EXHIBIT 22
DISTRIBUTION AGREEMENT
Made and executed as of the ___ day of March 2004
By and between
EVR LTD., a company registered and incorporated under the laws of the State of
Israel, of 00 Xxxxx Xxxxxxxxxx, Xxx Xxxx, 00000 Xxxxxx (hereinafter "EVR"),
OF THE FIRST PART
-And-
YITONG , a company registered and incorporated under the laws of China located
at Xx. 000, Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Zip Code: 000000
Xxxxx (hereinafter "the Distributor"),
OF THE SECOND PART
WHEREAS EVR develops and markets various products for transfer of digital
information over cable networks, including, inter alia, the EVR
Products (as defined below), and EVR is the sole owner of all
rights, including copy rights, in the EVR Products; and -
WHEREAS The Distributor desires to become an exclusive distributor of
certain EVR Products in the Territory (as defined below), and EVR
is willing to appoint the Distributor for such purposes, all
subject to the terms and conditions hereinafter set forth in this
agreement;
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. INTERPRETATION
In this Agreement, unless the context otherwise requires:
o "CUSTOMERS" - means customers (end users) of the EVR Products in
the Territory, whether existing or potential, as the case may be.
o "EFFECTIVE DATE" - as set forth in SCHEDULE B hereto.
o "DOCUMENTATION" means all documents associated with the EVR
Products including manuals and other printed or
visually-perceptible materials describing the use or design of the
EVR Products.
o "MONTH" - means calendar month.
o "EVR PRODUCTS" means the products listed in SCHEDULE A hereto.
o "EVR'S INTELLECTUAL PROPERTY" - means all of EVR's proprietary
rights, copyrights, Trade Marks or other industrial or
intellectual property rights relating to the EVR Products and
Documentation, and all applications for any of the foregoing,
whether or not registered in the Territory at the date hereof or
at any later date.
o "QUARTER" - means a calendar quarter (i.e., the four periods of
three consecutive Months each beginning on January of each Year).
o "THE TERM OF THIS AGREEMENT" - as set forth in SCHEDULE B hereto.
o "TERRITORY" - as set forth in SCHEDULE B hereto.
o "THIS AGREEMENT" - means this document together with all the
schedules attached hereto, as may be amended in writing from time
to time in terms hereof.
o "TRADE MARKS" - means EVR's trade marks and trade names, of which
particulars are given in SCHEDULE C hereto, and such other trade
marks as are used by EVR on or in relation to the EVR Products at
any time during this Agreement, whether or not registered in the
name of EVR.
o "YEAR" - means calendar year (save for the first Year of this
Agreement which shall commence on the Effective Date and end on
Dec. 31, 2004).
1.1 The headings in this Agreement are inserted for convenience of
reference only and shall not affect its interpretation.
1.2 The Schedules to this Agreement shall form an integral part of
this Agreement.
2. DECLARATIONS
2.1 Distributor hereby warrants and declares to EVR that it is a
company, duly registered and validly existing in the state in
which it is registered.
EVR hereby warrants and declares to Distributor that:
2.1.1 Only the Distributor can sell in the Territory, providing
the Distributor maintains and fulfills all its obligations
to EVR. No other resellers will be appointed by EVR. The
Distributor may appoint sub distributors in China but must
notify EVR of such appointment by sending the SCHEDULE F
form attached hereto.
2.1.2 Notwithstanding the provisions of Section 3 below, third
parties who entered into an OEM, private labeling or
similar agreements with EVR, if any, may have rights to
sell within the Territory products based on EVR's
technology, but not under Trade Marks and trade names
related to the EVR Products.
2.2 For avoidance of doubt, it is hereby declared and clarified that
this Agreement relates to the EVR Products only and not to any
other products developed by EVR. Such other products may be
included within the scope of this Agreement subject to specific
agreement in writing between the parties.
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3. APPOINTMENT
3.1 Subject to the terms and conditions hereinafter set forth, EVR
hereby appoints Distributor as its distributor of the EVR Products
in the Territory during the term of validity of this Agreement and
Distributor hereby accepts such appointment.
3.2 It is hereby recorded that it is conditional on the Distributor
achieving his targets in the first year and all subsequent years
that the Distributor may retain exclusivity in the territory, and
EVR may not appoint other distributors in the Territory for EVR
Products.
4. TERM OF AGREEMENT
4.1 Subject to the rights of prior termination of this Agreement as
provided for herein below and to the provisions of Section 4.2
below, this Agreement shall be valid for the Term of the
Agreement.
4.2 Notwithstanding the above, in the event that Distributor did not
order from EVR, EVR Products in the minimum quantities set forth
in SCHEDULE I hereto, subject to the terms and conditions set
forth therein, then EVR shall be entitled to terminate this
Agreement [or terminate the exclusivity granted hereby to the
Distributor] by serving the Distributor a 30 (thirty) days prior
written notice to that effect.
5. EVR PRODUCTS ORDERS
5.1 Subject to the terms and conditions of this Agreement, EVR shall
use its best endeavors to supply EVR Products to Distributor in
accordance with Distributor's orders. Each order for EVR Products
shall constitute a separate contract in terms of this Agreement.
The Distributor's signature of this Agreement shall also
constitute an order from EVR in terms of SCHEDULE D hereto.
5.2 All additional orders made by Distributor hereunder shall include
details regarding the quantity ordered and the date of delivery,
the exact identity (including full name, business address,
telephone and facsimile numbers and name of contact man) of the
entity for which such order is made and such other details as EVR
shall reasonably request. All orders placed hereunder shall be
subject to written confirmation of EVR and no order shall be
deemed to have been accepted unless so confirmed.
5.3 In order to enable EVR to plan its sales, not later than twenty
(20) days prior to the beginning of every two months of the term
of this Agreement, Distributor shall provide EVR with a written
forecast of its projected orders for EVR Products during two
months (hereinafter "THE FORECAST"). It is agreed and recorded
that: (i) Distributor undertakes, in relation to each of the EVR
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Products, to purchase in a certain two months 70% of the quantity
set forth in the Forecast in respect of such EVR Product for the
two month period, and breach of such undertaking shall be deemed a
material breach of this Agreement; and - (ii) In relation to any
certain Forecast, EVR shall not be obliged to supply to
Distributor EVR Products in a quantity exceeding 10% more than the
quantities set forth for such EVR Product in the Forecast for two
months.
6. DELIVERY, PURCHASE PRICE AND PAYMENT
6.1 Supply and delivery of the EVR Products shall be made within 60
days from Distributor's order, if such order was included in the
Forecast, and within 60 days from Distributor's order was not
included in the Forecast. Every effort will be made to meet the
established supply and delivery schedules, but it is hereby
mutually recognized that the said supply and delivery schedules
are merely reasonable estimates. Partial delivery shall be
permitted.
6.2 Supply of the EVR Products and transfer of risk to Distributor
will occur upon delivery of the EVR Products, Ex Works of EVR's
premises. Title to the EVR Products (subject, for the avoidance of
doubt to the provisions of Section 14 below) will transfer to
Distributor only upon receipt by EVR of full value for the EVR
Products supplied and until then EVR will maintain its exclusive
ownership of such EVR Products.
7. CONSIDERATION
7.1 The Ex Works price of the EVR Products shall be as set forth in
EVR's Price List, SCHEDULE E hereto and subject to its respective
terms and conditions. It is hereby agreed that each quarter the
parties shall, bona fide, determine the price set forth for such
quarter in accordance with the performance of Distributor and
market conditions prevailing at such time.
7.2 Except when especially agreed to in writing by both sides, the
payment of every order shall be made by irrevocable letter of
credit in U.S.A. Dollars in a form acceptable to EVR, and it will
be sent to EVR at the same time. Confirmed by a bank acceptable to
EVR. For the first six months, 50% of payments for goods will be
paid in advance prior to the order being delivered. The balance of
50 percent will be paid by L/C within 90 days after the order is
delivered. After the first six months the L/C terms will be 50% of
payment for goods will be paid within 45 days after order is
delivered, and the balance 50% will be paid by L/C within 90 days
after order is delivered.
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8. WARRANTY
8.1 EVR hereby warrants the EVR Products against any major defects,
which prove to be the result of bad design, workmanship or faulty
materials. This limited warranty is given to Distributor only (as
opposed to Customers) and shall be void if failure of the
defective EVR Products has resulted from: (i) accident, abuse or
misapplication and/or modifications which have been made to the
EVR Products by anyone other than EVR; (ii) if EVR Products are
used in a non-standard environment; or (iii) if non-conformance of
the EVR Products results from excess usage of the maximum values
(temperature limit, maximum voltage etc.) defined by EVR, or from
use other than in accordance with the relevant specifications or
(iv) any other default not attributable to EVR. Such warranty
shall be valid for 12 Months of the date of delivery of the EVR
Products to Distributor ("THE WARRANTY PERIOD"). The warranty and
remedies set forth herein are exclusive and except for and to the
extent expressly provided herein, EVR makes no other or additional
warranty or representation, either expressed or implied, with
respect to the EVR Products, including its quality, performance or
fitness for a particular purpose. The parties agree that all other
warranties given or implied by any applicable law including any
warranty given to Customers by Distributor shall be the sole
responsibility of Distributor, without recourse to EVR. 8.2 EVR
may extend the Warranty Period in relation to the EVR Products,
for additional periods of 12 Months each, subject to payment to
EVR of such amounts as shall be determined by EVR from time to
time.
8.3 The parties hereby expressly agree that the liability of EVR will
be limited to the repair or replacement of the EVR Products or, at
EVR's choice, return of their price, and that EVR will bear no
liability toward Distributor, Customers, or toward any third party
for any direct, indirect, consequential or incidental damages
arising out of the use of the EVR Products, or the inability to
use the EVR Products.
9. RMA SHIPMENTS
9.1 The Distributor will need a minimum of 20 modems that can be sent
back for repair. If you are sending back less than 20 modems for
repair, EVR will not share in the shipping costs. For RMA
shipments of 20 modems or more, the Distributor will pay for the
shipping in one direction and EVR will pay for the shipping in the
other direction. This is true for as long as the equipment is
under warranty. Equipment that is returned to EVR for repair that
is no longer under warranty, the Distributor will pay for the
shipment in both directions.
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10. MARKETING AND AFTER SALES SERVICE
10.1 Distributor hereby undertakes to use its best endeavors to promote
the sale of the EVR Products throughout the Territory and to sell
maximum units of the EVR Products.
10.2 In order to provide Customers with good and efficient after sales
services, Distributor shall establish or cause to be established
in the Territory an infrastructure for the purpose of providing
maintenance services to the Customers in respect to the EVR
Products, which will be operated by a sufficiently competent and
experienced staff, in order to establish and maintain an adequate
maintenance facility, and in order to satisfy the requirements of
the local licensing authorities pertaining to after sales service.
11. REPORTS & AUDITS
Distributor shall provide EVR, at its request, on a monthly basis from
time to time, with answers to any reasonable questions of EVR relating to
the marketing and sale of the EVR Products and the performance of
Distributor's undertakings hereunder.
12. ADDITIONAL UNDERTAKINGS OF DISTRIBUTOR
12.1 During the term of this Agreement, Distributor shall and hereby
undertakes, at its sole cost and expense:
12.1.1 to comply with all legal requirements from time to time
relating to the importation, distribution and sale of the
EVR Products and shall, without limitation, obtain from the
relevant local authorities in the Territory any and all
licenses, permits and/or approvals, necessary or required,
in order to import, distribute and service the EVR
Products, maintain such licenses, permits and/or approvals
in full force and effect and otherwise fulfill its
undertakings in accordance with the provisions of this
Agreement.
12.1.2 to provide EVR within 30 days from signature hereof the
Distributor's price list of EVR Products to Customers, and
to provide to EVR any amended price list at least 30 days
prior to effective date of such amendment.
12.1.3 to provide EVR, on a regular basis, with Customers'
"feedback" on the EVR Products and their use and from time
to time consult with EVR's representatives for the purpose
of assessing the conditions of the market for the EVR
Products in the Territory.
12.2 During the term of this Agreement, Distributor shall not, without
obtaining EVR's prior written consent:
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12.2.1 Incur any liability whatsoever on behalf of EVR or in any
way bind or purport to bind EVR.
12.2.2 Solicit any Customer which is outside the Territory.
Distributor shall promptly refer to EVR all inquiries
concerning the EVR Products received by it from such
Customers.
13. EVR'S INTELLECTUAL PROPERTY
13.1 Distributor recognizes and acknowledges that all of EVR's
Intellectual Property, including without limitation, all updates
and new versions, improvements and development, solely belong to
EVR which is and shall remain its sole owner, and it is hereby
expressly agreed that nothing in this Agreement shall constitute
or be considered as constituting a transfer or license of EVR's
Intellectual Property rights or any part thereof by EVR to
Distributor. For avoidance of doubt, the provisions of this
Section shall survive the termination of this Agreement.
13.2 Distributor shall sell the EVR Products under such trade names and
using such Trade Marks, as shall be designated in writing by EVR,
from time to time. Distributor shall adhere to any reasonable
instructions given to it in writing by EVR aimed for the
protection of EVR's said Trade Marks and any other intellectual
property rights.
13.3 Distributor shall forthwith notify EVR in writing of any
infringement or threatened infringement, unauthorized use,
enjoyment, duplication or replication of the EVR Products, which
shall at any time during the term of this Agreement come to its
knowledge. In such event EVR shall be entitled to take any and all
legal action it deems appropriate in order to protect its rights,
and the Distributor shall provide EVR, at EVR's cost and expense,
with all reasonable assistance required by EVR for such purpose.
13.4 Without derogating of the provisions of Section 12.3 above, if
Distributor establishes to the satisfaction of EVR that in any
country of the Territory any entity is making or selling goods of
the same description as the EVR Products and thereby infringing
EVR's Intellectual Property Rights or amounting to passing-off by
imitation, Distributor may notify EVR that it wishes EVR to join
with Distributor in taking steps to end such infringement
including legal proceedings in the parties' joint names. In such
event provided that EVR shall notify Distributor that it does not
want to use its rights under Section 12.3 above to take legal
action against the infringing party and subject to the provisions
of Section 12.5 below, the parties may agree, in writing, as to
the steps and proceedings to be taken and the proportions in which
they shall share the costs thereof. Failing such agreement each
party shall be free to act independently, provided it should
notify the other party, in writing in advance, of the steps to be
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taken by it. Irrespective of the failure to reach such agreement
each party shall give the other party, at the other party's
request and costs, all reasonable assistance required by such
other party in respect of the legal steps taken by it. In the
event of joint proceedings being taken and damages being awarded,
the costs of the proceedings so far as not recoverable in the
proceedings shall be shared by the parties in the same proportion
as they are awarded damages.
13.5 Where the parties differ in their view as to the advisability of
instituting legal proceedings either party may call for a joint
case to be put to legal counsel well versed in the laws of the
country by which any legal proceedings will be determined and they
shall cooperate to provide counsel promptly with all relevant
ascertainable facts and, where appropriate, a technical expert's
opinion on the matter. In such event the parties agree to act
according to the advice of such legal counsel provided that in any
event a party shall not be forced to participate in instituting
legal proceedings it does not wish to institute.
14. INDEMNITY, LIABILITY AND INSURANCE
14.1 Each party agrees to indemnify the other and hold the other
harmless from and against any and all claims, liabilities,
judgments, settlements, losses, damages, expenses and other costs
of whatever nature arising out of or resulting from that party's
failure to fully and timely abide by all the terms and conditions
of this Agreement. Notwithstanding the above it is agreed that
EVR's liability hereunder relating to any act or omission in any
given Year of the term of this Agreement shall not exceed 50% of
EVR's revenues from Distributor in such Year. Distributor shall
maintain at its own expense, and shall provide EVR, at EVR's
request, with insurance certificates showing, coverage for general
liability and for product liability, having reasonable terms
commonly acceptable in similar cases, insuring against claims
arising out of or related to this Agreement and Distributor's
activities pursuant to fulfilling its undertakings in accordance
with the terms of this Agreement. Each policy shall be maintained
with an insurance carrier acceptable to EVR and shall provide that
it may not be canceled or modified without thirty (30) day prior
written notice from the insurance carrier to both parties at their
respective addresses.
14.2 Each party agrees to promptly notify the other of any and all
product liability claims within the Territory relating to the EVR
Products coming to its attention.
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15. FORCE MAJEURE
Neither party shall be responsible or liable for any delay or failure in
performance under this Agreement arising as a result of any occurrence or
contingency beyond its reasonable control, including but not limited to,
capacity constraints, accident, act of God, acts of the public enemy,
earthquake, fire, flood, explosion, labor disputes, strikes, riots, civil
commotion, war (declared or not) unanticipated manufacturing problems,
novelty of products, requirements or acts of any government or agency
thereof, judicial action, inability to secure materials on a timely basis
(except if such inability results from negligence of the Distributor) and
failure or delays in transportation. The delayed party shall send written
notice of the delay and the reason therefore to the other party as soon
as possible after the party delayed knew of the cause of delay in
question.
16. NON COMPETITION
Distributor undertakes:
16.1 that during the term of this Agreement and for a period of twelve
(12) Months after its expiration for any reason whatsoever it
shall not, without EVR's prior written approval, sell, promote the
sale, distribute, instruct, manufacture or develop competing or
similar products to the EVR Products or represent or agree to
represent in the Territory any third party in respect to any
product competing or similar to the EVR Products and shall in no
other way engage in activities in the Territory which may directly
or indirectly jeopardize or come into conflict with the interests
of EVR.
16.2 not to obtain or otherwise purchase EVR Products for resale from
any person, firm or company, other than EVR.
16.3 Not to seek customers, establish any branch or maintain any
distribution depot for the EVR Products in any country which is
outside the Territory or to perform a sale of EVR Products in the
Territory knowing that the products shall be taken out of the
Territory without obtaining EVR's prior written consent.
For avoidance of doubt, the provisions of this Section shall
survive the termination of this Agreement.
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17. CONFIDENTIALITY
17.1 Not later than the date of signature hereof, the parties shall
have signed and executed the confidentiality agreement in a form
attached as SCHEDULE G hereto, which signature and execution is a
condition precedent to the coming to force of this Agreement.
17.2 Distributor shall require each of its employees and/or agents
employed in providing services in relation to the EVR Products to
execute an undertaking of confidentiality, in a form approved by
EVR, and incorporating, inter alia, the provisions of this Section
15.
18. NO AGENCY
18.1 It is hereby expressly declared and agreed that this Agreement in
no way establishes any principle - agent, employer - employee, or
partnership relations between the parties.
18.2 Nothing in this Agreement shall be construed as granting either
party the power or authority to act for or on behalf of the other
party, to create any undertakings on behalf of the other party, or
to bind or commit the other party in respect to any such
undertakings, except as set forth herein or as otherwise agreed to
in writing between the parties prior to such act.
19. TERMINATION AND REMEDIES
19.1 Without prejudice to any remedy or right of either party under
this Agreement or by law, either party shall have the right to
forthwith terminate this Agreement by serving the other party with
a written notice to that effect if:
19.1.1 the other party commits a breach of its undertakings under
this Agreement and fails to remedy such breach within 14
days after receipt of a written notice from the
non-defaulting party describing such failure, provided
however that violation of or non-compliance by a party of
its respective undertakings under the provisions of
Sections 3, 4.2, 5.2, 8, 9, 11, 15, and 16 above, and 19
below, in whole or in part, will entitle the other party to
forthwith terminate this Agreement.
19.1.2 the other party is placed into liquidation, insolvency or
other similar proceedings or a liquidator or receiver is
appointed with respect to the other party or a substantial
part of its assets or the other party makes any voluntary
arrangement with its creditors.
19.2 Upon termination of this Agreement for any reason, the following
provisions shall apply:
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19.2.1 the Distributor shall cease to market and sell the EVR
Products. The Distributor shall have no claims against EVR.
20. Any amount owed by one party to the other and which shall not be timely
paid, shall bear default interest at the rate of LIBOR plus 8% (for 6
months loans) for the period of default ASSIGNMENTS
20.1 The appointment of the Distributor under this Agreement is
personal, and the Distributor may not assign or otherwise transfer
or pledge its rights and undertakings under this Agreement without
the prior written consent of EVR; any assignment for which consent
was not obtained will not be considered valid. A transfer in
effective control of the Distributor shall be deemed an assignment
of rights and undertakings under this Section.
20.2 EVR may assign its rights or undertakings under this Agreement, by
serving a written notice to the Distributor, provided that the
assignee shall perform any undertakings assigned to it in terms
hereof.
21. VAT AND SALE TAXES
The prices, fees and other amounts set forth in this Agreement are
exclusive of VAT or other sales tax, and to the extent that under any
applicable law, VAT or other sales tax shall be payable in respect to
such prices, fees or amounts, such VAT or other sales tax shall be paid
by the Distributor.
22. LAW AND JURISDICTION
22.1 The laws of the state of Israel shall govern this Agreement. The
competent courts in Tel-Aviv, Israel shall have sole jurisdiction
in any dispute relating to this Agreement.
23. WHOLE UNDERSTANDING AND AMENDMENTS
23.1 This Agreement and the schedules hereto constitute the entire
understanding of the parties and supersedes all oral or written
representations or agreements, privileges or understandings
between the parties.
23.2 This Agreement may only be modified by an Agreement in writing
duly signed by both parties hereto.
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24. SEVERABILITY
If any non material condition, term or covenant of this Agreement shall
at any time be held to be void, invalid or unenforceable such condition,
covenant or term shall be construed as severable and such holding shall
attach only to such condition, covenant or term and shall not in any way
affect or render void, invalid or unenforceable any other condition,
covenant or term of this Agreement, and this Agreement shall be carried
out as if such void, invalid or unenforceable term were not embodied
herein.
25. WAIVER
The failure at any time of either party to enforce any of the terms or
conditions or any right or to exercise any option of this Agreement, will
in no way be construed to be a waiver of such terms, conditions, rights
or options, or in any way to affect the validity of this Agreement.
26. NOTICES
Any notice authorized or required to be given in accordance with the
terms of his Agreement, may be given by facsimile, (with receipt of
proper transmission) or by registered or certified mail. Such notice
shall be deemed properly given two business days after having been sent
by facsimile or e-mail and ten days after being posted by registered or
certified mail to the address of the parties listed below:
If to EVR:
00 Xxxx Xxxxxxxxxx, Xxx Xxxx, Xxxxxx
If to YiTong:
000 Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, 000000 China
IN WITNESS WHEREOF, THE PARTIES HAVE SET THEIR SIGNATURES AS OF THE DAY
FIRST ABOVE WRITTEN AND HAVE HEREBY CAUSE THIS AGREEMENT TO BE EXECUTED.
EVR LTD. YITONG
Printed Name: ________________________ ___________________________
Signature: ________________________ ___________________________
Title: ________________________ ___________________________
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LIST OF SCHEDULES
A EVR Products
B Term and Territory
C Trade Marks and Trade Names
D Order upon signature of the Agreement
E N.A. (Deleted)
F Sub-distributor's undertaking
G Confidentiality Agreement
H Minimum Orders
I Supplemental Treaty
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AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE A
CMTS EVR CMTS SERIES DOCSIS/EURODOCSIS CONFIGURED WITH:
1 UPSTREAM
2 UPSTREAM
4 UPSTREAM
8 UPSTREAM
UPSTREAM INTERFACE CARD
EVR CABLE MODEM
UP-COVERTER NTSC OR PAL (PLEASE NOTE THIS ONLY HAS A THREE MONTH WARRANTY)
EVR MANAGEMENT SOFTWARE
EVR MANAGEMENT SYSTEM SERIES CONFIGURED WITH THE FOLLOWING OPTIONS:
o 030 - PROVISIONING SERVER, AND EVR EMBEDDED MANAGEMENT SYSTEM.
o 050 - PROVISIONING SERVER, 10/100MBPS ROUTER OPERATING SYSTEM,
EMBEDDED EVR MANAGEMENT SYSTEM
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AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE B
TERM AND TERRITORY
1. The effective date of this Agreement is ________________ ("THE EFFECTIVE
DATE").
2. This Agreement will be valid for a period of 12 (Twelve) Months,
commencing on the Effective Date and terminating on __.__._____ ("THE
INITIAL PERIOD") unless extended by EVR, by serving 3 (Three) Months
prior written notices to Distributor to that effect, for further periods
of 1 (one) Year each (each such one year period shall be hereinafter
referred to as "THE EXTENDED PERIOD"), up to a maximum of three
additional Years (and the Initial Period and any Extended Period for
which the term of this Agreement shall be extended shall be hereinafter
collectively referred to as "THE TERM OF THIS AGREEMENT").
3. The term "TERRITORY" shall mean in this Agreement: CHINA
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AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE C
TRADE MARKS AND TRADE NAMES
1. EVR CMTS SERIES CMTS'S
2. EVR MANAGEMENT SYSTEM SOFTWARE
3. EVR CABLE MODEMS.
4. EVR MANAGEMENT SYSTEMS SERIES PROVISIONING & ROUTING CONTROLLER
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AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE D
ORDER UPON SIGNATURE OF THE AGREEMENT
The Distributor's signature of the Agreement shall also constitute the
following order from EVR: All Prices are quoted in USA $ (Dollars).
-------------------------- --------------------------- -----------------
EVR PRODUCT QUANTITY ORDERED PRICE/UNIT
-------------------------- --------------------------- -----------------
CMTS 1 x 1 2 7090
-------------------------- --------------------------- -----------------
CMTS 1 x 2 4 7990
-------------------------- --------------------------- -----------------
CMTS 1 x 4 2 9700
-------------------------- --------------------------- -----------------
CMTS 1 x 8 2 12990
-------------------------- --------------------------- -----------------
US Interface Card 6 850
-------------------------- --------------------------- -----------------
DOCSIS Cable Modem 2000 48
-------------------------- --------------------------- -----------------
Mng. System-030 1 2182
-------------------------- --------------------------- -----------------
Mng. System-050 1 2614
-------------------------- --------------------------- -----------------
EVR Management System 10 695
License
-------------------------- --------------------------- -----------------
Up Converter 10 600
-------------------------- --------------------------- -----------------
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AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE E
PRICE LIST
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SCHEDULE F
SUB -DISTRIBUTOR'S UNDERTAKING
EVR Ltd.
12 Xxxxx Xxxxxxxxxx, Tel Aviv,
Gentlemen,
I, the undersigned, wishing to be appointed as sub-distributor of the
Distributor, as listed below ("THE DISTRIBUTOR") of certain products ("THE
PRODUCTS") of EVR Ltd. ("EVR"), do hereby undertake towards EVR as follows:
1. I shall hold as fully confidential and not to disclose to other or
others, and not to use, directly or indirectly, all Confidential
Information of EVR, including without limitation, technical information,
technology and trade secrets, strategic plans and price calculations. For
the purposes hereof "Confidential Information" shall include all
information marked by EVR as such but shall exclude all information which
became a public knowledge through no fault of mine.
2. I shall require each of my employees and/or agents employed in providing
services in relation to the Products to execute the undertaking of
confidentiality set forth in Section 1 above.
3. I am aware of the provisions of Section 9, 11.2, 12-15 and 18-20 of the
agreement between EVR and the Distributor ("THE DISTRIBUTION AGREEMENT"),
which were provided to me by the Distributor, I shall act in accordance
therewith, and such provisions may be referred against me directly by
EVR.
4. I am aware and agree that termination of the Distribution Agreement, of
any reason, shall cause the immediate termination of any agreement
between me and the Distributor in respect of the Products.
5. I agree that, subject to the provisions of Section 3 above, in any event
EVR shall not be deemed to have any direct relations with me, and I shall
not have any claim or demand or any other right towards EVR in any matter
whatsoever.
6. I am aware and agree that EVR shall be entitled to terminate forthwith,
of reasonable cause, my engagement in the distribution of the Products,
by sending a written notice to such effect to the Distributor.
Sincerely yours,
Distributor: ________________________________________________
Address: ________________________________________________
Tel. No.: ________________ Fax No.:______________
Name: ________________ Title:________________
Signature ________________
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CONFIDENTIAL PAGE 19 OF 22
SCHEDULE G
CONFIDENTIALITY AGREEMENT (SEE ENCLOSED0
THIS FORMALITY HAS BEEN COMPLETED, WITH COPIES IN POSSESSION OF BOTH PARTIES
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CONFIDENTIAL PAGE 20 OF 22
AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE H
MINIMUM ORDERS
1. In this Schedule the term "Agreement" means the above mentioned agreement
to which this Schedule is annexed. Capitalized terms shall have the
meaning assigned to them in the Agreement.
2. Subject to Section 3 below, Distributor hereby undertakes to purchase
from EVR during the first Year of the Term of the Agreement, each of the
EVR Products in the minimum quantity set forth opposite it in the table
below:
-------------------------- -----------------------
EVR PRODUCT QUANTITY
-------------------------- -----------------------
CMTS 100
-------------------------- -----------------------
Management. Sys. 100
-------------------------- -----------------------
Cable Modem 10000
-------------------------- -----------------------
EVR Management System 100
License
-------------------------- -----------------------
3. It is hereby agreed that before the commencement of each such Year, the
parties shall, bona fide, determine the minimum quantities set forth for
such Year in accordance with the past performance of Distributor and
market conditions prevailing at such time. In the event that by January
31 of any Year, the parties did not yet agree on the minimum quantities
in respect of such Year, then EVR shall be entitled, by a 30 days prior
written notice to exercise the rights granted to it in Section 4.2 of the
Agreement to [either] terminate the Agreement [or terminate the
exclusivity of the Distributor]. Notwithstanding the aforesaid, in such
event the minimal quantity for the preceding Year [plus 25%] shall serve
as the agreed minimum quantity for the relevant Year.
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CONFIDENTIAL PAGE 21 OF 22
AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
SCHEDULE I
SUPPLEMENTAL TREATY
1. After signing the treaty and both sides confirm, EVR will provide 3 CMTS,
which is 4Upstream, three EVR Management Systems and three UP-CONVERTER'S
to DISTRIBUTOR within 30 days, so that DISTRIBUTOR can begin to sell the
products after cooperation. The time of delivering is in 30 days after
the treaty signing. EVR will require the DISTRIBUTOR to pay L/C after 180
days.
2. After signing the treaty and both sides to confirm, EVR carries on a
technical training to DISTRIBUTOR at a date to be agreed upon between
February 5th and February 29th. at the DISTRIBUTOR's premises. EVR will
bear the flight cost, Distributor will bear the accommodation.
Distributor will have 3 people as minimum for the training with a
sufficiently competent and experience, in order to establish and maintain
an adequate training. It's preferable for all trainees to know English,
in case it's not feasible DISTRIBUTOR will provide translator.
3. Because the termination date of this agreement is on February 28,
2005,the following year. When the agreement stops and EVR no longer
offers the right that DISTRIBUTOR sells at home the next year,
DISTRIBUTOR can send back goods to EVR that do not exceed the quantity of
the last order, but not because of the other various kinds of reasons, Or
EVR offers enough time to DISTRIBUTOR to sell the remaining goods. EVR
will return all payments under the same conditions it received payment
thereof. The unit price of the goods is according to the price of the
last order. Only new originally packed equipment will be accepted after
deducting full shipping cost.
4. DISTRIBUTOR completes the minimum sales volume of 100 CMTS during the
first year. Subject to the Distributor committing for at least a 25%
increase in unit sales of CMTS. EVR will agree that the DISTRIBUTOR
continues to be the only distributors of area after cooperating. Only
when DISRIUBTOR gives up this right, or fails to achieve its minimum
purchasing commitment .EVR has rights to look for other sellers on this
area.
5. DISTRIBUTOR orders no less than 10 each time during the first 6 months on
what has been agreed with EVR. After that, DISTRIBUTOR orders no less
than 20 each time.
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CONFIDENTIAL PAGE 22 OF 22
AGREEMENT BETWEEN EVR AND
YITONG
DATED_____________________
Yitong
Dear Sirs,
RE: AMENDMENT TO THE DISTRIBUTION AGREEMENT BETWEEN EVR AND YITONG,
DATED JULY __, 2004 (THE "AGREEMENT")
Pursuant to our conversations and for the sake of good order, following is a
summary of our agreements regarding changes and/or clarifications to the terms
of the Agreement:
1) After the Agreement will go into effect, EVR shall supply Yitong 3 sets
of CMTSs, sample machines that shall be paid not later than Dec. 30 2004, and
covered by L/C provided by Yitong. (This is the first order.)
EVR will provide Yitong one CMTS configured 1x1 to stay in Yitong's lab for
demonstration and customer support purposes. This CMTS shall remain EVR's
property and shall be returned to EVR in case the Agreement is terminated.
2) The Agreement will be valid for a period of 14 (Fourteen) Months,
commencing on the Effective Date of the Agreement ("THE INITIAL PERIOD").
Yitong shall show EVR's sample machine to Yitong's customers. In addition,
Yitong hope that the time and the quantity of our first order shall not be
stipulated.
3) Following is a list of Yitong's initial plan for marketing activities
with respect to EVR's products, and their related expenses:
3.1 Within a period of one month following signature of the Agreement,
a special meeting shall be organized by Yitong, which can be located in a
scenery spot in China, to which Yitong will invite about 200 people from
big CATV companies in China, in which Yitong will present EVR's CMTS
products. The expenses of this meeting shall be RMB300,000.
3.2 For Chinese marketing publications in magazines such as CATV
TECHNOLOGY and WORLD BROADBAND NETWORK, yearly expenses about RMB150,000.
Such publication and any other publications regarding EVR or its products
will be provided to EVR for approval prior to publishing.
3.3 Presentation at the Hangzhou Meeting (Annual technical meeting for
information sharing between the cable operators) shall be held in October
this year, its total expenses shall be RMB200,000.
3.4 Presentation at the Beijing Exhibition in March of next year
(2005), its total expenses shall be RMB300,000.
3.5 EVR agrees to participate in the Yitong's above (Sections 3.1 to
3.4) marketing expenses by providing Yitong with free products equal to a
value of up to RMB430,000. EVR's said one time participation in Yitong's
expenses shall be as follows:
1. EVR shall supply to Yitong two (2) CMTSs configured 1x4
free of charge out of the second order that will be of at
least 5 Units. (e.g. First 2 samples as stipulated in
Section 1 above shall not be part of the 5 units order)
2. EVR shall supply to Yitong one (1) CMTSs configured 1x4
free of charge out of the third order that will be of at
least 5 Units.
3. EVR shall supply to Yitong one (1) CMTS configured 1x4 free
of charge for any purchase of CMTS products by Yitong at an
aggregate price of US$ 250.000, not including the first 10
Units order of CMTS (defined in the above 3.5.1), and
within the limit of the Initial Period.
EVR may discount such value from the unit price of the specific
abovementioned orders.
4) The interval between each forecast issued by Yitong shall be 2 months,
both parties shall make in bona fide a new discussion on prices before each
order, and the quantity shall not be stipulated. However it is agreed that
Yitong's minimum order shall be of 5 CMTS and Yitong undertakes, in relation to
each of the EVR Products, to purchase in a certain two months 60% of the
quantity set forth in the Forecast.
5) Within one month after the Effective Date of the Agreement , EVR should
make the technical basic training for Yitong people in Yitong's offices, let
Yitong people master the characteristics of EVR products and installation
debugging. The basic training will possibly take place adjacent to other
marketing events and at least two of the technical support people from Yitong
will have networking knowledge and experience as well as be fluent in English.
6) EVR should make the delivery within 60 days after receiving the order
covered by L/C of Yitong. Payment terms shall be 50% paid by Yitong within 30
days after the order, the balance 50% shall be paid within 120 days.
7) Yitong hopes that EVR can get the certificate of DOCSIS1.1 early next
year, and hope that the products can reach the third layer.
8) NA
9) EVR commits to the quality of its products within the scope of the 1 year
warranty included in the Agreement. However in case were it's proved that there
is a design failure, EVR will provide Yitong with the warranty with respect to
such specific failure for a period of 2 years, and shall recall the equipment
installed by Yitong in China for repair.
10) During the Initial Period when certain customer of Yitong reaches an
amount of paid purchase orders of EVR products of at least RMB2,000,000, such
specific customer shall be entitled to send one person per each RMB2,000,000 of
paid purchase orders to a travel to USA or Europe, for which travel and
accommodations to one location will be paid by EVR for a maximum of one week, at
a maximum expense of $US 5,000 per travel.
11) EVR provides 2nd tier support, and Yitong 1st tier support from within
their trained personnel. In order to make sure that Yitong can provide adequate
support EVR will supply basic training for Yitong personnel and will support
those engineers from EVR Global support center (in Israel and/or USA).
12) When the Agreement terminates due to the causes related to Yitong, EVR
shall continue to maintain the EVR products sold by Yitong before such
termination. However, EVR will be entitled make so through another distributor.
PROMISES OF YITONG:
1. Yitong shall make the extensive propaganda on magazines and at all the
meetings, via Yitong's sales network itself, let 80% customer above county to
know EVR products. Yitong shall make the sales schedule to Yitong sales people,
and appoint 3-4 technical people in charge of technical services, installation
and maintenance of EVR products. Yitong will consider to hire a salesperson that
is already familiar with our product and our target market in China (Mats Wu),
however it's Yitong's sole decision to hire or not to hire the above mentioned
candidate
2. Yitong shall develop about 6 agencies of CMTS products in China.
3. Push the sales of DOCSIS 1.0, software upgradeable to 1.1 to the famous
cable network companies in China, such as Guo An etc.
3. Within the agreement period, Yitong shall finish selling 100 sets of EVR
CMTS.
The terms of this Amendment amend and supersede any contradicting terms of the
Agreement. Any other terms of the Agreement remain unchanged.
We would appreciate if you can kindly confirm you agreement to the above
amendments by signing in the signature place below.
Very truly yours,
---------------------------------- ---------------------------
EVR Ltd. Yitong
By: Xxxxxxx Xxxxxxx By:
---------------------------------- ---------------------------
Confirmed and agreed, this ___ day of July, 2004.
