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EXHIBIT 10.10
RESELLER
AGREEMENT
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Page 1
of 12
[GRAPHIC
OMITTED]
RESELLER
AGREEMENT
THIS TITANIUM TECHNOLOGY
RESELLER 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 6/F., Tianjin Building, 167
Connaught Road West, Hong Kong SAR and the
RESELLER 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. RESELLER:
--------------------------------------------------------
Street Address:
--------------------------------------------------------
--------------------------------------------------------
Company URL:
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Telephone:
Facsimile:
--------------------
----------------------
3. CONTACT PERSON:
--------------------------------------------------------
Title:
--------------------------------------------------------
Contact Person's
Telephone:
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Contact Person's
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 ANNUAL $
COMMITMENT:
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Rev 06012003
TITANIUM _______ RESELLER _______
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Page 2
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9. PRODUCT SCHEDULE
AND DISCOUNT:
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IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date
first above written.
TITANIUM TECHNOLOGY LIMITED
RESELLER
By:
By:
--------------------------------- ---------------------------------
Name:
Name:
------------------------------- -------------------------------
Title:
Title:
------------------------------ ------------------------------
Date:
Date:
------------------------------- -------------------------------
Rev 06012003
TITANIUM _______ RESELLER _______
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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
Reseller Price List. The now current
Reseller Price List is attached to
this Agreement as Exhibit A. All Reseller
Price Lists are incorporated in this Agreement by this reference.
1.4 "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.
1.5 "Territory" shall mean
the distribution territory set forth on the Term
Sheet attached hereto.
1.6 "Trademarks" shall
mean TITANIUM's registered
and unregistered
trademarks, trade names and other commercial symbols.
2. APPOINTMENT AS RESELLER
2.1 APPOINTMENT. Subject to the terms and conditions
of this Agreement,
TITANIUM hereby appoints RESELLER as a non-exclusive reseller 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 RESELLER
a
non-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. RESELLER may represent itself as a participant in the
Program and as a reseller for the Products. RESELLER shall not represent that
it
is otherwise affiliated with TITANIUM. RESELLER 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 RESELLER is
that of independent contractors. Neither
RESELLER nor RESELLER'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.
Rev 06012003 TITANIUM _______ RESELLER _______
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Page 4
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3. MARKETING TITANIUM PRODUCTS
3.1 RESELLER EFFORTS. During the
term of this Agreement, RESELLER shall use
its best efforts to market
and promote the
Products to End-Users
in the
Territory. Without limiting the
generality of the foregoing, RESELLER shall
undertake the specific marketing activities
for each Product, which are set
forth in the Term Sheet.
3.2 COMPETITIVE
PRODUCTS. In consideration of the
appointment as reseller
extended in this agreement, the RESELLER
agrees to the fullest extent permitted
by the laws of the Territory, that it will not handle or promote the sale of
any
other product line which is competitive with the Products of TITANIUM. TITANIUM
will be the sole judge of whether
any product is
competitive with its own
Products.
3.3 PRODUCT RESALE. RESELLER shall resell the Products only to
End-Users.
3.4 MARKET AREA.
TITANIUM shall be the sole and final
arbiter of any
question whether a specific Reseller is within the Territory.
3.5 INITIAL ORDER. On the effective
date of this Agreement, RESELLER 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.
3.6 MINIMUM ANNUAL COMMITMENT.
During each year of this Agreement, RESELLER
shall accrue and
timely pay to TITANIUM
the net prices for the
Products
licensed, sold or otherwise distributed
under this Agreement RESELLER 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.
3.7 RESELLER PERSONNEL.
RESELLER 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
End Users properly concerning the features and capabilities of the Products
and,
if necessary, competitive
products; (ii) service and
support the Products in
accordance with RESELLER's obligations under this Agreement; and (iii)
otherwise
carry out the obligations and responsibilities of RESELLER under this
agreement.
3.8 TECHNICAL EXPERTISE.
RESELLER 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 End
Users the
differences between the Products and competitive products.
3.9 RESELLER COVENANTS.
RESELLER will: (i) conduct business in a manner
that reflects favorable at all times on the Products and the good name, good
will 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.
3.10 COSTS AND EXPENSES. Except as
expressly provided herein or agreed to in
writing by TITANIUM and
RESELLER, RESELLER will pay all costs and expenses
incurred in the performance of RESELLER's obligations under this Agreement.
3.11 MARKETING ACTIVITIES.
RESELLER shall develop and
execute a marketing
plan sufficient to fulfill its obligations
under this Agreement. To the
extent
TITANIUM offers RESELLER
the opportunity to
do so, RESELLER
agrees to
participate with TITANIUM in joint marketing
activities with respect to certain
Products.
Rev 06012003
TITANIUM _______ RESELLER _______
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3.12 COMPLIANCE WITH
LAWS. RESELLER 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.
3.13 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 RESELLER 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, RESELLER will immediately take
whatever steps may be necessary in
this respect, and any charges incurred in
connection therewith will be for the account of RESELLER. RESELLER
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 RESELLER
hereunder until RESELLER 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 END-USER SUPPORT. RESELLER 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
End-Users. RESELLER shall
provide TITANIUM with a
telephone number for TITANIUM
to contact RESELLER directly
for RESELLER's
support under this Section 4. If
TITANIUM receives such an inquiry, TITANIUM
shall provide the inquiring party with
the telephone number of RESELLER, and
RESELLER shall be responsible for providing support to such party.
4.2 RESELLER SUPPORT.
TITANIUM shall provide RESELLER
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.
RESELLER shall submit quarterly forecasts
of its requirements for Products to TITANIUM at least forty-five (45) days in
advance of each calendar quarter.
RESELLER will be required
to maintain a
minimum stock level of two times the monthly
forecast of its requirements for
Products. TITANIUM agrees to sell to RESELLER those Products
order by RESELLER
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 RESELLER'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 RESELLER. 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. RESELLER shall be
responsible for
invoicing End-Users and
collecting invoiced amounts from
End-Users for all
Products licensed, sold or
otherwise distributed on the
basis of orders
solicited by RESELLER. For the Products licensed, sold or otherwise distributed
based upon orders solicited by RESELLER,
RESELLER will pay TITANIUM the amounts
set forth in the applicable Reseller 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. RESELLER's payments
shall not be affected by Resellers
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 Reseller 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
RESELLER with fifteen (15) days' advance notice. Such changes shall not require
RESELLER's approval. RESELLER
shall determine its own market prices for the
Products and for other products and
services it sells, licenses or
otherwise
distributes or makes available.
Rev 06012003
TITANIUM _______ RESELLER _______
<PAGE>
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5.4 TERMS OF PAYMENT.
Amounts due TITANIUM
hereunder shall be paid by
RESELLER to TITANIUM at the address set forth in paragraph 1 of this Agreement.
Payment will be made via prepayment to TITANIUM TECHNOLOGY LIMITED. RESELLER
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 RESELLER.
Acceptance
of a line of credit is at the sole discretion of TITANIUM.
5.5 TAXES. RESELLER 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 RESELLER
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 RESELLER'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 <
