MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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SALES AGREEMENT
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BETWEEN:
MAVIX Ltd., X.X.Xxx 217, Yoqneam Hi-Tech Park, Yoqneam Illit 00000 XXXXXX
("Seller")
AND
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("Buyer").
Whereas Seller is the producer/supplier of the Products and applied software as
described in Appendix A ("Products"); and Buyer wishes to purchase such Products
from Seller for integration into surveillance projects as provided herein;
Therefore, the parties have agreed as follows:
1. Preamble and Scope of the Agreement
1.1 The preamble and any appendices hereto form integral and inseparable
parts of this Agreement.
1.2 Buyer will order from Seller the Products for integration in Buyer's
systems, and Seller will sell to Buyer the Products on a non-exclusive
basis, under the terms of this agreement.
1.3 Buyer will not market Products in the same form as shipped by Seller,
but only as part of systems installed by Buyer. Buyer is responsible
for the preparation of the cabling and networking infrastructure and
for the configuration, integration; installation, user training,
warranty and maintenance of the complete systems, including the
communications and surveillance equipment.
1.4 Buyer may market the Products, in any form or combination, only in
___________________ ("Territory"). Buyer agrees not to market Products
outside the Territory, except with Seller's prior written approval.
1.5 Buyer is committed to purchase from the Seller in the amount of US
$__________________ of MAVIX products, during the period of this
agreement. This agreement will be extended based on an agreed annual
Sales volume.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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1.6 During the period of this Agreement, Buyer agrees not to produce and/or
order from third parties items, which perform similar functions to
those of the Products, nor to offer any substitute to the Product; and
Buyer shall order all its needs for such items only from Seller.
1.7 There are no partnership or agency relations between Seller and Buyer.
Buyer shall be exclusively responsible towards its customers and any
other person (including Government authorities and regulatory agencies)
in all matters relating to the re-sale and/or use of the Products and
Buyer's systems.
1.8 Buyer is not authorized to, and may not, make any presentations on
behalf of Seller, nor bind it in any way to any obligation.
1.9 Buyer shall indemnify and save Seller harmless from all liabilities,
claims, demands, suits or actions which may be asserted by third
parties against Seller, where those are within Buyer's responsibilities
as defined in this Agreement.
2. PRE-SALE PROMOTION
2.1 Buyer undertakes to use its best efforts in order to maximize sales of
Products in the Territory. Buyer will advertise, promote and present
the Products in the Territory and participate in trade shows, so as to
maximize sales of Products in the Territory.
2.2 Seller will submit to Buyer in due time, upon Buyer's request,
competitive proposals for the Products to be incorporated in Buyer's
offers to its customers, provided that Buyer delivers the full
customer requirements to Seller.
2.3 As a rule, Buyer will be the sole interface with the customer. Buyer
will carry out all pre-sale activities, tenders and proposals
preparation and delivery, at the highest level, in order to increase
the sale of Products in the Territory.
For the above purposes, Seller will provide Buyer with free of charge
technical training for the Products at Seller's premises in Israel.
Buyer will bear all travel, lodging and other expenses for its trainees.
Buyer may request additional training. Subject to the availability of
qualified personnel and prior coordination, Seller will make a
reasonable effort to comply with such requests, at a daily rate of US
$750 (Seven hundred fifty US dollars) per each technical instructor in
addition, Buyer will pay per diem and travel and other expenses.
2.4 Seller will assist Buyer's pre-sale activities with reasonable
consultancy for questions regarding planning, organization and
advertising the Products.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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Buyer may request attendance of Seller's personnel at presentations,
trade shows or demonstrations in the Territory. Subject to availability
of qualified personnel and prior coordination; Seller will make a
reasonable effort to comply with such requests at a daily rate of 750 US
dollars (seven hundred and fifty US dollars); in addition Buyer will pay
per diem and travel and other expenses according to Seller's applicable
rates.
2.5 Seller agrees to provide to Buyer marketing aids, data sheets and other
marketing information relating to Products. These materials, as they
become available, will be sold to Buyer at the current price, except
that 25 copies of existing and new material will be provided free of
charge.
3. PRE-INSTALLATION AND INSTALLATION PROVISIONS
3.1 Buyer confirms that its employees have already received from Seller full
training as to the integration, installation, operation and maintenance
of the Products.
3.2 Buyer will be responsible that prior to installation of the Products,
the communication network is already installed and tested and. found to
operate well peer to peer for any mode and under any traffic load.
3.3 Together. with each purchase order, Buyer will provide a list and
description of the devices, which are to be connected to the Products.
If any such device requires protocol handshake with the Products, then
the specifications for implementation of the protocol, on both sides,
must be discussed and agreed in advance.
Subject to agreement upon the development plan, price and schedule,
Seller will implement the required modifications. Seller will not
charge the Buyer for modifications, which are part of its general
development plan.
3.4 Buyer confirms that Buyer has a PLAT platform suitable for the MAVIEW
software requirements, ready for installation (the MAVIEW is one of the
Products).
3.5 The Products are to be installed in room temperature environments. RFI
distortions are to be resolved and tested by Buyer before any
installation of the Products.
3.6 Buyer is responsible for the installation and smooth operation of the
cabling and network infrastructure, the communication equipment and the
surveillance equipment, which are the basis for installation of the
Products.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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Buyer will also provide know-how, and will support the network operation
during and after the installation.
3.7 Buyer may request attendance of Seller's personnel at the installation
in the Territory. Subject to availability of qualified personnel and
prior coordination, Seller will make a reasonable effort to comply with
such requests, at a daily rate of US $750 (Seven hundred fifty dollars);
in addition, Buyer will pay per diem and travel and other expenses.
4. SALE AND DELIVERY
4.1 Buyer hereby orders from Seller components for a demo system NM
MX2100C/C/E, MX2100C/M/E, MAVIEW and the peripherals according to
the MAVIX Demo System offer.
Seller will deliver the above components within 30 days of receipt of
L/C for a price of US $12,675.00, payable upon shipment.
Buyer will install the complete demo system and use it for presentation,
demonstration and sales promotion.
4.2 Annual forecasts for required quantities of Products will be provided by
Buyer at the beginning of each year, and will be updated quarterly.
Binding purchase orders will be issued for each quarter at least 30 days
before the beginning of that quarter.
Normal delivery time is 90 days after acceptance of order.
Seller will not be liable for delays in deliveries when such delays are
the result of causes beyond Seller's reasonable control.
4.3 In addition to the demo system described in 3.1 above, this agreement
forms a binding purchase order for Products amounting to an initial sum
of US $__________________ which shall be delivered within 12 weeks,
according to the list in Appendix B.
4.4 All orders shall be subject to written acceptance of Seller, but Seller
will not withhold its acceptance unreasonably.
4.5 Deliveries will be made FOB, port of exit from Israel.
All risks of loss or damage related to the Products shall pass to Buyer
upon delito the FOB point.
However, without derogating from the above, Seller retains title to the
Products until full payment of all related invoices and charges.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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4.6 Seller reserves the right at any time to change or modify its Products
and/or specifications, after a 90 day notice to Buyer.
5. PRICES AND PAYMENTS
5.1 Prices of Products will be as per the attached price list - Appendix A.
5.2 Prices are FOB/FCA (Incoterms90) port of exit from Israel.
Any and all charges, expenses; costs, taxes, customs, duties, levies or
tariffs, however designated, beyond the FOB point shall be the
responsibility of Buyer, and are in addition to the agreed prices.
5.3 Payment terms are as defined in Appendix A.
5.4 Each purchase order must be accompanied by an "Irrevocable Confirmed
Letter of Credit", on a major bank as agreed to by Seller.
5.5 Without prejudice to any other right of Seller, late payments shall bear
interest at the rate of 0.75% per week.
5.6 After the first year, Seller may change the prices with a 30 day notice.
5.7 If special projects require special customization of the Products, then
the parties will agree in advance and in writing upon the
specifications, time schedule and price for such customization.
6. WARRANTY AND SUPPORT
6.1 Seller hereby warrants that hardware Products sold hereunder shall be
free of defects in workmanship and materials for a period which will be
the shorter of: 9 months from date of installation at the end-user site
or 12 months from the date of FOB delivery.
The warranty liability is limited to the expeditious replacement or
repair (at Seller's option) of Products during the warranty period at
Seller's facility as indicated by Seller, in accordance with the
warranties specifically and expressly set forth herein. Buyer shall bear
shipping costs for shipment of defective Products to Seller, and Seller
shall bear shipping costs of returning good Products to Buyer.
6.2 Seller shall have no obligation hereunder to make repairs or cause
replacements required as a result of any of the following: normal wear
and tear, accidents or catastrophes or damages occurring after delivery,
force majeure occurrences, fault or negligence of the Buyer or any user,
improper or unauthorized assembly or packaging or use or maintenance of
the Products, use of the
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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Products in a manner for which they were not designed, alteration or
modification of the Products, connection of the Products to devices not
authorized by Seller.
6.3 Shipping and repair/replacement charges for Products returned to Seller
and found not to be under warranty as specified above, will be paid in
full by Buyer.
6.4 Buyer undertakes to purchase and maintain a stock of spare parts and
complete Product units as recommended by Seller.
On-site repairs will be performed by Buyer by replacing defective
parts or complete units with spare parts or units from Buyer's stock.
The defective parts or units will be sent for repair or replacement
to Seller's maintenance center.
Replacement and repair prices will be according to Seller's Price List
valid at the time of repair/replacement.
6.5 SOFTWARE WARRANTY: within the warranty period and subject to the
provisions hereinabove contained, Seller will make a reasonable effort
to correct or cause others to correct errors or non-conformance of the
software which is part of the Products to its approved specifications.
Seller does not warrant the results of such correction nor that the
software will meet Buyer's or end-users' requirements.
The end-users must make and keep backup copies of all application
software operable with the Products. Seller will not be responsible for
any loss of or damage to application software.
6.6 Due to the nature of this Agreement, all assembly, installation,
integration, warranty, maintenance, service and other obligations
towards buyers and users of the Products are the exclusive
responsibility of Buyer; all without prejudice to Seller's obligations
towards Buyer as per paragraphs 6.1- 6.5 above.
6.7 Buyer hereby agrees that the warranty liabilities of Seller are and
shall be limited to the express foregoing terms.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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7. PATENT INFRINGEMENT
7.1 If Buyer notifies Seller promptly in writing of any claim alleging
infringement of patent or other third party's right by the Products or
their use, and gives Seller sole control over the conduct of the defense
against such claims, and assists Seller in such defense, then Seller
shall defend such claims at its expense and shall bear the damages which
may be awarded to third parties against Buyer.
7.2 If a final injunction is obtained in such action as specified in 7.1.
above against the use of the Products or if in Seller's opinion the
Products are likely to become the subject of a claim of infringement,
Seller will, at its option and expense, do one of the following:
(a) procure for Buyer and its clients the right to continue using the
Products,
or
(b) replace or modify the Products so as to make them non-infiringing,
or
(c) grant Buyer a credit for the infringing Products as depreciated
(20(degree)% a year) and accept their return.
7.3 Seller shall not have any liability to Buyer or to any third party if
the alleged infringement is based upon use of the Products in
combination with items or devices not produced by Seller or upon
Seller's compliance with Buyer's designs or special requirements.
Buyer shall defend and hold Seller harmless against any expense,
judgement or loss for alleged infringement of any patents, copyrights,
trade secrets or trademarks which result from the foregoing.
7.4 In no event shall Seller's total liability to Buyer as a result of
infringements exceed the explicit foregoing provisions.
8. LIMITATION OF LIABILITIES
8.1 THE EXPRESS WARRANTIES AND OBLIGATIONS SET FORTH ABOVE ARE AND SHALL BE
IN LIEU OF ALL OTHER WARRANTIES AND OBLIGATIONS OF SELLER, EXPRESS OR
IMPLIED, AND EXCEPT TO THE EXTENT HEREIN PROVIDED, SELLER DOES NOT MAKE
AND SHALL NOT BE DEEMED TO MAKE ANY WARRANTY WHATSOEVER TO BUYER, TO
ANY DEALER, TO ANY END USER OR TO OTHER PERSON OR PARTY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
ANY PARTICULAR USE OR PURPOSE.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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8.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER SHALL NOT BE LIABLE FOR ANY
LOSS OF USE, SALES OR PROFIT OR FOR ANY INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES CAUSED BY OR SUFFERED AS A RESULT OF THE SALE OR USE
OF THE PRODUCTS.
8.3 The foregoing limitations shall not apply in case of physical injuries
or damage to tangible property of third parties attributable to defects
in the production of Products, provided that the injuries or damages
were sustained in the course of regular and reasonable use.
9. TECHNOLOGY AND CONFIDENTIAL
9.1 It is expressly agreed and understood that the Products and all applied
knowhow and software represent and embody highly confidential know-how,
technology and trade-secrets (all of which, whether patented or not,
will heretofore be referred to as "Technology").
The Technology and all related rights are, and shall always remain, the
exclusive property of Seller.
9.2 Except as expressly specified in this agreement, Buyer agrees not to
use, nor allow or assist others to use, in any way whatsoever, any part
of the Technology for any purpose whatsoever.
9.3 Buyer shall preserve as confidential all Technology and related
technical documentation and information.
9.4 Where a product is a software product ( such as, but not limited to,
the MAVIEW-API or MAVIEW) or where a Product includes software, such
software remains the property of Seller's and/or its licensers. Buyer
and its clients shall only have a non-exclusive and non-transferable
license to use such software for operation of Products supplied by
Seller.
9.5 As concerning a software package ("PACKAGE") such as MAVIEW-API (which
is a building tool for Buyer's systems), it is provided to Buyer under
the following conditions, which are hereby accepted by Buyer
(a) The use of the PACKAGE is allowed only to Buyer itself, for the
purpose of integrating hardware Products purchased from Seller
into B's systems and for adjusting such integrated systems to
the special needs of the end-users.
Buyer will pay to Seller a royalty at the sum specifies in
Appendix A here to for each and every workstation or terminal
that runs and uses MAVIEW-API and is a part of a system as
specified above.
(b) Buyer undertakes not to permit, nor enable, the PACKAGE to be
used by any person or in any manner other than expressly
specified in paragraph (a) above, or as authorized by Seller.
Buyer shall not make copies of the PACKAGE, shall keep it
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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take all necessary precautions to prevent its disclosure to, or
use by, any third party.
Buyer may not modify any part of the PACKAGE without the prior
written authorization of Seller
(c) Seller agree to notify Buyer of updates or new versions of the
PACKAGE and the terms of their supply. Upon request of Buyer and
the applicable payment, Seller will supply the foregoing at the
offered terms, and the provisions of this agreement shall then
apply to such updates and new versions.
(d) The right of Buyer to use the PACKAGE as provided above may be
terminated by Seller in case of breach of this agreement by
Buyer, and failure to remedy the breach within 14 days of notice
to that effect. Upon such termination, Buyer will discontinue
all activity related in any way to the PACKAGE and will return
to Seller all copies of it and all related documentation.
(e) Should Buyer provide the PACKAGE to another system integrator,
Buyer will be responsible to ensure that such integrator
undertakes in writing (towards Seller and Buyer) to comply with
the provisions of this chapter 9, including the payment of
royalties as per sub-section (a) above, and Buyer will be
responsible to transfer such payment to Seller.
9.6 Promptly upon termination or expiration of this Agreement, Buyer will
discontinue the use of any Seller's proprietary or confidential
Technology and information in its possession and return it to Seller
together with all copies thereof made by Buyer.
9.7 Neither party may use the name, logo, trademarks or trade names of the
other party, or derivatives thereof, in advertisements, letterheads or
otherwise, except with the prior written approval of the other party.
9.8 Upon expiration or termination of this Agreement, each party agrees.
simultaneously therewith to discontinue all uses of the other party's
name, logo, trademarks and trade names.
9.9 The provisions of sections 9.1 through 9.8 shall survive termination or
expiration of this Agreement.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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10. PERIOD OF THE AGREEMENT
10.1 This Agreement is valid for one year. If the purchase of Products during
the term of this agreement is less than the Buyer's commitment
(paragraph 1.5), then the Seller is entitled to terminate the agreement.
If purchases of Products by Buyer in this period meet the sales targets
as defined in paragraph 1.5, then the Agreement will renew for a second
year with a mutually agreed annual Sales volume.
10.2 Each party may immediately terminate this Agreement in the event the
other party commits a breach which is not cured within thirty (30) days
after notice to that effect. .
10.3 Should either party go into receivership, be admitted to the benefits of
any court procedure for the settlement of debts or be declared bankrupt,
or if substantial change occurs in the nature, ownership or control of
either party's business, whether voluntary or by operation of law, then
the other party may terminate this Agreement forthwith by written
notice.
10.4 Any expiration or termination will not relieve Buyer of its obligations
to pay any sum due hereunder, or to take delivery and pay for orders
placed by it prior to the effective date of the termination or
expiration, and the provisions of this Agreement shall remain applicable
to such orders.
All sums still due to Seller will be paid upon the termination or
expiration of the Agreement.
10.5 Acceptance of any order from Buyer or any sale made to Buyer by Seller
after notice of termination or after termination or expiration of this
Agreement shall not be construed as a renewal or extension hereof nor as
a waiver of such notice of termination, but in the absence of new
agreement covering such orders or sales, each such order and sale shall
be governed by terms and conditions identical with the terms and
conditions of this Agreement.
10.6 In the event of expiration or termination of this Agreement,
irrespective of cause, Seller shall not be liable to Buyer for any
damages, expenses, unsold stock, return of investment or creation of
goodwill, or for any loss on account of prospective profits or
anticipated sales.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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11. MISCELLANEOUS
11.1 This agreement forms the complete and exclusive agreement between the
parties as to its subject matter and cancels any prior verbal or written
agreement related thereto.
Any amendment, waiver or cancellation of any part of this Agreement will
be valid only if done in writing and signed by the parties.
Terms and conditions contained in any document issued by one party shall
not apply, unless expressly agreed to in writing by the other party.
11.2 All correspondence, negotiations and proceedings related to this
Agreement will be in the English language only.
11.3 A party to this Agreement will not be liable for any delay or default in
the performance of this Agreement when such delay or default is the
result of causes which are reasonably beyond its control or which
occurred without its fault or negligence.
11.4 The failure or delay of either party to require the performance of any
term of this Agreement, or the waiver by either party of any breach of
this Agreement, shall not prevent a subsequent enforcement of such
terms, nor be deemed a waiver of any subsequent or prolonged breach.
11.5 Any notice sent by one party to the other by registered mail to the
addresses heading the agreement, or to addresses provided by one party
to the other from time to time - will be deemed to have been delivered
10 business days after the day of mailing. Fax messages will be deemed
to have been delivered one business day after transmission.
11.6 Except for assignment to affiliates, neither party shall have the right
to assign or transfer any of its rights or obligations under this
Agreement to any third per.
11.7 Any provisions of this agreement prohibited by law shall be ineffective
to the extent of such prohibition, without invalidating the remaining
provisions hereof.
In such case of an ineffective provision, the parties agree to replace
the ineffective provision with a new provision having the same (or as
close as possible) economic effect.
11.8 Each party to this agreement expressly agrees that: any claim brought by
it with relation to this agreement, may only be entered in the courts of
the State of the defending party, and such courts will have exclusive
jurisdiction over such claims. Judgements of the foregoing courts will
be enforceable in any country.
MAVIX LTD /INTEGRATOR SALES AGREEMENT 28 JUL-99
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11.9 If any action at law, inequity or by way of arbitration is necessary to
enforce or interpret the provisions of this agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements, in addition to any other relief to which that
party may be entitled.
AND IN WITNESS, THE PARTIES HAVE SIGNED AND EXECUTED THIS
AGREEMENT,
ON THIS DAY OF , 1998.
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Seller, by Buyer, by:
AVNER MOR, PRESIDENT
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MAVIX Ltd. Name(s) and Title(s)
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Signature Signature(s)
APPENDICES:
A - Price List.
B - List for Initial Order.
