CERTIFICATION TEST AGREEMENT BETWEEN DOT VN INCORPORATED AND E-BAND COMMUNICATIONS CORPORATION (AMENDED)
CONFIDENTIAL
Exhibit
10.23
BETWEEN
DOT
VN
INCORPORATED
AND
E-BAND
COMMUNICATIONS CORPORATION
(AMENDED)
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Contents
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2
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Exhibit
A
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Exhibit
B
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Exhibit
C
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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Page
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CONFIDENTIAL
(AMENDED)
THIS
AGREEMENT (the “Agreement”), made effective this 20th day of May, 2008
(“Effective Date”) by and between E-BAND
Communications Corp., a corporation duly organized under the laws of California,
(hereinafter “E-BAND”),
and
DOT
VN,
Inc., a
corporation duly organized under the laws of the State of Delaware (hereinafter
“DOT
VN”)
WHEREAS,
E-BAND
manufactures and markets certain E-Link equipment (“Equipment”) and desires to
increase the sales of such Equipment;
WHEREAS,
DOT
VN
desires
to test such Equipment at a site in Vietnam for the purpose of determining
the
feasibility of marketing E-BAND
Products
in East Asia; and
WHEREAS,
E-BAND
is
willing to facilitate such testing by supplying certain Products, personnel
and
support to DOT
VN;
NOW,
THEREFORE, in light of the mutual promises and covenants hereinafter set forth
and for consideration the sufficiency and receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE
1
DEFINITIONS
For
purposes of this Agreement, the following words, terms and phrases where written
with an initial capital letter, shall have the meanings assigned to them in
this
Article 1 unless the context otherwise requires:
1.1
Products.
“Products” shall mean the products described in Exhibit
B
attached
hereto and incorporated herein.
1.2
Equipment.
“Equipment” shall mean the E-Link 1000, equipped with 850 nm MM optical
interface, antennas and mount.
1.3
DOT
VN
List
Price.“DOT
VN
List
Price” shall mean the prices set forth on Exhibit
B.
DOT
VN
List
Price does not include transportation, customs duties, tariffs, taxes, fees
or
other charges which may be imposed on the importation, handling, transportation,
purchase, use or sale of Equipment.
1.4
DOT
VN
Information.
“DOT
VN
Information” shall mean all information, other than information in published
form or expressly designated by DOT
VN
as
non-confidential, which is directly or indirectly disclosed to E-BAND,
regardless of the form in which it is disclosed, relating in any way to
DOT
VN’s
markets, customers, products, patents, inventions, procedures methods, designs,
strategies, plans, assets, liabilities, costs, revenues, profits, organization,
employees, agents, or business in general.
1.5
E-BAND
Information.
“E-BAND
Information” shall mean all information, other than information in published
form or expressly designated by E-BAND
as
non-confidential, which is directly or indirectly disclosed to DOT
VN
or
embodied in Products provided hereunder, regardless of the form in which it
is
disclosed, relating in any way to E-BAND’S
markets, customers, products, patents, inventions, procedures methods, designs,
strategies, plans, assets, liabilities, costs, revenues, profits, organization,
employees, agents, or business in general.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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CONFIDENTIAL
1.6
Brand(s).“Brands”
shall mean all names, logotypes and trademarks held by E-BAND
licensed
to the DOT
VN
for the
purpose of selling and promoting the Products.
ARTICLE
2
GENERAL
PURPOSE OF AGREEMENT
2.1
Purpose.
The
purpose of this agreement is to set forth the terms and conditions pursuant
to
which E-BAND
and
DOT
VN
shall
cooperate with respect to the execution of parameters for testing a unit of
the
Equipment in Vietnam, according to the Test Plan set forth on Exhibit
A.
The
general purpose of the testing is to demonstrate the unit for sale, collect
data
regarding the Equipment’s performance, generate a report based on such data and
provide certification of the test results.
2.2
Intent
of the Parties.
The
Parties agree that upon successful completion of the test of the Equipment
in
Vietnam, it is the mutual intent of the Parties to enter into a definitive
agreement regarding distribution of E-BAND’s
Products in South East Asia (the “Distribution Agreement”), including but not
limited to, exclusivity for the Country of Vietnam. The Parties agree that
the
Distribution Agreement shall be executed no later than the earlier of, (i)
60
days from the completion of the test of the Equipment; or (ii) August 16,
2008.
ARTICLE
3
OBLIGATIONS
OF DOT
VN
| 3. |
DOT
VN’s
Obligations.
DOT
VN
shall be responsible for the
following:
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| 3.1. |
Securing
the correct representation from VDC, VNNIC and such other agency
or
department as required for deployment and testing of the
link.
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| 3.2. |
Shipping
from E-BAND
office to test site in Vietnam including any duty and customs fees
and
administration.
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| 3.3. |
Securing
the test site(s), including two suitable appropriate radio unit outdoor
locations at line of sight.
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| 3.4. |
Providing
E-BAND with exact GPS coordinates for 2-3 alternative link positions
to
assist E-BAND
in
determining the exact configuration and
antennas.
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| 3.5. |
Providing
all supporting equipment and accessories for the E-Link equipment
to
perform the certification test, e.g. switches, cables, source material
for
application demonstration.
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| 3.6. |
Providing
at least three DOT
VN
engineers who will become the local trainers for E-BAND
products and who will be present for Product Certification Training
according to test plan schedule in Exhibit
A.
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| 3.7. |
Submitting
complete certification test requirements to E-BAND.
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| 3.8. |
Providing
complete test report for VDC within one week from completion of the
test
date.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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3
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CONFIDENTIAL
| 3.9. |
Working
with VDC to achieve commercial certification of the E-BAND
equipment by end of Q3 2008 under a future Distribution
Agreement.
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ARTICLE
4
OBLIGATIONS
OF E-BAND
| 4. |
E-BAND’S
Obligations.
E-BAND
shall be responsible for the
following:
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| 4.1. |
Preparing
the local product, company and application presentations.
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| 4.2. |
Suggesting
an appropriate test plan.
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| 4.3. |
Setting
up a test link for dry run in E-BAND
facilities
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| 4.4. |
Sending
1-2 resources to support deployment, testing and to provide training
of
DOT
VN
personnel in Vietnam during the Test
Period.
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| 4.5. |
Paying
for travel, lodging, and all related expenses of E-BAND
resources.
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ARTICLE
5
EQUIPMENT
TESTING PERIOD, RETURN, PURCHASE AND PAYMENT
| 5. |
The
testing, return, purchase and payment for the Equipment shall be
subject
to the following:
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| 5.1. |
The
testing (“Test Period”) shall be completed 30 days from the date E-BAND
deploys the test link in Hanoi Vietnam (the “Completion
Date”).
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| 5.2. |
At
the conclusion of the Test Period, DOT
VN
may, in its sole and absolute discretion, return the Equipment to
E-BAND,
in which case DOT
VN
will pay all expenses associated with returning the Equipment to
E-BAND
in
its original packaging, in substantially the same condition as received,
with delivery to be arranged to occur within ten (10) days of the
Completion Date. DOT
VN
shall provide proof of shipment to E-BAND,
in which case the Note shall be deemed null and void and of no further
effect.
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| 5.3. |
Alternatively,
DOT
VN
shall pay for the Equipment at the DOT
VN
price set forth on Exhibit
B,
which shall be paid net 30 days from the date DOT
VN
takes possession of the properly packed equipment at E-BAND’s
facility in San Diego. To secure payment, DOT
VN
shall execute and deliver a Promissory Note (“Note”) in form and substance
attached hereto as Exhibit
C,
which Note shall be dated June 22, 2008 and delivered before the
date the
equipment is shipped. On payment of the Note, E-BAND
shall endorse the Note “Paid in Full” and shall surrender the original to
DOT
VN.
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| 5.4. |
In
the event DOT
VN
purchases the Equipment and enters into a Distribution Agreement
with
E-BAND
for additional purchases of Product, the purchase shall count against
the
first year quota, if any.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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CONFIDENTIAL
ARTICLE
6
ADDITIONAL
PROVISIONS ON PURCHASE OF THE EQUIPMENT
| 6. |
The
following provisions apply to the purchase of the
Equipment:
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| 6.1. |
Product
Warranty.
E-BAND
warrants for a period of one (1) year after the date of delivery
that the
Equipment shall be free from defects in material and workmanship
per
E-BAND’s
standard warranty. E-BAND
shall, in the event of breach, provide at no charge to DOT
VN
conforming replacement or substitute Equipment. The Warranty will
be
provided in accordance to E-BAND’s
standard terms and conditions in effect at a given time.
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| 6.2. |
Disclaimer.
IT IS EXPRESSLY AGREED THAT THE WARRANTY SET FORTH HEREIN SHALL BE
THE
SOLE AND EXCLUSIVE REMEDY OF DOT
VN,
ITS CUSTOMERS AND END USERS. UNDER NO CIRCUMSTANCES SHALL E-BAND
BE
LIABLE FOR ANY COSTS, LOSS, EXPENSE, DAMAGES, SPECIAL DAMAGES, INCIDENTAL
DAMAGES OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM
THE
DESIGN, MANUFACTURE, SALE, USE OR REPAIR OF PRODUCTS, WHETHER BASED
UPON
WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY. IN NO EVENT WILL
LIABILITY EXCEED THE DOT
VN
LIST PRICE OF THE APPLICABLE PRODUCT. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. THE WARRANTY AND
LIMITS OF LIABILITY CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES
AND LIABILITIES, EXPRESSED OR IMPLIED ARISING BY LAW, CUSTOM, BY
ORAL OR
WRITTEN STATEMENTS. ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR
A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND WARRANTIES ARISING
FROM
COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY DUTIES OF LACK
OF
NEGLIGENCE OR WORKMANLIKE EFFORT ARE HEREBY DISCLAIMED BY E-BAND,
ITS LICENSORS AND REPRESENTATIVES.
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| 6.3. |
E-BAND’s
Obligations.
E-BAND
shall, at its own expense, defend any suit instituted against DOT
VN
which is based on any allegation that any Products manufactured by
E-BAND
and sold to DOT
VN
hereunder injure or cause harm to a consumer of E-BAND’S
Products due to product defect unless caused by DOT
VN.
E-BAND
shall further defend DOT
VN
against any suit instituted against DOT
VN
which is based on any allegation that any Products manufactured by
E-BAND
and sold to DOT
VN
hereunder constitute an infringement of any patent unless
such Products are modified by DOT
VN
or
its agents, subdistributors or resellers.
E-BAND
shall indemnify DOT
VN
against any award of damage and costs made against DOT
VN
by
a final judgment of a court of last resort due
to the breach of any representation, warranty or covenant in this
Agreement by E-BAND,
or
if
it is determined that any injury or patent infringement has resulted
from
the action or omission of action by E-BAND,
unless caused by the gross negligence or intentional misconduct of
DOT
VN.
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| 6.4. |
DOT
VN’s
Obligations.
DOT
VN
shall, at its own expense, defend any suit instituted against E-BAND
which is based on any allegation that any Products sold by DOT
VN
hereunder injure or cause harm to a consumer of E-BAND’S
Products due to action or omission of action by DOT
VN.
DOT
VN
shall further defend E-BAND
against any suit instituted against E-BAND
which is based on any allegation that any Products manufactured by
E-BAND
and sold to DOT
VN
hereunder constitute an infringement of any trade xxxx, trade name,
logotype or brand name originated by DOT
VN.
DOT
VN
shall indemnify E-BAND
against any award of damage and costs made against E-BAND
by
a final judgment of a court of last resort due to the breach of any
representation, warranty or covenant in this Agreement by DOT
VN,
or if it is determined that any injury or trademark infringement
has
resulted from the action or omission of action by DOT
VN,
unless caused by the gross negligence of intentional misconduct of
E-BAND.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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5
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CONFIDENTIAL
ARTICLE
7
E-BAND
REPRESENTATIONS AND WARRANTIES
| 7. |
E-BAND
represents and warrants that:
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| 7.1. |
All
intellectual property that E-BAND
uses and provides to DOT
VN
does not infringe any patent, trademark, trade name, copyright or
title.
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| 7.2. |
E-BAND
has taken all reasonable steps to secure such licenses and/or patents,
trademarks, trade name or copyright related to the production, sale
and
operation of the Products.
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| 7.3. |
E-BAND
is
the sole owner of the Products provided to DOT
VN,
and no rights have been granted, or will be granted in the Products
that
are inconsistent with the rights granted in this
Agreement.
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| 7.4. |
E-BAND
grants and assigns to DOT
VN
the benefit of all warranties and representations made for E-BAND’s
benefit by any third party with respect to the
Products.
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| 7.5. |
That
there are no liens, encumbrances and/or obligations in connection
with the
Products, the technology upon which the Products are based or any
of the
intellectual property of E-BAND
other than such liens, encumbrances and/or obligations specifically
set
forth herein or that will not have a materially adverse effect on
the
consummation of the transactions contemplated
hereby.
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ARTICLE
8
DOT
VN
REPRESENTATIONS AND WARRANTIES
| 8. |
DOT
VN
represents and warrants that:
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| 8.1. |
Organization.
DOT
VN
is
a corporation duly organized, validly existing and in good standing
under
the laws of the state of Delaware.
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| 8.2. |
Authority;
Consents and Approvals; No Violations.
DOT
VN
has the full corporate power and authority and legal right to execute
and
deliver this Agreement, and otherwise to perform its obligations
hereunder. This Agreement has been validly executed and delivered
by
DOT
VN
and will constitute a valid and binding obligation of DOT
VN
enforceable in accordance with its terms, except to the extent such
enforceability may be limited by the effects of bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, and by the effect of general principles of equitable
law, regardless of whether such enforceability is considered in a
proceeding in equity or at law. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
do
not and will not violate any provision of DOT
VN's
Certificate of Incorporation or Bylaws or violate, conflict with,
result
in a breach of or constitute (with or without due notice, lapse of
time or
both) a default under any agreement, license, contract, franchise,
permit,
indenture, lease, or other instrument to which DOT
VN
is
a party, or by which it or any of its assets are
bound.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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CONFIDENTIAL
| 8.3. |
Certification.
DOT
VN
shall secure the necessary and correct representation from VDC,
VNNIC and such other agency or department as required for deployment
and
testing of the link
prior to on the ground testing in
Vietnam.
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ARTICLE
9
CONFIDENTIALITY
| 9. |
Acknowledgment.
Both Parties acknowledge and agree that both the DOT
VN
Information and the E-BAND
Information (collectively the “Information”) is confidential and
proprietary. The Parties agree not to use the Information during
the term
of this Agreement for any purpose other than as permitted or required
for
the performance by each Party hereunder. The Parties further agree
not to
disclose or provide any such Information to any third party and to
take
all necessary measures to prevent any such disclosure by its employees,
agents, contractors, or consultants during the term hereof. Nothing
contained herein shall prevent either Party from using disclosing
or
authorizing the disclosure of any Information which (i)
was in the public domain at the time it was disclosed or has entered
the
public domain through no fault of the receiving party; (ii) was
independently developed by the receiving party without any use of
the
Information; or (iii) became known to the receiving party, without
restriction, from a source other than the disclosing party, without
breach
of this Agreement by the receiving party and otherwise not in violation
of
the disclosing party's rights. In addition, the receiving party may
disclose the other party’s Information as required under applicable law or
regulation, including rules of any applicable securities exchange,
or
pursuant to the order or requirement of a court, administrative agency,
or
other governmental body; provided, however, that the receiving party
will
provide prompt prior notice of such disclosure to the disclosing
party to
enable the disclosing party to seek a protective order or otherwise
restrict such disclosure.
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ARTICLE
10
MISCELLANEOUS
| 10. |
The
following additional terms apply:
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| 10.1. |
Relationship.
This Agreement does not make either party the employee, agent or
legal
representative of the other for any purpose whatsoever. Neither party
is
granted any right or authority to assume or to create any obligation
or
responsibility, express or implied, on behalf of or in the name of
the
other party. In fulfilling its obligations pursuant to this Agreement
each
party shall be acting as an independent contractor.
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| 10.2. |
Assignment.
Neither party shall have the right to assign or to otherwise transfer
its
rights and obligations under this Agreement except with the prior
written
consent of the other party.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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CONFIDENTIAL
| 10.3. |
Disputes.
In the event of any dispute, the parties respective decision makers
agree
to meet within ten (10) business days and in good faith seek an informal
resolution of the disputed issue. If no resolution is reached, the
parties
agree to submit any claim, dispute or controversy (“Claim”) against the
other, or against the employees, agents or assigns of the other,
arising
from or relating in any way to this Agreement, including Claims regarding
the applicability of this arbitration clause or the validity of the
entire
Agreement, to binding arbitration to be administered by JAMS under
its
Streamlined Rules, unless the parties otherwise agree. The sole arbitrator
shall have the power to determine issues of arbitrability, and shall
apply
the laws of the State of California, except for, and limited only
to
claims or issues where California law is preempted by federal statute.
All
other issues shall be governed by applicable California law, excluding
the
Convention on Contracts for the International Sale of Goods and that
body
of law known as conflicts of laws. If the parties cannot agree on
a single
arbitrator, a panel of 3 arbitrators shall be employed, the parties
each
selecting one arbitrator, and the two arbitrators so selected shall
choose
a third “independent” arbitrator. All arbitrators must either be licensed
attorneys or retired judges. The parties shall have right to full
discovery to the extent permitted by the California Code of Civil
Procedure and California Rules of Court applicable to judicial
arbitrations. The arbitrator(s) shall be empowered to appoint experts
and/or consultants, resolve discovery disputes grant equitable relief,
compensatory and punitive damages, and grant any relief a party could
obtain in an action initiated in the a California Superior Court,
proceed
ex-parte should one party fail to appear, and grant any other type
of
relief appropriate to the particular circumstances. The arbitrator
shall
have the power to award the prevailing party its litigation expenses
including reasonable attorneys fees and costs, and expert witness
fees.
The hearing shall take place within 6 months of submission to arbitration.
No pre-hearing motions may be filed, other than with respect to requests
for injunctive relief and discovery disputes. The arbitration hearing
will
be held in San Diego, California. Judgment may be entered in any
court of
competent jurisdiction. The parties agree that all proceedings are
confidential until 30 days after the award is made. In the event
the
losing party fully complies with all aspects of any adverse decision,
including payment of all amounts awarded to the other party, the
matter
shall be sealed and remain confidential in perpetuity.
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| 10.4. |
Amendment.
This Agreement may not be modified or amended except by an instrument
in
writing signed by each of the parties hereto, or their respective
permitted successors in interest. Exhibits may be updated continuously
after agreement and signature by both
parties.
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| 10.5. |
Waiver.
No term or condition of this Agreement shall be deemed to have been
waived, nor any estoppel against the enforcement of any provision
of this
Agreement, except by written instrument of the party charged with
such
waiver or estoppel. In addition, no such written waiver or estoppel
that
is in effect shall be deemed to be a continuing waiver unless specifically
stated therein, shall operate only as to the specific term or condition
waived and shall not constitute a waiver as to any act other than
that
specifically waived or as to any term, condition or obligation that
comes
into effect subsequent to the written
waiver.
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| 10.6. |
Agreement
in Counterparts.
This Agreement may be executed in counterparts, each of which thus
executed shall be deemed an original, but all of which, taken together,
shall constitute one and the same agreement, binding upon the parties
hereto, their administrators, successors and permitted
assigns.
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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CONFIDENTIAL
| 10.7. |
Severability.
If any provision of this Agreement, or the application thereof, shall
be
determined by a court of competent jurisdiction to be invalid or
unenforceable, then this Agreement shall remain in full force and
effect
between the parties to the greatest extent permitted by law unless
the
invalidity or unenforceability of such provision or provisions destroys
or
materially impairs the basis of the bargain between the parties as
contained in this Agreement.
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| 10.8. |
Captions;
References.
Article and paragraph headings in this Agreement are for convenience
of
reference only and shall not affect the construction or interpretation
of
this Agreement. Whenever the terms "hereof", "hereby", "herein" or
words
of similar import are used in this Agreement they shall be construed
as
referring to this Agreement in its entirety rather than to a particular
paragraph or provision, unless the context specifically indicates
to the
contrary. Any reference to a particular or "Paragraph" or “Article” shall
be construed as referring to the indicated paragraph or section of
this
Agreement unless the context specifically indicates to the
contrary.
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| 10.9. |
Notices. Any
notice, direction or other instrument required or permitted to be
given
under or in connection with this Agreement shall be effective when
either
delivered personally, mailed by certified mail, return receipt requested
(with postage prepaid), to the addresses listed below, or deposited
with
Federal Express or other reputable courier (with fee prepaid) for
overnight delivery to the addresses listed below. Any party may change
its
address for service from time to time by notice given in accordance
with
the foregoing and any subsequent notice shall be sent to the party
at its
new address, as so noticed.
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Attn:
Legal Department
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0000
Xxxxxx Xxxxxx, Xxxxx 000
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Xxx
Xxxxx, XX 00000
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With
a Copy to:
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If
to E-BAND:
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E-Band
Communications Corp.
|
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Attn:
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00000
Xxxxxxx Xxxxx Xx., Xxxxx X
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Xxx
Xxxxx, XX 00000
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With
a Copy to:
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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CONFIDENTIAL
| 10.10. |
Entire
Agreement.
The parties have read this Agreement and agree to be bound by its
terms,
and further agree that it constitutes
the complete
and entire Agreement of the parties and supersedes all previous and
contemporaneous communications, oral, implied or written, and all
other
communications between them relating to the subject matter thereof.
No
representations or statements of any kind in relation to the subject
matter hereof made by either party, which are not expressly stated
herein,
shall be binding on such party.
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IN
WITNESS WHEREOF,
the
parties hereto have signed this Agreement, thereunto duly authorized on the
day
and year above written.
E-BAND
COMMUNICATIONS CORP.
By
Xxxx
Xxxxxxxx
Its:
Senior Vice President, Sales and Marketing
DOT
VN,
INC.
By
Xxx
Xxxxxxx
Its:
President
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E-Band-dotVN
Cert Test Agreement (Amended) – May 20, 2008
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