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EXHIBIT 10.9
DISTRIBUTOR
AGREEMENT
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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:
------------------------------- ---------------------------------
Name:
Name:
----------------------------- -------------------------------
Title:
Title:
---------------------------- ------------------------------
Date:
Date:
----------------------------- -------------------------------
WITNESS
WITNESS
By:
By:
------------------------------- ---------------------------------
Name: Name:
----------------------------- -------------------------------
Date:
Date:
----------------------------- -------------------------------
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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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,
