Gateway Confidential
GATEWAY INTERNATIONAL AUTHORIZED RESELLER AGREEMENT
THIS AGREEMENT is made this 1st day of July 2001 ("Effective Date").
PARTIES:
(1) GATEWAY MANUFACTURING INC., a corporation organized under the laws of the
State of Delaware, USA with offices at 000 Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxx,
Xxxxx Xxxxxx 00000-0000, XXX ("GATEWAY"); and
(2) XXXXXX000.XXX LTD, a corporation organized under the laws of the Cayman
Islands with its registered offices at Xxxxxx Xxxxx, Xxxxx Xxxxxx Xxxxxx,
PO Box 309, Xxxxxx Town, Grand Cayman, Cayman Islands, British West Indies
("RESELLER").
RECITALS:
WHEREAS, Gateway's Affiliates (defined below) manufacture and market computer
products throughout the world directly and through qualified companies that add
value to the products in selling such products;
WHEREAS, Reseller has represented that it possesses the necessary expertise and
marketing organization to market and sell such products in the Territory
(defined below);
WHEREAS, Gateway is willing to appoint Reseller and Reseller is willing to
accept such appointment as a reseller of Gateway's products in the Territory
(defined below) (the "Gateway Business") upon the terms and conditions of this
Agreement; and
NOW, THEREFORE, in consideration of the mutual premises and covenants set forth
below, the parties agree as follows:
SECTION I(A): DEFINITIONS
In this Agreement, unless the contrary intention appears:-
"Affiliates" means companies that directly or indirectly through one or more
intermediaries, control, or are controlled by, or are under common control with
the referenced company and the term "control" (including the terms
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"controlling", "controlled by" and "under common control with") means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a company, partnership, or other body corporate,
whether through the ownership of voting securities, by contract or otherwise.
"COGS" means the costs of goods sold including but not limited to component
costs, manufacturing costs, hardware and software royalties, warranty costs and
end-user technical support costs applicable to the Gateway Products sold under
this Agreement.
"Effective Date" means the date the parties entered into this Agreement as
above-written.
"First Year" means the period commencing from the Effective Date and ending on
30th June 2002, notwithstanding that it does not comprise one calendar year.
"Gateway Products" means Gateway's products listed in Gateway International
Resellers Products Price List as set out in Exhibit A attached hereto and as
such products may be amended from time to time by Gateway, at its sole
discretion.
"Xxxxx Xxxx-up" means Gateway's percentage xxxx-up on COGS applicable to the
different types of sale of Gateway Products and more particularly set out in
Exhibit A.
"Minimum Purchase Quantity" means the minimum target that Reseller has to meet
in relation to purchases of Gateway Products and more particularly set out in
Exhibit D.
"Programs" means the operating, utility and application software programs
installed or included in Gateway Products and as such programs may be updated
and substituted from time to time by Gateway in its absolute discretion.
"Price List" means the list of prices (based on COGS) of Gateway Products in
Gateway International Resellers Products Price List set out in Exhibit A and as
such list may, in Gateway's sole discretion, be revised or replaced with new
price list which Gateway may issue from time to time.
"quarter" means a calendar quarter, that is 1st January to 30th March, 1st April
to 30th June, 1st July to 30th September and 1st October to 31st December, as
the case may be;
"Second Year" means the period of twelve (12) months immediately following the
expiry of the First Year.
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"Territory" means the territory(ies) as set out in Exhibit A(I) attached hereto.
"Trademarks" means any and all of Gateway's trademarks, words and design marks,
trade names, service marks, trade logos and trade dress, and foreign language
equivalents thereof, including but not limited to those described in Exhibit F
attached hereto, and as each may be unilaterally amended from time to time by
Gateway (whether registered or not).
"Trademark License" means the non-exclusive and non-transferable, royalty-free
right and license to use the Trademarks in the Territory for the limited and
sole purpose of marketing, sale and promotion of the Gateway Products as
provided in Section 7.2.
SECTION I: APPOINTMENT
1.1 Scope of Appointment. Gateway hereby appoints Reseller, and Reseller
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hereby accepts such appointment, as a sole reseller of Gateway Products
within the Territory subject to the provisions in Sections 1.5 and 1.7.
Reseller shall have the right to market, distribute, sell, install, and
lease Gateway Products and to use the Trademarks in the Territory subject
to the terms and conditions of this Agreement.
1.2 Products Supply. Except as approved by Gateway, Reseller shall purchase
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Gateway Products solely from Gateway and shall not seek to purchase Gateway
Products from any of Gateway's Affiliates.
1.3 Sub-distributors and resellers.
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A. Reseller may market, distribute, sell or lease Gateway Products
through its existing sub-distributors, resellers or agents listed in
Exhibit B attached hereto. Reseller shall be entitled, with Gateway's
prior written approval and such approval not to be unreasonably
withheld, to appoint new sub-distributors, resellers or agents (other
than those listed in Exhibit B) to market, distribute, sell or lease
Gateway Products. For the avoidance of doubt, the parties agree that
Gateway's decision in all cases, whether to approve or withhold
approval on Reseller's proposed appointment of any new
sub-distributors, resellers or agents under this Section, shall always
be deemed to be reasonable and shall be final and binding on Reseller.
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B. Notwithstanding Gateway's approval of the appointment of any
sub-distributors, resellers or agents, whether listed in Exhibit B or
otherwise, Reseller shall remain liable for the actions, omissions,
and performance of such sub-distributors, resellers and agents.
1.4 No Sales Outside the Territory. Reseller shall (a) not undertake to,
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directly or indirectly, and (b) not permit its sub-distributors, resellers
or agents to, market, export, sell, install, service or lease Gateway
Products outside the Territory.
1.5 Appointment of Other Resellers. Notwithstanding the provisions in
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Section 1.1, commencing from January 1, 2002, Gateway shall be entitled, in
its absolute discretion, to appoint additional resellers, distributors or
agents for the Territory in the event that Reseller does not achieve the
Minimum Purchase Quantity for any two consecutive quarters. Reseller agrees
that it will not register this Agreement with the relevant governmental
authorities without Gateway's prior written approval, and if necessary, to
amend such registration to reflect the appointment of any additional
resellers, distributors or agents for any of the countries in the
Territory.
1.6 Sale of Competitive Products. Reseller acknowledges and warrants to
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Gateway that the list of products (and their manufacturers) as set forth in
Exhibit C attached hereto is the complete list of all computer-related
products that Reseller (or any of its Affiliates) manufactures, assembles,
purchases, markets, distributes, sells, leases or licenses to end-users.
Reseller shall notify Gateway in writing prior to adding any new
computer-related products to its manufacturing, assembly, purchasing,
marketing, distribution, sale, leasing or licensing operations that are
similar to or competitive with any Gateway Products.
1.7 Training Products. For the avoidance of doubt, Gateway shall at all
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times be entitled to, directly or indirectly, market, distribute and sell
Gateway training products in the Territory.
1.8 Restriction on Provision of Back Office Services. Reseller shall not,
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without the prior written approval of Gateway (a) directly or indirectly,
and (b) permit its Affiliates, sub-distributors, resellers, agents or
assigns to, provide or undertake to provide, within the Territory, any back
office services for any of the computer and computer-related product
manufacturers listed in Exhibit C(1) attached hereto, including such
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manufacturers' Affiliates, successors and/or assigns, in relation to such
manufacturers' computer and computer-related product business activities.
For the purpose of this Agreement, "back office services" shall include,
but not be limited to, services relating to call centre support, technical
support, web hosting, web design, customer relationship management,
logistics and financial management.
SECTION II: OBLIGATIONS OF RESELLER
2.1 Minimum Purchase Quantity.
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A. Reseller shall by the end of each quarter, achieve the Minimum
Purchase Quantity for such quarter, failing which Gateway may issue a
reminder to Reseller.
B. Reseller shall by the end of each of the First Year and Second Year
achieve the Minimum Purchase Quantity for the First Year and the
Second Year respectively, all as set out in Exhibit D.
C. At least thirty (30) days' prior to the expiry of the First Year, the
parties will endeavor in good faith to review and agree in writing to
the Minimum Purchase Quantity for the Second Year. In the absence of
such agreement, Gateway shall, based on Gateway's market forecast,
determine the Minimum Purchase Quantity for the Second Year and such
determination shall be final and binding on Reseller.
2.2 Marketing And Product Support. Reseller shall use its best efforts and
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shall, at its own cost and expense, undertake to:
A. Promote the marketing and sale of Gateway Products within the
Territory.
B. Maintain adequate facilities and delivery of Gateway Products to
ensure prompt handling of inquiries, customer orders, shipments and
returns
C. Maintain a professional and well-informed sales and customer support
organization appropriate for marketing, distributing, selling,
installing and leasing Gateway Products in the Territory. The Reseller
shall comply with the provisions in the Gateway Authorised Reseller
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Handbook ("Reseller Handbook") in this respect, a copy of which has
been extended to Reseller and Reseller hereby acknowledges the terms
therein. In case of any discrepancies between this Agreement and the
Reseller Handbook, the terms of this Agreement shall have precedence.
D. Provide comprehensive training to its staff, in consultation with
Gateway, to permit them to undertake pre-sales support to Reseller's
customers. Such training shall include participation in a reasonable
number of conferences developed or recommended by Gateway. Such
participation in training shall be at Reseller's expense
E. Participate in conferences and trade shows that Gateway may recommend
to Reseller and as the parties may agree, from time to time.
2.3 Advertising and Marketing Programs.
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A. Reseller shall be responsible for initiating and undertaking
advertising and marketing programs relating to the Trademarks and the
Gateway Products in the Territory and for all costs and expenses
relating thereto.
B. Reseller shall submit all advertising and marketing programs relating
to the Trademarks and the Gateway Products to Gateway for its prior
review and approval. Gateway expressly reserves the right to review
Reseller's advertising and marketing programs at any time and to
direct Reseller to alter or cancel and withdraw any advertising or
marketing programs which Gateway deems, in its sole discretion, not to
be suitable for its image. Reseller shall also obtain Gateway's prior
approval for the use of the Trademarks for the promotion or sale of
Gateway Products on any web-sites that Reseller seeks to develop or
use. Reseller shall at all times during the subsistence of this
Agreement use the Trademarks in conformity with the specifications set
out in Exhibit G attached hereto and any other Gateway rules and
policies which may be communicated to Reseller in writing by Gateway
from time to time.
2.4 Sales Call Center. Reseller shall provide a sales call center to
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address queries from customers regarding the Gateway Products. Reseller
undertakes to operate the sales call center in accordance with the
requirements and directions of Gateway and as mutually agreed upon by
Gateway and Reseller from time to time.
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2.5 Customer Support. Reseller shall undertake to:
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A. Provide sales support and product information to Reseller's customers
and carry out installation of Gateway Products and related hardware
and software, as applicable. Reseller shall not, without the prior
written consent of Gateway, instruct customers to contact Gateway
directly for pre-sales support or product information.
B. Participate fully in any retrofit, recall or customer notification
campaigns initiated by Gateway with regard to the Gateway Products,
under terms to be agreed upon, from time to time.
C. Comply with applicable laws and regulations in the Territory relating
to "used" or returned merchandise.
2.6 Issue of Warranty.
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A. Reseller shall issue Gateway's warranty on the Gateway Products to its
customers in accordance with Gateway's standard warranty and support
terms and conditions (the "Gateway Warranty"). For the avoidance of
doubt, Gateway shall, at its own costs, be solely liable to such
customers for honouring the Gateway Warranty, whether during the
subsistence or after the expiry or earlier termination of this
Agreement. Reseller shall obtain the prior written approval of Gateway
for any additional Gateway warranty programs that Reseller offers to
its customers. In the event that Reseller offers any extended Gateway
Warranty to its customers, Reseller shall purchase such extended
Gateway Warranty for the benefit of its customers from Gateway.
Reseller shall not offer to its customers any other warranty programs
other than the Gateway Warranty on the Gateway Products.
B. Reseller shall obtain the prior written approval of Gateway before
offering to its customers any additional service programs provided by
Reseller ("Reseller Warranty") and Reseller shall, at its own costs,
remain solely liable to such customers for honouring the Reseller
Warranty, whether during the subsistence or after the expiry or
earlier termination of this Agreement.
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C. In the event that Reseller fails for any reason whatsoever to honour
the Reseller Warranty after the expiry or earlier termination of this
Agreement, Gateway may, but is not in any way obliged to, honour such
Reseller Warranty in accordance with terms and conditions as
determined by Gateway in its absolute discretion and Reseller shall
indemnify Gateway for all costs and expenses incurred, directly or
indirectly, by Gateway.
2.7 Qualitative Performance Requirements and Criteria.
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A. Gateway has established policies and procedures to effectively handle
customer support issues, which Gateway will convey to Reseller as soon
as practicable following the execution of this Agreement. Reseller
agrees to follow these policies and procedures to resolve the customer
support issues in an efficient and effective manner.
B. In addition to the provisions in Section 2.7(A), Reseller shall at all
times comply with the performance criteria as set out in Exhibit D. If
Reseller fails to meet the performance criteria in any quarter, other
than by reason of Gateway's failure to manufacture, assemble and
supply the Gateway Products, ordered under Section IV, to Reseller in
a timely manner or in sufficient quantities, Gateway may by written
notice, require Reseller to rectify such failure to Gateway's
reasonable satisfaction within such period prescribed by Gateway, but
which in no event shall be less than thirty (30) days
("Notification"). Reseller's failure for whatever reason to comply
with the Notification shall entitle Gateway to terminate this
Agreement for cause as provided herein.
2.8 Reporting Obligations. Reseller shall provide forecasts of projected
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purchases of Gateway Products in accordance with the provisions in Exhibit
H attached hereto. In addition, it shall collect and provide detailed
market research or competitive analysis information, as reasonably required
by Gateway. Reseller shall immediately direct to Gateway details of any
complaints it receives from customers and others relating to Gateway
Products.
2.9 Third-Party Inquiries. Reseller shall direct to Gateway all inquiries
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from third parties regarding the sale, distribution or marketing of Gateway
Products outside the Territory.
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2.10 Costs and Expenses. Reseller shall be responsible for all costs and
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expenses relating to its obligations under this Agreement, including but
not limited to this Section II, except as expressly indicated otherwise.
2.11 Lease of Current Retail Stores.
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A. Reseller shall, with effect from the Effective Date, (i) be solely
responsible for all of the operating costs of Gateway's current retail
stores ("Current Retail Stores") (as set out and further defined in
Exhibit I attached hereto) in the Territory, including rent,
management fees, rates, utilities and any other costs and expenses
arising from or in connection with the operation of the Current Retail
Stores ("Current Retail Stores Operating Costs") and (ii) observe and
perform all of Gateway's obligations under the respective leases for
the Current Retail Stores ("Current Leases") as though Reseller was an
original party to the Current Leases in place of Gateway. Gateway
shall indemnify Reseller for all damages, costs (including legal costs
on an indemnity basis) and expenses suffered or incurred by Reseller,
directly or indirectly, as a result of any claims or damages arising
from a cause of action relating to the Current Retail Stores or the
Current Leases that occurred prior to the Effective Date.
B. In consideration of Gateway selling the equipment (as set out in
Exhibit L attached hereto) located at the Current Retail Stores to
Reseller, Reseller shall pay to Gateway, as soon as practicable upon
the execution of this Agreement, a sum to be mutually agreed between
the parties and confirmed in writing after the execution of this
Agreement.
C. Reseller shall cooperate with Gateway to procure the novation or
assignment, as determined by Gateway, of the Current Leases to
Reseller as soon as practicable after the Effective Date. Reseller
shall execute all documents and do all things necessary as reasonably
required by Gateway for the purpose of novating or assigning, as the
case may be, the Current Leases to Reseller.
D. Reseller and Gateway shall each bear its own legal costs incurred in
the novation or assignment of the Current Leases to Reseller provided,
that Gateway shall bear all stamp duties and other similar taxes
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relating to such novation or assignment. In the event that any
additional costs or expenses are payable to any third party (including
the landlord of the respective Current Leases) in connection with such
novation or assignment, Gateway and Reseller shall agree to the
apportionment of such costs or expenses between Gateway and Reseller;
provided, that any additional costs paid to the landlord(s) of the
respective Current Leases that are in the nature of inducements to
cause such landlord(s) to consent to the novation, assignment or
sub-let of the Current Leases shall be borne solely by Gateway.
E. Upon the expiry or earlier termination of the Current Leases, Reseller
shall, at its costs, be solely responsible for reinstating the Current
Retail Stores in accordance with the requirements under each of the
Current Leases.
F. In the event that Gateway, for any reason whatsoever, is unable to
procure the novation or assignment of the Current Leases to Reseller,
Reseller shall enter into an arrangement, as Gateway deems reasonably
appropriate, with Gateway for all of the Current Retail Stores
Operating Costs to be borne directly by Reseller and to require
Reseller to observe and perform all of Gateway's obligations under the
Current Leases as though Reseller was an original party to the Current
Leases in place of Gateway
G. If Reseller fails, neglects or refuses for any reason whatsoever to
observe and perform any of Gateway's obligations under the Current
Leases (i) pursuant to Section 2.11(A) or (ii) after the novation or
assignment of the Current Leases to Reseller or (iii) after Reseller
and Gateway have entered into the arrangement pursuant to Section
2.11(F), as the case may be, Gateway shall be entitled, but not
obliged, to perform any of the lessee's obligations under the
respective Current Leases and Reseller shall indemnify Gateway for all
damages, costs (including legal costs on an indemnity basis) and
expenses suffered or incurred by Gateway arising out of or in
connection with Gateway's performance of such lessee's obligations.
Without prejudice to any of its rights under this Agreement, Gateway
shall be entitled to exercise its rights under the SBLC (as provided
in Section 2.18) for the purposes of performing such lessee's
obligations or satisfying Reseller's indemnification as provided in
this Section 2.11(G).
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2.12 Supplier contracts. Reseller shall not enter into any store in store
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arrangements, supplier agreement or arrangements for the supply of
accessories, or training services, in each case in connection with the
Gateway Business, without the prior written approval of Gateway.
2.13 Access to Reseller's Operations, Books and Records. Reseller shall
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establish and maintain at its own costs a bookkeeping, accounting, record
keeping and records retention system consistent with generally accepted
accounting principles. Reseller shall keep full complete, accurate and
updated records pertaining to its operations and the performance by the
Reseller of its obligations under this Agreement. Reseller shall allow
Gateway personnel, upon reasonable notice and during normal business hours,
to review Reseller's facilities, operations, books and records to confirm
compliance with the requirements of this Agreement. Reseller shall, within
six (6) months after the close of each of its financial year, provide
Gateway with a set of its annual audited financial statements prepared in
accordance with generally accepted accounting principles.
2.14 Gateway Merchandising Programs
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A. Subject to the provisions of Section 2.14(D)(iii)(a), Reseller shall
participate in and honour Gateway's merchandising programs, namely the
Your:)Xxxx and the 10-day money back guarantee programs, which
programs Reseller has complete knowledge and understanding,
("Merchandising Programs") in respect of Gateway's existing customers
and end-users in accordance with Gateway's terms and conditions.
B. In addition, Reseller shall, subject to Gateway's prior written
approval, offer and honour the Merchandising Programs to its customers
on Gateway's terms and conditions determined by Gateway in its
absolute discretion.
C. In honouring the Merchandising Programs, Reseller shall, at its costs,
be responsible for the administration of the Merchandising Programs.
D. 10-day money back guarantee program
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(i) In the event that Reseller is notified of or receives any return
of Gateway Products from Reseller's or Gateway's customers under
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the 10-day money back guarantee program for the reason (and which
may not be the only reason for the return) that such Gateway
Products suffer from technical faults or are deemed as "dead on
arrival" (collectively referred to as "Faulty Gateway Products"),
Reseller (a) shall immediately direct such customers to Gateway;
and (b) shall not, without the prior written approval of Gateway,
accept any return of Faulty Gateway Products from such customers.
(ii) Without limiting the generality of the provisions under Section
2.14(C), Reseller shall be responsible for all refunds to
Reseller's and Gateway's customers for all returns of Gateway
Products for any reason whatsoever under the 10-day money back
guarantee program, including returns of Faulty Gateway Products.
Reseller shall refund to such customers the purchase price
("Customer's Purchase Price") that customers paid for the Gateway
Products excluding any costs ("Customer's Costs") which the
customer is required to bear in any return of Gateway Products
under the terms of the 10-day money back guarantee program.
(iii) Reseller shall only be entitled to receive reimbursements or
refunds from Gateway for the return of Gateway Products under the
10-day money back guarantee program as follows:
(a) reimbursement of the Customer's Purchase Price of the
Gateway Products, excluding Customer's Costs, when Reseller
honours the 10-day money back guarantee in respect of
Gateway Products that were purchased by Gateway's customers
and end-users prior to the Effective Date; and
(b) refund of Reseller's purchase price for Faulty Gateway
Products returned to Reseller under the 10-day money back
guarantee program with the prior written approval of Gateway
under the provisions of this Section 2.14. Gateway shall
provide Reseller with the refund by way of a credit given to
Reseller for Reseller to utilise against purchases of
Gateway Products under this Agreement.
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2.15 Quality Control. Reseller shall maintain, throughout the subsistence
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of this Agreement, the standard of quality of Reseller's services that
Reseller has represented to Gateway. Upon written notice of deficiency, as
reasonably determined solely by Gateway, Reseller shall promptly take the
necessary steps to ensure conformance with these quality assurance
standards.
2.16 Demonstration Units. Except as otherwise agreed between the parties,
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Reseller shall provide, at its costs, demonstration units of Gateway
Products for use at its retail locations and for any other purpose.
Reseller shall purchase the demonstration units of Gateway Products from
Gateway at COGS, for the demonstration units for use at Reseller's retail
stores, as determined by Gateway in its sole discretion, that are decorated
as Gateway-concept retail stores for the purpose of selling Gateway
Products ("Reseller's Gateway Stores"). Gateway and Reseller shall from
time to time agree on the purchase price of demonstration units that
Reseller shall purchase for use at all other retail locations, including
store-in-store arrangements, other than the Reseller's Gateway Stores and
for any other purpose, including press evaluation and product promotion
events.
2.17 Corporate approval. Reseller warrants and represents to Gateway that
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it has taken all requisite corporate and other action to approve the
execution, delivery and performance of this Agreement.
2.18 Standby Letter of Credit
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A. Reseller shall provide and at all times maintain an irrevocable
standby letter of credit payable on demand ("SBLC"), to take effect
from the Effective Date, from an affiliate of Citicorp or other lender
("Bank") selected by Gateway and on terms, including the aggregate
amount payable thereon ("SBLC Amount"), satisfactory to Gateway. Upon
the occurrence of designated events, Gateway shall be entitled to
require immediate payment on first demand on the SBLC upon serving a
written notice ("Demand Notice") on the Bank for an amount designated
by Gateway to be drawn under the SBLC. Gateway shall be entitled to
serve the Demand Notice on the Bank on the occurrence of any of the
following events:
(i) Reseller fails to pay or perform any obligation owed to Gateway
when due under this Agreement;
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(ii) A change of control of the Reseller as provided in Section 11.1
of this Agreement or any other substantial change in the
ownership of Reseller;
(iii) Termination of this Agreement for any reason whatsoever while
amounts are owed to Gateway; or
(iv) Reseller files for or has instituted against it any proceedings
as to its bankruptcy, insolvency, reorganization, judicial
management, receivership, liquidation or dissolution, or there is
an assignment for the benefit of creditors or there is granted
against Reseller a writ of seizure and sale.
B. Upon the occurrence of any such event as determined by Gateway and
following written notice to Reseller, Gateway shall be entitled to
serve the Demand Notice on the Bank for immediate payment of the
unpaid overdue balance in the case of (i) above, and for immediate
payment of all outstanding obligations to Gateway under this Agreement
upon the happening of an event described in (ii), (iii), or (iv)
above.
C. During the First Year, the available SBLC Amount shall be US$4 million
at all times until November 19, 2001 at which time the SBLC Amount
shall be increased to maintain availability of US$5 million at all
times during the rest of the First Year. During the Second Year and
any Renewal Term, Gateway shall be entitled to determine the SBLC
Amount on a quarterly basis and upon such determination, Reseller
shall provide Gateway with an SBLC with the revised SBLC Amount
determined by Gateway. Reseller shall not amend the terms of the SBLC
without Gateway's prior written approval.
SECTION III: OBLIGATIONS OF GATEWAY
3.1 Supply of Gateway Products. Gateway shall endeavor to manufacture,
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assemble and supply the Gateway Products, ordered under Section IV to
Reseller in a timely manner. Gateway shall keep Reseller informed of
Gateway Products supply availability. In the event of a shortfall in
supply, Gateway reserves the right to allocate its production among its
resellers, customers and end-users as it deems appropriate, in its sole
discretion, including the right to make no supply or delayed or partial
supply of Gateway Products to Reseller. Gateway shall not be liable to
Reseller in any way for any failure or delay in the supply of any
quantities of Gateway Products that may have been agreed upon from time to
time with Reseller.
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3.2 Advertising and Marketing Assistance.
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A. Gateway shall provide Reseller a reasonable quantity of Gateway
Products literature and promotional materials. Reseller may also
purchase, at its expense, additional quantities of such promotional
materials from Gateway. All such materials supplied to Reseller shall
be in English and Reseller may reproduce and translate the materials
at its sole expense. Gateway shall have the right to approve in
advance all such translated or reproduced materials prior to their use
with potential customers. All copyright and other property rights in
such materials and as translated and reproduced shall belong to
Gateway and its Affiliates.
B. Gateway shall respond to Reseller as soon as practicable following the
submission by Reseller to Gateway of advertising and marketing
programs for Gateway's approval under Section 2.3 of this Agreement.
3.3 Market Development Fund.
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A. Gateway shall, subject to Section 3.3(B), provide Reseller with a
rebate on advertising and marketing programs equivalent to a sum
calculated at:
(i) [redacted] percent of Gateway's revenue per quarter from sales of
Gateway Products to Reseller for sale through the Current Retail
Stores set out in Exhibit I and Reseller's retail stores and
other store in store arrangements ("Retail Channel"); and
(ii) [redacted] percent of Gateway's revenue per quarter from sales of
Gateway Products to Reseller for sale otherwise than through the
Retail Channel
such revenue shall be (1) derived from sales of Gateway Products to
Reseller based on COGS plus Xxxxx Xxxx-up (as defined in Section 5.5
and referred to in Exhibit A) and (2) excluded therefrom (a) any
revenue lost from returns of Gateway Products for any reason
whatsoever, (b) any credits given to Reseller and (c) any bad debts
arising from the sale of the Gateway Products to Reseller.
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B. Reseller's entitlement to the rebate on advertising and marketing
programs shall be subject to the following conditions:
1. the rebate shall be granted quarterly against Reseller's
expenditure in such quarter on advertising and marketing programs
as approved by Gateway pursuant to Section 2.3(B);
2. no rebate will be granted if Reseller does not incur any
expenditure for such approved advertising and marketing programs
in such quarter;
3. the rebate shall not exceed Reseller's expenditure for such
approved advertising and marketing programs in the quarter for
which the rebate is claimed;
4. within fourteen (14) days after the last day of the quarter for
which the rebate is claimed, Reseller shall submit to Gateway:-
i. a list of such approved advertising and marketing programs
implemented in that quarter together with evidence
satisfactory to Gateway of the actual implementation of such
programs in the manner as approved by Gateway; and
ii. invoices or other documentary evidence satisfactory to
Gateway verifying the expenditure for such approved
advertising and marketing programs; and
5. the rebate shall be credited in arrears against Reseller's
purchases of Gateway Products in the quarter following such
quarter for which the rebate is claimed.
C. Reseller shall not be entitled to any rebates that Gateway receives,
including rebates from original equipment manufacturers, unless
otherwise agreed between Gateway and Reseller.
3.4 Bid Response Assistance. Gateway shall promptly answer any questions
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about Gateway Products that Reseller may submit to Gateway in connection
with proposed customer tenders or contemplated sales.
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3.5 Training and Conferences. Gateway may from time to time:
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A. undertake to sponsor or conduct training conferences; Gateway shall
not charge any training fees for such conferences but Reseller shall
be solely responsible for payment of all of its costs and expenses of
participation, including travel, food and lodging;
B. identify and recommend third-party training courses that may benefit
Reseller's sales and service personnel. Reseller shall be responsible
for all costs and expenses related to such courses; and
C. exercise its best efforts to provide training and related materials
relating to the Gateway Products within thirty (30) days prior to the
release of the Gateway Products in the Territory.
3.6 Customer Technical Support and Warranty Service. Gateway shall
-----------------------------------------------------
provide, directly or through third party service providers, after-sales:
A. technical and warranty support on Gateway's terms and conditions as
Gateway may determine from time to time; and
B. call center services for technical support for Gateway Products to the
ultimate end-users
Reseller acknowledges that Gateway has appointed or will be appointing
Unisys (China/Hong Kong) Ltd, Unisys Singapore Pte Ltd and Datacom South
East Asia (M) Sdn. Bhd. to provide the mentioned technical support and
warranty service and agrees that Gateway shall, in its absolute discretion,
be entitled to appoint such other third party service providers, either in
addition to or in replacement of the current mentioned service providers,
to fulfill its obligations under this Section.
SECTION IV: ORDERING AND DELIVERY OF GATEWAY PRODUCTS
4.1 Long-Term Forecasts. Reseller shall provide forecasts of expected
--------------------
purchases of Gateway Products in the Territory in accordance with Exhibit H
or as reasonably required by Gateway from time to time.
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4.2 Ordering and Invoicing Process. Reseller shall place orders for, and
---------------------------------
Gateway shall invoice Reseller for, the Gateway Products in accordance with
the ordering and invoicing process set out in Exhibit E attached hereto.
4.3 Modifications of Orders. Once Gateway has accepted Reseller's order for
-----------------------
Gateway Products, Reseller may defer or cancel the order only with
Gateway's approval and in accordance with any conditions or charges imposed
by Gateway.
4.4 Delivery Terms. Gateway and Reseller shall coordinate to establish the
---------------
most convenient arrangements for Reseller to take delivery of the Gateway
Products from Gateway or its Affiliates free carrier at Gateway's named
place of collection in Malacca ("free carrier" as defined in the ICC
Incoterms 2000).
4.5 Title & Risk of Loss. Title to, as well as risk of damage to or loss
-----------------------
of, the Gateway Products shall pass to Reseller at the time that Reseller
or its carrier or freight forwarder collects the Gateway Products at
Gateway's named place of collection.
4.6 Inspection. Reseller shall inspect all orders of Gateway Products when
----------
taking delivery and inform Gateway immediately of any missing items.
Reseller shall inform Gateway of any Gateway Products which are not
functioning (due to manufacturing fault) within fourteen (14) days of
taking delivery by Reseller. Provided that Reseller has informed Gateway on
a timely basis, Gateway shall, at its cost, provide replacement parts and
service such non-functioning Gateway Products to an "as new" condition.
SECTION V: PRICES AND PAYMENTS
5.1 Reseller's Purchase Price. The prices for Gateway Products offered for
--------------------------
purchase to Reseller shall be the COGS as set forth in the Price List plus
the Xxxxx Xxxx-up. If any taxes, tariffs, fees, custom duties or levies
whatsoever (but excluding taxes on Gateway's income) are required to be
withheld, collected or paid, then Gateway shall add them to the purchase
price payable by Reseller
5.2 Price List for Non-hardware Products. Gateway may, from time to time,
--------------------------------------
provide Reseller with a separate price list for Gateway's non-hardware
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products (including but not limited to training, extended warranty and
service offerings).
5.3 New Price Lists. Gateway may, in its sole discretion, revise the price
----------------
of any Gateway Products or replace the Price List with new price lists as
issued by Gateway from time to time without liability whatsoever, provided
that:
A. If the Gateway Products are ready for Reseller's collection, then the
price on the date of notification for collection shall prevail, and
B. If the Gateway Products are not ready for Resellers' collection, then
(i) in the event of a price reduction, any order accepted by Gateway
prior to the effective date of such price reduction shall be
invoiced at the new prices, and
(ii) in the event of a price increase, any order accepted by Gateway
prior to the effective date of such price increase shall be
invoiced at the old prices; provided, however, that if Reseller
requests taking delivery of Gateway Products more than thirty
(30) days after the effective date of the price increase, then
the new prices shall apply.
5.4 Invoice and Payment Terms. Gateway will invoice Reseller on or after
----------------------------
the date of Reseller's collection of the Gateway Products. The invoice may
be sent by facsimile, and will include all charges, as applicable, relating
to Reseller taking delivery from Gateway's or its Affiliates factory
location as well as any other charges owed by Reseller. Reseller shall pay
the invoice in U.S. dollars or other agreed currency within thirty (30)
days of the date of the invoice.
5.5 Bids.
-----
A. Reseller shall promptly notify and provide details to Gateway of all
government project tenders or any other project tenders requiring a
formal tender, bid or response ("Bid") for the proposed supply of
Gateway Products. Gateway shall be entitled to reject or approve and
at its sole discretion determine the conditions in respect of the
submission of any Bid.
B. The parties agree that all losses and/or profits arising from the
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supply of Gateway Products pursuant to any Bids shall be borne or
shared, as the case may be, equally between Gateway and Reseller.
C. In the event that Reseller fails, neglects or does not proceed with or
waives its right for any reason whatsoever to submit any Bid, Gateway
or its Affiliates shall be entitled to do so, either directly or with
any other third party.
5.6 Sale of non-Gateway products
-------------------------------
A. For the first two quarters following the Effective Date, Reseller
shall pay to Gateway a commission of [redacted] percent ("Commission")
of Reseller's selling price from:
(1) the sale of non-Gateway products, including computer hardware and
software; and
(2) the provision of any computer-related services, including but not
limited to networking services but excluding delivery services;
where such products and services are (a) not supplied to Reseller by
Gateway and (b) sold or provided by Reseller whether with or without
the Gateway Products.
B. Within fourteen (14) days after the last day of each quarter, Reseller
shall submit to Gateway invoices and other documentary evidence
satisfactory to Gateway verifying the sale of the non-Gateway products
and the provision of any computer-related services in such quarter
together with Reseller's calculation of the Commission payable in that
quarter to Gateway for Gateway's confirmation. Reseller shall pay
Gateway the Commission in U.S. dollars or other agreed currency within
fourteen (14) days of Gateway's confirmation of the Commission payable
for such quarter.
C. At least thirty (30) days' prior to the expiry of the second quarter
following the Effective Date, the parties will endeavor to review and
agree in writing to the Commission for the remainder of the Term. In
the absence of such agreement, the Commission shall continue to apply
for the remainder of the Term.
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SECTION VI: RETURNED MERCHANDISE
6.1 Returned Merchandise. Gateway shall not be obligated to accept the
----------------------
return of any products sold to Reseller, except as expressly permitted
under the Merchandising Programs or warranty provisions and then only in
accordance with terms and procedures acceptable to Gateway.
6.2 No Money-Back Guarantee. Notwithstanding any money-back guarantee that
------------------------
Gateway may provide to any of its customers, Reseller shall NOT be entitled
to any type of money-back guarantee from Gateway save as provided for in
Section 2.14.
SECTION VII: ADVERTISING, TRADEMARKS, TRADE NAMES
7.1 Exclusive Ownership of Trademarks and Trade Names. Reseller
-------------------------------------------------------
acknowledges that Gateway and its Affiliates are the sole and exclusive
owners of the Trademarks and the right to use of the Trademarks in
connection with any of the Gateway Products. Reseller acquires no rights to
the Trademarks and Reseller hereby assigns and transfers to Gateway all
rights (other than the license rights granted to Reseller herein) that it
may acquire to the Trademarks, whether by operation of law or otherwise.
Upon termination of this Agreement, all rights of Reseller to use the
Trademarks shall terminate immediately except as otherwise provided herein.
7.2 Grant of License. Gateway hereby grants to Reseller during the
------------------
subsistence of this Agreement the Trademark License. Any use by Reseller of
the Trademarks in the Territory shall be in strict accordance with
Gateway's advertising style guide the terms of which are hereby
acknowledged by Reseller. Gateway shall have all right, title and interest
to all of the Reseller's translation of the Trademarks, except for the
limited right to use granted to Reseller hereunder. Reseller shall treat
the Trademarks distinctively (as to typography) and shall reproduce
Gateway's symbols (including Gateway's monogram) photographically and not
artistically. Reseller shall neither use the names Gateway or Gateway 2000
or any abbreviations thereof in its public title nor permit any customers
or third parties to do so. Reseller shall not take any action inconsistent
with the limited scope of the Trademark License granted to Reseller.
Reseller is granted no right to use any other Gateway trademark, service
xxxx or logo other than what is specifically set forth in Exhibit F,
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without Gateway's prior express written permission. Reseller shall not, at
any time, display Gateway or the Trademarks in a manner that is negative or
detrimental to Gateway.
7.3 Use of the Trademarks. In connection with Reseller's use of the
------------------------
Trademarks on Reseller's web site, Reseller agrees to include the
appropriate trademark attribution language in reasonably close proximity to
its first use of the Trademarks on any screen display, or in a location to
which users are directed for statements concerning the ownership of
intellectual property rights of Reseller. In connection with any other use
of the Trademarks, Reseller agrees to include the appropriate trademark
attribution language in all promotional materials, as more specifically set
forth in Exhibit G attached hereto. Reseller may not use or reproduce the
Trademarks in any manner whatsoever other than as expressly described in
Exhibit G, which Gateway may modify from time to time. In no event shall
Reseller use the Trademarks to imply or give the impression that Reseller
is anything other than an authorized reseller of GatewayTM Products. In
this regard, Reseller is only permitted to use the GATEWAY name and/or
design Trademarks listed in Exhibit F when the term "AUTHORIZED RESELLER"
is used in connection therewith and only in the manner set forth in Exhibit
G.
7.4 Inspection and Compliance Checks. Reseller's use of the Trademarks
-----------------------------------
shall be subject to Gateway's review and approval. Reseller shall submit
proposed uses, including in publications, in advance to Gateway for its
review and approval. Gateway reserves the right to withhold or withdraw
authorization for use of the Trademarks if Gateway determines, in its sole
discretion, that Reseller is not using the Trademarks in a manner
consistent with the terms of this Agreement. Gateway shall respond to
Reseller as soon as practicable following the submission by Reseller to
Gateway of proposed uses under this Section 7.4. Reseller's failure to
immediately (a) cease using and (b) recall or collect, promotional
materials, advertising or Gateway Products improperly displaying the
Trademarks within sixty (60) days of Gateway's notice to do so, will
constitute a material breach of this Agreement and Gateway may terminate
this Agreement for cause as set forth herein.
7.5 License and Hosting of Web Site. Gateway hereby grants to Reseller
-------------------------------------
during the subsistence of this Agreement a non-exclusive and
non-transferable, royalty-free right and license to use Gateway's domain
name and web site (as specified in Exhibit J attached hereto) in accordance
with the terms of this Section VIII and Gateway's web site access
guidelines (as set out in Exhibit K attached hereto) for the limited and
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sole purpose of marketing, sale, promotion and service of the Gateway
Products. Gateway shall host and operate the Gateway web site with the
Reseller being provided with (i) access, (ii) ability to define and manage
the contents therein, (iii) electronic data with interfaces and (iv) links,
all as set out in Exhibit K. Gateway and Reseller shall agree to, or
failing such agreement, Gateway shall determine at its sole discretion a
quarterly hosting charge which will be invoiced to Reseller quarterly in
arrears. Reseller shall pay the invoice for such hosting charges in U.S.
dollars or other agreed currency within thirty (30)days of the date of the
invoice.
7.6 Use of Trademarks in Domain Names. Notwithstanding Sections 7.1, 7.2
-------------------------------------
and 7.3, Reseller is not permitted to register a domain name which
incorporates any of the Trademarks unless Reseller obtains prior written
consent from Gateway and only subject to any conditions Gateway may impose.
If Reseller's domain name is approved by Gateway under this Section:
(a) Reseller's web site shall be linked to, but shall not frame, the
official Gateway web site homepage at the uniform resource locator as
directed by Gateway, or as directed by Gateway, to the relevant brand
web site homepage; and
(b) Reseller agrees to comply with Gateway's guidelines as to the content
and design of the link which will appear on Reseller's web site; and
(c) Reseller's web site must not link, frame, or otherwise associate with
disparaging sites or sites that sell counterfeit or deceptive
products, or sites that sell non-genuine Gateway products; and
(a) Reseller may not engage in conduct or activities, and may not use its
domain name or web site, in a manner that is negative or detrimental
to any of the Trademarks.
7.7 Ownership of domain names. All Reseller domain names validly registered
--------------------------
under Section 7.6 that incorporate any of the Trademarks must be owned by
Gateway or its Affiliate and registered in the name of Gateway or its
Affiliate as Gateway may direct. If Reseller registers a domain name that
incorporates any of the Trademarks in accordance with this Agreement,
Reseller agrees to register the domain name in the name of Gateway or any
of its Affiliate as directed by Gateway. If Reseller registers a domain
name that incorporates any of the Trademarks in violation of this
Agreement, Reseller agrees to immediately transfer the domain name to
Gateway or any of its Affiliate as directed by Gateway upon written notice
from Gateway. Upon termination, expiry or non-renewal of this Agreement,
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Reseller shall not use and/or register any domain name which incorporates
or, in Gateway's sole discretion, is confusingly similar to any of the
Trademarks.
7.8 Reseller's Covenants. In addition and not in derogation of the other
----------------------
provisions of this Agreement, Reseller agrees, during the subsistence of
this Agreement and after the termination hereof:
1. not to take any action which will interfere with or prejudice any of
Gateway's or its Affiliates' rights in and to the Trademarks;
2. not to challenge Gateway's or its Affiliates' right, title or interest
in and to the Trademarks or the benefits therefrom;
3. not to make any claim or take any action adverse to Gateway's or its
Affiliates' ownership of the Trademarks;
4. not to register or apply for registrations, anywhere, for the
Trademarks or any other xxxx which is similar to the Trademarks or
which incorporates the Trademarks;
5. not to use any trademark, trade names, service xxxx or product name,
anywhere, which is confusingly similar to the Trademarks;
6. not to use other trademarks, trade names, service xxxx, product name,
slogans or designs together with the Trademarks or products that bear
the Trademarks;
7. not to use the Trademarks in relation to products not manufactured by
Gateway or for services related to non-Gateway products;
8. that should Gateway request, Reseller will furnish all necessary
evidence and sign all documents, including assignments, that may be
necessary for Gateway or its Affiliates to secure and maintain
ownership in the Trademarks;
9. not to do or permit to be done any act which would or might jeopardize
or invalidate any registration of the Trademarks; and
10. to assist Gateway, to the extent necessary in the procurement and/or
expansion of any protection of the Trademarks, including trademark and
domain name registration, and Reseller agrees to execute all documents
Gateway deems reasonably necessary to procure such protection in
Gateway's or its Affiliates name. Gateway shall reimburse Reseller for
its reasonable expenses in assisting Gateway pursuant to the
provisions of this paragraph.
7.9 Registration. If any trademark application, trademark registration or
-------------
domain name registration, has been filed or obtained in any country by
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Reseller which relates to any name or xxxx which, in the sole opinion of
Gateway, is identical, similar, deceptive or misleading with respect to the
Trademarks or any other xxxx, design or trade dress of Gateway, Reseller
shall immediately abandon and/or cancel any such application, registration
or domain name or, at Gateway's sole discretion, assign it to Gateway.
Following notification and request from Gateway, Reseller shall have twenty
(20) days to execute and file with the proper authorities all documents
necessary for the cancellation, transfer and/or assignment of any trademark
application, trademark registration or domain name, as Gateway may direct.
Should Reseller not execute and file the appropriate cancellation, transfer
and/or assignment documents within the aforementioned time period, Gateway
may, in its sole discretion, as hereby expressly authorized by Reseller,
execute and file all appropriate documents to effectuate the cancellation,
transfer and/or assignment of any trademark application, trademark
registration or domain name held by Reseller. Reseller shall reimburse
Gateway for all the costs and expenses of any opposition, cancellation or
related legal proceedings, including legal fees (on a indemnity basis) and
expenses, instigated by Gateway or its authorized representative, in
connection with the cancellation, transfer and/or assignment of any such
registration, application or domain name.
7.10 Protection of the Trademarks. Reseller agrees to notify Gateway as
-------------------------------
soon as practicable but in any event within ten (10) days if Reseller
becomes aware of:
1. any uses of, or any application or registration for, a trademark,
service xxxx or trade name that is identical to, conflicts with or is
confusingly similar to the Trademarks;
2. any acts of infringement or unfair competition involving the
Trademarks; or
3. any allegations or claims whether or not made in a lawsuit, that the
use of the Trademarks by Gateway or Reseller infringes the trademark
or service xxxx or other rights of any other entity.
7.10.1 Gateway may, but shall not be required to, take whatever action it, in
its sole discretion, deems necessary or desirable to protect the validity
and strength of the Trademarks at Gateway's sole expense. Reseller, at
Gateway's cost, agrees to comply with all reasonable requests from Gateway
for assistance in connection with any action with respect to the Trademarks
or to renew the registration of the Trademarks, including but not limited
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to the furnishing of evidence of use as well as any and all documents that
may be required by law to either prove the effective use of the Trademarks.
7.10.2 Reseller shall not institute or settle any claims or litigation affecting
any rights in and to the Trademarks without Gateway's prior written
approval.
7.11 Warranties; Limitation of Liability. Gateway makes no warranties of any
-----------------------------------
kind respecting the Trademarks, including the validity of Gateway's or its
Affiliates' rights in the Trademarks in any country, and disclaims any and
all warranties that might otherwise be implied by applicable law, including
warranties against infringement of third-party marks and similar rights. In
no event shall Gateway be liable for any damages (including, without
limitation, economic loss or loss of profits, revenue or goodwill or any
other commercial damage) arising from or related to Reseller's use of the
Trademarks, even if Gateway has been advised of the possibility of such
damages.
7.12 Assignability. The Trademark License contained therein shall be
--------------
binding upon the successors and assigns of both parties. Reseller shall not
assign, sublicense, make available or otherwise transfer or disclose any
right to use, develop or otherwise enjoy any of the Trademarks without the
prior written consent of Gateway.
7.13 Governmental Licenses, Permits and Approvals. Reseller will cooperate
---------------------------------------------
with Gateway in obtaining and maintaining all licenses, permits and
approvals which are required by all appropriate governmental authorities,
with respect to this Agreement and the Trademark License contained therein.
In this regard, Reseller, at Gateway's reasonable request and at Gateway's
cost, shall execute any documents, including, but not limited to, a
trademark license agreement, application to register a trademark licensee
and/or application to register a registered user of a registered trademark,
as the case may be, in order to comply with any requirements of such
governmental authorities for the registration or recording of this
Agreement or the Trademark License contained therein. The recording of such
documents shall only be conducted by Gateway.
SECTION VIII: PATENTS & COPYRIGHTS
8.1 Indemnity. In respect of any action brought against Reseller that is
---------
based on a claim that Gateway Products infringe any duly-issued patent
26
right or copyright, Gateway's only liability to Reseller shall be limited
at Gateway's option, to any one of the following:
A. procuring for Reseller the right to use such Gateway Product free of
any infringement liability;
B. replacing such Gateway Products with a non-infringing substitute; or
C. accepting Reseller's return of the infringing Gateway Products in
exchange for a refund of the purchase price paid to Gateway by
Reseller, as prorated at Gateway's discretion for the period of use
since taking delivery by Reseller.
8.2 Scope. Gateway's liability under Section 8.1 arises only if:
------
A. Reseller promptly notifies Gateway of the claim;
B. Reseller furnishes Gateway all documents relating to the claim;
C. Reseller gives Gateway authority, information and assistance (at
Gateway's expense) necessary to defend or settle the claim; and
D. the infringement does not arise out of
(i) unauthorized use of Gateway Products;
(ii) post-delivery modifications to Gateway Products are not in
accordance with Gateway's terms and conditions or using
non-Gateway supplied hardware, programs or data;
(iii) the combination, operation or use of Gateway Products with
non-Gateway supplied hardware, programs, data or specifications
if a different combination would avoid the infringement; or
(iv) specifications furnished by Reseller.
SECTION 8.1 IS GATEWAY'S SOLE LIABILITY AND RESELLER'S SOLE REMEDY FOR
INFRINGEMENT OF PATENTS OR COPYRIGHTS.
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8.3 Reseller's Specifications. Notwithstanding the provisions in Sections
---------------------------
8.1 and 8.2, to the extent that Gateway manufactures the Gateway Products
to specifications of Reseller that require Gateway to provide hardware
and/or software not within Gateway's standard specifications, Reseller
shall indemnify Gateway against any liability for patent or copyright
infringement.
SECTION IX: SOFTWARE
9.1 Software. Gateway Products include Programs that are proprietary
--------
software of Gateway and its Affiliates or are licensed by Gateway or its
Affiliates from third-party licensors of the Programs. Gateway or its
Affiliates have the right to permit it to market and distribute the
Programs as components of Gateway Products and to grant the rights
hereunder with respect to the Programs. Title to the Programs shall at all
times remain with Gateway and/or its Affiliates and/or the licensors of the
Programs, and Reseller has no rights to transfer the Programs, except as
set forth herein. In particular, Reseller shall strictly abide by any and
all requirements imposed by licensors of the Programs, as such requirements
have been conveyed to Reseller.
9.2 Distribution Rights. Gateway hereby grants to Reseller a non-exclusive,
-------------------
non-transferable right to distribute copies of the Programs only as
components of Gateway Products within the Territory during the subsistence
of this Agreement. "Distribute" as used in this Section IX shall mean the
right of Reseller to transfer to end-users the copies of the Programs
obtained pursuant to this Agreement. This grant of distribution rights is
subject to the terms and conditions of this Section IX, including the use
license described in Section 9.3 and the following:
A. Reseller shall not copy, reproduce, modify, reverse engineer,
disassemble, or de-compile the Programs or any materials related
thereto in any way. Reseller shall promptly notify Gateway of any
unauthorized use or copying of the Programs by any person or entity.
Reseller agrees to take, at its own expense but at Gateway's option
and under Gateway's control and direction, legal action to prevent or
stop the unauthorized use or copying of the Programs by any person or
entity who or which has obtained the Programs due, in substantial
part, to Reseller's fault or negligence.
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B. Reseller shall not transfer the Programs except as expressly provided
herein or in any of the Program's end-user pre-packaged license
agreement. Reseller shall sell or lease the Gateway Products with the
Program packages as integral parts thereof. Reseller shall not open
the Program packages or the end-user license agreement packets, and
shall not separate such Program packages (including documentation and
end-user license agreement) from the Gateway Products. Reseller has no
right to, and shall not, unbundle, sub-license, rent, sell or
otherwise transfer any Program separate from the Gateway Products with
which Reseller received the Program.
C. If Reseller uses any Program for demonstration purposes, it shall not
copy, reproduce or transfer such Program and shall abide by the terms
of the end-user pre-packaged license agreement contained in the
Program package.
D. Reseller shall agree to and abide by all terms and conditions imposed
by the licensor of the Programs (whether it be Gateway, its Affiliates
or third party software vendors).
E. For each Gateway Product that includes one or more Programs licensed
by Microsoft Corporation or any affiliate thereof (a "Microsoft
Program"), Reseller shall deliver to its end users the Certificate of
Authenticity, end-user manuals, recovery media and other materials
related to such Microsoft Programs. Reseller shall deliver such
materials in the packaging for the Gateway Product. Reseller shall not
quote a separate price for any Microsoft Program provided by Gateway
as a component of a Gateway Product.
F. Reseller shall provide to purchasers prior to purchase a clear and
conspicuous notice of any Program restrictions or use limitations
identified to Reseller by Gateway, its Affiliates or third party
software licensors.
G. Reseller shall institute reasonable procedures to ensure that its
employees, sub-distributors, resellers or agents comply with the
obligations set forth in this Section IX.
H. Reseller's rights under this Section IX, including its rights to
distribute and to pass on to end-users licenses to use, will
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automatically and immediately terminate upon the expiry or termination
of this Agreement in accordance with the termination provisions set
forth in Section XI.
9.3 Use License. Reseller shall pass on to end-users of each Gateway
------------
Product a license to use the Programs. The use license to be passed on to
Reseller's end-users shall be a "break-the-seal" end-user license agreement
contained in the Programs' packages. In addition, in all cases where the
Programs have been pre-loaded on the Gateway Products, the package
containing the keyboard shall bear a notice to the end-user that the
Programs have been pre-loaded and that by switching on the Gateway
Products, the end-user accepts the terms and conditions of the end-user
license agreement included in the package containing the Gateway Products.
Reseller shall be responsible for ensuring that its end-users agree to
abide by the terms of the end-user licenses contained in the Programs'
packages.
9.4 Effect of Reseller's Contracts. Neither Gateway nor Gateway's licensors
------------------------------
of the Programs shall assume or become bound to perform any warranty (other
than the Gateway Warranty), support obligations or other contractual
obligation of Reseller to any customers of Reseller.
9.5 Compliance with Import Regulations. Reseller agrees to comply with any
------------------------------------
import regulations and registration requirements in the Territory, as well
as any applicable United States regulations, licensing or other
requirements, with respect to the Programs.
9.6 Disclaimer of Warranties and Limitation of Liability. EXCEPT FOR THE
-------------------------------------------------------
EXPRESS WARRANTIES STATED IN THIS AGREEMENT OR IN ANY END USERS
PRE-PACKAGED LICENSE AGREEMENT WHICH IS A COMPONENT OF THE GATEWAY
PRODUCTS, GATEWAY (ON ITS BEHALF AND ON BEHALF OF THE LICENSORS OF THE
PROGRAMS) DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER
EXPRESS OR IMPLIED, WITH REGARD TO THE PROGRAMS, INCLUDING ALL IMPLIED
CONDITIONS OR WARRANTIES OF SATISFACTORY QUALITY AND FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO DEFECTS IN THE DISKETTE OR OTHER
PHYSICAL MEDIA AND DOCUMENTATION, OPERATION OF THE PROGRAMS AND ANY
PARTICULAR APPLICATION OR USE OF THE PROGRAMS, AND ANY IMPLIED WARRANTIES
OF TITLE OR NON-INFRINGEMENT. IN NO WAY SHALL GATEWAY (OR ITS LICENSORS) BE
LIABLE FOR ANY LOSS OF PROFIT, REVENUE OR GOODWILL OR ANY OTHER COMMERCIAL
DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES.
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SECTION X: TERM
10.1 Term. This Agreement shall be deemed to have come into force on the
-----
Effective Date and shall subsist for an initial period of two (2) years
("Term") subject to earlier termination in accordance with the terms
hereof.
10.2 Renewals.
---------
A. This Agreement may be renewed for successive periods of one (1) year
or such period as the parties may agree ("Renewal Term").
B. If the parties intimate an intention to renew this Agreement, the
parties shall, by the expiry of the Term, sign a written agreement
confirming renewal and the terms thereof, including the Minimum
Purchase Quantity for the Renewal Term based on the parties' forecast
of purchase for the Renewal Term.
SECTION XI: TERMINATION
11.1 Termination For Cause. Notwithstanding the provisions in Section 10,
-----------------------
this Agreement may be terminated for cause as follows:
A. By either party upon thirty (30) days' written notice to the other
party if the other party commits a material breach of the Agreement
and fails to cure the breach within the thirty (30) day period. By way
of example, but not limitation, material breaches include violations
described in Sections 1.3, 2.3, 2.5, 5.4, 5.6, 7.4, 7.5, 7.8 and IX.
B. Automatically if Reseller files for or has instituted against it any
proceedings as to its bankruptcy, insolvency, reorganization, judicial
management, receivership, liquidation or dissolution or there is an
assignment for the benefit of creditors or there is granted against
the Reseller a writ of seizure and sale.
C. By Gateway upon thirty (30) days written notice if (i) commencing from
January 1, 2002, Reseller fails to meet the Minimum Purchase Quantity
for any three (3) consecutive quarters during the Term; (ii) Reseller
fails to meet the Minimum Purchase Quantity for any of the First Year
or Second Year; (iii) Reseller fails to comply with the Notification
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pursuant to Section 2.7(B), subject to the proviso set forth in
Section 2.7(B); (iv) Reseller becomes generally ineligible to obtain
or receive approval for any license or export/import documents as are
necessary to buy and resell Gateway Products; (v) Reseller registers
or attempts to register this Agreement with any government conferring
upon Reseller any exclusivity whatsoever; (vi) Reseller assigns this
Agreement to any other party without the prior written consent of
Gateway; (vii) if control of Reseller is transferred to any person(s)
other than such person(s) who are in control of Reseller on the
Effective Date (other than as permitted under Section 19.5(B) of this
Agreement); (viii) if there is any other substantial change in the
ownership of Reseller; or (ix) Reseller notifies Gateway of a legal
impediment under Section XVIII.
11.2 Effect of Termination.
-----------------------
A. Upon termination of this Agreement, Gateway may, at its sole option,
determine not to supply Gateway Products pursuant to any or all
unfulfilled orders. Upon termination for cause pursuant to Section
11.1, Gateway reserves the right, at its option, to repurchase, at the
prices in the Price List, any unsold new and unused Gateway Products
from Reseller. Reseller shall cooperate in such repurchase and bear
any transportation and related charges.
B. Upon termination of this Agreement, Reseller shall (i) discontinue
immediately all marketing, promotion, advertising or reference to
Gateway Products and Reseller shall have no further rights to the use
of Gateway's marketing, promotion or advertising materials or other
resources, or the Trademarks and (ii) cease using, directly or
indirectly, any of the Trademarks and not use any other marks that may
resemble the Trademarks or are likely to cause confusion or mislead
consumers. Any failure of Reseller to abide by this provision shall
entitle Gateway to bring appropriate legal action, including
injunctive action, and Reseller shall be responsible for all costs,
legal fees (on an indemnity basis) and expenses, and other expenses
incurred by Gateway to cause Reseller to comply with this obligation
and the obligations in Sections VII and XI.
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C. Upon termination of this Agreement, Gateway shall be wholly discharged
and released of any and all obligations or liability under this
Agreement, except as expressly accepted by Gateway (i) relating to
unfulfilled orders and notified to Reseller in writing after the
termination and (ii) under Section 2.11. Neither Gateway nor Reseller
shall be liable to the other, solely because of the termination of
this Agreement, for compensation, reimbursement, or damages due to the
loss of prospective profits or anticipated sales, or due to
expenditures, investment, leases, or commitments in connection with
the business or goodwill of Gateway or Reseller, or for any other
reason whatsoever except otherwise provided in this Agreement.
Reseller shall remain liable, however, for any obligations for unpaid
balances for Gateway Products and for damages arising directly or
indirectly from any breach of this Agreement.
D. The provisions of Sections 2.6(B), 2.6(C), 7.1, 7.8, 7.9, 7.10,
7.10.1, 7.10.2, 7.11, 7.12, 7.13, 9.5, 9.6, 11.3, XII, XIII, XIV, XV,
XVIII, 19.1, 19.2, 19.3, 19.4, 19.6 and 19.7 shall survive any
termination or expiration of this Agreement.
SECTION XII: CONFIDENTIALITY
12.1 Confidential Information. In negotiating and implementing this
-------------------------
Agreement, each party ("Disclosing Party") may transmit to the other party
("Receiving Party") certain proprietary and confidential information
regarding Gateway Products, maintenance services, marketing strategy and
industry analysis. Receiving Party agrees that, for the subsistence of this
Agreement and a period of three (3) years after expiration or termination
of this Agreement, it shall not disclose any information it receives from
Disclosing Party that is marked either CONFIDENTIAL, PROPRIETARY, STRICTLY
PRIVATE, or INTERNAL DATA or any of Disclosing Party's oral and visual
presentations describing Gateway Products and plans, any business and/or
product plans that are undergoing development, and any inspections thereof
by Receiving Party or its personnel (collectively "Confidential
Information") to any other third party, person, corporation or entity; nor
shall Receiving Party use Confidential Information for its own benefit,
except as provided herein. Any reliance on Confidential Information
disclosed hereunder is at Receiving Party's own risk. Nothing contained in
this Section XII shall grant or imply any rights by license, estoppel or
otherwise. Confidential Information as used herein does not include
information which: (i) is in the public domain at the time of its
disclosure or which enters the public domain at any time after such
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disclosure through no fault of Receiving Party, (ii) is generally disclosed
to third parties by Disclosing Party without restriction, (iii) is
communicated to Receiving Party by a third party having a right to do so
without restriction on nondisclosure, or (iv) is approved for release by
written authorization of Disclosing Party.
12.2 Future Plans. Each of Gateway and Reseller makes no commitment about
--------------
its future products or plans regardless of whether such information has
been communicated to the other. Each of Gateway and Reseller reserves the
right to cancel or alter the development of any such plans and/or the
marketing of such product(s) at any time.
12.3 Reseller's Undertakings.
-------------------------
A. Receiving Party agrees not to disclose Confidential Information given
to it by Disclosing Party to any of its officers, employees or agents
or any third party except as necessary for Receiving Party to perform
its obligation under this Agreement and only if Receiving Party
procures similar undertakings of non-disclosure of Confidential
Information from such persons or parties.
B. Receiving Party shall exercise the same degree of care to safeguard
the confidentiality of such Confidential Information as it would
exercise in protecting the confidentiality or similar property of its
own (but in no event less than is standard in the industry).
C. Receiving Party agrees to use its diligent efforts to prevent
inadvertent or unauthorized disclosure, publication or dissemination
of any Confidential Information. Without prejudice to its rights under
this Agreement and at law and in equity, Receiving Party shall
promptly notify Disclosing Party of any actual or suspected
unauthorized use or disclosure of Confidential Information and will
cooperate with Disclosing Party in the investigation and prosecution
of such unauthorized use, disclosure or infringement.
12.4 Injunction and other relief. Reseller agrees that if it breaches these
-----------------------------
non-disclosure covenants, Gateway may suffer irreparable injury and shall
be entitled immediately to a temporary or permanent injunction in addition
to the other remedies against the Reseller for such breach of the
covenants.
12.5 Public Release of Information. Each party shall obtain the prior
---------------------------------
written approval of the other regarding the content and timing of all news
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releases and promotional material mentioning this Agreement or the rights
or obligations created thereby. Each party agrees to supply such material
to the other reasonably in advance of the intended release date.
SECTION XIII: EXPORT CONTROLS
13.1 Laws of the United States and the Territory. Reseller agrees to comply
-----------------------------------------------
with export laws and regulations of the Governments of the United States,
the country where the Gateway Products are manufactured (Ireland, Malaysia,
or other location, as applicable) and the Territory that may apply to
Gateway Products, and to obtain any licenses required for export or
re-export.
13.2 Products of U.S.-Origin Technical Data. Reseller may only sell Gateway
--------------------------------------
Products within the Territory. Reseller agrees not to re-export any Gateway
Products, including Programs, or any direct products thereof without first
obtaining Gateway's approval and, if required, the permission of the U.S.
Departments of Commerce or State, either in writing or as provided by any
applicable regulation. This requirement shall survive the termination or
expiration of this Agreement. Reseller further agrees not to transact
business with any person or firm identified by the U.S. Departments of
Commerce or Treasury as being denied the right to receive any U.S. product.
SECTION XIV: LIMITATION OF LIABILITY AND REMEDIES; INDEMNITY
14.1 Liability for Termination. Each party acknowledges that it has
---------------------------
considered all costs and expenses necessary in preparing to perform this
Agreement as well as the possible losses and damage incident to
termination. Neither party shall be liable to the other, by reason of the
termination of this Agreement, for incidental, indirect, consequential,
punitive, or special damages, or for indemnity, compensation in any form
(except for Gateway Products ordered and supplied), reimbursement or
damages due to the loss of prospective profits or anticipated sales or
revenue or due to expenditures, investment, leases, or commitments in
connection with its business or goodwill.
14.2 Limitation of Liability; Sole Remedy. Except as provided in Section
---------------------------------------
2.11(A), in which case no limitation on liability shall be applicable, any
liability of Gateway under this Agreement is expressly limited to the price
paid by Reseller for the Gateway Products that are the subject of a dispute
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or controversy. Except as otherwise provided in Section VIII, Reseller's
sole remedy against Gateway in any dispute or controversy concerning this
Agreement shall be to seek recovery of the foregoing amount, upon the
payment of which Gateway shall be released from and discharged of all
further obligations and liability to Reseller. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR SPECIAL, EXEMPLARY, CONSEQUENTIAL,
INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF
ANTICIPATED PROFITS OR ECONOMIC LOSS, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
14.3 Indemnity. Notwithstanding the provisions in Sections 14.1 and 14.2,
---------
Reseller agrees to indemnify and hold harmless Gateway as to and against
any and all demands, claims, actions or causes of action, losses, damages,
liabilities, costs and expenses, including, without limitation, judgments,
interest, penalties, settlement amounts, court costs and legal costs (on an
indemnity basis) and expenses, asserted against, imposed upon or incurred
by Gateway arising out of or relating to (i) any misrepresentation, or any
breach of warranty or covenant, or any term of this Agreement by Reseller,
and (ii) any actual or alleged act or omission of Reseller related to its
performance of its obligations hereunder.
SECTION XV: WARRANTIES AND REPRESENTATIONS
15.1 Warranties. The Products are covered under the warranties in effect at
----------
the time the Products are delivered and shall be provided at the time.
Gateway reserves the right to modify its warranties from time to time, in
Gateway's sole discretion. Gateway will provide warranty support on Gateway
Products to Reseller's customers in accordance with Gateway's standard
warranty and support policies, subject to the terms and conditions of this
Agreement. The warranty period of the Gateway Products commences upon
Reseller's customers taking delivery of the Gateway Products, and is not
extended as a result of purchasing any additional parts or products.
Reseller must, and Reseller shall procure its customers to, promptly notify
Gateway if there is a defect in material or workmanship or if Reseller
makes any additions or changes to Gateway Products. Written notice of any
warranty claim must be received by Gateway before expiration of the
warranty period. The Gateway Warranty is not transferable except with the
prior written consent of Gateway at its sole discretion.
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15.2 DISCLAIMER. THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE THE ONLY
----------
WARRANTIES APPLICABLE TO THE PRODUCTS. ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER
CONDITION OR WARRANTY OBLIGATION ON THE PART OF GATEWAY OR ITS LICENSORS
ARE HEREBY EXPRESSLY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION, OR ADVICE
GIVEN BY GATEWAY, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY
WAY CHANGE OR INCREASE THE SCOPE OF THE WARRANTIES CONTAINED IN THIS
AGREEMENT. UNDER NO CIRCUMSTANCES SHALL GATEWAY OR ITS SUPPLIERS/LICENSORS
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES BASED UPON
BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR
ANY OTHER LEGAL THEORY. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS
OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCT OR
ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR
REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, CLAIMS OF THIRD
PARTIES AND INJURY TO PROPERTY.
15.4 Sole Remedy. Reseller's sole remedy and Gateway's liability, whether
------------
with respect to this warranty or otherwise, are limited as set forth in
Sections IX and XIV.
15.5 End-User Warranty. Reseller shall be obligated to provide to its
------------------
customers of Gateway Products only the Gateway Warranty the scope of which
shall be consistent with Gateway's limited warranty with respect to various
types of Gateway Products. Gateway's warranty policies and Gateway Product
warranties will be provided to Reseller's customers with the Gateway
Products.
15.6 No Representations. In providing warranties to third-parties including
------------------
end-users, Reseller shall make no representation, guarantee or warranty on
behalf of Gateway or its licensors to any third party, including end-users.
Any warranty (and warranty service) to third parties, including end-users,
shall be the responsibility of Gateway. Neither Gateway nor Gateway's
licensors shall assume or become bound to perform any warranty, support
obligations or other contractual obligation undertaken by Reseller to any
of its customers.
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SECTION XVI: BUSINESS STANDARDS
16.1 Conflicts of Interest. Reseller warrants and represents that it has
-----------------------
revealed all information pertaining to possible conflicts of interest
created by sale of competing products or services or arising from other
positions or contracts held by Reseller and further warrants and represents
that no conflict of interest exists. Reseller shall disclose to Gateway any
future circumstances which could create possible conflicts of interest as
soon as they become known by it. Reseller shall inform Gateway of any
business relationship, circumstance or situation which could prejudice in
any way the conduct of Gateway marketing activities according to the
highest ethical and business standards or place Reseller or Gateway in any
disreputable or embarrassing situation.
16.2 Ethical Standards. Directors, officers or employees of Reseller shall
------------------
not, directly or indirectly, offer, promise or pay any bribes or other
improper payments for the purposes of promoting Gateway Product sales to
any individual, corporation, government official or agency, or other
entity. No gift, benefit or contribution in any way related to Gateway or
the sale of Gateway Products shall be made to political or public officials
or candidates for public office or to political organizations, regardless
of whether such contributions are permitted by local laws.
SECTION XVII: FORCE MAJEURE
17.1 Force Majeure Events. Should Gateway or Reseller be delayed or
----------------------
rendered unable to perform its obligations, wholly or in part, by an event
of force majeure, it shall give the other party notice of such event and
performance shall be suspended while the effects of the force majeure event
are continuing. The party claiming force majeure shall diligently seek to
overcome such event of force majeure. Neither Gateway nor Reseller shall be
responsible for any delay or failure to perform due to an event of force
majeure. Events of force majeure shall include (a) Fire, explosion, frost,
earthquake, storm, lightning, tide, tidal wave, floods or perils of the
sea, or acts of God; (b) War, revolution, acts of public enemies or of
belligerence, sabotage, blockade or transportation embargoes, insurrection
or riot; (c) Labor disputes, strikes, labor shortages or other labor
problems (other than at Gateway, where Gateway is claiming force majeure,
or at Reseller, where Reseller is claiming force majeure) or Gateway's
major suppliers of parts and components and sub-assemblies; (d) Shortage of
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or an inability of Gateway or Gateway's suppliers to obtain raw materials,
production equipment and machinery, sub-assemblies, parts and components;
(e) Expropriation, requisition, confiscation, interference by or
restrictions or onerous regulation imposed by civil or military
authorities; (f) Other acts of government or agencies of government,
including denials or onerous restrictions on export licenses or re-export
authorizations; and (g) Other causes or events, similar to those above,
beyond Gateway's control. Reseller acknowledges and understands that the
computer industry, including Gateway and its suppliers, is subject to
frequent changes or enhancements in products and their sub-assemblies,
parts and components. Reseller acknowledges that Gateway shall be entitled
to claim force majeure as a result of any such change, enhancement or
similar occurrence, whether it affects Gateway directly or indirectly
through its supplier(s).
SECTION XVIII: GOVERNMENT APPROVALS AND OTHER
LEGAL RESTRICTIONS
18.1 Governmental Approvals. Reseller shall be responsible for any and all
-----------------------
regulatory requirements permitting it to act as a vendor or reseller of
Gateway Products Reseller represents and warrants that it has fully
informed Gateway in writing of any provisions of the law of the Territory
that would render any rights provided to Gateway under this Agreement
invalid or unenforceable, render any limitations of liability under this
Agreement ineffective, treat Reseller as an agent or employee of Gateway
and not as an independent contractor, grant Reseller any exclusive rights
not granted by this Agreement, make the choice of law in this Agreement
ineffective, or otherwise be inconsistent with any of the terms of this
Agreement, and that no such legal impediment exists. Reseller further
agrees that it shall notify Gateway of any such legal impediment, if any
arises, not previously disclosed to Gateway. Upon any such notification,
this Agreement may be terminated by Gateway pursuant to Section 11.1.
Failure of Reseller to provide any such notice shall constitute a material
breach of this Agreement entitling Gateway to terminate this Agreement
pursuant to Section 11.1(A).
SECTION XIX: GENERAL PROVISIONS
19.1 Relationship of Parties. The relationship between Gateway and Reseller
-----------------------
under this Agreement is that of seller and buyer with the right to resell.
The parties affirm that this Agreement is an arms-length relationship, and
nothing herein creates a partnership, joint venture or any form of profit
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or loss sharing. Reseller is not entitled to receive commissions from
Gateway, but is authorized to resell Gateway Products in its own name.
Reseller is an INDEPENDENT CONTRACTOR and is in no way Gateway's legal
representative, or agent. Reseller, its sub-distributors, resellers,
agents, employees, and dealers, under no circumstances shall be deemed to
be agents or representatives of Gateway, nor shall Reseller, its
sub-distributors, resellers, agents, employees, and dealers, have the right
to enter into any contracts or commitments in the name of Gateway, make any
representations on behalf of Gateway or Gateway Products (except as
specifically authorized) or otherwise to bind or commit Gateway. Reseller
has no authority to assume or create any obligation on Gateway's behalf,
express or implied, with respect to Gateway Products or otherwise.
19.2 Governing Language. This Agreement is in the English language only,
-------------------
which shall be controlling in all respects. No translation, if any, of this
Agreement into any other language shall be of any force or effect in the
interpretation of this Agreement or in a determination of the intent of
either party hereto.
19.3 Severability. If any provision of this Agreement shall be declared
------------
void, invalid, or illegal, the validity or legality of any other provisions
and of the entire Agreement shall not be affected thereby. However, the
parties agree that if any such provision shall be declared void, invalid,
or illegal, the parties will, in good faith, negotiate mutually acceptable
substitute provisions.
19.4 Notices. Any notice, request, consent and other communication required
-------
or permitted under this Agreement shall be in writing and shall be deemed
to have been duly given (a) when received if personally delivered or
delivered by hand, (b) within five (5) days after being sent by registered
mail, return receipt requested, postage prepaid, to the parties (and to the
persons to whom copies shall be sent), (c) when a confirmation of proper
transmission has been printed if sent by fax or telegram (but only if
followed up by prompt confirmation by personal delivery or mail in
accordance with the foregoing Sections), (d) within one (1) day after being
sent by overnight courier or (d) upon confirmation that the electronic mail
has been successfully sent if sent by electronic mail (but only if followed
up by prompt confirmation by personal delivery or mail in accordance with
the foregoing Sections), at the respective addresses, fax numbers or
electronic mail addresses of the parties set forth below or such contact
details as may be notified to the other party from time to time:
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If to Gateway: If to Reseller:
Gateway Manufacturing Inc. XxxXxx000.xxx Ltd
x/x Xxxxxxx Xxxxxxxxx Pte Ltd x/x XxxXxx000 Xxxx Xxxx Limited
000, Xxxxx Xxxx Xxxx 000 XXX Xxxxxx
#00-00 Xxxxxxx Xxxx 000Xxxxxxxxxx Xxxx
Xxxxxxxxx 000000 Wanchai, Hong Kong
Attention: Director of Sales Attention: Vice President,
and Marketing Distribution Services
Facsimile No: (00) 000 0000 Facsimile No: (000) 0000-0000
E-mail: Xxxxx.Xxxxxxx@xxxxxxx.xxx E -mail: Xxxx_Xxxxxxxxx@xxxxxx000.xxx
With a copy to:
Xxxxxxx
Xx-Xxxx Xxxxxx 0X Xxxxxxxx Xxxxxxxx Xxxx
000 Xxxxx-xxx
Xxxxxxxx-Xx, Xxxxxxxx,
Xxxxxxxx 000-0000, Xxxxx
Attention: Group Counsel, Asia Pacific
Facsimile No: (00) 00 000 0000
E-mail: XxxxxXxx@xx0x.xx.xx
19.5 Assignability.
-------------
A. Save as provided in this Section, this Agreement shall not be assigned
or transferred by Reseller without the prior written consent of
Gateway. Any attempted assignment or transfer by Reseller without such
written consent of any of the rights, duties, or obligations of this
Agreement shall be void and of no effect. If consent is given, this
Agreement shall be binding upon and inure to the benefit of the
assigns. Reseller also acknowledges that Gateway has entered into this
Agreement on the basis of the experience of the current shareholders
and management of Reseller. Any substantial change in control of
Reseller, whether of its stock ownership or management control, shall
constitute a transfer or assignment within the meaning of this
Section.
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B. The parties acknowledge that the Reseller and the Reseller's group of
companies are in the process of being acquired ("Reseller
Acquisition") by a third party, Vsource Inc. ("Vsource"). The parties
agree that upon the completion of the Reseller Acquisition in
accordance with the terms thereof, Reseller may novate this Agreement
to Vsource or Vsource's designated Affiliate, as the case may be. If
Reseller elects to novate this Agreement to Vsource or a Vsource
Affiliate, Reseller undertakes to procure Vsource or Vsource's
designated Affiliate to undertake and assume all of Reseller's duties,
obligations and liabilities under this Agreement, and Gateway shall
cooperate with Reseller to procure such novation as soon as
practicable after Reseller undertakes to effect such novation,
including executing all documents and doing all things necessary as
reasonably required by Reseller for the purpose of effecting such
novation.
C. Gateway is entitled at any time, upon written notice to Reseller, to
assign this Agreement to any of its Affiliates or to novate this
Agreement to any of its Affiliates and Reseller hereby consents to
such assignment or novation.
19.6 Governing Law. The parties have expressly agreed that their rights and
-------------
obligations under this Agreement shall be governed by and interpreted
solely in accordance with the laws of Singapore. The parties agree that the
Sale of Goods (United Nations Convention) Act (Cap. 283A) on contracts for
the international sale of goods shall not apply.
19.7 Arbitration. Any matter or dispute arising out of or in connection with
------------
the construction, operation or enforcement of the provisions of this
Agreement or the application or validity of it shall be resolved by
arbitration under the Arbitration Rules of the Singapore International
Arbitration Centre for the time being in force which rules are deemed to be
incorporated by reference into this Section. The arbitration shall be held
in Singapore before a sole arbitrator, and the proceedings shall be
conducted in the English language. Any award rendered in any such
arbitration proceeding shall be final and binding on each of the parties.
19.8 No Waiver. Any failure of either party to enforce at any time, or for
----------
any period of time, any provision of this Agreement, shall not constitute a
waiver of such provision or in any way affect the validity of this
Agreement.
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19.9 Complete Agreement. This Agreement, together with the Exhibits listed
--------------------
below, sets forth the entire Agreement between the parties with respect to
the subject matter hereof and supersedes all previous communications,
representations or agreements, whether oral or written, with respect to the
subject matter hereof. No addition to or modification of this Agreement
shall be binding upon either party unless reduced to writing and duly
executed by the parties hereto in the same manner as the execution of this
Agreement, subject, however, to revisions of Exhibits A, E, F and H, which
Gateway may revise at any time under Section 19.10.
19.10 Exhibits. The following are presently attached hereto and incorporated
--------
herein by this reference:
Exhibit A - 1. Gateway International Resellers Products Price List
2. Xxxxx Xxxx-up
Exhibit A(1) - Territory
Exhibit B - Sub-distributors, Resellers and Agents
Exhibit C - Computer-Related Products Currently Manufactured,
Assembled, Marketed or Sold By Reseller
Exhibit D - Minimum Purchase Quantity and Performance Criteria
Exhibit E - Ordering and Invoicing Process
Exhibit F - Trademarks
Exhibit G - Gateway Authorized Reseller Logo Specifications
Exhibit H - Forecasts
Exhibit I - Current Retail Stores
Exhibit J - Domain names and web site
Exhibit K - Web Site Access Guidelines
Exhibit L - Equipment in Current Retail Stores
Gateway may, in its sole discretion, unilaterally amend in writing Exhibits A,
E, F and H.
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IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
officers of the respective parties, as of the date first above written.
GATEWAY MANUFACTURING INC.
By: /S/ XXXXXXX X. XXXXXXX
------------------------------
Xxxxxxx X. Xxxxxxx
Title: President
XXXXXX000.XXX LTD
By: /S/ XXXXXXX X. XXXXX
------------------------------
Title: Chairman and CEO
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EXHIBIT A
(SECTIONS 5.1 AND 9.1)
1. GATEWAY INTERNATIONAL RESELLERS PRODUCTS PRICE LIST
2. XXXXX XXXX-UP
1. PRICE LIST
GATEWAY SHALL, AT ITS SOLE DISCRETION, REVISE OR REPLACE THE PRICE LIST WITH NEW
PRICE LISTS AS ISSUED BY GATEWAY FROM TIME TO TIME. THE SUBSTITUTED PRICE LIST
SHALL BE APPLICABLE TO RESELLER IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT.
List of Gateway Products Price based on COGS
--------------------------- ----------------------
[redacted]
2. XXXXX XXXX-UP
Gateway will charge to Reseller a Xxxxx Xxxx-up of [redacted]% on COGS for the
sale of Gateway Products to Reseller.
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EXHIBIT A(1)
(SECTION 1.1)
TERRITORY
1. Singapore
2. Hong Kong, excluding the People's Republic of China
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EXHIBIT B
(SECTION 1.3)
RESELLER'S SUB-DISTRIBUTORS, RESELLERS & AGENTS
- Nil
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EXHIBIT C
(SECTION 1.6)
COMPUTER-RELATED PRODUCTS CURRENTLY MANUFACTURED, ASSEMBLED, MARKETED OR SOLD BY
RESELLER
Pursuant to Section 1.6 of the Agreement, Reseller provides the list of
third-party computer-related products that it is currently manufacturing,
assembling, marketing or selling. This list may only be amended by prior
approval of Gateway.
- Nil
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EXHIBIT C(1)
(SECTION 1.8)
RESTRICTION ON PROVISION OF BACK OFFICE SERVICES
1. Dell
2. Compaq
3. Hewlett Packard
4. IBM
5. Apple
6. Acer
7. Toshiba
8. NEC
9. Sony
10. Fujitsu
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EXHIBIT D
(SECTION 2.1)
MINIMUM PURCHASE QUANTITY AND PERFORMANCE CRITERIA
MINIMUM PURCHASE QUANTITY
The Minimum Purchase Quantity shall be the total annual value invoiced by
Gateway in respect of Gateway Products comprising the COGS plus the Xxxxx
Xxxx-up.
The Minimum Purchase Quantity as described in Section 2.1 of the Agreement is as
follows:
Quarter 1 Quarter 2 Quarter 3 Quarter 4 Total
1st Jul - 30th Sep 1st Oct - 31st Dec 1st Jan - 30th Mar 1st Apr - 30th Jun (US$/million)
(US$/million) (US$/million) (US$/million) (US$/million)
------------------- ------------------- ------------------- ------------------- --------------------- --------------
First Year
------------------- [redacted]
Second Year
PERFORMANCE CRITERIA
[Performance criteria shall be agreed between the parties from time to time and
confirmed under separate cover.]
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EXHIBIT E
(SECTION 4.2)
ORDERING AND INVOICING PROCESS
[ORDERING AND INVOICING PROCESS TO BE PROVIDED UNDER SEPARATE COVER].
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EXHIBIT F
(SECTIONS 7.2 AND 7.3)
TRADEMARK
A. SINGAPORE
XXXX APP./REG. #
---- ------------
Black and White Spot Design T99/03474H
Black and White Spotted Box Design T99/09692A
Destination 2114/95
Gateway T99/12855F
Gateway T00/17432A
Gateway@Work and Design T00/02390J
Gateway with Box Design Left T99/10670F
Gateway with Box Design Above T99/10669B
Gateway Neo T99/11058D
Gateway 2000 7360/91
Perfect Scholar T97/10497H
Vivitron 7747/94
Your:)Xxxx T99/03473B
Tractor Seat and Design T00/05931Z
Silo and Design T00/05930A
Interior of Silo with Desk and Chairs T00/05929H
Corrugated Booths and Design T00/05928Z
ALR and Design T91/05710B
UNREGISTERED MARKS
-------------------
Gateway Country
Gatewaynet
Gateway Solo
Solo
You've Got A Friend In The Business
Field Mouse
ALR
EZ Pad
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EZ Point
AnyKey
Spot Shop
FamilyPC
B. HONG KONG
XXXX APP./REG. #
---- -----------
Black and White Spot Design 99-04399
Black and White Spotted Box Design 99-13934
Gateway 96-12695
Gateway@Work and Design 2000-02856
Gateway with Box Design Left 99-14170
Gateway with Box Design Above 99-14171
Gateway Neo 2000-03338
Gateway 2000 96-12696
Your:)Xxxx 99-04400
Tractor Seat and Design 2000-16656
Silo and Design 2000-07988
Interior of Silo with Desk and Chairs 2000-16740
Corrugated Booths and Design 2000-07986
ALR 5243-1997
UNREGISTERED MARKS
-------------------
Gateway Country
Gatewaynet
Gateway Solo
Solo
You've Got A Friend In The Business
Field Mouse
EZ Pad
EZ Point
AnyKey
Spot Shop
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FamilyPC
Vivitron
Destination
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Gateway Confidential
EXHIBIT G
(SECTIONS 2.3 AND 7.3)
GATEWAY AUTHORIZED RESELLER LOGO SPECIFICATIONS
INTRODUCTION
The following guidelines apply to the authorized use of particular trademarks,
service marks and logos of Gateway, Inc. ("Gateway") in advertisements,
marketing materials, press releases, promotional literature, catalogs,
brochures, customer communications, electronic communications and all other
printed or visual material in which Gateway's trademarks, service marks or logos
are used. For purposes herein, "Trademarks" shall mean those registered or
unregistered trademarks, service marks, logos or brand names of Gateway as
specifically set forth in the attached Schedule A.
Gateway's Trademarks must always be used properly. Compliance with these
guidelines is required in order to avoid any breach or misuse of the terms and
conditions under which you have been authorized or licensed to use Gateway's
Trademarks. Prior to using Gateway's Trademarks, you must obtain Gateway's
written approval, of the form, content and context of any intended use.
Adherence to these guidelines is essential to your continued involvement in the
Gateway Authorized Reseller program and a prerequisite to successful involvement
in any Gateway Authorized Reseller co-operative advertising programs. Please
copy and distribute these guidelines to anyone within your organization who will
be responsible for preparing marketing and/or advertising materials featuring
Gateway products and the Gateway Authorized Reseller name or logo.
I. GATEWAY AUTHORIZED RESELLER LOGO SPECIFICATIONS
A. GENERAL
1. The logotype should not be produced in any color other than Gateway green.
It can also be black or white in a black-and-white application or on a
colored field in which green is not effective. The goal is to make green
synonymous with Gateway; therefore these uses should be limited.
2. The bottom, front corner of the box is supposed to be open - don't try to
close up. It is already defined.
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3. The white in the box is opaque - the underlying background SHOULD NOT show
through.
4. The Gateway Authorized Reseller logo is a trademark of the corporation, and
must always be followed by a xxxx. Authorized artwork always includes the
xxxx in the proper position. The xxxx should never be cut off or changed in
proportion or position.
5. When printing the logo on a dark background, use the correct artwork with
the white box outlines, or the box will lose its definition. NEVER reverse
the logo in the traditional manner - the black spots must remain black, the
white areas white.
6. The Gateway logotype may not be used by itself without the box except in
rare occasions approved by Branding. The most notable exception is on our
packaging.
B. LOGO CLEAR SPACE
In all applications, the clear space around the logo should be equal to the
width of the "e" in the logotype. Any background inside this clear space should
be even, unpatterned, and free from typography or other graphic elements. If the
logo is used directly on a photographic image, the clear space area must still
provide for good contrast between background and logo and be even in tone and
pattern-free.
If the Gateway Authorized Reseller logo is used at a minimum size (43 pixels
wide) in an online application, the clear space is 7 pixels (HSPACE = "7"
VSPACE = "7").
C. MINIMUM SIZE
Size is measured from the left side of the "G" to the right edge of the serif of
the "y."
- Minimum size in most print environments: 14.5mm or 5/8" wide
- Minimum size online: 43 pixels wide (640 x 480)
D. INCORRECT USAGE
Improper use of the Gateway Authorized Reseller logo dilutes and lessens its
value. Here are a few ways in which part or all of the logo have been
manipulated to create new inappropriate/unacceptable visual elements. Each of
these examples weakens the Gateway Authorized Reseller logo.
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1. DON'T alter box & logotype relationship.
2. DON'T change color of box & logotype.
3. DON'T combine with other graphic elements.
4. DON'T add text such as department name, team, etc.
5. DON'T put the logo on a patterned or busy background.
6. DON'T make pattern, texture or other effect inside the logo.
7. DON'T use the logo to create a pattern or background.
8. DON'T change the grammar of the logo - making it plural or possessive.
9. DON'T overprint on the logo.
10. DON'T imitate the logo with other type fonts.
11. DON'T distort the logo.
12. DON'T tilt or rotate the logo.
E. COLOR
APPROVED COLOR for the Gateway logotype:
- Gateway Green - visually match hue to Gateway Green color swatch
OTHER TECHNIQUES
- DO NOT print the logo in grayscale.
- SPECIAL EFFECTS - embossment, varnishes, drop shadows, texture maps,
outlines, etc., must be reviewed and approved by Brand Management on a
case-by-case basis.
- NON-GREEN LOGOTYPE - although you should avoid using a background or layout
that will not work with the green logotype, it is acceptable to print the
Gateway logotype in white if on a high-contrast background (50% or darker),
or in black (100% solid).
GATEWAY GREEN IS APPROVED ONLY:
- For the logotype
- As an accent color (avoid overdoing it with big fields of green)
- As a "staff" color to designate people who need to be identified at a
glance as Gateway workers. For example, Security is authorized to use green
shirts for security officers worldwide.
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GATEWAY GREEN
Due to the variances inherent in color reproduction, ALWAYS MATCH THE HUE TO THE
GATEWAY GREEN COLOR SWATCH FOR ACCURACY. DO NOT rely on your existing color
swatch book for accuracy.
- For four (4) color process printing, use the following CMYK mixture
CYAN - 100% MAGENTA - 0% YELLOW - 90% BLACK - 0%
FOR SPOT COLOR PRINTING, USE THE PANTONE COLOR MATCH SYSTEM PMS 355C
- For on-screen / video display, use the following RGB values
RED - 0 GREEN - 153 BLUE - 20
- For online applications, use the following HTML color assignment
009900
- For stock vinyl applications, use the following 3M products 3M Scotchcal
230 (translucent) or 220 (opaque)
IMPORTANT: DO NOT CONVERT THE PMS355 INTO CMYK VALUES - IN DOING SO, THE
INCORRECT CMYK VALUES WILL RESULT.
F. IMPLIED OWNERSHIP
Any material containing Gateway's trademarks, including the Gateway Authorized
Reseller logo, created by Licensee under terms of a license agreement shall not
look like it was generated by Gateway. Accordingly, any use of the Gateway
Authorized logo in any promotional materials shall always be equal to or less
than the size and prominence of the Licensee's logo. SHOULD LICENSEE'S LOGO
----------------------
NOT APPEAR IN THE MATERIAL, THEN GATEWAY'S STYLIZED LOGO SHALL SIMILARLY NOT
--------------------------------------------------------------------------------
APPEAR IN THE MATERIAL.
--------------------------
II: GENERAL USE OF THE GATEWAY AUTHORIZED RESELLER NAME AND LOGO
A. PRINTED PRODUCT ADVERTISEMENTS
Any print ads featuring Gateway products must include a copy of the Gateway
Authorized Reseller logo. This should be the only Gateway corporate logo to
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appear in the advertisement. If only Gateway products are featured in the ad,
the logo may appear anywhere in the ad. If, however, products from other
manufacturers are featured in the ad, the Gateway logo must only appear in close
proximity to the Gateway products. Alternately, all manufacturers' logos may be
grouped together at the bottom of the advertisement, provided that any Gateway
product is clearly identified as such. In all cases, the size of the Gateway
Authorized Reseller logo should be consistent with the size of other
manufacturers' logos.
B. PRINTED SERVICE ADVERTISEMENTS
If the ad focuses primarily on the services of the reseller, the Gateway
Authorized Reseller logo may be featured either alone or grouped with the logos
of all other manufacturers featured in the ad. In all cases the size of the
Gateway Authorized Reseller logo should be consistent with the size of other
manufacturers' logos.
C. SHOW DIRECTORIES/INTERNET LINKS AND DIRECTORIES
In cases where the reseller is asked to provide a brief description of their
services and certifications, the reseller may use the Gateway Authorized
Reseller name without the Gateway Authorized Reseller logo. If, however, other
manufacturers' logos are featured in the reseller description, the Gateway
Authorized Reseller logo must also be featured at a size that is consistent with
the size of other manufacturers' logos.
D. PRINTED MARKETING MATERIALS
If the reseller's marketing materials allude to the reseller's status as an
authorized Gateway reseller, the materials must feature the Gateway Authorized
Reseller logo in a prominent location.
E. RESELLER WEB SITE USAGE
If actual Gateway products are advertised on the reseller's web site, the
reseller should follow the same guidelines that apply to Printed Product
Advertisements (Section II: A). If only services are mentioned, the reseller
should follow the guidelines that apply to Printed Service Advertisements
(Section II: B)
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F. INTERNET/ON-LINE ADVERTISEMENT USAGE
If actual Gateway products are advertised, the reseller should follow the same
guidelines that apply to Printed Product Advertisements (Section II: A). If only
services are advertised, the reseller should follow the guidelines that apply to
Printed Service Advertisements (Section II: B). If the advertisement is limited
to a text link or a text description, resellers may follow the guidelines for
Show Directories/Internet Links and Directories (Section II: C).
G. TELEVISION/OTHER USAGE
All other usage, including broadcast use and cable advertisements will be
reviewed on a case-by-case basis. Prior review by the Gateway Partners Creative
Services Director is a requirement of all such advertising.
III: TRADEMARK USE
Gateway Inc.'s trademarks, which include our logos, are intellectual property
and are considered valuable assets of the company. To protect them, they must be
used consistently and in compliance with branding guidelines. Everyone who uses
our trademarks, whether Gateway employees or outside vendors, consultants or
third parties, is responsible for using them correctly.
A. TRADE NAME VS. TRADEMARK: A TRADE NAME identifies the name of a business,
and is typically used as a noun. TRADEMARKS SHOULD ALWAYS BE USED AS
ADJECTIVES with an appropriate noun (generic descriptor) representing the
product or service being referred to. If the word identifies a service it
is technically called a service xxxx identical in form and substance to a
trademark. Gateway has meaning as a trademark when used as an adjective to
describe certain products, and has a different meaning when used as a noun
to stand for the entity Gateway.
CORRECT: Gateway makes the best computers on the planet.
(Refers to the company itself.)
CORRECT: Gateway computers are the best on the planet.
(Gateway describes a product.)
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WRONG: How many Gateways do you own?
(Gateway is used as a noun when referring to a product.)
WRONG: Come to Gateway for the best value in the industry.
(Doesn't need a because Gateway refers to the company, not a product.)
B. NO PLURALS, POSSESSIVES OR VERBS: Trademarks should never be used in the
plural form, possessive form, or as a verb.
CORRECT: People love their Solo portable PCs.
INCORRECT: People love their Solos.
CORRECT: The Destination system's performance is superior.
INCORRECT: The Destination's performance is superior.
CORRECT: You can fax documents using the TelePath fax modem.
INCORRECT: You can TelePath documents with your system.
C. NO ABBREVIATIONS: Never abbreviate a Trademark, e.g. "GC" is incorrect for
Gateway Country.
CORRECT: The Gateway Profile II is the best computer on the market.
INCORRECT: The XX XX is the best computer on the market
D. DISTINGUISH THE TRADEMARKS: Always distinguish the Trademarks, when in
print, from the words surrounding it.
CORRECT:
You get the best value when you purchase a Gateway computer.
YOU GET THE BEST VALUE WHEN YOU PURCHASE A gateway PC.
You Get The Best Value When You Purchase A GATEWAY Computer.
INCORRECT:
You get the best value when you purchase a gateway computer.
YOU GET THE BEST VALUE WHEN YOU PURCHASE A GATEWAY PC.
You Get The Best Value When You Purchase A Gateway Computer.
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E. TRADEMARK NOTICE AND ACKNOWLEDGMENT
ALWAYS PROVIDE A SPECIFIC TRADEMARK NOTICE ((TM), SM, OR (R)) ADJACENT TO THE
FIRST AND MOST PROMINENT USE OF THE TRADEMARK, AS WELL AS ON EACH SUBSEQUENT
PAGE. IF YOU HAVE ANY QUESTIONS ABOUT WHAT THE APPROPRIATE TRADEMARK NOTICE IS,
CONTACT GATEWAY'S BRANDING DEPARTMENT.
ALL GATEWAY TRADEMARKS THAT ARE USED IN A PARTICULAR PIECE MUST BE ATTRIBUTED IN
AN APPROPRIATE TRADEMARK LEGEND. THE LEGEND MAY BE PRESENTED IMMEDIATELY
FOLLOWING THE COPYRIGHT NOTICE AND MUST BE LARGE ENOUGH TO BE LEGIBLE. IT MAY
ALSO BE PLACED ELSEWHERE, E.G., THE FRONT INSIDE COVER OF DOCUMENTATION, OR AT
THE BOTTOM OF A WEB PAGE.
GATEWAY USES A STANDARD TRADEMARK LEGEND THAT DOES NOT CHANGE EXCEPT TO ADD
THE MARKS THAT ARE REFERENCED IN THE PIECE. THE FOLLOWING IS THE STANDARD
GATEWAY LEGEND TO BE USED IN ALL MATERIAL REFERENCING ANY GATEWAY TRADEMARK:
"GATEWAY AND THE GATEWAY STYLIZED LOGO [INSERT ALL OTHER GATEWAY
TRADEMARKS, SPECIAL LOGOS, PRODUCT NAMES, SERVICE NAMES, AND SLOGANS REFERRED TO
OR DISPLAYED IN THE PIECE] ARE TRADEMARKS OR REGISTERED TRADEMARKS OF GATEWAY,
INC. IN THE U.S. AND OTHER COUNTRIES."
F. ALWAYS SPELL THE TRADEMARK CORRECTLY.
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EXHIBIT H
(SECTIONS 2.8 AND 4.1)
FORECASTS
A. Reseller shall provide Gateway a forecast of its orders for Gateway
Products as follows:
1. On Effective Date
-------------------
- for six (6) months commencing on the Effective Date.
2. On the 20th day of every month
------------------------------------
- for six (6) months commencing on the first day of the next
month.
B. Reseller shall provide the forecast of its orders in the following format.
[Format of orders forecast to be provided under separate cover].
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EXHIBIT I
(SECTION 2.11)
CURRENT RETAIL STORES
The Current Retail Stores shall consist of:
A. Singapore
---------
000 Xxxxx Xxxxxx Xxxx
#00-00, Xxxxx - The X.X. Xxxx
Xxxxxxxxx 000000
B. Hong Kong - Times Square Store
-----------------------------------
Xxxx X000X, Xxxxxxxx 0,
Xxxxx Xxxxxx Shopping Arcade
Xx. 0 Xxxxxxxx Xxxx
Xxxxxxxx Xxx
Xxxx Xxxx
C. Hong Kong - Xxxxxxx House Store
------------------------------------
Xxxx 000, Xxxxxxx Xxxxx
00 Xxxxx'x Xxxx
Xxxxxxx
Xxxx Xxxx
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EXHIBIT J
(SECTION 7.5)
DOMAIN NAMES AND WEB SITE
A. xxx.xxxxxxx.xxx.xx/xx/
B. xxx.xxxxxxx.xxx.xx/XX/
C. xxx.xxxxxxx.xxx.xx
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EXHIBIT K
(SECTION 7.5)
WEB SITE ACCESS GUIDELINES
[Gateway web site access guidelines to be provided under separate cover.]
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EXHIBIT L
(SECTION 2.11)
EQUIPMENT IN CURRENT RETAIL STORES
A. Singapore
---------
[List of equipment to be provided under separate cover.]
B. Hong Kong - Times Square Store
-----------------------------------
[List of equipment to be provided under separate cover.]
C. Hong Kong - Xxxxxxx House Store
------------------------------------
[List of equipment to be provided under separate cover.]
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