently developing or acquiring and marketing materials,
programs or software which are competitive with those of the other party or from
entering into the same or similar agreements with others.
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M.
Limitation of Liability/INDEMNITY
In the event of failure of either party to fulfill any of its obligations
hereunder, the exclusive remedy of the other party under this Agreement shall be
to request performance of such obligation. If such performance is not rendered,
the other party's sole remedy shall be to terminate this Agreement.
Notwithstanding the foregoing,
(i)
either party shall be entitled to enforce its rights regarding confidential
information, patents, copyrights, trademarks or tradenames as provided for
herein, by any appropriate action, including actions for damages and equitable
relief;
(ii)
ICONIX INTERNATIONAL INC. shall indemnify, defend and hold Dell and its
subsidiaries and affiliates harmless from and against any and
all third party claims, demands, liabilities, losses, damages, judgments, or
settlements, including all reasonable attorney's fees, and related expenses (a)
directly or indirectly resulting from any claimed violation of the warranties in
Section A5, or (b) arising out of or in connection with any alleged or actual
infringement by ICONIX INTERNATIONAL INC. and/or ICONIX INTERNATIONAL INC.
Product(s) of a copyright, patent, trademark, trade secret or other intellectual
property right of any third party.
EXCEPT FOR LIABILITY UNDER (i) or (ii) directly above, IN NO EVENT SHALL EITHER
PARTY HAVE ANY RIGHT HEREUNDER AGAINST THE OTHER FOR ANY INDIRECT, SPECIAL, OR
INCIDENTAL DAMAGES, LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES, EVEN IF ADVISED
O F THE POSSIBILITY OF SUCH DAMAGES.
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N.
Miscellaneous
1.
Amendments; Waivers. This Agreement may not be amended except by a subsequently
dated written instrument signed on behalf of both parties by a duly authorized
person. No waiver of any term or condition is valid unless it is in writing and
signed by a duly authorized person of the party charged with the waiver. A valid
waiver is limited to the specific situation for which it is given.
2.
Assignment. This Agreement may not be assigned, or otherwise transferred, in
whole or in part, by either party without the prior written consent of the other
party, which the other party will not unreasonably withhold, condition or delay
except that Dell may assign this Agreement, or any of its rights or obligation s
under this Agreement, to any of its subsidiaries or affiliates without consent
of ICONIX INTERNATIONAL INC.. Any attempted assignment in violation of the
foregoing will be void.
3.
Compliance. Each party agrees to comply with all applicable laws, rules,
regulations and orders of the United States and any other state or country with
jurisdiction over each party's activities in performance of its obligations
under this Agreement, including without limitation all applicable import or
export regulations and all licensing or permitting requirements.
4.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.
5.
Independent Contractors. The parties are independent contractors and neither
party is an employee, agent, servant, representative, partner, or joint venturer
of the other. Neither party has the right or ability to bind the other to any
agreement with a third party or to incur any obligation or liability on behalf
of the other party without the other party's written consent.
6.
Severance. Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement is found to violate a law, it will be
severed from the rest of the Agreement and ignored.
7.
Entire Agreement. This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and merges all prior written
or oral communications, understandings, and agreements with respect to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives, to be effective as of the Effective Date stated
above.
DELL PRODUCTS L.P.
[ICONIX INTERNATIONAL INC.]
By: /s/
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By: /s/
-----------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Printed Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Manager, Business Operations
Title: President
Date: 9-29-99
Date: 09/10/99
Addendum A
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ICONIX INTERNATIONAL INC. PRODUCTS
Addendum B
1.
Downloadable Direct Effect Logos. Usage of this logo must always be accompanied
by the following legal text:
o
The Dell Direct Effect Alliance Program logo is a trademark of Dell Computer
Corporation. Use of the logo means the product has been certified and is
supported by ICONIX INTERNATIONAL INC. on Dell hardware.
Alteration of any Dell Direct Effect Alliance Program logo (other than sizing)
after file download is strictly prohibited.
2.
Color: The color designated for the Dell Direct Effect Alliance Program is PMS
300 Blue from the Panatone Matching System. If process colors are used PMS 300
should be matched as 100% cyan, 40% magenta. The logo may be reversed from any
color background as long as sufficient contrast exists to ensure readability.
3.
Space: The minimum space surrounding the Dell Direct Effect Alliance Program
logo is 1/4 inch from the top, the bottom or either side. No other graphic
elements should infringe on this space.
4.
Minimum Size: The Dell Direct Effect Alliance Program logo must never appear
smaller than1/2an inch in height.
Addendum C
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This addendum will confirm the understanding between DELL and ICONIX
INTERNATIONAL INC. regarding the issuance to ICONIX INTERNATIONAL INC. of
Premier Page(sm) usernames and passwords ("Purchasing Codes") that will allow
ICONIX INTERNATIONAL INC. to place on-line orders for purchases ("Purchase
Orders") of computer systems and/or related products ("Products") with Dell.
1.
Terms and Conditions. In the absence of a current Customer Purchase Agreement
between Dell and ICONIX INTERNATIONAL INC., Dell's standard terms and conditions
of sale shall apply. Any attempt to alter or amend those terms and conditions or
to enter an order for Products that is subject to additional or altered terms
and conditions will be null and void, unless otherwise agreed to in a written
agreement signed by both ICONIX INTERNATIONAL INC. and Dell.
2.
Issuance of Purchasing Codes. Upon the request of the ICONIX INTERNATIONAL INC.,
Dell will create a Premier Page for the ICONIX INTERNATIONAL INC.. Once the
ICONIX INTERNATIONAL INC. Premier Page is created, Dell will issue a set of
usernames and passwords to the ICONIX INTERNATIONAL INC. that Dell may revise
from time to time for security purposes. ICONIX INTERNATIONAL INC. may use these
Purchasing Codes to access the ICONIX INTERNATIONAL INC. Premier Page and place
on-line Purchase Orders. Upon receipt of an executed original of this Agreement,
Dell will recognize all on-line Purchase Orders submitted via the Premier Page
as valid Purchase Orders.
3.
Purchasing Codes. ICONIX INTERNATIONAL INC.'s Purchasing Codes are required so
that Dell may accept an on-line Purchase Order. By submitting on-line Purchase
Orders via Premier Pages using ICONIX INTERNATIONAL INC.'s Purchasing Codes to
access the Premier Page, ICONIX INTERNATIONAL INC. authorizes Dell to carry out
instructions included in the Purchase Order. ICONIX INTERNATIONAL INC.
acknowledges its duty to hold the Purchasing Codes in strictest confidence and
agrees to maintain control over the Purchasing Codes, revealing its Purchasing
Codes only to those ICONIX INTERNATIONAL INC. employees, representatives or
agents authorized to place Product and/or services orders with Dell. If ICONIX
INTERNATIONAL INC. believes or has reason to believe its Purchasing Codes have
been revealed to or obtained by unauthorized individuals, ICONIX INTERNATIONAL
INC. will contact Dell immediately so that Dell may deactivate the Purchasing
Codes. ICONIX INTERNATIONAL INC. further agrees that use of the Purchasing Codes
in connection with an on- line Purchase Order will be deemed a signed and
written purchase order, that ICONIX INTERNATIONAL INC. intends the order to be
legally binding, and ICONIX INTERNATIONAL INC. will not contest the validity or
enforcement of any obligation on the ground that the Purchase Order is not
written or signed.
4.
ICONIX INTERNATIONAL INC.'s Liability. ICONIX INTERNATIONAL INC. agrees that
full payment for any Purchase Order made using ICONIX INTERNATIONAL INC.'s
Purchasing Codes will be ICONIX INTERNATIONAL INC.'s responsibility.
Exhibit (10)
TIC Tengtu International Corp.
19101 ▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇ ▇▇▇▇
January 1, 1997
Mr. Jing(▇▇▇▇) Lian
▇▇▇▇ ▇▇▇ ▇▇ ▇.▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Jing,
I am pleased to confirm the terms of our offer of employment to you for the
Position of Manager - Managing director, VP of Tengtu International Corp for
1997.
The salary will be $80,000 per year, payable monthly plus an annual bonus
dependent on the achievement of specific objectives which we will establish and
agree with you as soon as feasible. In addition, we will provide full medical &
dental insurance benefits. You will commence full-time employment with us
effective January 1, 1996.
We will be pleased to welcome you on board as a key member of our team, and look
forward to facing the exciting challenges which lie ahead of us. If you are
agreeable to these terms, please indicate your acceptance by your signature
below.
Yours sincerely,
/s/
Pak ▇▇▇▇▇▇
Accepted: /S/ Date: 1/1/97
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