PORTIONS OF THIS DOCUMENT INDICATED BY AN [***] HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT OF SUCH INFORMATION.
EXHIBIT 10.3
MOTOROLA MASTER DISTRIBUTOR AGREEMENT
This Motorola Master Distributor Agreement including its attachments
("Agreement") is made and entered into as of 23rd day of January, 2003 (the
"Agreement Date"), by and between MOTOROLA, INC., a Delaware Corporation, by and
through its Broadband Wireless Technology Center, having its principal place of
business at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Motorola") and
Brightstar CORP., a Corporation of the State of Delaware having its principal
place of business at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 ("Master
Distributor").
1. TERM
The initial term of this Agreement shall commence as of the Agreement Date and
shall continue for an initial term which expires December 31, 2004, unless
sooner terminated as provided in this Agreement. [***]
Nothing contained in this Agreement shall be deemed to create any express or
implied obligation on either party to renew or extend this Agreement or to
create any right to continue this Agreement on the same terms and conditions
contained herein. Master Distributor understands that Motorola intends to review
its distribution strategy and the terms and conditions of this Agreement on an
ongoing basis.
2. PRODUCTS, PRICES, NO RETAIL SALES, MASTER DISTRIBUTOR LOCATION AND
SUPPLEMENTARY TERMS AND CONDITIONS
During the term of this Agreement, Master Distributor agrees to purchase
and Motorola agrees to sell, in accordance with the terms, conditions,
limitations and prices set forth in this Agreement, only those selected
products ("Products") as described in the then current Attachment A -
Products, Area of Primary Marketing Responsibility to this Agreement.
(b) Master Distributor agrees that the entire contents of Attachment A are
subject to change or withdrawal at any time at the sole discretion of
Motorola upon thirty (30) days prior written notice to Master Distributor
and when written notice of such changes or withdrawals has been sent to
Master Distributor by Motorola, all earlier inconsistent or withdrawn
contents shall be automatically superseded after the effective date stated
in such notices. Motorola may withdraw or change (i) Attachment A, (ii)
each or any individual Product, or (iii) the design or specifications for
the Products at any time, in any way, without liability or.obligation to
Master Distributor or Master Distributor's customers. (c)Master
Distributor specifically acknowledges the existence of other products,
product lines and services of Motorola and agrees and consents to the
limitation of this Agreement solely to the Products as listed in
Attachment A. Master Distributor also specifically acknowledges that
Motorola distributes various products and services by other contractual
relationships, and Master Distributor agrees that nothing contained in
this Agreement shall be deemed to create any express or implied obligation
on Motorola to establish any such other contractual relationship with
Master Distributor.
(d) Master Distributor agrees to sell each Product item it buys from Motorola
under this Agreement only to Resellers. A "Reseller" means a third party
commercial for-profit business entity that: (a) is located in Master
Distributor's Area (defined in Paragraph 6 below), (b) is identified in
writing by Motorola as an Authorized Canopy(TM) Distributor ("ACD") or
Authorized Canopy(TM) Solutions Provider ("ACSP") and (c) buys the
Products from Master Distributor pursuant to a Reseller Contract (defined
in Paragraph 3 below), MASTER DISTRIBUTOR AGREES IT WILL NOT, UNDER ANY
CIRCUMSTANCE, SELL THE PRODUCTS DIRECTLY TO ANY END USER CUSTOMER. Master
Distributor shall be eligible to earn rebates and other incentives when
Master Distributor sells eligible Product to Resellers that have been
identified in writing by Motorola as a Master Distributor's "Designated
ACD and/or ACSP".
(e) Master Distributor shall sell the Products only from the Master
Distributor's location written above and such other locations as are
authorized, in writing, by Motorola. Master Distributor shall not appoint
any sales agent or representative (other than its employees) in.
connection with the performance of the Agreement; provided, however,
Motorola, in its sole discretion upon a duly executed amendment to this
Agreement, may allow Master Distributor to appoint specified agents to
seek sales of the Products within Master Distributor's Area to Resellers.
(f) Master Distributor agrees that the Supplementary Terms and Conditions
contained in Attachment B are incorporated into this Agreement by this
reference.
3. MASTER DISTRIBUTOR SALES TO RESELLERS. END USER CUSTOMER AND RESELLER PASS
THROUGH PROVISIONS, WARRANTY PROCESSING OBLIGATION
(a) Master Distributor shall only make sales of the Products to a Reseller and
only in the name of and for the account of Master Distributor. For each
such sale, the Products sale contract between Master Distributor and each
Reseller shall, in writing, require of each Reseller, those duties and
obligations necessary to effectuate the terms, conditions and limitations
of this Agreement ("Reseller Contract"). By way of example of the
preceding sentence, but not limitation, for each Reseller Contract: (i)
the duration of that contract may not exceed the term of this Agreement,
and (ii) the Reseller must agree to pass through to the intended audience,
the end user customer pass through provisions set forth in Paragraphs 3(b)
below.
(b) Master Distributor acknowledges that certain of the provisions contained
in Attachment B are, by their sense and context, intended for a Reseller's
end user customer who will acquire one or more of the Products from a
Reseller. For each such provision in Attachment B, Master Distributor
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agrees it will obligate each of its Resellers that, both prior to and as
part of each transaction between a Reseller and its end user customer, the
Reseller will notify its end user customer of the specific requirements,
rights, duties and limitations contained in the Warranty/Warranty
Disclaimer, Software License and Software Warranty/Warranty Disclaimer,
Patent, Copyright and Trademarks, FCC and Other Governmental Matters
provisions in Attachment B.
(c) Master Distributor acknowledges that certain of the provisions contained
in Attachment B are, by their sense and context, intended for the Reseller
who will acquire one or more of the Products from Master Distributor. For
each such provision in Attachment B, Master Distributor agrees it will
notify each Reseller of and, as applicable, obligate each Reseller
regarding the specific requirements, rights, duties and limitations
contained in the Title and Security, Warranty/Warranty Disclaimer.
Software License and Software Warranty/Warranty Disclaimer, Patent,
Copyright and Trademarks, FCC and Other Governmental Matters, and
Compliance with Law provisions in Attachment B, and any other provisions
Motorola may from time to time notify Master Distributor are required.
(d) Master Distributor agrees to process all Resellers' end user customer
Products warranty claims presented to it through its Resellers or those
end user customers in accordance with Motorola's then current applicable
Master Distributor Products Warranty Repair/Return procedure.
4. MASTER DISTRIBUTOR'S SCOPE OF DISTRIBUTION
(a) Motorola appoints Master Distributor as a master distributor for the
Products in the assigned Area of Primary Marketing Responsibility.
Master Distributor specifically acknowledges the right of Motorola
in Motorola's sole and unrestricted discretion, without any
liability or obligation to Master Distributor, to appoint additional
distributors, dealers, resellers or finders and/or make direct or
indirect sale or distribution of any Motorola products or services,
similar or dissimilar, or any non-Motorola products or services in
Master Distributor's assigned Area of Primary Marketing
Responsibility and elsewhere, anytime and to anyone.
(b) Master Distributor agrees to focus its efforts on maximizing sales
of the Products to Resellers in Master Distributor's Area of Primary
Marketing Responsibility and to sell the Motorola Product solution
in at least eighty percent of Master Distributor's relevant sales
transactions. Master Distributor shall not otherwise promote or sell
competing unlicensed point to point or point to multipoint
solutions, and will confer with o Motorola in the event certain
additional third party products are required to supplement the
Motorola Product solution.
(c) Notwithstanding other provisions in this Agreement that prohibit
Master Distributor from selling Product to end user customers,
Motorola may, from time to time, approach Master Distributor with an
opportunity to sell Product to an end user customer that has been
working with Motorola ("Referred Customer"). If Distributor is
interested in selling Product directly to such Referred
Customer under terms described by Motorola, Motorola shall provide
Master Distributor with a Referred Customer sales rebate ("Referred
Customer Rebate"). The Referred Customer Rebate is calculated as:
(Master Distributor purchase price of the Product less Master
Distributor's net sales price of the Product plus [***] of Master
Distributor's net sales price of the Product). In the event such
total calculation described in the parentheses ( ) results in a
negative number, Motorola shall not owe Master Distributor a
Referred Customer Rebate or any other rebate and Master Distributor
shall not owe Motorola any offsetting rebate.
(d) Master Distributor shall specifically identify in writing to
Motorola on a monthly basis all end user accounts to which entities
within Master Distributor's distribution channel are devoting
significant resources. Upon request by Motorola, Master Distributor
shall provide documentation of what resources are being utilized to
develop an account If in Motorola's reasonable discretion, it
determines that Master Distributor's distribution channel is
devoting significant resources to developing an identified end user
account, such account shall be designated a target account ('Target
Account").
In the event that Motorola's Broadband Wireless Technology Center
elects to sell Products directly to a Target Account without Good
Cause, Motorola shall pay to Master Distributor art amount equal to
[***] of the net sales price (after all discounts and rebates and
not including any shipping costs, taxes or other costs or fees) of
the Product sold directly by Motorola's Broadband Wireless
Technology Center to the Target Account ("Service Fee").
Good Cause exists if (i) for any reason the Target Account requests
in writing that it purchase directly from Motorola Broadband
Wireless Technology Center or (if) Motorola has reasonably
determined that Master Distributor's performance of its obligations
under this Agreement is deficient, has given Master Distribution
notice of its performance deficiencies and Master Distributor has
failed to correct the deficiencies within ten days of the notice,
(iii) Master Distributor has given notice of termination, (iv)
Master Distributor is unable to purchase sufficient Product to
fulfill a Target Account's order or (v) Master Distributor elects
not to fulfill any such order for a Target Account.
The Service Fee for a particular Target Account will be payable for
the shorter of (i) six months from the first direct sale of Product
by Motorola's Broadband Wireless Technology Center to the Target
Account, (ii) the expiration of the Agreement, (iii) Master
Distributor's termination of the Agreement for its convenience or
(iv] Motorola's termination of the Agreement in accordance with
Section 10 (b).
Motorola shall pay Master Distributor amounts due 01 offset existing
payment obligations from Master Distributor, on a fiscal quarterly
basis, within forty-five 45 days after the end of the fiscal
quarter. The Service Fee shall not be paid on (i) sales of Product
by
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Motorola's Broadband Wireless Technology Center to distributors or
other resellers or (ii) sales to any end-user customers or to any
other distributors or resellers by any other division or business
entity of Motorola.
CONFIDENTIALITY
During and for three years after the termination or expiration of this
Agreement, each party shall maintain in strict confidence all confidential
information disclosed to such party by the other party or by others, including,
but not limited to, (i) the contents of Attachment A and all revisions thereof,
all price and marketing information, customer lists, drawings, technical
information and data, and other information of any nature relating to Motorola
products and services or the sale or distribution thereof, or (ii) to Master
Distributor confidential information. All information disclosed by either party
hereunder and information Master Distributor obtains in connection with this
Agreement shall be used solely in furtherance of the distribution of Motorola
Products and services.
6. AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
Master Distributor agrees that its defined role in Motorola's distribution
system is necessary in order to most efficiently assist Motorola, Master
Distributor and Motorola's other distributors, dealers, representatives and
resellers to expand Motorola's distribution of the Products and to provide the
highest levels of customer satisfaction. Accordingly, Master Distributor agrees
to use its best efforts to promote and sell the Products only to Suppliers
within the territory described on Attachment A-Products, Area of Primary
Marketing Responsibility for Products, then in effect ("Area"). Master
Distributor acknowledges that it may not sell Products to any Reseller whose
principal place of business is outside of Master Distributor's Area. Master.
Distributors sales volume performance as a distributor of the Products will be
evaluated based only on its sales volume performance of sales to Resellers whose
principal places of business are in Master Distributor's Area. Master
Distributor's use of its best efforts within the Area is essential to
continuation of the Agreement.
Sales to the End User Customers: Any direct distribution, transshipment and/or
sale of Products by Master Distributor to end user customers is prohibited.
Sales to the U.S. Government: Any direct distribution, transshipment and/or sale
of Products by Master Distributor to the United States Government or any of its
departments, agencies or subdivision or to any prime contractor selling to any
of those entities is prohibited. In the event that Master Distributor's Reseller
elects to sell Products or services to the U.S. Government, Master Distributor's
Reseller does so solely at its own option and risk, and agrees not to obligate
Motorola as a subcontractor or otherwise to the U.S. Government. Master
Distributor's Reseller remains solely and exclusively responsible for compliance
with all statutes and regulations governing sales to U.S. Government. Motorola
makes no representations, modifications or warranties whatsoever with respect to
the ability of its goods, services or prices to satisfy any such statutes and
regulations.
Sales outside of Master Distributor's Area of Primary Marketing Responsibility:
Except as agreed to in writing with Motorola, any direct or indirect
distribution, transshipment and/or sale of Products by Master Distributor
(through a Reseller or otherwise) outside of Master Distributor's Area of
Primary Marketing Responsibility are prohibited.
7. SALES PERFORMANCE
(a) Best Efforts: Master Distributor agrees to use and devote its best efforts
during any term of this Agreement to actively promote and sell the
Products to maximize the sale of the Products to Resellers in Master
Distributor's Area in accordance with this Agreement.
(b) Permitted and Prohibited Advertising: Master Distributor's sales personnel
and each of its Resellers shall be kept properly informed by Master
Distributor as to all of the advertising and marketing programs and
policies of Motorola and shall pursue said programs and policies in a
manner reflecting the high standards, valuable goodwill and business
reputation of Motorola. To assist Master Distributor in promoting sales of
the Products, Motorola may furnish such promotional content and other
advertising aids as Motorola deems necessary.
Master Distributor shall not promote, advertise, or sell the Products
outside of Master Distributor's Area.
(c) Performance Standards: Motorola will evaluate Master Distributor's
performance with respect to the sale of Products primarily on the basis of
Master Distributor's sales volume and promotional efforts. Sales volume
shall be measured by total number of units and/or total dollar sales per
year of Products sold by Master Distributor to Resellers in Master
Distributor's Area. Motorola will, in its sole discretion, establish
reasonable sales objectives and/or performance standards for Master
Distributor for each contract term and may consider those objectives,
among other factors, in evaluating Master Distributor's sales performance.
(d) Forecast: During the term of this Agreement, Master Distributor shall
provide Motorola, in a form to be provided by Motorola, monthly forecasts
to assist Motorola in maintaining an orderly production flow for the
purpose of meeting Master Distributor's delivery requirements. Master
Distributor's failure to provide such information may be considered cause
by Motorola for excusable delivery delay.
(e) Inspection of Master Distributor's Facilities: Motorola may inspect Master
Distributor's facilities and operations as related to Master Distributor's
performance under this Agreement during normal business hours and with
reasonable prior notice.
(f) Dedicated Resources: In order to effectively and rapidly introduce this
new Motorola product and to develop new market demand, Master Distributor
agrees to maintain a sales organization adequate to effectively promote
and market the Products in the Area of Primary Marketing Responsibility,
[***].
8. ETHICAL PRACTICES
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Motorola has historically depended on product quality and superiority, combined
with outstanding support capability to sell its products in all parts of the
world. Motorola believes it can continue to grow and prosper without succumbing
to improper or [ILLEGIBLE]ical demands. Motorola will not do business with any
[ILLEGIBLE]butor, agent, customer, or other person if Motorola knows or sects
the existence of questionable practices. Master Distributor agrees with the
Motorola policy stated in this Section. Master Distributor agrees not to offer,
promise or pay anything of value, directly or indirectly, to any government
official, political party official, political party or candidate for office in
order to secure any undue or improper advantage or benefit for it or Motorola in
connection with business opportunities which are the subject of this Agreement.
If Master Distributor or any person under its responsibility, including but not
limited to its directors, officers, employees and agents fails to comply in all
respects with the policy set forth in this Section, Motorola may immediately
terminate this Agreement without any liability whatsoever to Master Distributor.
9. PARTY RELATIONSHIP
This Agreement does not create an agency, joint venture or partnership between
Master Distributor and Motorola. Neither party shall impose or create any
obligation or responsibility, express or implied, or make any promises,
representations or warranties on behalf of the other party, other than as
expressly provided herein. Nothing in this Agreement shall be construed so as to
make Master Distributor, its employees or agents an employee of Motorola, and
Master Distributor shall not be entitled to participate in any of Motorola's
employee benefit [ILLEGIBLE]ams. Motorola shall not be liable to pay wages,
withhold any taxes, provide any insurance, .or otherwise be obligated as an
employer. Motorola shall not be responsible to any of the various governmental
agencies for Worker's Compensation Insurance or any other type of employee
insurance, withholding taxes, or social security taxes for Master Distributor,
employees or other agents of Master Distributor. The relationship created by
this Agreement does not create a franchise to Master Distributor by Motorola and
is not intended by the parties to constitute the granting of a franchise to
Master Distributor by Motorola, and no federal, state or local franchise
statute, law, regulation or rule is intended by the parties to apply to such
relationship; nor shall any such franchise statute, law regulation or rule be
deemed or construed to apply to the formation, operation, administration,
termination or expiration of this Agreement. Master Distributor expressly
acknowledges and confirms that it has not paid and will not pay any fee to
Motorola in connection with this Agreement, and that none of the terms,
conditions or amounts provided for in this Agreement can be characterized to
constitute such a fee.
10. TERMINATION
This Agreement may be terminated:
(a) By either party, without cause and for its convenience, upon thirty (30)
days prior written notice to the other party at any time; or
(b) By Motorola at any time upon the occurrence of any of the following
events:
(1) a change in the control, management or ownership of Master Distributor
which in Motorola's sole opinion is unacceptable to Motorola;
(2) Master Distributor's ceasing to function as a going concern, declaring
bankruptcy, having a receiver for it appointed, or otherwise taking
advantage of any insolvency law;
(3)Master Distributor's failure to cure any breach of this Agreement
within fifteen (15) days after Motorola's written notification to Master
Distributor of such breach;
(4) any untrue statement of a material fact, or omission to state a
material fact in any communication provided by Master Distributor to
anyone in connection, with this Agreement, its terms, conditions or
amounts, the performance of this Agreement or any Motorola products or
services referred to by this Agreement;
(5) Master Distributor's engaging in any act or failure to act related to
the subject matter of this Agreement which is determined to be illegal or
an unfair or deceptive trade practice in violation of any applicable
federal, state or local law, or which in the opinion of counsel to
Motorola constitutes such an illegal, unfair, or deceptive act or
practice;
(6) Any unauthorized use by Master Distributor of any sales agent or
representative in connection with the performance of this Agreement.
(7) Receipt of customer complaints which, in Motorola's sole opinion,
indicate that Master Distributor is not achieving Motorola's standards of
total customer satisfaction.
(8) Master Distributor's failure to conduct its business in an ethical
manner as required by Paragraph 8, ETHICAL PRACTICES.
11. EFFECT OF TERMINATION OR EXPIRATION
(a) IF THIS AGREEMENT IS TERMINATED OR EXPIRES, OR IF MOTOROLA CANCELS ANY OF
MASTER DISTRIBUTOR'S ORDERS FOR THE PRODUCTS WHICH REMAIN UNDELIVERED ON
THE EFFECTIVE DATE OF ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT,
EACH SUCH ACT OR OCCURRENCE, AS APPLICABLE, IN AND OF ITSELF OR IN
COMBINATION, CANNOT OPERATE TO CREATE A CLAIM IN MASTER DISTRIBUTOR
AGAINST MOTOROLA FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED
TO, ANY CLAIM FOR LOSS OF PROFITS OR PROSPECTIVE PROFITS) WHICH ARE IN ANY
WAY RELATED TO THE SALE OR PURCHASE OF PRODUCTS OR SERVICES UNDER THIS
AGREEMENT.
(b) All sums owed by either party to the other shall become due and payable
immediately upon termination or expiration of this Agreement.
(c) Upon termination or expiration of this Agreement, Master Distributor
shall, within five (5) working days of such
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termination or expiration, deliver to such address as Motorola shall
specify all Motorola property, including, but not limited to; all
equipment, customer data, software items, catalogs, drawings, designs,
engineering photographs, samples, literature, sales aids and any
confidential business information and trade secrets of Motorola in Master
Distributor's possession along with all copies.
(d) Upon termination or expiration of this Agreement, Motorola shall be
relieved of any obligation to make any further shipments under this
Agreement and, with respect to termination, may cancel all of Master
Distributor's unshipped orders for the Products, irrespective of previous
acceptance by Motorola. Motorola shall have no obligation or liability to
Master Distributor, its Resellers or prospective customers of any Reseller
in connection with any such cancellations unaccepted orders.
(e) Motorola's acceptance of any order by Master Distributor for Products
after the termination or expiration of this Agreement shall not be
construed as a renewal or extension of this Agreement, nor as a waiver of
termination or expiration of this Agreement.
(f) The terms, provisions, representations and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by either or both parties shall so survive the
completion of performances and termination or expiration of this
Agreement, including without limitation the making of any and all payments
due under this Agreement.
OPTION TO REPURCHASE PRODUCTS
(a) Upon any termination or expiration of this Agreement, Master Distributor
shall notify Motorola in writing of its currently existing inventory of
Products and Motorola shall have the option, but not the obligation, to
repurchase all or any part of Master Distributor's remaining inventory of
products at the net price paid to Motorola for such inventory by Master
Distributor. Said option may be exercised upon written notice to Master
Distributor mailed within fourteen (14) days following the receipt by
Motorola of Master Distributor's written inventory report. Upon exercise
of said option to repurchase, Motorola and Master Distributor shall take
an inventory of all Products in control of Master Distributor.
(b) Upon any termination or expiration of this Agreement, prior to selling
Products in unsold inventory to any third party, Master Distributor shall
first have offered to sell such Products to Motorola at Master
Distributor's net purchase price, and Motorola shall have refused to
accept such offer within ten (10) days after receipt thereof.
(c) In the event Motorola exercises its option to repurchase all or any part
of Master Distributor's inventory of Products, Master Distributor hereby
agrees to sell such inventory to Motorola as of the date of termination or
expiration of this Agreement, and to deliver the same immediately upon
such termination, at Motorola's sole cost and expense (unless this
Agreement is being terminated by Motorola due to Master Distributor's
breach, then at Master Distributor's sole cost and expense) to such
place(s) as Motorola shall designate, free and clear of any liens or
encumbrances thereon. To the extent that Motorola does not repurchase all
of Master Distributor's remaining inventory of Products, Master
Distributor shall be permitted to sell such remaining inventory of
Products in its normal course of business subject to the terms, conditions
and restrictions stated herein.
(d) Motorola shall pay Master Distributor for the inventory of Motorola
Products repurchased within forty-five (45) days after receipt of said
Motorola Products and accompanying invoice by Motorola. Motorola shall
have the right to offset against any moneys payable hereunder for
repurchased Products any moneys that are due and owing from Master
Distributor to Motorola as of the date any such payment is due.
13. WAIVER
The failure of either party to insist in any one or more instances upon the
performance of any of the terms, covenants, or conditions in this Agreement or
to exercise any right under this Agreement, shall not be construed as a waiver
or relinquishment of the future performance of any such term, covenant, or
condition or the future exercise of any such right, and the obligation of each
party with respect to such future performance or future exercise of any such
right shall continue in full force and effect.
14. MOTOROLA PRIOR PRODUCTS RESELLER AGREEMENT TERMINATED
In consideration of Motorola entering into this Agreement, Master Distributor
agrees that any existing agreement between Master Distributor and Motorola for
the sale of the Products is terminated upon the execution of this Agreement in
accordance with all the terms and conditions of any such agreement.
15. LIMITATIONS
(1) LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY AND EXCEPT AS PROVIDED
FOR IN ATTACHMENT B IN THE SECTION "PATENT COPYRIGHT AND TRADEMARKS",
MOTOROLA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
WHETHER FOR BREACH OF CONTRACT, WARRANTY,. MOTOROLA'S NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR
PRODUCTS SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE
CLAIMED. MASTER DISTRIBUTOR'S SOLE REMEDY IS TO REQUEST MOTOROLA AT
MOTOROLA'S OPTION TO EITHER REFUND THE PURCHASE PRICE OR REPAIR OR REPLACE
PRODUCTS THAT ARE NOT AS WARRANTED. IN NO EVENT, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN TORT, OR
OTHERWISE, WILL MOTOROLA BE LIABLE FOR INCIDENTAL, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, FRUSTRATION OF
ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, LOSS OF DATA, COST OF
CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES, DOWNTIME
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COST OR ANY CLAIM AGAINST MASTER DISTRIBUTOR BY ANY OTHER PARTY.
(2) INSURANCE. IT IS FURTHER UNDERSTOOD THAT MOTOROLA IS NOT AN INSURER AND
THAT MASTER DISTRIBUTOR SHALL OBTAIN ALL INSURANCE, REQUIRED BY THIS
AGREEMENT AND THAT MOTOROLA DOES NOT REPRESENT OR WARRANT THAT MOTOROLA
PRODUCTS WILL AVERT OR PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM,
WHICH ARE MONITORED, DETECTED OR CONTROLLED WITH USE OF THE PRODUCTS.
(3) TIME TO XXX. EXCEPT FOR MONEY DUE UPON AN OPEN ACCOUNT, NO ACTION SHALL BE
BROUGHT BY MASTER DISTRIBUTOR FOR ANY BREACH OF THIS AGREEMENT MORE THAN
TWO (2) YEARS AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION EXCEPT WHERE A
SHORTER LIMITATION PERIOD IS PROVIDED BY APPLICABLE LAW.
(4) NO REPRESENTATIONS. THE ISSUANCE OF INFORMATION, ADVICE, APPROVALS,
INSTRUCTIONS OR COST PROJECTIONS BY MOTOROLA'S SALES PERSONNEL OR OTHER
REPRESENTATIVES SHALL BE DEEMED EXPRESSIONS OF PERSONAL OPINION ONLY AND
SHALL NOT AFFECT MOTOROLA'S AND MASTER DISTRIBUTOR'S RIGHTS AND
OBLIGATIONS HEREUNDER UNLESS THE SAME IS IN WRITING AND SIGNED BY MOTOROLA
WITH THE EXPLICIT STATEMENT THAT IT CONSTITUTES AN AMENDMENT TO THIS
AGREEMENT.
16. GENERAL
(a) All Attachments and any and all deletions, additions and revisions
thereto, are incorporated into this Agreement and made a part hereof.
(b) This Agreement can be amended as follows:
(i) any additions, deletions, amendments or changes ("modification") to
the Attachments to this Agreement (other than Attachment B-Supplementary
Terms and Conditions) can be unilaterally made by Motorola upon thirty
(30) days prior written notice to Master Distributor; Master Distributor's
failure to terminate this Agreement when it is sent notice of the
modification and this Agreement shall be deemed amended accordingly; or,
(ii) any other additions, deletions, amendments or changes to this
Agreement must be in writing and signed by Motorola and Master
Distributor.
(c) Master Distributor acknowledges that it has read and understands these
terms and conditions and agrees to be bound by them, and that this
Agreement, including its Attachments, is the complete and exclusive
statement of the agreement between the parties and supersedes all
proposals, oral or written, and all other communications between the
parties relating to the subject matter hereof.
(d) This Agreement is binding upon, and shall inure to the benefit of, the
parties hereto and their respective heirs, executors, legal
representatives, successors and assigns. Master Distributor may not assign
or subcontract this Agreement or any interest herein including, without
limitation, rights and duties of performance, without the express prior
written consent of Motorola.
(e) If any provision of this Agreement is contrary to, prohibited by or held
invalid by any law, rule, order or regulation of any government or by the
final determination of any state or federal court, such invalidity shall
not affect the enforceability of any other provisions not held to be
invalid.
(f) Section and paragraph headings used in this Agreement are for convenience
only and are not to be used to construe the provisions of the Agreement.
(g) THIS AGREEMENT IS DEEMED BY THE PARTIES TO HAVE BEEN ENTERED INTO IN THE
STATE OF ILLINOIS AND THIS AGREEMENT'S INTERPRETATION, CONSTRUCTION AND
THE RIGHTS, DUTIES AND REMEDIES FOR ITS ENFORCEMENT OR BREACH ARE TO BE
DECIDED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
APPLICATION OF CONFLICT OF LAWS PRINCIPLES.
Motorola and Master Distributor will attempt to settle any claim or
controversy arising out of this Agreement through consultation and
negotiation in good faith and a spirit of mutual cooperation. If those
attempts fail, then the dispute will be mediated by a mutually acceptable
mediator to be chosen by Motorola and Master Distributor within thirty
(30) days after written notice by one of the parties demanding non-binding
mediation. Neither party may unreasonably withhold consent to the
selection of a mediator, and each party will share the costs of the
mediation equally. By mutual agreement, however, Motorola and Master
Distributor may postpone mediation until the parties have completed some
specified but limited discovery about the dispute. The parties may also
mutually agree to replace mediation with some other form of non-binding
alternate dispute resolution ("ADR").
Any dispute that the parties cannot resolve through negotiation or
mediation within two (2) months of the date of the initial demand may then
be submitted to a court located in Xxxx County, Illinois, U.S.A. for
resolution. Both Motorola and Master Distributor consent to jurisdiction
over it by such a court. The use of any ADR procedures will not be
construed under the doctrine of laches, waiver or estoppel to affect
adversely the rights of either party. Nothing will prevent either party
from resorting to judicial proceedings ii (a) good faith efforts to
attempt resolution of the dispute under these procedures have been
unsuccessful or (b) interim relief from the court is necessary to prevent
serious and irreparable injury to one of the parties or to others.
(h) Notices: Any notice required or permitted herein shall be in writing and
shall be hand delivered transmitted via facsimile or mailed, postage fully
prepaid, properly addressed to the party to be notified at the address
shown below or the last known address given by such party to the other.
Any such notice shall be considered to have been given when hand delivered
or transmitted via facsimile with verbal acknowledgement by the receiving
party or on the second (2nd) business day after it has been deposited in
the mail in the manner herein provided.
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(i) Acceptance: This Agreement is an offer by Master Distributor to Motorola
for Master Distributor to be appointed a Master Distributor of the
Products as set forth in this Agreement. This Agreement shall not become a
binding contract between Master Distributor and Motorola until the date
Motorola has signed the Agreement ("Agreement Date"). No act or omission
regarding this Agreement or its performance by anyone, including Master
Distributor or Motorola, which occurs prior to the Agreement Date can be
characterized by anyone to either constitute acceptance of this Agreement
by Motorola or otherwise create a claim in anyone related in any way to
the subject matter of this Agreement.
17. ATTACHMENTS
The following attachments are attached hereto and made a part hereof.
A. Products, Area of Primary Marketing Responsibility for Products
B. Supplementary Terms and Conditions
The parties deem this Agreement to be executed by their duly authorized
representatives on the Agreement Date.
MOTOROLA, INC. MASTER DISTRIBUTOR
By: /s/ XXXXXXX XXXXXXXXX By: /s/ XXXXX XXXXXXXX
------------------------- ---------------------
(Authorized Signature) (Authorized Signature)
Print Name: XXXXXXX XXXXXXXXX Print Name: XXXXX XXXXXXXX
Title: VP AND GM CANOPY Title: CHIEF FINANCIAL OFFICER
Signature Date:1/27/2003 Signature Date: JAN 23, 2003
Motorola Address For Notices: Print Master Distributor Address For Notices:
Motorola, Inc.
Attention: Law Department _____________________________________________
0000 Xxxx Xxxxxxxxx Xx. _____________________________________________
Xxxxxxxxxx, XX 00000 _____________________________________________
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MOTOROLA MASTER DISTRIBUTOR AGREEMENT
ATTACHMENT A
PRODUCTS, AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
PRODUCTS:
MASTER DISTRIBUTOR'S
MODEL DESCRIPTION MSRP PRICE
(REFERENCE PRODUCT AND MSRP PRICE LIST PUBLISHED ON MOTOROLA'S Master
DISTRIBUTOR Web-Site)
Master Distributor shall purchase Motorola manufactured hardware Products
directly from Motorola at [***] off Motorola's Manufacturer's Suggested Resale
Price ("MSRP"). Master Distributor shall not be entitled to a discount on
non-Motorola product, on product promotions or on services unless otherwise
offered in writing by Motorola.
AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
Master Distributor's area of primary marketing responsibility for the Products
shall be:
LATIN AMERICA AND THE CARIBBEAN (1)
(1) Product can only be distributed into Master Distributor's Area of Primary
Marketing Responsibility countries certified for shipment and operation, or
where appropriate alternative permits, trial licenses, etc., have been secured
and approved by Motorola. A current listing of such countries is included below.
Country:
[***]
Motorola and Master Distributor may agree in writing to expand Master
Distributor's area of primary marketing responsibility. In such case, Motorola
and Master Distributor shall execute an Addendum to this Agreement that
specifies the additional Area(s) and that includes new or modified terms and
conditions for sales into the additional Area(s).
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MOTOROLA MASTER DISTRIBUTOR AGREEMENT
ATTACHMENT B
SUPPLEMENTARY TERMS AND CONDITIONS
A. SUPPLEMENARY TERMS
(1) MASTER DISTRIBUTOR'S MINIMUM PURCHASE TARGETS. Master Distributor shall
purchase from Motorola, as a [***] target, [***] in Product on an annual
basis. Purchases will be monitored on a quarterly basis and reviewed with
the Master Distributor to ensure Master Distributor is capable of reaching
the annual [***] target. If after [***], a Master Distributor has not
purchased [***] of Product, Master Distributor may no longer qualify to
participate as a Motorola Authorized Master Distributor.
(2) STOCKING REQUIREMENTS AND INITIAL STOCKING ORDER. Master Distributor is
required to stock in its warehouse(s) [***] average inventory of Products
based on previous sales and submitted forecasts. Master Distributor shall
place an initial stocking order with Motorola for Product with a value not
less than [***] upon execution of this Agreement
REBATES, CO-OP & OTHER MASTER DISTRIBUTOR PROGRAMS. Rebates, Co-op and
other Master Distributor programs may be offered by Motorola to Master
Distributor during this Agreement on terms and conditions published by
Motorola in the applicable Canopy(TM) Master Distributor Program.
(4) ORDERS, ACCEPTANCE, CREDIT APPROVAL. Purchase and sale shall occur only by
Motorola's acceptance of orders submitted by Master Distributor. An order
may be submitted on Motorola's standard Master Distributor Product Order
Form. Facsimile, telegraph and verbal orders may also be submitted.
Acceptance shall be documented by a Motorola invoice sent to Master
Distributor. Master Distributor acknowledges and agrees that the invoice
is accurate and final unless objected to in writing within ten (10) days
of receipt by Master Distributor.
Acceptance shall be only upon terms and conditions of the Agreement and
the listed Attachments. The only effect of any terms and conditions in
Master Distributor's purchase orders or elsewhere shall be to request the
time and place of delivery and number of Products to be delivered, but
they shall not change, alter or add to these terms and conditions in any
way. One of the conditions of acceptance is Master Distributor's obtaining
and maintaining credit approval from Motorola. Master Distributor shall
provide Motorola with financial information and statements as requested by
Motorola to obtain and maintain Master Distributor's credit approval.
(5) CANCELLATION. Master Distributor, at no cost, may cancel an individual
order by giving Motorola notice of such cancellation at least thirty (30)
days prior to the scheduled shipping date. Except in cases where Motorola
is the direct cause of Master Distributor's cancellation, partial
cancellation or rescheduling, Motorola shall have the option to not cancel
an individual order when such notice is received by Motorola within thirty
(30) days of the scheduled shipping date of the order. Except in cases
where Motorola is the direct cause, of Master Distributors' cancellation,
partial cancellation or rescheduling, if Motorola agrees to Master
Distributor's cancellation on less than 30 days notice, Master Distributor
shall pay a [***] [***] cancellation charge as liquidated damages and not
as a penalty for each such cancellation.
(6) SHIPPING. Motorola will ship Products in one or more full-box packages,
in Motorola's sole discretion, pre-paid via Motorola's standard surface
shipping or via Master Distributor's requested surface shipping/shipping
payment account, only to Master Distributor locations) expressly
authorized by this Agreement. All shipping costs, including any expedited
delivery, via air shipment or otherwise, requested by Master Distributor
shall be paid by Master Distributor. Motorola may prepay the freight and
other handling charges associated with delivery and add all such charges
to Master Distributor's invoice or utilize Master Distributor's shipping
account numbers directly. All Products supplied to Master Distributor by
Motorola under this Agreement shall be packed, marked and otherwise
prepared for shipment in a manner which is in accordance with good
commercial practice.
(7) PRODUCT LABELING. Each Product shipped under the terms of the Agreement
may be labeled with Motorola's brand name logo or other Motorola
trademark. In its sale advertising and promotion of the Products, Master
Distributor is authorized to use the Motorola brand name logo or other
such trademark, if any, only in a statement that identifies that the
Products are manufactured by Motorola, Inc.
(8) DELIVERY. Shipping or delivery dates are best estimates only. Motorola
reserves the right to make deliveries in installments and this Agreement
shall be severable as to such installments. Delivery delay or default of
any installment shall not relieve Master Distributor of its obligation to
accept and pay for remaining deliveries. In the event of shortage of a
Product, neither the acceptance of an order by Motorola nor the shipment
of any portion of any order will require Motorola to complete shipment of
that order. Furthermore Motorola will have the right at any time to
allocate shipments of a Product in any manner which in its discretion will
equitably meet the needs of the situation. IN NO EVENT SHALL MOTOROLA BE
LIABLE FOR INCREASED COSTS, LOSS OF PROFITS OR GOODWILL OR ANY OTHER
INCIDENTAL OR CONSEQUENTIAL
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DAMAGES DUE TO LATE DELIVERY OR NONDELIVERY OF PRODUCTS.
(9) PAYMENT. Each delivery shall be separately invoiced without regard to
other deliveries and payment from Master Distributor shall be due and
payable [***] without regard to other deliveries. Motorola may offer
prompt payment discounts or extended payment terms and Master Distributor
should inquire as to the availability and details of such programs. As
security for Master Distributor's payment obligations to Motorola for
Products to be delivered to Master Distributor but not paid for in
advance, Motorola may require Master Distributor, before shipment, to
grant to Motorola a security interest in such Products and their proceeds
to the extent of any unpaid balances for the Products. Motorola will not
attempt to exercise this right to the extent it already has an existing
security interest that applies to the Products. In such case, Master
Distributor agrees not to subject any of such Products to a lien in favor
of any entity or person, other than a governmental entity, that is senior
to or has priority over Motorola's security interest. Master Distributor
shall promptly execute and file, at Motorola's expense, any documents
reasonably requested by Motorola to perfect, and to continue the
perfection of, such security interest.
(10) TITLE AND SECURITY. All deliveries are Ex Works, INCOTERMS 2000,
Motorola's factory. Title to Products (excluding software, where title is
not transferred), risk of loss and payment of all transportation costs and
insurance shall pass to Master Distributor at the factory shipping point.
(11) PRICE PROTECTION. Motorola may increase prices at any time, upon [***]
prior written notice of the effective date of any such change. Price
increases will not apply to orders Motorola has accepted before the
effective date of the increase. Motorola will extend the current price for
a period of [***] from the effective date of a price increase upon Master
Distributor providing written documentation to Motorola of all outstanding
bids, within [***] of receipt of Motorola's notice of a price increase.
Price decreases will become effective on the "effective date" specified in
Motorola's notification. The price decrease will apply to unshipped items
specified on orders Motorola has accepted prior to the effective date of
the decrease. Price adjustment will be made for Products in transit to
Master Distributor on the effective date of the price decrease if Motorola
invoiced Master Distributor for the Products at the higher price. Master
Distributor may be entitled to a credit for the difference between the
price paid for Products in Master Distributor's inventory on the effective
date of the decrease and the new lower price provided the Products are
still in inventory and were delivered to Master Distributor no earlier
than [***] before the effective date of the price decrease. To qualify for
the credit, Master Distributor must identify each unit by Product code,
shipment date, equipment serial number, invoice number and net invoice
price. Master Distributor's request for a credit must be submitted to
Motorola within [***] after Motorola notifies Master Distributor of the
reduction. Motorola will issue the credit upon verification of Master
Distributor's request.
(12) STOCK ROTATION. Once each calendar quarter, Master Distributor may return
as a stock rotation, eligible Products to Motorola for full credit. Master
Distributor must, as a condition of such stock rotation return, issue a
purchase order for new Products having at least the same dollar value of
the returned Products. To be eligible for credit or repurchase under this
Section, the Product must have been purchased or licensed from Motorola,
be a current model in Motorola's product line at the time of repurchase,
still be in its original, unopened container and was originally shipped by
Motorola no earlier than 90 days before the date of return. Taxes,
transportation costs, and any other additional charges will not be
considered part of the price Master Distributor paid for the Products.
Master Distributor shall also bear all freight costs and risk of loss or
damage in returning the inventory to Motorola. Damaged or used Product is
ineligible for stock rotation.
(13) WARRANTY REPAIR OBLIGATIONS. Master Distributor agrees to provide first
level warranty support to its Resellers and Resellers' end user customers.
Master Distributor shall test and validate all warranty claims prior to
returning any Product to Motorola. Motorola agrees that it shall provide
Master Distributor with thirty (30) days notice prior to modifying its
warranty terms and conditions. All warranty Return Material Authorizations
("RMA") shall be documented as to the reason for the return by Master
Distributor. Motorola shall provide the proper documentation to be filled
out by Master Distributor.
(14) POINT OF SALE REPORTING. Master Distributor shall provide to Motorola, in
a form provided by Motorola, Point of Sale ("POS") information on a
monthly basis by the third business day of Motorola's fiscal calendar.
Master Distributor shall provide additional information to Motorola upon
Motorola's reasonable request.
(15) INVENTORY REPORTING. Master Distributor shall provide to Motorola, in a
form provided by Motorola on the first business day of each week, an
inventory report showing Motorola Product part #, quantities and purchase
price.
(16) QUARTERLY BUSINESS REVIEW. Motorola and Master Distributor shall conduct
regular business reviews on at least a quarterly basis. Master Distributor
shall appoint a dedicated product manager to manage the relationship
between Motorola and Master Distributor. Master Distributor's dedicated
program manager shall attend all quarterly business reviews.
B. WARRANTY/WARRANTY DISCLAIMER, WARRANTY PROCEDURE
Motorola warrants the Products in accordance with an express written commercial
or limited warranty, as applicable, and make no representation or warranty of
any other kind. The applicable warranty is extended by Motorola neither to
Master Distributor nor any Reseller but only to the original end user customer
purchaser of the Products from a Reseller of the Master Distributor and is not
assignable or transferable to subsequent purchasers, unless otherwise specified
in writing to such original end user customer purchaser. Master Distributor will
require that
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each of its Resellers provide the original end user customer purchaser with the
applicable Motorola Product warranty and, if applicable, a software license and
software warranty prior to the sale of the Products. Neither Master Distributor
nor any of its Resellers shall issue any warranties, guarantees or licenses with
Product to the Products which purport to obligate Motorola to any [ILLEGIBLE] or
entity other than the applicable warranties or license furnished for the
Products by Motorola pursuant to this Attachment B. From time to time, Motorola
may change its applicable warranties on thirty (30) days prior written notice to
Master Distributor. To the extent that Master Distributor makes any warranty or
representation to its customers or any other third party in respect of the
Products, it is understood that such representation or warranty shall be made
solely for the Master Distributor's account and shall not bind the Motorola. The
Master Distributor shall indemnify and hold Motorola harmless from and against
any claims, liabilities and expenses (including, but not limited to, attorney's
fees) asserted against, or incurred by, Motorola resulting from the Master
Distributor making any such representation or warranty and/or any other express
or implied warranty of the Master Distributor.
MOTOROLA DOES NOT EXTEND ANY WARRANTY TO MASTER DISTRIBUTOR OR ANY RESELLER OF
MASTER DISTRIBUTOR, AND ALL WARRANTIES EXPRESS OR IMPLIED ARE SPECIFICALLY
EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
If any Motorola Product furnished hereunder is initially defective, i.e.,
defective at the time of delivery, Master Distributor's sole Remedy shall be to
return the product to Motorola for replacement or repair at Motorola's sole
discretion. All returns must be returned in the-original container and packing
with all accessories and instructions. The foregoing constitutes Master
Distributor's sole remedy with respect to initially defective Motorola Products;
Master Distributor shall have no right to reject all or any part of any shipment
of Motorola Products furnished hereunder because any or all of such Motorola
Products may be initially defective.
C. SOFTWARE LICENSE AND SOFTWARE WARRANTY /WARRANTY DISCLAIMER
A separate Motorola Software License and Software Warranty may apply to certain
Products and individual items of software. When Master Distributor is advised by
Motorola that a Motorola Software License and Software Warranty apply to
Products containing Motorola Software that are purchased from Motorola for
resale, or relicensing, as the case may be, Motorola will advise Master
Distributor of the procedures that must be taken in connection with the sale
and/or licensing of such Products and/or Motorola Software such as a requirement
that Master Distributor, Master Distributor's Resellers and each end user
customer of each Reseller sign an applicable Motorola Software License prior to
delivery of the Products and Motorola Software. From time to time, Motorola may
change such separate software licenses, warranties and procedures on prior
written notice to Master Distributor. MOTOROLA DOES NOT EXTEND ANY SOFTWARE
WARRANTY TO MASTER DISTRIBUTOR OR ANY RESELLER OF MASTER DISTRIBUTOR, AND ALL
WARRANTIES EXPRESS OR IMPLIED ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
D. PATENT, COPYRIGHT AND TRADEMARKS
(1) INDEMNIFICATION. Motorola agrees to defend, at its expense, any suits
against Master Distributor, Master Distributor's Reseller or a Reseller's
end user customer based upon a claim that any Motorola manufactured
Products furnished hereunder directly infringe a U.S. patent or copyright
and to pay cost and damages finally awarded in any such suit, provided
that Motorola is notified promptly in writing of the suit and, at
Motorola's request and at its expense, is given control of said suit and
all requested assistance for defense of same. If the use or sale of any
such Product(s) furnished hereunder is enjoined as a result of such suit,
Motorola, at its option and at no expense to Master Distributor, Master
Distributor's Reseller or a Reseller's end user customer, shall obtain for
Master Distributor, its Reseller or the Reseller's end user customer, as
applicable, the right to use or sell such Product(s), or shall substitute
an equivalent Product reasonably acceptable to Master Distributor, its
Reseller or the Reseller's end user customer, as applicable, and shall
extend this indemnity thereto, or shall accept the return of such
Product(s) and reimburse Master Distributor, its Reseller or the
Reseller's end user customer, as applicable, the purchase price therefor
less a reasonable charge for reasonable wear and tear. In no event shall
Motorola be liable for any: (i) infringement by goods or associated
software manufactured and/or supplied by third parties; (ii) infringement
arising from a combination of the Products with other elements, or
modification of the Products after delivery by Motorola; (iii)
infringement arising out of compliance with" Master Distributor's or its
Resellers' specifications, (iv) royalties payable based on a per use
basis, or subscriber revenues derived therefrom, or any royalty basis,
other than a reasonable royalty based upon revenue derived by Motorola
from Master Distributor from sales or license of the infringing Products;
(v) royalties payable with respect to, ON intellectual property claims
related to intellectual property rights associated with compliance with or
implementation of standards issued by public or private standards bodies.
THE TERMS AND CONDITIONS OF THIS ORDER CONTAIN THE SOLE AND EXCLUSIVE
LIABILITY OF MOTOROLA FOR INFRINGEMENT OR THE LIKE OF PATENTS, TRADEMARKS,
COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY RIGHTS IN
CONNECTION WITH THIS AGREEMENT WHETHER DIRECT OR CONTRIBUTORY, AND IS IN
LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OF STATUTORY IN REGARD THERETO,
INCLUDING WITHOUT LIMITATION, THE WARRANTY AGAINST INFRINGEMENT SPECIFIED
IN THE UNIFORM COMMERCIAL CODE. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM INFRINGEMENT OF ALLEGED
INFRINGEMENT PATENTS OR COPYRIGHTS.
(2) COPYRIGHTS AND MASK WORKS. Laws in the United States and other countries
preserve for Motorola certain exclusive rights in the Motorola Software,
mas
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works and other works of authorship furnished hereunder, including,
without limitation, the exclusive right to prepare works derived from
same, reproduce same in copies and distribute copies of same. Each such
item of Motorola Software, mask work and other work of authorship may be
used in only the Product in which such item was originally embodied and
such item in such Product may not be replaced, copied, distributed,
modified in any way, or used to produce any derivative thereof. No other
use including, without limitation, alteration, modification, reproduction,
distribution or reverse engineering of any such item or exercise rights in
any such item is permitted.
(3) REVERSE ENGINEERING. Master Distributor acknowledges Motorola's claim that
the Motorola Software and Products furnished hereunder contain valuable
trade secrets of Motorola and therefore agrees that it will not translate,
reverse engineer, de-compile or disassemble or make any other unauthorized
use of such Motorola Software and Products. Since unauthorized use of such
Motorola Software and Products will greatly diminish the value of such
trade secrets and cause irreparable harm to Motorola, Master Distributor
agrees that Motorola, in addition to any other remedies it may have, shall
be entitled to equitable relief to protect such trade secrets, including,
without limitation, temporary and permanent injunctive relief without the
proving of damage by Motorola.
(4) TRADEMARK AND PROPRIETARY MARKS. The Products shipped under the terms and
conditions of this Agreement may carry Motorola's trademark and
proprietary marks or such other logo or proprietary marks of Motorola,
which may not be used by Master Distributor except as Motorola may
expressly agree to in writing prior to any use of such other logo or xxxx.
Master Distributor hereby acknowledges the validity of the trademark
"MOTOROLA" as well as of all other proprietary marks which are affixed to
the Products and agrees that the aforesaid trademarks and proprietary
marks are and shall remain the property of Motorola. Master Distributor
shall not do anything to infringe upon, harm, or contest the validity of
the aforesaid trademarks or other proprietary marks of Motorola. Unless
otherwise agreed to in writing, Master Distributor may not use the
trademark "MOTOROLA" in connection with the promotion or sale of such
Motorola Products but may only state that such Products are manufactured
by Motorola. Except as Motorola may otherwise specifically provide in
writing, such promotion shall be at Master Distributor's sole cost and
expense. Master Distributor agrees that it shall not use the trademark
"MOTOROLA" as part of the name under which it conducts business.
Permission to display the word "MOTOROLA", or any other proprietary word
or symbol owned by Motorola or its affiliates, is only as stated above and
it is expressly understood that nothing herein shall grant to Master
Distributor any right, title or interest in the word "MOTOROLA" (either
alone or in association with other words, names or symbols), or in the
corporate name of Motorola, or any part thereof or in any other trademark
or trade name adopted by Motorola, or its affiliates. In order that
Motorola may protect its trademarks, trade names, corporate slogans,
goodwill and product designations, Master Distributor shall not use any
such marks, names, slogans, or designations in any advertising copy,
promotional material, signs or other written or printed material except in
a form specifically approved in writing by Motorola. If, as set forth in
this subparagraph D (4), any such xxxx is used in signs, advertising or in
any other manner by Master Distributor, Master Distributor will, upon
termination or expiration of this Agreement, immediately discontinue all
such use or display.
(5) LICENSE DISCLAIMER. EXCEPT FOR THE RIGHT TO USE THE MOTOROLA SOFTWARE AND
PRODUCTS FOR THE PURPOSES PROVIDED HEREIN WHICH ARISES BY OPERATION OF
LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NOTHING CONTAINED
IN THE AGREEMENT SHALL BE DEEMED TO GRANT TO MASTER DISTRIBUTOR, ITS
RESELLERS OR THE END USER CUSTOMERS OF THOSE RESELLERS EITHER DIRECTLY OR
BY IMPLICATION, ESTOPPEL OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY
PATENTS, COPYRIGHTS, TRADEMARKS OR TRADE SECRETS OF MOTOROLA OR ANY THIRD
PARTY.
E. TAXES AND INSURANCE
(1) Master Distributor shall pay all license fees, sales, use, service use,
occupation, retailer's occupation, service occupation, personal property
and excise taxes and any other fees, assessments or taxes which may be
assessed or levied by any national, state or local government and any
departments and subdivision thereof, as a result of the performance of the
Agreement or against any of the Products ordered by the Master
Distributor.
(2) Master Distributor shall provide and maintain at its own expense the
following insurance against liability arising in any way out of the
Agreement and any other insurance coverages which may be deemed necessary
by Motorola; (a) General Public Liability insurance with a combined single
limit of $1,000,000; (b) Worker's Compensation and Employers Liability
insurance sufficient and proper under the laws of the state wherein the
responsibilities are to be performed to protect Motorola against claims
under the compensation laws of said state; (c) Automobile Public Liability
Insurance covering all vehicles used in connection with the Agreement with
a combined single limit of $1,000,000; (d) fire, theft and extended
coverage with respect to the Products in an amount no less than the
replacement value of such Products. All insurance policies shall be in
companies satisfactory to Motorola, name Motorola as an additional named
insured, and contain a waiver of subrogation clause whereby the insurer
waives all right of subrogation it may have under such policies as related
to Motorola. Each insurance policy will contain a clause requiring the
insurer to give Motorola at least thirty (30) days prior written notice of
any alteration in the terms of such policy or the cancellation thereof.
Master Distributor will promptly provide Motorola with written notice
thereof and make available to Motorola all information and documentation
relating thereto.
(3) Except as otherwise specifically set forth in the Agreement, Product
prices are exclusive of any amount for federal, state, or local excise,
sales, use, property, retailers' occupation or similar taxes. If any such
excluded taxes are determined to be applicable to any transaction related
to the Agreement, or if Motorola is required to pay or bear the burden of
such taxes, the prices set forth herein shall be increased by the
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amount of such taxes and any interest or penalty thereon, and Master
Distributor shall pay to Motorola the full amount of any such increase no
later than thirty (30) days after receipt of an invoice for such taxes, or
Master Distributor may provide Motorola an executed resale exemption
certificate as required by the state tax authorities to establish Master
Distributor's tax-exempt status as a reseller under the Agreement.
F. EXCUSABLE DELAYS
Neither party shall be liable for any delay or failure to perform due to any
cause beyond its reasonable control. Causes include but are not limited to
strikes, acts of God, acts of the other party, its employees, agents, Resellers
or end user customers of those resellers, interruptions of transportation or
inability to obtain necessary labor, materials or facilities, or default of any
supplier or because volume of orders at any time renders deliveries or
acceptance impractical in the ordinary course of business. The delivery or
acceptance schedule shall be considered extended by a period of time equal to
the time lost because of an excusable delay. In the event either party is unable
to wholly or partially perform because of any cause beyond its reasonable
control, such party may terminate any order without liability to the other.
G. FCC AND OTHER GOVERNMENT MATTERS
An end user customer of a Product is solely responsible for obtaining any
licenses or other authorizations required by the Federal Communication
Commission ("FCC") or any other federal, state or local governmental agency. The
end user customer is solely responsible for complying with applicable FCC rules
and regulations and the applicable rules and regulations of [ILLEGIBLE] other
federal, state or local governmental agency.
H. COMPLIANCE WITH LAW
Master Distributor shall at all times conduct its efforts under the Agreement in
strict accordance with all applicable federal, state and local laws, rules and
regulations and with the highest commercial standards. Master Distributor agrees
to promptly comply with any notices received from Motorola regarding compliance
with any such laws, rules or regulations or any notices from Motorola relating
to remedial efforts which Motorola, in its sole discretion, deems are necessary
that relate to any such law, rule or regulation including, but not limited to,
such laws, rules and regulations regarding warranty, consumer protection or
product safety for Motorola products and services.
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MOTOROLA MASTER DISTRIBUTOR AGREEMENT
ATTACHMENT C
[***]
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