EXHIBIT 10.27
ALTIGEN COMMUNICATIONS INC.
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement") is made and entered into as of
this 22nd day of December, 1999, (the "Effective Date") by and between ALTIGEN
COMMUNICATIONS INC., a California corporation, with principal offices at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("AltiGen") and SYNNEX INFORMATION
TECHNOLOGIES, INC., a California corporation, with principal offices at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Distributor"); both jointly
referred to herein as "The Parties".
1. DEFINITIONS
1.1 DEALER means any individual or entity which acquires the
Products for the express purpose of resale to others, whether such resale is of
the Product as a standalone product, as bundled and sold with other software or
hardware products, as integrated with other software or hardware products or as
sold with associated services.
1.2 END USER means a licensee who acquires Products for Internal Use
(rather than distribution or resale) in accordance with the terms of an End-User
License Agreement substantially in the form of the End-User License Agreement
attached hereto as Exhibit A (the "End-User Agreement").
1.3 INTERNAL USE means use for purposes which do not directly
produce revenue for the End User. "Internal Use" does not include timesharing.
1.4 INTELLECTUAL PROPERTY means any patent, copyright, trade name,
trademark, trade secret, know-how, mask work or any other intellectual property
right or proprietary information or technology, whether registered or
unregistered.
1.5 PRODUCT means software program packages and physical computer
hardware, including (1) a program code, in object code form only, on diskette(s)
or CD-ROM (the "Program"); (2) physical computer hardware including computer
boards, computer power supply, computer cables (the "PC Hardware"); (3)
instruction booklets and other information prepared for End-Users concerning the
use of the program and computer hardware ("Documentation"); (4) an End-User
Agreement. The Products include only those listed by title and functional
description on the "Product and Price List" attached hereto as Exhibit B.
1.6 PURCHASE OBJECTIVES means the minimum quantity of each Product
which Distributor commits to purchase quarterly during the term of this
Agreement, as mutually agreed upon and set forth in Exhibit C attached hereto.
These quarterly purchase objectives are to serve as goals and a means to track
progress but are nonbinding.
1.7 TERRITORY shall be described in Exhibit E.
1.8 GRANT OF DISTRIBUTION Right Subject to the terms and conditions
set forth in this Agreement, AltiGen hereby grants to Distributor a
non-exclusive, non-transferable right to (a) market and distribute the Products
solely to Dealers located in the Territory as stated in Exhibit E and (b) use
the Products for those purposes set forth in the Agreement. Distributor shall
not, knowingly directly or indirectly, solicit sales of the Products outside of
the Territory without the prior written consent of AltiGen. AltiGen retains the
right to sell the Products directly to other parties in the Territory,
including, by way of illustration but not limitation, distributors, Dealers, and
original equipment manufacturers. Distributor shall have no right to modify the
Product or Documentation without the prior written approval of AltiGen.
Distributor agrees not to (a) reverse engineer, decompile, disassemble or
otherwise reduce the Product to human-perceivable form, or to knowingly
encourage or assist third parties in doing so or (b) distribute the Product by
rental or lease to end users. All rights not expressly granted herein are
retained by AltiGen. Distributor shall have no right to grant a Dealer the right
to make copies from a golden master absent further agreement between AltiGen and
the Distributor.
2. OWNERSHIP
Except as specified in this agreement, AltiGen does not grant to the
distributor any rights in or to any intellectual property related to the product
or to any materials furnished hereunder. The intellectual property embodied in
the product all modifications thereto, and all documentation thereof, are
proprietary to AltiGen, and AltiGen retains all right, title and interest in and
to such intellectual property.
3. PRICES AND PAYMENTS
3.1 PRICES. Distributor shall pay AltiGen, for each Product and
upgrade, the list price for the Product as set forth on Exhibit B, less any
Distributor discount listed in Exhibit B. Both the AltiGen standard list price
and the Distributor's discount levels are subject to change by AltiGen from time
to time in its sole discretion upon [*****] written notice to Distributor.
Orders requesting delivery after the [*****] of written notice of price or
discount change will be charged at the new price or discount level.
3.2 DISTRIBUTOR PRICING. Distributor is free to determine its own
resale prices for the Products. Although AltiGen may publish suggested list
prices, these are suggestions only and are not binding in any way. However,
Distributor agrees that any discounts it may offer (from suggested applicable
list prices that may be published by AltiGen) shall be commercially reasonable
and consistent with industry practices providing Distributor commercially
reasonable margins for its resale activities with respect to the Products.
Manufacturer agrees to extend to Distributor equal pricing as is given to other
like Distributors.
3.3 DEALER PRICING. Distributor shall inform each of its Dealers
that it is free to determine its own retail prices and that, although AltiGen
may publish suggested retail price lists, they are suggestions only and are not
binding in any way.
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3.4 INITIAL ORDER. Within [*****] of the Effective Date, Distributor
shall deliver to AltiGen a purchase order for an aggregate price of [*****].
This order will include a onetime only payment term of [*****] and an
unconditional return of any items not sold within the initial [*****].
3.5 PAYMENT. Upon approval of credit by AltiGen, payment for
additional orders shall be due and payable within [*****] days following receipt
of invoice or on such terms as may be otherwise specified in AltiGen's invoice.
All Products ordered in excess of any credit limit shall be paid for as agreed
upon by AltiGen and Distributor. These terms and conditions will be communicated
in writing within forty-eight hours to Distributor to resolve or accept currency
in advance of shipment, by a letter of credit drawn upon a bank acceptable to
AltiGen and Distributor, a bank cashier's check, or a bank wire transfer.
AltiGen reserves the right to vary, change, or limit the amount or duration of
credit to be allowed to Distributor, either generally or with respect to a
particular order. In the event AltiGen does not extend credit to Distributor,
payment for all purchases hereunder shall be made in advance of shipment or, at
AltiGen's option, C.O.D. If Distributor fails to meet its payment obligations
under the Agreement and such failure continues for [*****] following receipt of
written notice from AltiGen this Agreement will or may be terminated which is
described in section 12.2 of this Agreement.
(A) RIGHT TO WITHHOLD. Notwithstanding any other provision
in this Agreement to the contrary, Distributor shall not be deemed in default if
it withholds any specific amount to AltiGen because of a legitimate dispute
between the parties as to that specific amount pending the timely resolution of
the disputed amount.
3.6 PRICE PROTECTION.
(A) DISTRIBUTOR PRICE PROTECTION. AltiGen shall notify
Distributor of the effective date of a [*****] for any of the Products covered
herein. All inventory acquired by Distributor from AltiGen prior to the
effective date of the [*****] and not yet sold or under a contract for sale will
be granted price protection as set forth herein. This will also include any
product order accepted by AltiGen that has not shipped, all product in transit
from AltiGen to Distributor's warehouse and product in transit between
Distributor's warehouses during the less than [*****] period before the
effective date of the [*****] and not yet sold or under a contract for sale will
be granted price protection as set forth herein. For each such copy of Product,
the [*****] will be credited to Distributor's account. To obtain price
protection, within [*****] of receipt of AltiGen's notice of the [*****],
Distributor shall provide to AltiGen a written inventory report showing by part
number the quantity of each AltiGen Product in the Distributor's inventory as of
the effective date of the [*****]. [*****].
(B) DEALER PRICE PROTECTION. On a case by case basis,
AltiGen will ▇▇▇▇▇ ▇▇▇▇▇ protection for Distributor's dealers at AltiGen's
discretion. To obtain price protection for its Dealers, Distributor (i) shall
provide to AltiGen a written shipment report showing by part number the quantity
of each AltiGen Product shipped to a Dealer less than [*****] before the
effective date of this [*****], including the identity of each Dealer, the
Products sold, and the date of shipment and (ii) shall provide, or require its
Dealers to provide, a written Dealer inventory report showing by part number the
quantity of each AltiGen Product in Dealer's inventory as of the effective date
of the [*****]. If Distributor provides such reports to AltiGen within [*****]
of Distributor's receipt of
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AltiGen's notice of a [*****], AltiGen shall credit the Distributor's account
for the [*****]. [*****]. [*****].
3.7 STOCK ROTATION.
(A) INVENTORY BALANCING. Provided that the Distributor
issues a simultaneous offsetting purchase order, Distributor may, once during
each quarter, return for credit Product purchased for up to a maximum of [*****]
of net dollar sales invoiced by AltiGen during the immediately preceding
quarter. The credit issued for the returned inventory will be based on the
[*****] at which the Products were available to Distributor during the period
commencing with the date on which the Product was purchased and ending on the
date the Product was returned, and may be used on a dollar-for-dollar basis
solely to purchase additional Product pursuant to the offsetting purchase order.
The right to balance inventory granted herein must be exercised by the last day
of the second month of the quarter. Distributor shall submit a request for
authorization to return Product for inventory balancing which shall state the
quantity of Product to be returned. Upon receipt of such request, AltiGen shall
issue a Return of Materials Authorization (RMA) number no later than 1 week
after the request is acknowledged by AltiGen, Inc. Inventory returned under this
section must be accompanied by a return of materials authorization number
assigned by AltiGen and (i) in merchantable condition, in its factory-sealed
packaging. All Product returned under this subsection (a) shall be returned
within thirty (30) days of the date of issuance of the return of materials
authorization number. AltiGen shall pay for the shipping of returned Products to
AltiGen and Distributor shall pay for the shipping of replacement Product sent
to Distributor.
(B) DEFECTIVE PRODUCT/DEAD ON ARRIVAL (DOA). Distributor
may return any product to AltiGen that its customer finds defective as detailed
in the End User Agreement described in Exhibit A. Inventory returned under this
section must be accompanied by a return of materials authorization number
assigned by AltiGen. All Product returned under this section shall be returned
within thirty (30) days of the date of issuance of the return of materials
authorization number, and if the returned Product is returned because defective
by virtue of being in breach of the warranty provided for in the End User
Agreement, returned with the entire contents of such Product package. The credit
issued for the returned products will be based on the Product's purchase price,
less any discounts or credits previously received. AltiGen shall pay for the
shipping of returned Products to AltiGen and for the shipping of replacement
Product sent to Distributor. AltiGen will specify account number and carrier at
time of RMA issuance.
(C) PRODUCT REFRESH. AltiGen may, at its sole discretion,
modify the Products. For purposes of this Agreement, AltiGen shall have sole
discretion as to whether a Product is deemed to be a new version of an existing
Product to be provided to Distributor under the terms of this Agreement or a new
product requiring execution of an appendix to this Agreement prior to
distribution. Once a new version of a Product covered by this Agreement begins
shipping, Distributor shall have thirty (30) days from the first AltiGen
shipment date of the new version to Distributor, or from written notification by
AltiGen of the new version, whichever is later, (i) to submit an offsetting
purchase order for an equal dollar-for-dollar value of the new version of the
Product and (ii) to return Product from the prior release from Distributor's
inventory that was shipped by AltiGen to Distributor within the previous ninety
(90) days. Such returns shall be shipped at AltiGen expense using AltiGen
Communication's account number and carrier which will
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be specified at time of RMA issuance, and the offsetting Purchase Order shipment
will be paid for by Distributor as described in section 5.7 and 5.8 of this
agreement. Returned Product will be exchanged by AltiGen on a dollar for dollar
basis, proportional with any price increase or decrease, with the new version of
the Product and shipped to Distributor at AltiGen expense. Product returned
under this provision must be in merchantable condition and in its original
factory-sealed packaging. The right to refresh Product under this subsection (b)
shall be in addition to Distributor's inventory balancing right under subsection
(a) above.
(D) PRODUCT DISCONTINUATION. AltiGen shall provide
Distributor with thirty (30) days written notice prior to AltiGen's
discontinuation of any Product. Upon receipt of such notice, Distributor shall
have the right to return all discontinued Products purchased within sixty (60)
days of the notice of discontinuation for a credit to Distributor's account of
the Product's purchase price less any discounts or credits previously received.
The rights to return discontinued Product under this subsection (d) shall be in
addition to Distributor's inventory balancing right under subsection (a) above.
3.8 DISTRIBUTOR FINANCIAL CONDITION. Distributor represents and
warrants that it is and at all times during the term of this Agreement shall
remain in good financial condition, solvent and able to pay its bills when due.
Distributor further represents and warrants that it has and at all times during
the term of this Agreement shall retain the ability to order and pay for all
Product purchased. From time to time, on reasonable notice from AltiGen,
Distributor shall furnish Annual Reports, 10K, 10Q reports or other similar
reports that are supplied to other partners of Distributor.
3.9 TAXES. Prices calculated in accordance with Exhibit B are
exclusive of all applicable taxes. Distributor agrees to pay all taxes
associated with the marketing, distribution and delivery of the Products
ordered, including but not limited to sales, use, excise, added value and
similar taxes and all customs, duties or governmental impositions, but excluding
taxes on AltiGen's net income. Any tax or duty AltiGen may be required to
collect or pay upon the marketing or delivery of the Products shall be paid by
Distributor and such sums shall be due and payable to AltiGen upon delivery. If
claiming a tax exemption, Distributor must provide AltiGen with valid tax
exemption certificates at the time of invoicing.
4. PRODUCT CHANGES
AltiGen shall have the right, in its sole discretion, without liability
to Distributor, with written thirty (30) day notice, to (a) change the Products
available on the Product List, (b) change the design, or discontinue developing,
producing, licensing or distributing any of the Products covered by this
Agreement, and (c) announce new products to which the terms and conditions of
this Agreement do not apply. The parties agree that additional Products may be
added to the Agreement by execution of an appendix to this Agreement setting
forth any special terms, conditions, modifications or deletions necessary for
the additional Products. Additional Products shall be deemed to be added to this
Agreement to the extent AltiGen accepts any purchase orders for Products not
otherwise listed on the Product List.
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5. ORDERS
5.1 PROCEDURE. All orders for Products placed by Distributor shall
be in writing, or if placed orally, shall be confirmed in writing within ten
(10) business days after such oral order.
5.2 ACCEPTANCE OF ORDERS. All orders for Products by Distributor
shall be subject to acceptance by AltiGen and shall not be binding on AltiGen
until the earlier of written confirmation or shipment and, in the case of
acceptance by shipment, only as to the portion of the order actually shipped. If
a rejection is not provided within (5) days of written receipt of the order, it
shall be deemed accepted.
5.3 CONTROLLING TERMS. The terms and conditions of this Agreement
and of the applicable AltiGen order confirmation pursuant to Section 5.2
("Acceptance of Orders") above, shall apply to each order accepted or shipped by
AltiGen hereunder. Any terms or conditions appearing on the face or reverse side
of any purchase order, acknowledgment, or confirmation other than confirmation
pursuant to Section 5.2 above that are different from or in addition to those
required hereunder shall not be binding on the parties, even if signed and
returned, unless both parties hereto expressly agree in a separate writing to be
bound by such separate or additional terms and conditions.
5.4 ALTIGEN ORDER CANCELLATION & OBLIGATION TO SHIP IN PRESENCE OF
BREACH. Even where AltiGen accepts a purchase order, AltiGen reserves the right
to cancel or suspend any orders placed by Distributor and accepted by AltiGen,
or to refuse or delay shipment thereof, at the time of scheduled shipment if
Distributor (a) fails to make any payment as provided herein or in any invoice,
(b) fails to meet credit or financial requirements established by AltiGen, or
(c) otherwise fails to comply with the terms and conditions of this Agreement.
If Distributor has a legitimate dispute of an invoice under section 3.5b, orders
will not be held or canceled as a result.
5.5 DISTRIBUTOR ORDER CANCELLATION. Orders accepted by AltiGen may
be canceled without penalty if written notice of cancellation is given to
AltiGen and the notice is received by AltiGen at least [*****] prior to the
scheduled shipment date. In no event may Distributor cancel any order or any
portion of an order after shipment.
5.6 PRODUCT AVAILABILITY. AltiGen will use reasonable efforts to
fill orders for Products and meet requests for shipment dates subject to Product
availability and AltiGen production and supply schedules. Should orders for
Products exceed AltiGen's available inventory, AltiGen will allocate its
available inventory on an even and equitable basis, without liability to
Distributor on account of the method of allocation chosen or its implementation.
AltiGen shall not be liable to Distributor or any third party for any damages
due to AltiGen's failure to for any orders or for any delay in delivery or error
in filing any orders for any reason whatsoever.
(A) Distributor requires concurrent with the execution of
this Agreement Export Administration Regulations product classification and
supporting documentation: Certificate of Origin (General Use and/or NAFTA),
Export Commodity Control Number's; (ECCN's), General License and/or Individual
Validated License information and Schedule "B"/Harmonized Numbers.
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This applies when distribution rights granted under Section 1.7 are outside the
United States for the initial Product/s and when additions or changes to these
Products occurs.
(B) Product Marking AltiGen will clearly ▇▇▇▇ each unit of
Product with the Product name and computer compatibility. Such packaging will
also bear a machine-readable bar code identifier scannable in standard Uniform
Product Code (UPC) format. The bar code must identify the Product as specified
by the Uniform Code Council (UCC). If the AltiGen or Distributor customers
require serial number tracking, the serial number must be clearly marked and bar
coded on the outside of the individual selling unit. The bar code shall fully
comply with all conditions regarding standard product labeling set forth in
Exhibit B in the then-current Distributor GUIDE TO BAR CODE: THE PRODUCT LABEL.
AltiGen may be assessed a reasonable per unit charge for all Product not in
conformance herewith.
5.7 DELIVERY. AltiGen will ship Products FOB Destination, unless
otherwise agreed in writing, to Distributor's North American designated location
or freight forwarder via ground transport. Distributor may change the designated
locations by providing AltiGen with written notice of such change, and the
notice is received by AltiGen at least fifteen (15) days prior to the estimated
shipment dates. AltiGen shall ship all Product in accordance with instructions
specified in Distributor's AltiGen Routing Guide attached hereto as Exhibit F.
AltiGen shall, to the extent possible, assist Distributor in making claims with
carriers in the event of loss or damage in transit.
5.8 RISK OF LOSS. In the case of shipments to shipping destinations
within the United States, exclusive of the rights retained under the Agreement
in trademarks, patents, copyrights, trade names, trade secrets and intellectual
property, and all risk of loss or damage for any Product shall pass to
Distributor upon delivery by AltiGen to the freight carrier regardless of
whether AltiGen or the Distributor has designated the carrier. Title to the
Products will be passed to the Distributor once sold to dealer or paid for by
Distributor, whichever occurs first.
6. DISTRIBUTION OBLIGATIONS
6.1 DISTRIBUTOR DISTRIBUTION. Distributor shall distribute or market
Product: (i) solely to resellers approved by AltiGen under its Authorized Dealer
Program, (ii) subject to Distributor's standard terms and conditions of sale to
its resellers which do not alter or contradict this Agreement and (iii) in the
form received from AltiGen, adhering to the conditions of the End User License
Agreement, Exhibit A stating: You may not modify or translate the Program, the
PC Hardware or the Documentation without the prior written consent of AltiGen.
You may not reverse assemble, reverse compile or otherwise attempt to create the
source code from the Program or the PC Hardware. Distributor shall neither add
to nor remove any documentation included by AltiGen with the Product.
6.2 AUTHORIZED DEALER PROGRAM. AltiGen has instituted an AltiGen
Authorized Dealer Program. Distributor agrees to market the Products in
compliance with AltiGen's Authorized Dealer Program.
6.3 BUSINESS PLAN. Within ninety (90) days of the Effective Date of
the contract, Distributor and AltiGen will co-author a business plan setting
forth Distributor's plans for promoting
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the Products, which will be reviewed semiannually, at which time objectives and
performance will be evaluated. Distributor agrees to provide an updated business
plan in accordance with the schedule for updating such as specified by AltiGen.
6.4 PURCHASE OBJECTIVES; INVENTORY. Distributor and AltiGen shall
agree upon quarterly Purchase Objectives. The initial Purchase Objectives are
stated in Exhibit C with ongoing purchase and business objectives described in
the business plan outlined in 6.3. Distributor shall warehouse and order to meet
market demand and will deliver to resellers in a timely manner. Distributor will
inventory 30 days of product in each of its named warehouses or as deemed by
market conditions.
6.5 POINT OF SALE AND INVENTORY REPORTS. During the term of
this Agreement, Distributor will provide AltiGen standard sales-out and
inventory reports via its electronic Bulletin Board. Each report will be ready
on the 1st Tuesday of the new month. This report will include the following: (i)
State and zip code*; (ii) Products purchased in this month's reporting,
including returns; (iii) Current distributor's inventory on a weekly basis,
reflecting the previous Friday's close of business inventory; (iv) Six month
trailing history of product sold by region; (v) List of Distributor's open
purchase orders. Such report, with respect to a calendar month, shall be posted.
Distributor shall also provide non-standard reporting data including reseller
name and address subject to the terms and conditions of a separate Proprietary
Information Non-Disclosure Agreement attached hereto as Exhibit G. * POS to
include Dealer name, city, state, zip code and authorization number.
6.6 CUSTOMER SATISFACTION. Distributor agrees that the Products
marketed under this Agreement are technically complex and require high-quality,
individualized pre-marketing and post-marketing support. This support is
necessary to achieve and maintain high customer satisfaction. Therefore,
Distributor agrees that high customer satisfaction is a condition of
distribution authorization by AltiGen. The distribution channels established by
AltiGen, and the obligations placed on distributors, exist to ensure high
customer satisfaction. Distributor agrees to market the Products only in
accordance with this Agreement. In addition, in order to assure high customer
satisfaction, Distributor agrees to:
o Report to AltiGen promptly and in writing all suspected and
actual problems with any Product.
o maintain a shipment report identifying for each Dealer, the
Products sold, the date of sale, and each Product's serial
number;
o Retain all shipment reports for five years after the date of
sale, and assist AltiGen, upon request, in tracing a Product to a
Dealer, in order to distribute critical Product information,
locate a Product for safety reasons, or discover unauthorized
marketing or infringing acts;
o Conduct business in a manner which reflects favorably at all
times on the Products, goodwill and reputation of AltiGen.
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o Avoid deceptive, misleading or unethical practices, which are or
might be detrimental to AltiGen or its products.
o Refrain from making any false or misleading representations with
regard to AltiGen or its products; and
o Refrain from making any representations, warranties or guarantees
to customers or to the trade with respect to the specifications,
features or capabilities of the Products that are inconsistent
with the literature distributed by AltiGen.
6.7 PROMOTIONAL EFFORTS. Distributor shall use reasonable commercial
efforts to market and distribute the Products to Dealers in the Territory.
Distributor may advertise the Products in advertising media of Distributor's
choice, provided that the primary audience or circulation is located in the
Territory. Distributor shall make full use of all promotional material supplied
by AltiGen and make available literature and other information that AltiGen
requires to be transmitted to such Dealers. In all advertising and promotion of
the Products, Distributor shall comply with AltiGen standard cooperative
advertising policies as specified from time to time by AltiGen.
6.8 DEMONSTRATION SYSTEM. Distributor shall maintain a demonstration
system, provided by AltiGen, capable of supporting the most technically advanced
Products. Distributor shall use such demonstration system both to facilitate its
ability to fulfill its Dealer support obligations, and to support its sales
efforts.
6.9 DISTRIBUTOR PERSONNEL. AltiGen will provide mutually agreed upon
levels of training for Distributor's sales and technical personnel. Distributor
shall train and maintain a sufficient number of capable technical and sales
personnel to serve the demands of Dealers for the Products, for service and
support of the Products, call on all Dealers with reasonable frequency and
answer promptly all Dealer inquiries or requests for information regarding the
Products. Distributor and its staff shall develop and maintain sufficient
knowledge of the industry, the Products, and competitive offerings (including
specifications, features, and functions) so as to be able to demonstrate and
support the Products for Dealers. Distributor shall provide all Dealers with
technical support and other assistance appropriate for the promotion, marketing,
and distribution of the Products. Distributor shall attend AltiGen distribution
meetings, as appropriate.
7. SUPPORT AND MAINTENANCE
AltiGen shall provide Distributor (but not its Dealers, and not End Users
which purchase from such Dealers) with the support and maintenance described in
Exhibit D hereto free of charge during the term of this Agreement. AltiGen may
provide Dealers and End Users with support and maintenance under a separate
agreement. In order to have a high degree of customer satisfaction and technical
expertise, Distributor and AltiGen will have to perform on-site training for
Distributor's Technical Support personnel. This will be coordinated at a later
date.
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8. TRADEMARKS AND CONFIDENTIAL INFORMATION
8.1 TRADEMARKS. AltiGen shall have and retain sole ownership of
AltiGen's logo, trade names and trademarks ("Trademarks"), including the
goodwill pertaining thereto. AltiGen hereby grants to Distributor the right to
use and display the Trademarks solely in connection with and solely to the
extent reasonably necessary for the marketing, distribution, and support of the
Products within the Territory in accordance with the terms and conditions of
this Agreement. Distributor shall not do or suffer to be done any act or thing
that would impair AltiGen's rights in its Trademarks or damage the reputation
for quality inherent in the Trademarks. AltiGen's has the right to take all
action which it deems necessary to ensure that the advertising and promotional
materials related to the Products utilized by Distributor are consistent with
the reputation and prestige of the Trademarks. Distributor shall market,
distribute, and support the Products only under the Trademarks, and not any
other trademark or logo. Distributor shall not use the Trademarks or any other
trademarks or trade names of AltiGen or any word, symbol, or design confusingly
similar thereto, as part of its corporate name, or as part of the name of any
product of Distributor. Distributor shall not (i) remove, alter or overprint the
Products' copyright notices, trademarks, and logos, or packaging, (ii) attach
any additional trademarks to the Products without AltiGen's prior written
consent or (iii) affix any of the Trademarks to any non-AltiGen products.
Distributor agrees that any goodwill which accrues because of Distributor's use
of the Trademarks shall become AltiGen's property. Distributor further agrees
not to contest AltiGen's Trademarks or tradenames, or to make application for
registration of any AltiGen Trademarks or tradenames.
8.2 CONFIDENTIAL INFORMATION. During the term of this Agreement, and
for a period of three (3) years thereafter, The Parties will maintain in
confidence any confidential or proprietary information of The Parties disclosed
to one another including, without limitation, any information regarding
scientific, engineering, manufacturing, marketing, business plan, financial or
personnel matter relating to The Parties, whether in oral, written, graphic or
electronic form ("Confidential Information"). The Parties will not use, disclose
or grant use of such Confidential Information except as expressly authorized by
The Parties. To the extent that disclosure is authorized by The Parties, The
Parties will obtain prior agreement from their employees, agents or consultants
to whom disclosure is to be made to hold in confidence and not make use of such
information for any purpose other than those permitted by The Parties. The
Parties will use at least the same standard of care as they use to protect its
own Confidential Information to ensure that such employees, agents or
consultants do not disclose or make any unauthorized use of such Confidential
Information. The Parties will promptly notify each other upon discovery of any
unauthorized use or disclosure of the Confidential Information.
8.3 EXCEPTIONS. The obligations of confidentiality contained in
Section 8.2 will not apply to the extent that it ran be established by
Distributor by competent proof that such Confidential Information:
(A) was already known to the parties, other than under an
obligation of confidentiality, at the time of disclosure;
(B) was generally available to the public or otherwise part
of the public domain at the time of its disclosure to the parties;
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(C) became generally available to the public or otherwise
part of the public domain after its disclosure and other than through any act or
omission of the parties in breach of this Agreement;
(D) was disclosed to the parties, other than under an
obligation of confidentiality, by a third party who had no obligation to the
disclosing party not to disclose such information to others.
9. INDEMNIFICATION
9.1 ALTIGEN INFRINGEMENT INDEMNITY. Subject to the limitations set
forth herein below, AltiGen shall defend Distributor with respect to any claim,
suit or proceeding brought against Distributor to the extent it is based upon a
claim that any Product sold pursuant to this Agreement infringes upon any U.S.
patent, U.S. trademark, U.S. copyright or U.S. trade secret of any third party;
provided, however, that Distributor (i) promptly notifies AltiGen in writing of
such claim, suit or proceeding; (ii) gives AltiGen the right to control and
direct investigation, preparation, defense and settlement of any claim, suit or
proceeding; and (iii) gives assistance and full cooperation for the defense of
same, and, further provided, that AltiGen's liability with respect to portions
of Products provided by or licensed from third parties will be limited to the
extent AltiGen is indemnified by such third parties. AltiGen shall pay any
resulting damages, costs and expenses finally awarded to a third party, but
AltiGen shall not be liable for such amounts, or for settlements incurred by
Distributor, without AltiGen's prior written authorization. If a Product is, or
in AltiGen's opinion might be, held to infringe as set forth above, AltiGen may,
at its option, replace or modify such Product so as to avoid infringement, or
procure the right for Distributor to continue the use and resale of such
Product. If neither of such alternatives is, in AltiGen's opinion, reasonably
possible, the infringing Product shall be returned to AltiGen, and AltiGen's
sole liability, in addition to its obligation to reimburse any awarded damages,
costs and expenses set forth above, shall be to refund the purchase price paid
for such Products by Distributor.
9.2 EXCLUSIONS. The provisions of the indemnity provided in
Section 9.1 (with respect to infringement) shall not apply with respect to any
instances of alleged infringement based upon or arising out of the use of such
Products in any manner for which the Products were not designed, or for use of
Products other than the uses and distributions designated by AltiGen, for use of
any Product that has been modified by Distributor or any third party, or for use
of any Product in connection with or in combination with any equipment, devices
or software that have not been supplied by AltiGen. Notwithstanding any other
provisions hereof, the foregoing indemnity shall not apply with respect to any
infringement based on Distributor's activities occurring subsequent to its
receipt of notice of any claimed infringement unless AltiGen shall have given
Distributor written permission to continue to market and distribute the
allegedly infringing Product.
9.3 ENTIRE LIABILITY AND LIMITATION. THE FOREGOING SECTIONS 10.1 AND
10.2 STATE THE SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR AND THE ENTIRE LIABILITY
AND OBLIGATION OF ALTIGEN WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT
OF ANY PATENT, COPYRIGHT TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY
THE PRODUCTS OR ANY PART THEREOF.
-11-
9.4 PRODUCT DEFECT INDEMNITY: Subject to the limitations set forth
herein below, AltiGen shall defend Distributor with respect to any claim, suit
or proceeding brought against Distributor to the extent it is based upon a claim
that any property damage, personal or bodily injury or other damage has resulted
from a defect in the Products; provided, however, that Distributor (i) promptly
notifies AltiGen in writing of such claim, suit or proceeding; (ii) gives
AltiGen the right to control and direct investigation, preparation, defense and
settlement of any claim, suit or proceeding; and (iii) gives assistance and full
cooperation for the defense of same, and, further provided, that AltiGen's
liability with respect to portions of Products provided by or licensed from
third parties will be limited to the extent AltiGen is indemnified by such third
parties. AltiGen shall pay any resulting damages, costs and expenses finally
awarded to a third party, but AltiGen shall not be liable for such amounts, or
for settlements incurred by Distributor, without AltiGen's prior written
authorization.
9.5 INDEMNITY BY DISTRIBUTOR. DISTRIBUTOR AGREES TO INDEMNIFY AND
HOLD ALTIGEN HARMLESS FROM ANY CLAIMS, SUITS, PROCEEDINGS, LOSSES, LIABILITIES,
DAMAGES, COSTS AND EXPENSES (INCLUSIVE OF ALTIGEN'S REASONABLE ATTORNEYS' FEES)
MADE AGAINST OR INCURRED BY ALTIGEN AS A RESULT OF NEGLIGENCE,
MISREPRESENTATION, OR ERROR OR OMISSION ON THE PART OF DISTRIBUTOR OR
REPRESENTATIVE OF DISTRIBUTOR. DISTRIBUTOR SHALL BE SOLELY RESPONSIBLE FOR, AND
SHALL INDEMNIFY AND HOLD ALTIGEN HARMLESS FROM, ANY CLAIMS, WARRANTIES OR
REPRESENTATIONS MADE BY DISTRIBUTOR OR DISTRIBUTOR'S EMPLOYEES OR AGENTS WHICH
DIFFER FROM THE WARRANTY PROVIDED BY ALTIGEN IN ITS END USER AGREEMENT.
9.6 MUTUAL INDEMNITY REGARDING PERSONAL INJURY AND OTHER DAMAGES.
Each party shall indemnify and hold the other harmless from and against any and
all claims, actions, damages, demands, liabilities, costs and expenses,
including reasonable attorney's fees and expenses, resulting from any act or
omission of the acting party or its employees or agents under this Agreement
that causes or results in property damage, personal injury or death.
10. WARRANTY
10.1 ALTIGEN WARRANTY. AltiGen warrants the Products TO END-USERS
ONLY pursuant to the terms and conditions of the End User Agreement, provided,
however, Distributor shall be entitled to rely on the End User Warranty for
purposes of returns of Product and indemnities, a copy of which is attached to
this Agreement as Exhibit A. In addition AltiGen warrants the following:
(A) It has good transferable title to the products.
(B) There are no suits or proceedings pending or threatened
which allege any infringement by the Products of any patents, copyrights,
trademarks, trade secrets or any other intellectual property rights of a third
party Product sales to Distributor do not in any way constitute violation of any
law, ordinance, rule or regulation in the distribution territory.
-12-
(C) The Products will properly (a) record, store, process,
calculate or present calendar dates falling on or after (and if applicable,
spans of time including) January 1, 2000 as a result of the occurrence, or use
of data consisting of such dates and (b) calculate any information dependent on
or relating to dates on or after January 1, 2000 in the same manner, and with
the same functionality, data integrity and performance, as such Product records,
stores, processes, calculates; and presents calendar dates on or before December
31, 1999, or information dependent on or relating to such dates.
(D) The Products have been or will be at the time of shipment
certified as a Class B computing device as required by the rules of the U.S.A.
Federal Communications Commission.
(E) AltiGen will not label any of its products as being "Made
in America", "Made in USA," or with similar wording, unless substantially all
components of such Products are in fact made in the United States of America.
10.2 LIMITATIONS AND DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES
SET FORTH IN SECTION 10.1 ABOVE, ALTIGEN EXPRESSLY DISCLAIMS ALL WARRANTIES
EXPRESSED OR IMPLIED RELATING TO THE PRODUCTS, AND FURTHER EXPRESSLY EXCLUDES
ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY.
10.3 NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR
REPRESENTATION CONCERNING THE PERFORMANCE OF THE PRODUCTS OTHER THAN AS PROVIDED
IN THE END USER AGREEMENT. DISTRIBUTOR SHALL MAKE NO OTHER WARRANTY, EXPRESS OR
IMPLIED, ON BEHALF OF ALTIGEN.
10.4 DISTRIBUTOR'S WARRANTY. Distributor hereby represents and
warrants to AltiGen that neither this Agreement (or any term hereof) nor the
performance of or exercise of rights under this Agreement, is restricted by,
contrary to, in conflict with, ineffective under, requires registration or
approval or tax withholding under, or affects AltiGen's intellectual property
rights (or the duration thereof) under, or will require any compulsory licensing
under, any law or regulation of any organization, country, group of countries or
political or governmental entity to which Distributor is subject.
11. LIMITATION ON LIABILITY
11.1 LIMITATION OF LIABILITY. OTHER THAN AS PROVIDED IN SECTION 9
ABOVE THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER HEREUNDER SHALL NOT
EXCEED [*****].
11.2 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL ALTIGEN OR
DISTRIBUTOR BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF INCOME, LOSS OF
PROFITS OR LOSS OF DATA, EVEN IF ALTIGEN HAS BEEN ADVISED
-13-
OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE
GRANT OF THE LICENSE HEREUNDER.
11.3 THIRD PARTY CLAIMS. AltiGen shall not be liable for any claim by
Distributor based on any third party claim, except as stated in Section 10 of
the Agreement.
12. TERM AND TERMINATION
12.1 TERM. Subject to the provisions of Sections
13.2 and 13.3 below, this Agreement is valid for a term of one year and shall be
renewed automatically for additional one year terms provided that each party
shall have the right to terminate this Agreement for convenience upon ninety
(90) days written notice prior to the end of the initial term or any subsequent
term of the Agreement.
12.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement
for cause upon thirty (30) days written notice to the other party if such other
party materially breaches this Agreement and such material breach is not cured
within the thirty (30) day period following delivery of notice. Either party
shall have the right to terminate this Agreement immediately in the event the
other party terminates its business, or becomes subject to any bankruptcy or
insolvency proceeding under Federal or State statute, and such petition is not
dismissed within sixty (60) days.
12.3 EFFECT OF TERMINATION. For a period of sixty (60) days following
termination of this Agreement, Distributor may distribute any Products in
Distributor's possession at the time of termination or at its option return any
product in inventory, provided, however, that if AltiGen has terminated the
Agreement pursuant to Section 12.2, Distributor's right to distribute the
Products shall immediately terminate. Following any permitted distribution,
Distributor shall return to AltiGen or, at AltiGen's request, destroy the copies
of the Products and Documentation then in its possession. In addition,
Distributor shall be entitled to retain one (1) copy of the Product following
termination solely for the purposes of providing support to Dealers and End
Users. AltiGen shall apply the value of any returned Products to any outstanding
credit balance in Distributor's account. The termination of this Agreement shall
not act to terminate the licenses granted to Dealers or End Users pursuant to
this Agreement. (i) For a ninety day (90) period after termination, Distributor
may send back inventory received from its resellers to AltiGen. Product returned
under this provision must be in merchantable condition and in its original
factory-sealed packaging.
12.4 PAYMENT UPON TERMINATION. Upon termination of the Agreement by
AltiGen for cause, the due dates of all outstanding invoices for Products will
become due and payable thirty (30) days from date of termination minus returns
received, even if longer terms had been provided previously. After the ninety-
(90) day period a final true-up of inventory and monies will take place. If
AltiGen owes Distributor monies, AltiGen will issue a check to Distributor. All
orders or portions of orders remaining unshipped as of the effective date of
such termination shall automatically be canceled.
-14-
13. MISCELLANEOUS
13.1 NONEXCLUSIVITY. AltiGen retains the right to market, distribute,
and support the Products in the Territory directly to or through any person or
entity on any terms deemed desirable by AltiGen in its sole discretion. Any
discounts extended to other like distributors that exceed the discount schedule
(see Exhibit "B") in effect at the time between AltiGen and Distributor shall
also be extended to distributor.
13.2 MODIFICATION AND AMENDMENT. Except with respect to Exhibit B
hereof, this Agreement may be modified or amended only in writing by the consent
of both parties.
13.3 SURVIVAL. Sections 5.8, 8, 9, 10, 11, 12.3, 12.4, 13 shall
survive termination of this Agreement for three (3) years.
13.4 GOVERNING LAW. This Agreement is made in accordance with and
shall be governed and construed under the laws of the State of California, as
applied to agreements executed and performed entirely in California by
California residents.
13.5 TOLL FRAUD. Dealer is forbidden from stating or implying that
AltiGen Products provide immunity from fraudulent intrusion (Toll Fraud). Dealer
must use this language on all sales materials and contract involving AltiGen
Products.
13.6 NOTICES. All notices, demands, or consents required or permitted
under this Agreement shall be in writing and shall be delivered personally or
sent by a national overnight courier service or by registered or certified,
return receipt requested mail to the other party at the addresses first set
forth above. All notices, demands, or consents shall be deemed effective upon
personal delivery or five (5) days following dispatch via first class mail or
day three (3) following deposit with any national overnight courier service in
accordance with this section.
13.7 NO PARTNERSHIP OF JOINT VENTURE. No agency, employment,
partnership, joint venture, or other joint relationship is created hereby, it
being understood that Distributor and AltiGen are independent contractors
vis-a-vis one another and that neither has any authority to bind the other in
any respect whatsoever.
13.8 FORCE MAJEURE. Neither party shall be deemed to be in default of
or to have breached any provision of this Agreement as a result of any delay,
failure in performance, or interruption of service resulting directly or
indirectly from acts of God, acts of civil or military authority, civil
disturbance, war, strikes or other labor disputes, fires, transportation
contingencies, laws, regulations, acts or orders of any government agency or
official thereof, other catastrophes or any other circumstances beyond the
party's reasonable control.
13.9 EXPORT CONTROL. The parties acknowledge that the Products may be
subject to the export control laws of the United States of America, including
the U.S. Bureau of Export Administration regulations, and hereby agree to obey
any and all such laws. The parties agree to comply with the U.S. Foreign Corrupt
Practices Act of 1977, as amended, and with all applicable foreign laws relating
to the use, importation, licensing or distribution of the Products.
-15-
13.10 ASSIGNMENT. Neither party may assign this Agreement or any of
its rights, duties or obligations under this Agreement to any third party
without the other party's prior written consent, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, either party may assign
its rights and delegate its obligations under this Agreement without the consent
of the other party to a purchaser of all or substantially all of its voting
stock or capital assets or to an entity with which such party merges or is
consolidated.
13.11 SEVERABILITY AND WAIVER. In the event any provision of this
Agreement is held to be invalid or unenforceable, the valid or enforceable
portion thereof and the remaining provisions of this Agreement will remain in
full force and effect. Any waiver (express or implied) by any party of any
default or breach of this Agreement shall not constitute a waiver of any other
or subsequent default or breach.
13.12 ENTIRE AGREEMENT. This Agreement and all Exhibits referred to
herein embody the entire understanding of the parties with respect to the
subject matter hereof and shall supersede all previous communications,
representations or understandings, either oral or written, between the parties
relating to the subject matter hereof.
13.13 HEADINGS. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of any such section nor in any way affect this
Agreement.
13.14 PARTIES ADVISED BY COUNSEL. This Agreement has been negotiated
between unrelated parties who are sophisticated and knowledgeable in the matters
contained in this Agreement and who have acted in their own self interest. In
addition, each party has been represented by legal counsel. The provisions of
this Agreement shall be interpreted in a reasonable manner to effect the purpose
of the parties, and this Agreement shall not be interpreted or construed against
any party to this Agreement because that party or any attorney or representative
for that party drafted this Agreement or participated in the drafting of this
Agreement.
13.15 INSURANCE. AltiGen shall carry insurance coverage for product
liability/completed operations of [*****] primary each occurrence and [*****].
Within ten (10) days of full execution of this Agreement, AltiGen shall provide
Distributor with a Certificate of Insurance. This Certificate of Insurance must
include: (i) a broad form endorsement naming Distributor as an additional
insured, and (ii) a mandatory thirty (30) day notice to Distributor of insurance
cancellation.
-16-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, including the Exhibits hereto, and incorporated herein by reference,
as of the date first above written above.
ALTIGEN INC. SYNNEX
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇
--------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇-▇▇▇ ▇▇▇▇▇
--------------------------------- -------------------------------
Title: V.P. of Sales Title: S.V.P
-------------------------------- -------------------------------
EXHIBIT
A - END USER AGREEMENT
B - PRODUCT LIST AND DISCOUNT SCHEDULE
C - PURCHASING OBJECTIVES
D - SUPPORT AND MAINTENANCE
E - TERRITORIES
F - VENDOR ROUTING GUIDE
G - PROPRIETARY INFORMATION NON-DISCLOSURE AGREEMENT
EXHIBIT A
ALTIGEN(R), INC. - END USER AGREEMENT
NOTICE - READ THIS BEFORE OPENING THIS PACKAGE, INSTALLING THE PC
HARDWARE OR USING THE SOFTWARE
OPENING THIS PACKAGE, INSTALLING THE PC HARDWARE OR USING THE SOFTWARE
INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS
AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO OPENING THIS PACKAGE OR USING
THE SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST RETURN THIS PACKAGE
WITHIN 5 DAYS OF OBTAINING THE PACKAGE, WITH YOUR RECEIPT, AND YOUR MONEY WILL
BE RETURNED.
* * * *
PLEASE NOTE THAT YOU MAY NOT USE, COPY MODIFY OR TRANSFER THE PROGRAM THE
PC HARDWARE OR DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT.
LICENSE. This software program (the "Program") and the documentation (the
"Documentation") are licensed, not sold, to you. The term "Program" shall also
include any updates of the Program licensed to you by AltiGen. Subject to the
terms of this agreement, you have a non-exclusive and nontransferable right to
use the Program, Personal Computer Card (the "PC Hardware") and Documentation.
You agree to use your best efforts to prevent and protect the contents of the
Program, the PC Hardware and Documentation from unauthorized disclosure or use.
AltiGen and its licensors reserve all rights not expressly granted to you.
AltiGen's licensors are the intended third party beneficiaries of this agreement
and have the express right to rely upon and directly enforce the terms set forth
herein.
LIMITATIONS ON USE. You may not rent, lease. sell or otherwise transfer or
distribute copies of the Program, the PC Hardware or Documentation to others.
You may not modify or translate the Program, the PC Hardware, or the
Documentation without the prior written consent of AltiGen. You may not reverse
assemble. reverse compile or otherwise attempt to create the source code from
the Program or the PC Hardware. You may not use AltiGen's name or refer to
AltiGen directly or indirectly in any papers, articles, advertisements, sales
presentations, news releases or releases to any third party without the prior
written approval of AltiGen for each such use. You may not release the results
of any performance or functional evaluation of any Program to any third party
without prior written approval of AltiGen for each such release.
BACKUP AND TRANSFER. You may make one copy of thr Program for backup
purposes if AltiGen's copyright notice is included. You may not sublicense,
assign, delegate, rent, lease, time-share or otherwise transfer this license or
any of the related rights or obligations for any reason. Any attempt to make any
such sublicense, assignment, delegation or other transfer by you shall be, void.
You may physically transfer the program from one computer to another provided
that you do not retain any copies of the program, including any copies stored on
a computer.
TOLL FRAUD. Although this software provides passwords and blocking options
for controlling telephone use, the software does not provide a security system
that would prevent unauthorized use. AltiGen does not warrant that the software
will prevent, or can prevent, unauthorized and/or unlawful use. AltiGen will
have no responsibility and will not be liable for any unauthorized of unlawful
use, including without limitation long distance charges, criminal or civil
liabilities, or damages.
COPYRIGHT. The Program, the PC Hardware and related Documentation are
copyrighted by AltiGen and its licensors. You may make one copy of the
Documentation and print one copy of any on-line documentation or other materials
provided to you in electronic form. ANY AND ALL OTHER COPIES OF THE PROGRAM AND
ANY COPY OF THE DOCUMENTATION MADE BY YOU ARE IN VIOLATION OF THIS LICENSE.
OWNERSHIP. You agree that the Program and Documentation belong to AltiGen
and its licensors. You agree that you neither own nor hereby acquire any claim
or right of ownership to the Program and Documentation or to any related
patents, copyrights, trademarks or other intellectual property. You own only the
magnetic or other physical media (including Personal Computer Card) on which the
Program and related Documentation are recorded or fixed. AltiGen and its
licensors retain all right, title and interest in and to the Documentation and
all copies and the Program recorded on the original media and all subsequent
copies of the Program at all times, regardless of the form or media in or on
which the original or other copies may subsequently exist. This license is not a
sale of the original or any subsequent copy. All content assessed through the
Program is the property of the applicable content owner and may be protected by
applicable copyright law. This license gives you no rights to such content.
TERM AND TERMINATION. This license is effective until terminated. You may
terminate this license at any time by destroying the Program and Documentation
and the permitted backup copy. This license automatically terminates if you fail
to comply with its terms and conditions. You agree that, upon such termination,
you will either destroy (or permanently erase) all copies of the Program and
Documentation, or return the original Program and Documentation to AltiGen,
together with any other material (PC Hardware) you have received from AltiGen in
connection with the Program.
LIMITED WARRANTY. AltiGen warrants the media on which the Program is
furnished to be free from defects in materials and workmanship under normal use
for 30 days from the date that you obtain the Program. AltiGen warrants the PC
Hardware for a period of one year from the date of consumer purchase to be free
from defects in materials and workmanship. EXCEPT FOR THIS LIMITED WARRANTY,
ALTIGEN AND ITS LICENSORS PROVIDE THE PROGRAM, THE PC HARDWARE AND THE
DOCUMENTATION "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Some states do not allow the exclusion of implied warranties, so the above
exclusion may not apply to you. This warranty gives you specific legal rights
and you may also have other rights which vary from state to state.
LIMITATION OF REMEDIES. AltiGen and its licensors' entire liability and
your exclusive remedy in connection with the Program, the PC Hardware and the
Documentation shall be that you are entitled to return the defective media
containing the Program together with the PC Hardware and Documentation to the
merchant. At the option of the merchant, you may receive replacement media
containing the Program, the PC Hardware and Documentation that conforms with the
limited warranty or a refund of the amount paid by you. IN NO EVENT WILL ALTIGEN
OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT
OF YOUR USE OR INABILITY TO USE THE PROGRAM INCLUDING, BY WAY OF ILLUSTRATION
AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES,
ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM. EVEN IF ALTIGEN, ITS
LICENSORS OR AN AUTHORIZED ALTIGEN DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
Some states do not allow the exclusion or limitation of incidental or
consequential damages so the above limitation or exclusion may not apply to you.
This license will be governed by the laws of the State of California as
applied to transactions taking place wholly within California between California
residents.
U.S. GOVERNMENT END USERS. The Program is a "commercial item" as that term
is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
software" and "commercial computer software documentation," as such terms are
used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
acquire the Program with only those rights set forth herein.
EXHIBIT B
EXHIBIT C
PURCHASE OBJECTIVES
ALTIGEN OPERATES ON A FISCAL CALENDAR.
Q1 Q2
OCT., NOV., DEC. JAN., FEB., MARCH
------------------------------------ ----------------------------------
(QTY. OF BOARDS PER QUARTER) (QTY. OF BOARDS PER QUARTER)
Q3 Q4
APRIL, MAY, JUNE JULY, AUG., SEPT.
------------------------------------ ----------------------------------
(QTY. OF BOARDS PER QUARTER) (QTY. OF BOARDS PER QUARTER)
TOTAL FOR 2000:
------------------------------------
EXHIBIT D
SUPPORT AND MAINTENANCE
AltiGen will provide the following maintenance services:
TELEPHONE SUPPORT. Telephone support from [*****].
EMAIL SUPPORT. Email support available at "▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇" or a
special address to be established for Distributor support. AltiGen will respond
to email [*****].
TRAINING. AltiGen may provide in-depth Product training to Distributor from
time-to-time and Distributor will use its best efforts to have appropriate
support personnel attend such training sessions to the extent such training will
assist Distributor in better supporting the channel.
WEBSITE. AltiGen will provide product information and technical tips at
▇▇▇.▇▇▇▇▇▇▇.▇▇▇.
----------------
EXHIBIT E
TERRITORIES
ALL TERRITORIES AND POSSESSIONS IN:
o [*****]
o [*****]
EXHIBIT F
ROUTING INSTRUCTIONS FOR SYNNEX INFORMATION TECHNOLOGIES
PM'S AND BUYERS
CONTACT: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Shipping to Fremont, Ca
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs. Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
151-10000 lbs. From (Ca) Viking Frt.
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Shipping To Glendale Heights, Ill
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs.Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
150-10000 lbs. From (California) Am-Can Transport Northern CA 510-261-2900
Southern CA ▇▇▇-▇▇▇-▇▇▇▇
151-10000 lbs. From (IL, In, TN, Oh, MI, KY) R&L Carriers
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Shipping to Memphis, TN
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs.Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
150-10000 lbs. From (California) Am-Can Transport Northern CA 510-261-2900
Southern CA ▇▇▇-▇▇▇-▇▇▇▇
151-10000 lbs. From (Il, In, TN, MI, Oh, GA, Al, Ms, AR, KY) R&L Carriers
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Shipping to Lyndhurst, NJ
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs.Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
150-10000 lbs. From (California) Am-Can Transport Northern CA 510-261-2900
Southern CA ▇▇▇-▇▇▇-▇▇▇▇
151-10000 lbs. From (NY, NJ, RI, Mass., Pa, Oh, Md, De, Va) R&L Carriers
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Shipping to Salt Lake City, UT
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs.Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
151-10000 lbs. From (Ca, Nv, Wa, Or, Az, Id) Viking Frt.
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Shipping to Norcross, Ga
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs.Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
150-10000 lbs. From (California) Am-Can Transport Northern CA 510-261-2900
Southern CA ▇▇▇-▇▇▇-▇▇▇▇
151-10000 lbs. From (Ill, In, Tn, Mi, Oh, Ga, AL, Ms, Ar, Ky, N.C., S.C., Fl) R&L Carriers
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Shipping to Richardson, Tx
1-150 lbs. Ground (All U.S. Points) FexEx 3rd Party Acct# [*****]
1-150 lbs.Air Freight (All U.S. Points) FedEx 3rd Party Acct# [*****]
150-10000 lbs. From (California) Am-Can Transport Northern CA 510-261-2900
Southern CA ▇▇▇-▇▇▇-▇▇▇▇
151-10000 lbs. From (Tx, La, Ms, Ar,) R&L Carriers
151-10000 lbs. From (All other U.S. Points) Watkings (Primary) Roadway Frt (Secondary)
Over 10000 lbs Pup or Truckload Call Synnex Traffic
Air Freight / Expedited...Call Synnex Traffic
Notes: 1. Shipments giving to unauthorized carriers, and unauthorized airfreight will be charged
back to shipper.
2. When preparing bills of lading please show number of pieces shipped in the left hand
column of the ▇▇▇▇ and number of pallets in the body.
3. If a single shipment results in a Pup or Truckload less than 10000 lbs contact Synnex
Traffic.
4. Shipments over 150 lbs. must be palletized.
5. Synnex PO# must appear on ▇▇▇▇ of lading.
FOR ROUTING ON DROP SHIPMENTS TO SYNNEX CUSTOMERS PLEASE CALL TRAFFIC DEPT.
Revised 11-21-01
Contact Synnex Traffic if you have nay questions regarding these routing
instructions.
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EXHIBIT G
PROPRIETARY INFORMATION
NON-DISCLOSURE AGREEMENT
This Agreement is made this 22 day of December, 1999, by and between Synnex
Information Technologies, Inc., a California corporation with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("Distributor'), ALTIGEN COMMUNICATIONS INC., a California corporation, with
principal offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("AltiGen")
WHEREAS Synnex has compiled and organized certain information relating to
its sales which is proprietary and confidential, and such information includes,
but is not limited to the "Point of Sale (POS) Report" ("Proprietary
Information"); and
WHEREAS Synnex agrees to disclose Proprietary Information to AltiGen for
the limited purpose set out herein; and
WHEREAS AltiGen desires to inspect and use such Proprietary information for
the purposes of calculating sales commissions and monitoring marketing programs
only;
NOW, THEREFORE, in consideration of the mutual promises set out herein, the
parties hereby agree as follows:
1. AltiGen agrees not to communicate, disclose, or otherwise make available
all or any part of the Proprietary Information to any third party, including,
but not limited to AltiGen's parent, subsidiaries, or affiliated companies.
2. AltiGen agrees not to use, or permit others to use, the Proprietary
Information, other than for the purpose(s) stated above. AltiGen agrees to make
no more than five (5) copies of the Proprietary Information unless otherwise
agreed in writing between the parties; and AltiGen agrees to limit distribution
of and access to the Proprietary Information to those of AltiGen's personnel who
require access to Proprietary Information for the foregoing purpose. AltiGen
agrees not to solicit, or sell Product to any customer or dealer listed in the
Proprietary Information that requests to purchase product from Synnex.
3. The term of this Agreement, unless terminated in accordance with
paragraph 7 shall be concurrent with the term of that mutual Distribution
Agreement between Synnex and AltiGen Inc. dated DECEMBER 22, 1999, incorporated
by reference as if fully set forth herein.
4. AltiGen and Synnex mutually agree that all copies of the Proprietary
Information and all written descriptions, extractions, or summaries thereof,
whether made by AltiGen or Synnex, shall be the property of Synnex, and shall,
upon expiration of this Agreement or Synnex's request, be immediately returned
to Synnex.
5. AltiGen and Synnex mutually agree that Synnex's public disclosure of the
Proprietary Information, except pursuant to a confidential disclosure agreement,
to any party will release AltiGen from the obligation of confidentiality with
respect to that portion of the Proprietary Information actually disclosed by
Synnex.
6. AltiGen acknowledges the damage which Synnex may suffer in the event of
AltiGen's breach of obligations set forth herein. AltiGen agrees to and shall
indemnify Synnex from and compensate Synnex for any and all damage or injury,
including legal fees and costs incurred by Synnex because of AltiGen's misuse of
any Proprietary Information or incurred by Synnex in enforcing its rights
hereunder. This provision shall survive the expiration or earlier termination of
this Agreement for a period of one (1) year.
7. Upon termination of this Agreement by either party for any reason,
AltiGen shall return all Proprietary Information to Synnex within thirty (30)
days, irrespective of format. For purposes of enforcing this provision,
AltiGen's return obligation shall survive the termination of this Agreement.
8. The rights, promises, duties, and obligations set out herein, and the
validity, interpretation, performance, and legal effect of the whole Agreement
shall be governed and determined by the laws of the State of California. In the
event that any provision is found invalid or unenforceable pursuant to statutory
or judicial decree, such provision shall be construed only to the maximum extent
permitted by law, and the remainder of the Agreement shall be valid and
enforceable in accordance with its terms.
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