WARP Solutions Confidential
WARP MASTER DISTRIBUTOR Master Distribution Agreement
THIS MASTER DISTRIBUTOR AGREEMENT (the "Agreement'), is made as of this _1__ day
of ___September___ 2002_ (the "Effective Date") by and between CDI Technologies,
Inc., including its employees, agents, contractors, subsidiaries and Affiliates,
and including such Affiliates' employees, agents and contractors (collectively,
"MASTER DISTRIBUTOR"), a California corporation, with a places of business at
_0000 Xxxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx and 00X Xxxxxxx Xx.000-00, Xxxxxxxxxxx,
Xxxxxxxxx Xxxxx, Korea__ , and WARP Solutions, Inc. ("WARP"), a Delaware
corporation, with a place of business at 000 Xxxx 00 Xxxxxx 0xx Xxxxx, Xxx Xxxx
XX 00000.
In consideration of the mutual promises contained herein, the above-mentioned
parties agree as follows:
Section 1: Definitions
1.1 Capitalized terms used in this Agreement shall have the meanings attributed
to them below or in context in which the term is used, as the case may be.
(i) "Affiliate" means any entity which, directly or indirectly, Controls,
is Controlled by, or is under common Control with another entity, and
any partnership in which such entity is a partner. The foregoing
definition includes any entity that conforms to the definition as of
the Effective Date hereof, as well as any entity that conforms to the
definition any time after the Effective Date hereof, provided that any
entity shall only be deemed to be an Affiliate hereunder for such
period of time that it conforms to the definition during the term of
this Agreement.
(ii) "Business Day" shall mean any day other than a Saturday, Sunday or any
National holiday.
(iii) "Confidential Information" means: (a) any information, whether
written or oral, which relates to internal controls, computer or data
processing programs, algorithms, electronic data processing
applications, routines, subroutines, techniques or systems, or
information concerning the business or financial affairs and methods
of operation or proposed methods of operation, accounts, transactions,
proposed transactions, security procedures, trade secrets, know-how,
or inventions of either the Protected Party, any Affiliate of the
Protected Party, or any client, agent, contractor or vendor of the
Protected Party and (b) the identities and other related information
of clients of either Protected Party, except such information which is
in the public domain at the time of its disclosure to the Receiving
Party or thereafter enters the public domain other than as a result of
a breach of duty on the part of the Receiving Party or its personnel,
or where the Receiving Party can prove it derived the information
independently.
(iv) "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of an
entity, whether through record or beneficial ownership of voting
securities, by contract, or otherwise.
(v) "Customer" means an entity to whom the MASTER DISTRIBUTOR, under the
terms of this Agreement, sells the System..
(vi) "Customer Maintenance and Support Services Agreement" means the
service level agreement for providing support to the Customer
according to WARP'S policies, subject to the payment by Customer of
the applicable fees for such support.
(vii) "MASTER DISTRIBUTOR" is the entity, first identified above, including
its employees, agents, contractors and Affiliates, and including such
Affiliates' employees, agents and contractors, who directly service a
specific end-user market segment. The MASTER DISTRIBUTOR will purchase
WARP's System directly from WARP, and, unless otherwise expressly
stated herein, resell such System to end user customers and resellers.
(viii) "Effective Date" with reference to the Agreement means the date,
first set forth above, upon which the Agreement becomes binding and
enforceable. Effective Date, when used in specific reference to a
particular Exhibit, means the date first set forth in that particular
Exhibit upon which that Exhibit becomes binding and enforceable.
(ix) "Include" and its derivatives shall mean including without limitation.
This term is as defined, whether or not capitalized in this Agreement.
(x) "NDA" means the NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT by and
between MASTER DISTRIBUTOR and WARP dated ___8/31/02_______________ .
(xi) "Protected Party" means the party furnishing its Confidential
Information to the other party.
(xii) "Receiving Party" means the party who receives Confidential
Information from the other party.
(xiii) "System" means the proprietary programmed network appliance named in
Exhibit A to the Agreement and any changes to it provided by WARP, as
well as any Documentation.
Section 2: Appointment, Customers
2.1 Appointment as MASTER DISTRIBUTOR. WARP hereby grants to the MASTER
DISTRIBUTOR a temporary,-exclusive right to distribute the System to the
Customers in South Korea during the term of this Agreement. This Agreement
(with its attached Exhibits) provides the terms and conditions which shall
govern the appointment of the MASTER DISTRIBUTOR.
2.2 Customers. MASTER DISTRIBUTOR is authorized to solicit end user Customers
for the System from all classes of potential end users of the System.
Section 3: Fees.
3.1 MASTER DISTRIBUTOR agrees to pay the purchase price of the System, and
other amounts due, as specified in Exhibit B attached hereto (collectively
the "Purchase Price").
3.2 The MASTER DISTRIBUTOR agrees to pay the Purchase Price and other amounts
due, if any, within thirty (30) days of receiving an invoice from WARP.
3.3 All amounts stated in the Purchase Price for the System purchased by MASTER
DISTRIBUTOR from WARP are in US dollars.
Section 4: MASTER DISTRIBUTOR's Sales Rights
4.1 In connection with the exercise of its rights under this Agreement, but
solely in connection with the marketing of System, the MASTER DISTRIBUTOR
may refer to itself during the term of this Agreement as an authorized
MASTER DISTRIBUTOR of WARP.
4.2 Sales to Customers. MASTER DISTRIBUTOR is authorized to contact, solicit,
and accept, in accordance with the terms hereof, potential Customers of the
System. All Customers of the System obtained through the efforts of MASTER
DISTRIBUTOR shall be in privity of contract with MASTER DISTRIBUTOR. MASTER
DISTRIBUTOR shall bear all credit risks with respect to the Customers.
4.3 MASTER DISTRIBUTOR shall have no right to reproduce the System, or any part
thereof. All of the Systems shall be distributed pursuant to WARP's current
NDA, as amended by WARP from time to time, a copy of which WARP will
provide MASTER DISTRIBUTOR. MASTER DISTRIBUTOR shall not sell or distribute
any System to any Customer unless the Customer has accepted the terms of
WARP's current NDA, under penalty of perjury and in writing.
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WARP Solutions Confidential
WARP MASTER DISTRIBUTOR Master Distribution Agreement
4.4 The MASTER DISTRIBUTOR shall not have the right to obtain and/or retain the
rights to distribute other network appliances or products similar to and/or
that compete with the System from other vendors.
WARP will not appoint other MASTER DISTRIBUTORS or DIRECT RESELLERS to sell the
System in South Korea during the term of this agreement. Section 5: MASTER
DISTRIBUTOR's Obligations
5.1 MASTER DISTRIBUTOR agrees to purchase Systems for the sole purpose of
reselling them to Customers or for internal use for supporting sales and
marketing and support activities.
5.2 The MASTER DISTRIBUTOR must be certified in accordance with the
Certification Program described in Exhibit C. Even if the MASTER
DISTRIBUTOR has completed the Certification Program, WARP has final
authority to decide if the MASTER DISTRIBUTOR is to be given
certification.
5.3 The MASTER DISTRIBUTOR shall participate in WARP's relevant sales,
pre-sales and technical training programs.
5.4 The MASTER DISTRIBUTOR shall be resposible for the installation of the
System at the Customer's location.
5.5 The MASTER DISTRIBUTOR shall provide and be responsible for basic technical
support services to the Customer with respect to the installation of the
System. The MASTER DISTRIBUTOR will perform such services in a professional
and xxxxxxx-like manner.
5.6 MASTER DISTRIBUTOR agrees to purchase 5 units upon signing agreement on a
sale or return basis. Conditioning that WARP shall provide sucessful
installations with 5 units in October,2002 and show the performances as
promised in written materials for 30days, MASTER DISTRIBUTOR will indicate
by December 1, 2002 it's intention to either pay for the units or return
them to WARP. If MASTER DISTRIBUTOR pays for the units it must wire funds
to WARP's account no later than December 5 2002.If it decides to return the
units it must do so by December 5 2002 in good and working condition. If
they are damaged in any way MASTER DISTRIBUTOR agrees to compensate WARP
for damages based on WARP's estimated cost of damages. The price of these
units are specified in Exhibit B.
5.7 MASTER DISTRIBUTOR agrees to enter into a standard service agreement with
WARP. The pricing for this support are outlined in Exhibit B.
Section 6 : WARP's obligations
6.1 Technical support
WARP shall dispatch one dedicated engineer to Korea, at WARP's expenses,
for two weeks to assist with references site installations in October,
2002. Additionally, upon the request of CDI prior November 30, 2002, WARP
shall dispatch one dedicated engineer to Korea at WARP's expenses, for
additional three consecutive business days to resolve technical problems of
reference sites or assist with references site installations. WARP requires
2 weeks lead time to schedule this visit.
6.2 Development support
WARP will provide CDI with written response to development requests and
customization within 2 weeks from receiving written request.
Section 7: Duration, Termination and Renewal
7.1 Duration of Agreement. The term of this Agreement shall commence on the
Effective Date and, , shall remain in full force and effect for a term of
120 days.
7.2 Renewal. WARP agrees to discuss entering into a longer term MASTER
DISTRIBUTION aggreement with MASTER DISTRIBUTOR within 120 days of the
effective date. The terms of this potential agreement with largely be based
on MASTER DISTRIBUTORS success over the period of this agreement.
7.3 Termination.
7.3.1 Terminations for Cause. In the event that either party or any of its
Agents breaches any of the terms of this Agreement and said breach is
not cured within thirty (30) days after written notice thereof to the
non-breaching party, the non-breaching party may terminate this
Agreement immediately by providing notice of termination to the
breaching party. 7.3.2 Terminations without Cause. Either party may
terminate this Agreement at any time, after the first 120 days, upon
written notice to the other party.
Section 8: Prices and Advertising Program
8.1 MASTER DISTRIBUTOR may set the prices paid to it by Customers for the
System it sells to them, within the following parameters, unless agreed
otherwise:
8.1.1 The MASTER DISTRIBUTOR's margin will be set at a maximum margin
of__100___% over the wholesale price; and the wholesale price of the
System is set out in Exhibit B; and 8.1.2 The MASTER DISTRIBUTOR has
the authority to reduce this margin and to unilaterally lower the
retail price paid to it by Customers as a part of the MASTER
DISTRIBUTOR's sales or marketing strategy. The MASTER DISTRIBUTOR
shall in no way interpret this maximum margin as a suggested minimum
price and is actually encouraged to reduce this price to enhance the
appeal of the System to its Customers.
8.2 WARP has the right to revise its prices to MASTER DISTRIBUTOR MONTHLY, with
thirty (30) days' written notice. Such revisions shall apply to orders
received by WARP on or after the effective date of the revision. WARP shall
price new products at the time of their introduction to market.
8.3 MASTER DISTRIBUTOR shall be responsible for paying all taxes of any nature
which become due with regard to the distribution or sale of the System to
Customers, except for taxes on WARP 's income, irrespective of which party
may be responsible for reporting or collecting such taxes. WARP will
invoice MASTER DISTRIBUTOR for all shipping charges and such invoices will
be due and payable by MASTER DISTRIBUTOR by thirty (30) days from the date
of such invoice.
8.4 Cooperative Advertising Program fully described in Exhibit D attached
hereto. WARP may modify any such terms and conditions, or terminate such
program, on at least 30 days' written notice to the MASTER DISTRIBUTOR.
Upon termination of this agreement by either party, the Cooperative
Advertisng Allowance shall expire immediately. No funds will be given or
credited to the MASTER DISTRIBUTOR after such termination.
Cooperative Advertising Program. WARP shall grant a cooperative advertising
allowance of up to 1% of the Customer sales price for Systems (the
"Cooperative Advertising Allowance"). Such allowance is to be available to
the MASTER DISTRIBUTOR for the purposes of promotion and marketing of
System consistent with the current terms and conditions of WARP's
Section 9: Relationship of Parties During the Term of this Agreement
9.1 MASTER DISTRIBUTOR, its agents and employees shall under no circumstances
be deemed agents or representatives of WARP. Other than as set forth in
this Agreement, neither WARP nor MASTER DISTRIBUTOR shall have any right to
enter into any contract or commitment in the name of, or on behalf of, the
other, or to bind the other in any respect whatsoever. The parties shall
have no right or authority, either express or implied, to assume or create,
on behalf of the other party, any obligation or responsibility of any kind
or nature.
Section 10: Ownership
10.1 MASTER DISTRIBUTOR acknowledges that WARP owns all rights, title and
interest, including, without limitation, all patent, copyright, trademark,
trade secrets, intellectual property, moral rights and other proprietary
rights, in and to the System and the propriatary technology incorporated
into the System. Nothing herein shall be deemed as giving the MASTER
DISTRIBUTOR any rights in or to the System or the propriatary technology
incorporated into the System.
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WARP Solutions Confidential
WARP MASTER DISTRIBUTOR Master Distribution Agreement
10.2 MASTER DISTRIBUTOR shall not have access to or modify the source code of
the System, nor shall it translate, reverse engineer, decompile,
disassemble, or create derivative works based on the System or the
propriatary technology incorporated into the System.
10.3 MASTER DISTRIBUTOR shall not remove any copyright notice, patent or patent
pending notice, or other proprietary or restrictive notice or legend
contained or included in any material provided by WARP.
10.4 The use by MASTER DISTRIBUTOR of the property rights mentioned herein is
authorized only for the purposes of marketing and selling the System.
MASTER DISTRIBUTOR will not use, authorize, or permit the use of the name
WARP or any other trademark owned by WARP as part of its firm, corporate or
business name or in any other way, without the prior written consent of
WARP.
Section 11: Confidentiality.
11.1 MASTER DISTRIBUTOR shall not disclose any information concerning the System
to any person other than those employees, Affiliates, or consultants who
use the System as part of the sales and marketing effort.
11.2 Both parties, using utmost care, shall hold in trust for each other and
shall not use or disclose to any third party any Confidential Information
which may be disclosed in connection with performance under this Agreement,
and both parties shall employ all reasonable measures to protect
Confidential Information from unauthorized or inadvertent disclosure,
including measures no less protective than those measures that each party
employs to protect its own information of a like nature.
11.3 Unless required by law, and except to assert their rights hereunder or for
disclosures to employees with a need to know, the parties agree not to
disclose the terms of this Agreement or matters relating thereto to any
third party without the prior written consent of the other party.
11.4 All provisions of this Section and of the NDA shall remain in effect and
survive the termination or expiration of this Agreement. In the event of
any conflict between the provisions of this Agreement and those of the NDA,
the provisions of the NDA shall take precedence.
Section 12: Promotion
12.1 WARP may refer to MASTER DISTRIBUTOR by name in its filings with the
Securities and Exchange Commission, its press releases and its advertising
and promotional materials in connection with MASTER DISTRIBUTOR'S business
association with WARP.
Section 13: Product Warranty
13.1 WARP represents, warrants and covenants that it has full title to and
ownership of the System and the propriatary technology incorporated into
the System, free and clear of liens, claims and encumbrances.
13.2 WARP agrees to indemnify, defend and hold harmless the MASTER DISTRIBUTOR,
its directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of action,
debt or liability, to the extent that such action is based upon a claim
arising our of or relating to any infringement of a copyright, trademark,
trade secret, patent or other intellectual property right of any third
party as a result of the MASTER DISTRIBUTOR'S use of the System in
accordance with this Agreement. MASTER DISTRIBUTOR agrees to furnish WARP
with prompt notice of such infringement claim, whereupon MASTER DISTRIBUTOR
hereby authorizes WARP to defend such claim and agrees to cooperate and
assist WARP fully in such defense, at WARP'S expense.
13.3 Indemnification. MASTER DISTRIBUTOR agrees to indemnify and hold WARP
harmless from any liability, loss, damage, cost or expense (including
reasonable attorney's fees and costs) incurred by WARP arising out of a
claim by any third party against WARP as a result of the activities of the
MASTER DISTRIBUTOR. The obligations of the MASTER DISTRIBUTOR hereunder
shall survive the termination of this Agreement.
13.4 THE SYSTEM IS PROVIDED "AS IS". EXCEPT AS EXPRESSLY SET FORTH ABOVE IN
SECTION 13.1, WARP HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WARP DOES NOT WARRANT
THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE.
13.5 LIMITATION OF LIABILITY. EXCEPT FOR WARP'S OBLIGATIONS UNDER SECTION 13.2,
IN NO EVENT SHALL WARP'S LIABILITY TO MASTER DISTRIBUTOR OR ANY THIRD PARTY
ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY
WARP HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS. EXCEPT IN THE EVENT OF A
BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANOTHER
PARTY OR ANY THIRD PARTY FOR ANY INTERRUPTION IN THE OPERATION OF SUCH
PARTY'S LOSS OF DATA, COSTS OF PROCUREMENTS OF SUBSTITUTE GOODS OR SERVICES
OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER ANY
CAUSE OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Section 14: Force Majeure
14.1 Neither WARP nor MASTER DISTRIBUTOR shall be liable for any failure,
inability or delay to perform hereunder, if such failure, inability or
delay is due to war, strike, fire, explosion, sabotage, accident, casualty,
government law or regulation or any other cause beyond the reasonable
control of the party so failing, and if due diligence shall be used in
resuming performance.
Section 15: Waiver
15.1 The failure of the parties in any instance to insist upon strict
performance of any provision of this Agreement shall not be construed to be
a waiver or relinquishment of all provisions or a waiver or relinquishment
of a right to insist upon strict performance in the future; rather, such
strict performance shall continue in full force and effect.
Section 16: Modifications
16.1 Except as otherwise explicitly provided herein, this Agreement sets forth
the entire understanding of the parties; any amendment, modification or
waiver of any provision of this Agreement, or consent to any departure from
the terms and conditions of this Agreement, must be in writing and signed
by the parties hereto in order to be effective. Any such amendment,
modification or waiver shall be effective only in the specific instance and
for the specific purpose stated.
Section 17: Notices
17.1 All notices under this Agreement shall be in writing and sent by mail,
e-mail or facsimile, addressed as follows:
WARP: Xxxxx Xxxxxx
WARP Solutions, Inc.
000 Xxxx 00 Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XXX
E-mail: xxxxxxx@xxxxxxxxxxxxx.xxx
Fax: (000) 000-0000
Tel. (000) 000-0000
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WARP Solutions Confidential
WARP MASTER DISTRIBUTOR Master Distribution Agreement
MASTER DISTRIBUTOR: [Xxxxxx Xxx, President
CDI Technologies, Inc.
0000 Xxxxxxx Xxxx, Xxxxx X000
Xxx Xxxx, XX 00000
0-000-000-0000
0 000-000-0000 FAX
17.2 Notices shall be effective upon receipt. The address indicated above for
either party may be changed by prior written notice to the other party.
Section 18: Severability
18.1 If any provision of this Agreement is determined to be invalid for any
reason, such determination shall not affect the validity of the remaining
provisions hereof, which shall continue in full force and effect. The
invalid term or provision shall be replaced by such valid term or provision
as comes closest to the intention underlying the invalid term or provision.
Section 19: Jurisdiction
19.1 The interpretation, construction and effect of this Agreement shall be
governed and construed in all respects in accordance with the Laws of
United States, the State of New York without regard to its conflicts of law
principles or to the United Nations Convention on Contracts for the
International Sale of Goods, and the parties hereby submit to the exclusive
jurisdiction of the state and federal courts of the State of New York.
MASTER DISTRIBUTOR consents to a non-jury trial.
Section 20: Non-solicitation
20.1 During the term of this Agreement and for twelve (12) months thereafter,
MASTER DISTRIBUTOR shall not induce or influence, or attempt to induce or
influence, any person who is engaged as an employee or consultant of WARP
to terminate his or her engagement with WARP. MASTER DISTRIBUTOR shall not
be in violation of this provision if a WARP employee or consultant responds
to a public advertisement for employment.
Section 21: Entire Agreement
21.1 This Agreement, the attached Exhibits hereto, and any agreement between the
parties expressly identified herein, constitute the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede any and all prior agreements and understandings, oral
or written, relating to the subject matter hereof.
Section 22: Non-Assignability
22.1 This Agreement shall be binding on the parties hereto. Neither party may,
or shall have the power to, assign this Agreement without the prior written
consent of the other party, and any assignment made without such consent
shall be void and of no effect as between the parties and shall be deemed a
breach of this Agreement. Notwithstanding the foregoing, either party,
without the prior written consent of the other party, shall have the right
to assign or sublicense this Agreement and any right or obligation
hereunder to an entity which acquires all or substantially all of the
assets of such party or to any successor in a merger or acquisition of such
party, during the term of this Agreement.
Section 23: Conflict of Provisions
23.1 In the event of a conflict between the provisions of any Exhibit hereto and
the provisions set forth in the body of this Agreement, the provisions of
this Agreement shall govern.
Section 24: Section Numbers and Headings
24.1 The section numbers and headings used herein are for information only and
shall not affect the interpretation of any provision of this Agreement.
Section 25: Binding Effect
25.1 This Agreement shall be binding upon and inure to the benefit of WARP and
its authorized successors and assigns, under this Agreement, and MASTER
DISTRIBUTOR and its authorized successors and assigns, under this
Agreement.
Section 26: Survival
26.1 The provisions set forth under Section 10, 11, 13 and 20 in this Agreement
shall survive the expiration, termination or rescission of this Agreement
and continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
WARP SOLUTIONS, INC. MASTER DISTRIBUTOR
By:
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(Authorized signature) (Authorized signature)
Name:
-------------------------- ----------------------------
(Name of signer, printed) (Name of signer, printed)
Title:
------------------------- ----------------------------
(Title of signer, printed) (Title of signer, printed)
Date:
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