EXHIBIT 10.9
DISTRIBUTOR AGREEMENT
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Page 1 of 10
[GRAPHIC OMITTED]
DISTRIBUTOR AGREEMENT
THIS TITANIUM TECHNOLOGY DISTRIBUTOR AGREEMENT ("Agreement"), is
entered into as
of the EFFECTIVE
DATE set forth below by and between Titanium Technology
Limited, a Hong Kong Limited Company ("TITANIUM"), having its
principal place of
business 4/F., BOCG Insurance Tower, 134-136 Des Veoux Road,
Central, Hong Kong
SAR and the DISTRIBUTOR identified below.
This Agreement
consists of the
following Term Sheet,
the Standard
Terms and
Conditions and the Exhibits attached hereto.
TERM SHEET
1. EFFECTIVE
DATE:
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2.
DISTRIBUTOR:
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Street Address:
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Company URL: HTTP://
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Telephone:
Facsimile:
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3. CONTACT
PERSON:
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Title:
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Telephone:
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E-mail address:
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4. START DATE
OF
AGREEMENT:
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5. END DATE
OF
AGREEMENT:
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6.
TERRITORY:
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7. INITIAL
ORDER
VALUE:
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8. MINIMUM
COMMITMENT:
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Rev 05122003
TITANIUM ______
DISTRIBUTOR ______
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IN WITNESS WHEREOF,
the parties have
executed this Agreement as of the date
first above written.
TITANIUM TECHNOLOGY LIMITED
DISTRIBUTOR
By:
By:
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Name:
Name:
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Title:
Title:
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Date:
Date:
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WITNESS
WITNESS
By:
By:
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Name:
Name:
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Date:
Date:
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Rev 05122003
TITANIUM ______
DISTRIBUTOR ______
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STANDARD TERMS AND CONDITIONS
1.
DEFINITIONS
Capitalized terms
used and not
otherwise defined in this Agreement or the
Schedules hereto shall have the meanings shown below:
1.1
"Intellectual
Property" means all of
the following owned by
a party:
(i) trademarks and service marks (registered and unregistered) and
trade names,
and goodwill associated therewith; (ii) patents, patentable
inventions, computer
programs, and
software; (iii)
databases;
(iv) trade secrets and
the right to
limit the use or disclosure thereof; (v) copyrights in all works, including
software programs;
and (vi) domain
names. The rights owned by a party in
its
Intellectual Property shall be defined, collectively, as "Intellectual
Property
Rights."
1.2
"Product(s)"
shall mean
those TITANIUM products that have been
explicitly included in this agreement and specified on the term
sheet. TITANIUM
shall have the right to withdraw any Product(s) from this Agreement
upon fifteen
(15) days advance written notice.
1.3 "Discount"
shall mean the discount applicable to Unit Price for a
product as specified in the then current Distributor Price List.
The now current
Distributor Price
List is attached to this Agreement as Exhibit A. All
Distributor Price Lists are incorporated in this Agreement by this
reference.
1.4
"Distributor" means the company which sells only to resellers.
1.5 "Reseller"
means retail dealers only, that is companies which sell only
to end-users.
The term "Reseller" does not include companies which sell to
distributors or purchase products for their own use.
1.6
"Territory" shall mean the distribution territory set forth on the
Term
Sheet attached hereto.
1.7
"Trademarks"
shall mean
TITANIUM's
registered
and unregistered
trademarks, trade names and other commercial symbols.
2.
APPOINTMENT AS DISTRIBUTOR
2.1
APPOINTMENT. Subject
to the terms and
conditions of this
Agreement,
TITANIUM hereby
appoints DISTRIBUTOR as an EXCLUSIVE distributor for the
Territory under the TITANIUM Program (the "Program"). In connection with such
appointment, to the
extent permitted
by the laws of the
Territory,
TITANIUM
grants DISTRIBUTOR an EXCLUSIVE and non-transferable right to promote, market,
and solicit orders in the Territory from Resellers for the Products
and services
described in the Term Sheet.
2.2
AUTHORIZATION. DISTRIBUTOR may represent itself as a participant in
the
Program and as a reseller for the Products. DISTRIBUTOR shall not
represent that
it is otherwise affiliated with TITANIUM. DISTRIBUTOR is authorized
to represent
to Resellers only such
facts about TITANIUM
and the Products as TITANIUM posts
on its Web site or as are contained in other published advertising and
promotional materials.
2.3
INDEPENDENT
CONTRACTORS. The
relationship of TITANIUM and DISTRIBUTOR
is that of
independent
contractors.
Neither DISTRIBUTOR nor DISTRIBUTOR's
employees, consultants, contractors or agents are agents,
employees, partners or
joint venturers of TITANIUM, nor do they have any authority to
bind TITANIUM by
contract or
otherwise to any obligation. They will not represent to the
contrary, either expressly, implicitly, by appearance or
otherwise.
3.
MARKETING TITANIUM PRODUCTS
3.1
DISTRIBUTOR EFFORTS.
During the term of
this Agreement,
DISTRIBUTOR
shall use its best
efforts to market and promote the Products to Resellers in
the Territory. Without
limiting the
generality of the
foregoing,
DISTRIBUTOR
shall undertake the specific marketing activities for each Product,
which are
set forth in the Term Sheet.
3.2 PRODUCT
RESALE. DISTRIBUTOR shall resell the Products only to Reseller.
3.3 MARKET
AREA. TITANIUM shall be the sole and final arbiter of any
question whether a specific Distributor is within the
Territory.
3.4 INITIAL
ORDER. On the effective date of this
Agreement,
DISTRIBUTOR
shall place an
irrevocable order with
TITANIUM for products
with a net order
value after discount of at least the amount specified in the term
sheet.
Rev 05122003
TITANIUM ______
DISTRIBUTOR ______
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Page 4 of 10
3.5 MINIMUM
COMMITMENT.
During each year of
this Agreement,
DISTRIBUTOR
shall accrue
and timely pay to TITANIUM the net prices for the Products
licensed, sold or otherwise distributed under this Agreement.
DISTRIBUTOR agrees
to a volume commitment
for each year of this
Agreement in the amount set forth
in the Term Sheet.
Progress towards the
annual commitment
will be monitored
quarterly and
failure to achieve
this phased commitment will be taken into
account by TITANIUM
when deciding about the renewal or termination of this
agreement.
3.6
DISTRIBUTOR PERSONNEL. DISTRIBUTOR will train and maintain a
sufficient
number of capable
technical and sales personnel, minimum of one full-time
employee, having the
knowledge and training
necessary to: (i) inform potential
Resellers properly concerning the features and capabilities of the
Products and,
if necessary,
competitive
products; (ii) service and support the
Products in
accordance with
DISTRIBUTOR's
obligations
under this Agreement; and (iii)
otherwise carry out the obligations and responsibilities of DISTRIBUTOR under
this agreement.
3.7 TECHNICAL
EXPERTISE.
DISTRIBUTOR
warrants that its staff will be
conversant with
the technology contained in the Products and similar
technologies in general, and will develop sufficient
knowledge of the
industry
and products competitive with the Products (including specifications, features
and benefits)
so as to be able to
explain in detail to its Resellers the
differences between the Products and competitive products.
3.8
DISTRIBUTOR COVENANTS.
DISTRIBUTOR
will: (i) conduct business in a
manner that reflects
favorable at all times
on the Products and the good name,
goodwill and
reputation
of TITANIUM; (ii) avoid deceptive, misleading or
unethical practices
that are or might be detrimental to TITANIUM, the Products
and services or the public; (iii) make no false or
misleading
representations
with regard to
TITANIUM, or the Products; (iv) not publish or employ, or
cooperate in the
publication or
employment
of, any misleading or deceptive
advertising material
with regard to TITANIUM or the Products; and (v) make no
representation,
warranties or guarantees to potential Resellers or End Users or
to the trade with respect to the specifications, features or
capabilities of the
Products that are inconsistent with the literature distributed by
TITANIUM.
3.9 COSTS AND
EXPENSES. Except as expressly provided herein or agreed to in
writing by TITANIUM and DISTRIBUTOR, DISTRIBUTOR will pay all costs
and expenses
incurred in the performance of DISTRIBUTOR's obligations under this
Agreement.
3.10
MARKETING ACTIVITIES. DISTRIBUTOR shall develop and execute a
marketing
plan sufficient to fulfill its obligations under this Agreement. To the extent
TITANIUM offers
DISTRIBUTOR the
opportunity to do so,
DISTRIBUTOR
agrees to
participate with TITANIUM in joint marketing activities with respect to
certain
Products.
3.11
COMPLIANCE WITH LAWS.
DISTRIBUTOR
will comply with all applicable
international,
national, state,
regional and local laws and regulations in
performing its duties
hereunder and in any
of its dealings with respect to the
Products.
3.12
GOVERNMENTAL APPROVAL.
If any approval with respect to this Agreement,
or the notification or registration hereof, will be required at any
time during
the term of this
Agreement,
with respect to giving legal effect to this
Agreement in any jurisdiction in which DISTRIBUTOR is operating, or
with respect
to compliance with
exchange regulations
or other requirements
so as to assure
the right of remittance from abroad of H.K. Dollars, DISTRIBUTOR will
immediately take
whatever steps may be necessary in this respect, and any
charges incurred in connection therewith will be for the account of
DISTRIBUTOR.
DISTRIBUTOR will
keep TITANIUM currently informed of its efforts in this
connection. TITANIUM
will be under no
obligation to ship any Products or other
materials to DISTRIBUTOR hereunder until DISTRIBUTOR has
provided TITANIUM with
satisfactory evidence
that such approval,
notification or
registration is not
required or that it has been obtained.
4.
TECHNICAL SUPPORT
4.1 RESELLER
SUPPORT. DISTRIBUTOR shall provide all technical support
relating to its own products and services, and to the Products as described
in
the TERM SHEET,
directly to its
Resellers and
End-Users.
DISTRIBUTOR
shall
provide TITANIUM
with a telephone
number for TITANIUM to
contact
DISTRIBUTOR
directly for
DISTRIBUTOR's support
under this Section 4. If TITANIUM receives
such an inquiry,
TITANIUM shall provide the inquiring party with the telephone
number of DISTRIBUTOR,
and DISTRIBUTOR shall be responsible for providing
support to such party.
4.2
DISTRIBUTOR SUPPORT.
TITANIUM shall provide DISTRIBUTOR with the
technical support services for each Product as set forth in the
TERM SHEET.
5.
PURCHASE AND PAYMENT TERMS
5.1 FORECASTS,
PURCHASE AND SALE. DISTRIBUTOR shall submit quarterly
forecasts of its
requirements for Products to TITANIUM at least forty-five (45)
days in advance of
each calendar
quarter. DISTRIBUTOR will be required to
maintain a
minimum stock level of two times the monthly forecast of its
requirements for Products.
Rev 05122003
TITANIUM ______
DISTRIBUTOR ______
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TITANIUM agrees to
sell to DISTRIBUTOR
those Products order
by DISTRIBUTOR at
the prices
and under the conditions specified in this Agreement and the
applicable Distributor
Price List during the
term of this
Agreement. Product
orders will be placed by DISTRIBUTOR's issuance of a purchase order. The
terms
and conditions of this Agreement shall supersede the terms and
conditions of any
purchase order issued by DISTRIBUTOR. Any additional or conflicting
purchase
order terms and
conditions
shall be deemed null and void and shall be of
no
force or effect.
5.2 PAYMENTS
FOR TITANIUM PRODUCTS.
DISTRIBUTOR
shall be responsible
for
invoicing Resellers
and collecting invoiced amounts from Resellers for all
Products licensed,
sold or otherwise distributed on the basis of orders
solicited by
DISTRIBUTOR.
For the Products licensed, sold or otherwise
distributed based upon
orders solicited by
DISTRIBUTOR,
DISTRIBUTOR will
pay
TITANIUM the amounts set forth in the applicable Distributor Price List, (the
invoiced amount
will be grossed-up to cover any withholding taxes to the
applicable
jurisdiction or
country) in the manner and at the time set
forth
therein. Such amounts
may be set forth as a percentage discount from TITANIUM's
prices for the applicable Products. DISTRIBUTOR's payments shall
not be affected
by Distributors payments or non-payment for the Products
ordered.
5.3 PRICE
CHANGES. TITANIUM's prices for the Products as of the date of
this Agreement are set forth in the applicable Distributor Price List.
TITANIUM
reserves the right to
change the prices for any TITANIUM Product or any other
product or service at any time. Price decreases shall take effect immediately
upon announcement.
In the event of a
price increase,
TITANIUM shall provide
DISTRIBUTOR with
fifteen (15) days'
advance notice. Such changes shall not
require DISTRIBUTOR's
approval. DISTRIBUTOR shall determine its own market
prices for the Products and for other products and services it sells,
licenses
or otherwise distributes or makes available.
5.4 TERMS OF
PAYMENT. Amounts due TITANIUM hereunder shall be paid by
DISTRIBUTOR to
TITANIUM at the address set forth in paragraph 1 of this
Agreement. Payment will be made via prepayment to "TITANIUM
TECHNOLOGY LIMITED".
DISTRIBUTOR may elect
to apply for a line of credit with TITANIUM. The credit
limit established
by TITANIUM
will be based on the
credit worthiness
of the
DISTRIBUTOR.
Acceptance of a line
of credit is at the sole discretion of
TITANIUM.
5.5 TAXES.
DISTRIBUTOR shall pay, indemnify and hold TITANIUM harmless
from
(i) any sales, use,
excise, import or
export, value-added,
or similar tax or
duty, and any other
tax or duty not based on TITANIUM's income, and (ii) all
government permit
fees, customs fees and
similar fees which TITANIUM may incur
with respect to this Agreement. Such taxes, fees and duties paid
by DISTRIBUTOR
shall not be
considered a part of,
a deduction
from, or an offset against,
payments due to TITANIUM hereunder.
6.
CONFIDENTIALITY
6.1
CONFIDENTIAL
INFORMATION. The
parties acknowledge that in their
performance of their duties hereunder either party may
communicate to the other
(or its designees) certain confidential and proprietary
information,
including
without limitation information concerning DISTRIBUTOR's products and
services,
TITANIUM's products and services, and the know-how, technology, techniques, or
business or marketing plans related thereto (collectively, the "Confidential
Information") all of
which are confidential and proprietary to, and trade
secrets of, the
disclosing party.
Confidential
Information
does not include
information that:
(i) is public
knowledge at the time of disclosure by the
disclosing party; (ii)
becomes public knowledge or known to the receiving party
after disclosure by
the disclosing party
other than by breach of the receiving
party's obligations
under this Section 6 or by breach of a third party's
confidentiality
obligations; (iii) was
known by the receiving
party prior to
disclosure by the
disclosing
party other than by breach of a third
party's
confidentialit
