Exhibit 10.3
Confidential Information
Name of the Channel Partner: Shenzhen Hengtaifeng Technology Co., Ltd.
Number of the Channel Partner: 0100027889
Registration Number of the Channel Partner: 2052215
Cooperation Agreement of Service Channel with LENOVO
Year 2005
Cooperation Agreement of Service Channel with LENOVO
(Master Agreement)
Number: ____________
Date of Effectiveness: ____________
Thanks for becoming a Channel Partner of LENOVO (Number:0100027889) and develop
yourself together with us. All our agreements include the Cooperation Agreement
of Service Channel with LENOVO (the Agreement) and the Affiliated Commercial
Articles of the Cooperation Agreement of Service Channel (Commercial Articles),
which shall supersede all the oral or written contracts concerning relevant
services interchanged between both parties before.
With representatives of both parties having signed the Agreement and the
Affiliated Commercial Articles below, we confirm that both parties accept all
the contents of the Agreement and the Affiliated Commercial Articles. The signed
agreement and every signed Affiliated Agreement shall form an integral part. All
the conditions of the Agreement and the Commercial Articles shall be applied to
every Affiliated Agreement. With the agreement and Commercial Articles signed,
1) both parties agree that reliable copies of the contract (e.g. Xerox or fax)
are regarded as the original version; 2) all the Products defined therein are
restricted by the agreement.
Signature with valid stamp
LENOVO: with the Stamp of Lenovo Shenzhen Electronic Co.,Ltd.
Representative (Print)
Representative Signature: Xxx Xxx
Position:
Date: April 1, 2005
Address:
Telephone:
Fax:
Email:
Signature with valid stamp
Channel Partner: (stamp) Shenzhen Hengtaifeng Technology Co., Ltd.
Representative (print)
Signed: representative of LENOVO
Position:
Date: March 31, 2005
Address: Xx.0 Xxxxx 0, Xxxxx X, Xxxxxxxx Xxxxxxxx, Xx-xxxx Xxxxxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxxx
Telephone: 00000000
Fax: 00000000
Email: xxxx@xxx.xxx.xx
Cooperation Agreement of Service Channel with LENOVO
(Master Agreement)
The Cooperation Agreement of Service Channel with LENOVO ("the
Agreement"/"Master Agreement") is signed by the two parties as indicated on the
first page: LENOVO Corporation (hereinafter referred to as LENOVO) and its
Service Channel partner (hereinafter referred to as Your Company). According to
the Agreement, Your Company is authorized to be the service channel for the
Product of LENOVO.
1 Scope of the Agreement
1.1 Affiliated Agreements: The Agreement is a general contract between LENOVO
and its Service Channel partner. Your Company is authorized to be the channel
seller of our product by signing the Agreement. Special items concerning the
selling Products are described in relevant Commercial Articles and items of
product policies (called `Affiliated Agreements as defined below). Affiliated
Agreements confirm the scope and way in which Your Company can get the Products
and/or services. Every Affiliated Agreement, together with the Agreement,
constitutes an independent contract (The Cooperation Agreement of Service
Channel). The Affiliated Agreements can be supplemented or canceled under the
consensus of both parties. But Your Company is authorized to have the Products
and/or services under the Agreement only when the Commercial Articles and one or
more applicable product policy are signed and come into effect.
1.2 Priority: Should there be no conflict between the Affiliated Agreements and
the Agreement, the Affiliated Agreements would be applied in priority; otherwise
the Agreement is applied with priority, regardless of any contrast stipulations
from any indents, agreements or other documentations displayed by Your Company.
2. Definition
The following expressions are defined as below, unless the context indicates
otherwise:
2.1 Articles of Product Policy are an Affiliated Agreement to this one. It
provides rewards, marketing supports and service supports from LENOVO to Your
Company.
2.2 Related agreements refer to the Agreement and other agreements related to
this Agreement, including the Affiliated Agreements, service agreement of the
e-commercial system and other supplemented or amended documents.
2.3 Products refers to Products purchased under the Articles of Product Policy,
which are sold to a third party by Your Company. It contains Products with a
brand owned by LENOVO and the brands distributed by LENOVO or where LENOVO sells
as an agent.
2.4 Channel refers to any legitimately established entity that sells LENOVO
Products.
2.5 Authorized Channel means any legitimately established entity, including Your
Company, which has signed a service channel agreement with LENOVO and sell
Products within the scope authorized by Lenovo. Authorized Channel means the
same as channel if there are no specific stipulations.
2.6 Distributions means transactions that provide a third party with Products
via sales, lease or in any other ways. Should there be any stipulations
regarding ways of distribution in the Agreement concerning LENOVO's product
policy, such items shall prevail.
2.7 Marketing means all the activities relating to the Products' sales and
promotion, including advertisement, promotion, exhibition and services, etc.
2.8 Pricing Policy refers to the documentations, regulations, requirements,
opinions and memorandums, concerning Your Company's selling price, which are
cited from the Agreement and its relevant articles or are publicized or notified
by LENOVO.
2.9 Purchasing Price refers to the Products' selling price or the inter-exchange
price among LENOVO's service channels, which are fixed by LENOVO according to
its Pricing Policy. Sometimes they shall be called "channel price" or "agent
price, unless specially notified.
2.10 Media Price: According to XXXXXX's Pricing Policy, there shall be a unified
price when a Product is advertised on the media.
2.11 Lowest Retail Price: means the lowest retail price within Your Company's
authorized marketing region announced by LENOVO or negotiated by both parties.
2.12 Lowest Item Price refers to Your Company's lowest selling price concerning
a single item, which is announced by LENOVO or negotiated by both parties.
2.13 Terminate Customer refers to any individual or kinds of entities that
purchase the Products for self usage.
2.14 Selling Discount refers to the preferred price offered by. LENOVO.
2.15 Lower Channel refers to the one or several parties who accept/buy in
Products when marketing or selling Products.
2.16 Upper Channel refers to the one or several parties who offer/sell Products
when marketing or selling Products.
2.17 Authorized Region refers to a region within which the channel is entitled
to sell LENOVO Products. The Authorized Region is stipulated in the Articles of
Products Policy, should there be no other prescriptions.
2.18 Authorized Client refers to the clients within the Authorized Region to
market and sell Products. The Authorized Clients are stipulated in the Articles
of Products Policy, should there be no other prescriptions.
2.19 Appointed Website refers to the e-commerce website defined in the
Commercial Articles with the address: xxxx://xxxxx.XXXXXX.xxx and the GREAT
LENOVO website with the address xxxx://xxx.XXXXXX.xxx. The latter shall be the
only Appointed Website if Your Company is not authorized to log in the
e-commerce website.
2.20 Trademark refers to any trademarks, trade names, symbols, marks, designs,
business decoration and other unique expressions or tokens possessed or used by
either party separately.
2.21 Affiliated Party means a company that is controlled by one company or
controls that company, or jointly controls a third company with one company, or
is under the same control of a third company with one company. The "company"
here refers to any companies, enterprises or legal entities; "control" means
having a direct or indirect influence or managing power on the referred company
through ownerships, purchases with voting rights, contracts or other means.
2.22 Supporting Documents means any of LENOVO agreements of customer license,
product brochures, blueprints, circuit diagrams, customer handbooks, marketing
promotion materials, quality certificates, repairing guarantees and other
analogous documents and materials.
3 Authorization
3.1 Once having signed the Articles of Product Policy, Your Company is entitled
to sell Products within the Authorized Region and term, in the identity
(appointed identity) authorized in the Articles of Product Policy and in the way
confirmed in the Articles of Product Policy. The premise of having LENOVO's
authorized identity to sell the Products is to observe the articles and
conditions of this Agreement and perform them strictly.
3.2 XXXXXX's authorization to Your Company is confined to what have been
stipulated in the Articles of Product Policy and other relevant items in the
Affiliated Agreements. There is no other authorization. Your Company shall not
engage in any activities in any LENOVO-related identities that are not
authorized, including, but not limited to, the implication of having relations
with LENOVO which are not clarified in the Agreement.
4 Independent Entity
4.1 LENOVO and Your Company have no dependent relations except for the
cooperation undertake in the Agreement. Neither party shall bear legal
responsibilities for the other's activities.
4.2 Your Company is neither an association of LENOVO, nor a branch or a
subsidiary of LENOVO or LENOVO's associations. Your Company, when using LENOVO's
name or remarks, shall not confuse customers that you are LENOVO's branch,
association or subsidiary through concealing Your Company's name, emphasizing
LENOVO's name and remarks, or any other methods that may cause mistakes. In all
the involved agreements, except definitely stated, all the product agents and
proxies of LENOVO mentioned therein are the independent commercial entities or
agencies running under its own name, but not any civil agents in any sense. Your
Company shall do all the IT and other types of exchanges that are directly or
indirectly related to the Products in your own name, but shall not engage in any
activities in an implied or definitely notified identity of XXXXXX's civil
agent. Your Company shall not use LENOVO's credit as a mortgage in any form.
4.3 Except for a written consensus by both parties in advance, Your Company is
not entitled to provide customers with Products, services or other activities in
LENOVO's name.
4.4 During the term and the extended term of the Agreement, Your Company shall
have an independent operation and recruitment, and shall develop Lower Channels
under the authorization in the Articles of Product Policy. Your Company shall
supervise and be responsible for your employees and your Lower Channels.
4.5 Except for a written consensus by both parties in advance, XXXXXX is not
entitled to engage in any other civil activities in Your Company's name.
5 Legitimacy
5.1 Your Company shall acquire and keep the authoritative licenses and
permissions which are necessary to the performance of the Agreement and required
by law or the government. Such licenses and permissions include, but not limit
to: licenses and permissions for purchase, distribution, advertisement, storage
and marketing within the Authorized Region.
5.2 According to LENOVO's requirements, Your Company shall display to LENOVO the
certificates regarding your distribution capacity, which include, but not limit
to: corporation status registered and annually checked by the Industry and
Commerce Administration Bureau and the photocopy of the legal representative's
ID card. Your Company shall also guarantee the authenticity, legitimacy and
continuous validity of such documentations.
5.3 Your Company shall observe the relevant laws and LENOVO's newly released
channel cooperation policies. You shall not do anything that may bring harm to
LENOVO and its brands.
5.4 Your Company shall only sell the Products supplied by LENOVO in mainland
China. As those Products may be bound by certain export restriction laws,
including the American ones, Your Company shall observe all the applicable
export restriction laws and regulations. According to such laws, Your Company
shall not provide certain Products to the restricted countries, entities or
individuals, nor to the entities and individuals that are engaging in prohibited
activities in any form. Such Products shall not be used in the restricted
fields, either. Hence, Your Company shall keep up with relevant laws. Your
Company agrees to defend and compensate for LENOVO in order to keep LENOVO from
the damages caused by Your Company in case you have breached this article.
6 Purchase and Payment
6.1Your Company shall order XXXXXX's Products, pay for them and take them over
according to XXXXXX's requirements stated in the Commercial Articles.
6.2 LENOVO shall provide Your Company with Products according to the order form
confirmed by both parties or to the additionally signed sales contract. LENOVO
shall substitute Your Company's ordered Products with more highly equipped ones
on condition that the prices remain.
6.3 During the validation of the Agreement, ownership of Your Company's ordered
Products shall transfer to Your Company after you have paid up the whole sum of
money. Risks of extinguishment, damage, etc. shall transfer to Your Company on
the day of delivery.
7 Product Sales
7.1 Sales Territory
7.1.1 Your Company shall sell Products or hold relevant sales activities in the
Authorized Region and to the Authorized Clients stipulated in the Articles of
Product Policy. But you shall not sell Products or hold any relevant sales
activities out of the Authorized Region and to the unauthorized Clients,
including, but not limit to, promoting or delivery Products to the unauthorized
Clients or out of the Authorized Region in any form, or establishing branches or
inventory house out of the Authorized Region for the purpose above. Without
LENOVO's written permission in advance, Your Company shall not acquire Products
out of the Authorized Region, which are to be sold inside the Authorized Region.
7.1.2 With XXXXXX's written permission, Your Company is entitled to carry out
the nationwide, unified projects or the trans-region customer projects. Those
nationwide, unified projects or trans-region customer projects without LENOVO's
recorded permissions are considered as trans-region sales or trans-region
transfer.
7.1.3 LENOVO would add regional marks to the Products or their packages. Selling
Products without right regional marks are regarded as trans-region sales or
trans-region transfer. Region division refers to the market division in the same
year.
7.1.4 Your Company shall submit all the demanding information within your
Authorized Region to LENOVO, i.e. all the Products' offering prices, purchase
demands, order of goods and other consultations. Your Company shall also submit
such materials to your Upper Channel if they stem from the Authorized Region of
the Upper Channel.
7.2 Your Company shall establish essential selling agencies, invest necessary
funds and faculties and make every effort to sell and promote Products within
the Authorized Region. Except for what are stated in the Agreement, or supported
by LENOVO, or negotiated by both parties, Your Company shall bear all the costs
and expenses caused by buying in, promoting and selling Products. Your Company
shall operate under the principle of honesty and fair dealing, and shall not
sell Products by malfeasant means such as deception and threatening.
7.3 Your Company shall keep an appropriate purchase of the contract Products and
preserve the promotion materials such as pamphlets, advertisements, etc. Such
materials shall make a complete and correct introduction to the Products.
7.4 Your Company shall always employ technically qualified staffs, who are also
necessary and responsible for the overall product promotion within the whole
Authorized Region. Sales staff shall, according to XXXXXX's policies, take the
training required by LENOVO.
7.5 Your Company shall, according to XXXXXX's channel supervision regulations,
meet XXXXXX's representatives regularly or at times, in order to discuss the
process of product sales within the Authorized Region and consult about the
sales proposal and sales strategies aiming at voluminous product promotion.
7.6 Sales quotas supposed to be completed by Your Company are stated in the
Articles of Product Policy. If Your Company cannot complete the negotiated sales
quota, your rewards and supports would be altered or canceled according to the
Articles of Product Policy. LENOVO is entitled to notify Your Company in written
form three months in advance that it would terminate certain items of product
policies.
7.7 Your Company shall not change the inside or outside packages, or add
appendages that may mislead customers, unless the two parties have additional
contracts. Without XXXXXX's written authorization in advance, Your Company shall
not unseal the Products or make installations, including no altering or amending
the documentations, materials and fittings enclosed with the Products when they
leave factory.
7.8 Your Company shall maintain a reasonable market price and avoid any unfair
price competition. If LENOVO makes any requirements or opinions with respect to
the Products' sales price and quoting methods due to differed sales methods,
Your Company shall inform LENOVO in written form and gain its written permission
in advance when you want to: 1) sell the product in a price lower than LENOVO
required one; 2) publicize a price lower than LENOVO's quotation in the media
(including the quotation and other advertising materials made by Your Company);
3) have any other sales prices and quoted methods different from LENOVO.
8 Service
8.1 Your Company shall provide customers with services that a distributor should
do according to LENOVO's service channel agreement, service regulations and
relevant laws. Your Company shall not discourage customers' complaints or reject
their proper service requirements.
8.2Your Company shall teach customers to use the Products correctly. You shall
also provide them with complete product introductions, pictures, samples and
other relevant information, materials and goods which are offered by LENOVO or
made by Your Company according to LENOVO `s requirements and standards.
8.3 During the selling process, Your Company shall introduce to the Lower
Channels (if there are any) and/or customers relevant product service policies
(including repairing guarantee) and the authorized repairing and/or training
agencies relating to the Products. Your Company's introduction to the service
policies shall strictly stick to the service policies concerning product
standards released by LENOVO or the special service policies tailored for
certain Products or clients.
8.4 Should there be no extra contracts, Your Company shall, according to
relevant service policies, provide customers with such a service that should a
repairable failure occurs during the period guaranteed in the product policies,
Your Company shall change the Products or withdraw the Products and pay back the
money of goods.
8.5 If, according to relevant product policies, Your Company is responsible to
provide customers with integration or installation services and all or part of
the repairing services including fixing, changing or withdrawing the Products,
such services are limited to LENOVO's standards: 1) Your Company shall be
equipped with sufficient technically qualified staffs to guarantee a immediate
and effective services to customers; 2) Your Company shall have a sufficient
storage of Products and/or spare parts to satisfy the needs of after-sale
services within the Authorized Region; 3) Your Company shall guarantee that the
after-sale services are valid to every customer buys Products from Your Company
within the Authorized Region.
8.6 If Your Company is responsible or obligate to provide such services
according to LENOVO's service channel agreement, service regulations and
relevant laws, Your Company shall respond to and handle customers' service
requirements within the period of time stipulated in LENOVO's service standards.
If Your Company is not responsible or obligate to provide such services, you
should transfer such services to LENOVO or LENOVO's authorized repairing
agencies. If a customer requires repairing the product and/or its spare parts
which can be returned to the LENOVO's factory or other LENOVO-appoint repairing
agencies, Your Company shall report to LENOVO honestly and in due process. The
Products are retuned according to XXXXXX's authorization and would be delivered
to customers after repairing.
8.7 If Your Company makes any extra undertakings to customers beyond LENOVO's
definite undertaking in the service policies, or provides customers with any
attached materials or goods together with LENOVO's Products, Your Company shall
inform customers that such services and attachments are provided and guaranteed
merely by Your Company. Your Company shall be responsible to settle down the
complaints or disputes caused by your own service undertaking or its
performance.
9 Channel Development
9.1 "Channel development", or the analogous concepts/expressions specially
mentioned in the Agreement or involved agreements, means that Your Company seeks
Lower Channels and establishes comparatively frequent exchange relations
concerning the Products with them. Your Company is not entitled to develop any
Lower Channels, except for LENOVO's special authorization.
9.2 If Your Company is authorized to develop Lower Channels according to the
signed Articles of Product Policy, Your Company shall develop Lower Channels
regarding certain Products according to the plans that are negotiated by LENOVO
and Your Company and are signed in the Articles of Product Policy or stipulated
in other forms.
9.3 Your Company shall guarantee that, with XXXXXX's authorization, you should
sign a channel agreement with the developed lower channel under the LENOVO's
required form and standard. Such channel agreements shall include articles that
are essentially the same as articles
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(cent)16i(cent)17 in the Agreement and are necessary to the agreements'
performance.
9.4 Your Company shall submit the statistics of the lower channel to LENOVO's
regularly according to the scope, standard and forms stipulated in LENOVO's
channel supervision charters.
10 LENOVO's Supports
Pricing support
10.1.1 LENOVO shall, according to Your Company's application, offer you a
preferred price to the special selling projects focusing on certain customers
(pricing support). Such supports include, but not limit to bidding projects. The
manipulation and disposal to the bidding projects shall observe the principles
of pricing support.
10.1.2 Your Company, when applying for pricing support, shall observe all the
processes and rules concerning the application of LENOVO pricing support
guarantee the authenticity, integrality and veracity of all the application
information.
Your Company's Products, which enjoy a pricing support applied by Your Company,
shall be correctly sold to the appointed clients demonstrated in Your Company's
application of certain special sales projects.
10.1.4 LENOVO would add a mark of "specially supplied" or other analogous marks
(specially supplied Products) to the packages of such Products. Your Company
shall not purchase or sell any Products with pricing supports acquired from a
third party other than LENOVO (including other channels of LENOVO).
10.1.5 LENOVO shall, according to its reasonable judgments and selection, give
an after-sale discount and/or deposit to its pricing supports. The operation
methods and standards are stipulated in the relevant policies or proposals
released by LENOVO.
10.1.6 If Your Company's reputation does not reach the LENOVO required level
when applying for product's pricing support, Your Company shall ask a third
company that reaches LENOVO `s reputation level to make assurance for Your
Company. The third company shall bear a joint liability with Your Company.
10.2 LENOVO shall, according to its product policies and its reasonable
judgments, provide Your Company with sample introductions, technical brochures
and advertising materials in order to support Your Company's product promotion
within the Authorized Region.
10.3 Both LENOVO and Your Company shall propose special marketing activities
aiming at given clients or marketing goals. LENOVO would provide Your Company
with case support with respect to product, technology, price, sales, and
policies according to its reasonable judgments (case support), on condition that
LENOVO confirms such activities do correspond with LENOVO's current marketing
policies.
10.4 Rewards
10.4.1 Rewards means that LENOVO would, according to XXXXXX's marketing and
product policies, provide Your Company with material supports unilaterally for
your continuous sales of LENOVO's Products. Such rewards include, but not limit
to, sales reward, fund, price protection, support, encouragement, discount,
preference and other relevant expressions mentioned in the Agreement and any
other involved agreements. Such rewards shall not be explained as XXXXXX's due
payments or other obligations to Your Company, even if such rewards have been
issued and informed Your Company according to involved agreements and LENOVO's
marketing and product policies.
10.4.2 LENOVO would reward Your Company according to your signed Articles of
Product Policy and other involved agreements. Your Company shall question the
amount of the reward within three months starting from the day on which LENOVO
notifies Your Company of the reward.
10.4.3 Your Company shall enjoy the reward only by having discounts in ordering
Products, except for XXXXXX's additional written permission. The discount based
on certain Products shall only be used in ordering the same Products
continuously. Sales discount shall not exceed 15% of the total amount of every
order form.
10.4.4 LENOVO is, according to specific product and marketing policies, entitled
to amend or alter the rewarding matters and methods based on XXXXXX's unilateral
judgments.
10.5 LENOVO shall, basing on its reasonable judgments and selections, offer
marketing supports to Your Company's product sales activities according to the
issued advertising strategies for certain brands or Products, including
advertising, participating or holding categories of exhibitions and displays.
LENOVO shall give supports for Your Company's participation and organization of
such activities according to Your Company's application, provided that such
activities do not breach LENOVO's temporal policies and strategies.
10.6 LENOVO would consider its marketing policies and provide Your Company with
trainings regarding product sales, technical capacity and repairing services, in
order to enable Your Company to fulfill the obligations provided in the channel
agreement properly. Training costs are shared by Your Company and LENOVO, or
paid according to the policies released by XXXXXX then.
10.7 Product Guarantee
10.7.1 LENOVO guarantees the legitimate ownership of the delivered Products.
10.7.2 LENOVO guarantees that its delivered Products conform to the national
mandatory standards and have no defects that may affect the regular use at the
delivery. LENOVO delivered Products only serve for general purposes, other than
all the special purposes, like applications which may cause property loss or
personal damages.
10.7.3 According to the quality guarantee stated above, should there be any
product failures within the scope and period of the guarantee, LENOVO would
provide customers with free repairing services (repairing guarantee) based on
the repairing undertaking. Quality guarantee and repairing of the non-LENOVO
made Products shall be based on the undertaking standards and methods of the
original factories. LENOVO would assist Your Company for the coordination. If
the repairing requirement exceeds the period of guarantee, LENOVO would provide
a compensated repairing service and the amount would be lawful and commercially
reasonable. The repairing guarantee or would be provided by Your Company or
other repairing agencies authorized by LENOVO.
10.7.4 LENOVO provides Your Company with material reimbursement support.
According to, and only according to such a policy, Your Company shall return to
LENOVO's appointed repairing agencies those returnable Products and/or spare
parts which are within the scope of repairing guarantee but exceed the period of
repairing guarantee.
10.7.5 LENOVO would provide customers with post-sale repairing services through
the authorized repairing agencies, including Your Company. The rights,
obligations and scope of the post-sale repairing services provided by Your
Company shall stick to the Agreement and other relevant product service
policies.
10.7.6 LENOVO service policies are confirmed in these documents: 1) product
service policies provided by LENOVO or attached with Products; 2) service
policies regarding certain Products released and continuously renewed on LENOVO
website.
10.7.7 Except for additional stipulations in Your Company's order form or other
types of sales contracts, LENOVO's responsibilities for Products and services
are limited to LENOVO definite undertakings. LENOVO shall not bear any product
responsibilities that are stipulated, tacit, etc. LENOVO's responsibility for a
specific product and/or service shall not exceed its actual exchanging price.
LENOVO is not responsible for any indirect, occasional or incidental damages.
10.8 LENOVO would handle Your Company's complaint about our staff's bribery,
abuse of power, malfeasance, etc. in time, in order to maintain Your Company's
legal interests.
11 Marketing Activities
11.1 Your Company shall not publish, display in any form or use the advertising
or promoting materials relevant to contract Products, unless such advertising or
promoting materials are offered by LENOVO or are used for product consultancy or
promotion agreed by both parties.
11.2 Your Company shall not make any explanation or assurance on a product
and/or service without authorization, unless LENOVO issues permission in written
form or there are clear, irrevocable expressions in the LENOVO-released written
materials. Your Company's advertisements for the contract Products and/or
LENOVO-offered services are limited to LENOVO's definite undertakings. If Your
Company makes any extra undertakings to customers, you shall notify them that
Your Company, other than LENOVO, would be responsible for such undertakings.
11.3 In spite of the stipulations above, Your Company shall observe LENOVO's
marketing strategies and proposals and make appropriate efforts to participate
and organize product marketing activities, such as advertising, participating in
exhibitions and displays, expanding product sales.
12 Report
12.1Your Company shall often report to LENOVO the marketing develop situation of
certain XXXXXX's Products within your Authorized Region and provide information
on market demands and changes of the local laws and regulations. Your Company
shall submit to LENOVO your sales information and statistics ("sales
information") in the LENOVO-offered format via the "statistical system of
channel purchase, sales and inventory and customer information". Such statistics
shall be complete, timely, authentic and correct. LENOVO would check and verify
the information according to stipulations in the Agreement and other involved
agreements, as well as the rules and policies newly released by LENOVO or
notified to Your Company. LENOVO would calculate sales rewards for Your Company
according to this actual sales information.
12.2 Your Company shall regularly report to LENOVO detailed information on
future sales and inventory, as well as other statistical estimations required by
LENOVO for budgets and new production plans.
12.3 Your Company shall report to LENOVO all the complaints about LENOVO's
Products and their acquirable proofs and other relevant matters, in order to
guarantee LENOVO immediate and proper solutions to such complaints. Should there
be any disputes between Your Company and customers concerning Products'
capabilities, qualities and relevant services, Your Company shall not make any
litigation settlement action without LENOVO written permission.
13 Market management
13.1 In order to ensure the corporate interest of LENOVO and all its channels
including Your Company, should a channel holds product sales activities which
breach relevant channel agreements and the price, market service and other
stipulations cited therein, or have made or may make negative effects on the
market order or LENOVO's Products, LENOVO is entitled to terminate such
activities based on its own knowledge and to stop supplying the channel with
Products and services immediately or after it informs the channel.
13.2 LENOVO shall require its channels, including Your Company, to stop
supplying Products to the channel that violates the rules. Your Company shall
stop supplying Products to the controlled channel directly or indirectly as soon
as you receive LENOVO's inform or notification based on the Agreement.
13.3 Should Your Company discovers any channels whose actions violate the
Agreement or other agreements involved, you shall report to LENOVO and help for
the investigation. If the information is firstly given by Your Company and is
true in the investigation, LENOVO shall increase your sales reward by
RMB300~RMB50,000.
13.4 Your Company shall maintain LENOVO's interests and not make any actions
that is against XXXXXX's interests or adopt any marketing strategies that
conflicts with XXXXXX's interests.
14 Channel supervision
14.1 LENOVO is entitled to evaluate and/or authenticate Your Company's
performance of the channel agreement, commercial operations, money investments
and service level. If the evaluation result does not reach LENOVO's standards or
cannot pass LENOVO's authentication, LENOVO shall, according to the result of
evaluation and/or authentication, 1) alter the authorization, authorized credits
or the rewards and supports to Your Company; 2) suspend the supply of certain
Products to Your Company; or even 3) terminate the channel agreements and/or any
involved agreements (including but not limit to any articles of product
policies). LENOVO is entitled to require other channels to stop supplying
Products to Your Company. LENOVO's standards of evaluation and/or authentication
are performed under the standards which are released by LENOVO and are valid
within the period.
14.2 LENOVO shall audit Your Company's performance of the channel agreement
through regular or irregular inspections (to inspect the quotations, telephone
records, secret interviews, customer surveys, etc.) or complaints or reports
from other channels. Your Company shall be responsible to supervise your Lower
Channels (regardless of LENOVO's authorization), if there are any, in order to
guarantee that Your Company's Lower Channels runs in accord with the channel
agreement signed by LENOVO and Your Company. Should there be any dealings of
Your Company's Lower Channels that violates the Agreement, you shall be
responsible for that and take effective actions to rectify such dealings. Your
actions shall include, but not limit to, dissolution of any signed agreement.
14.3 Your Company agrees to reserve complete and correct this year's and the
past three years' records of your finance and Products' purchase, sales and
inventory. Such records shall include all the statistics and information which
LENOVO uses to check your performance of the channel agreements and according to
the channel agreement and other involved agreements that are supposed to be
reported. Your Company shall submit to LENOVO your vigorous statistics of sales
and other items in the manner stipulated or permitted by LENOVO, including but
not limit to, sales quantity, inventory and capital flows. LENOVO would verify
the statistics and information submitted by Your Company and offer Your Company
with rewards and other supports based on your statistics that are considered
authentic. The statistics which does not correspond with LENOVO rules are null
and void.
14.4 During the valid or extended period of the Agreement, LENOVO can audit Your
Company's records in due notification. Such audits shall be carried out by
XXXXXX's inside staffs or independent audits entrusted by LENOVO. Audits would
report to LENOVO about your proper performance or the channel agreement. Audits
would not exceed twice every twelve (12) months. But LENOVO is entitled to make
temporary audits in Your Company in eight hours after informing your LENOVO's
suspects your performance of the channel agreement with justifiable reasons.
Audit costs are born by XXXXXX, unless the audits discover that Your Company
does not perform the channel agreement appropriately within the auditing report
period. Should the circumstance occurs, Your Company shall be responsible for
all the audit expenses in addition to paying LENOVO your penalty and other items
that are suppose to be paid by Your Company.
15 Intellectual property rights 15.1 It is confirmed by both parties that unless
there is other express agreement, neither party acquires any intellectual
property rights or other related rights from the other party from the signing
and implementation of this Agreement.
15.2 Within the authorized period of certain Products as agreed by the parties,
Your Company may have the license of a series of XXXXXX's non-monopoly and
non-transferable Intellectual property rights. Such Intellectual property rights
refer to the trademarks, trade names, patents, copyrights and designs regarding
certain Products, possessed by LENOVO or authorized to Your Company's use by
LENOVO. To XXXXXX's knowledge at the time of signing the Agreement, such
Intellectual property rights do not violate a third party's intellectual
property rights within the Authorized Region. Your Company may not have any
dissents or amendment to XXXXXX's trademarks.
15.3 All or one of the patents, trademarks, copyrights and designs relating to
the contract Products, as well as their literal introductions, are and will be
LENOVO's property. Your Company shall not change or remove any product signs or
property manifestos relating to XXXXXX's property ownership. Your Company shall
not register the rights and properties mentioned above in your own name or allow
others to do so, nor can you register patents, trademarks, trade names,
copyrights and designs that are imposturous or the same as or similar to LENOVO,
no matter the channel agreement still binds or has terminated. Your Company
shall not allow a third party to use XXXXXX's intellectual property rights
without XXXXXX's written permission. Your Company shall stop having LENOVO's
intellectual property rights as soon as the Agreement terminates.
15.4 Your Company shall not produce, make or counterfeit any contract Products
or its assemblies no matter the Agreement terminates or not, nor can you sell
the Products with LENOVO's trademarks or any other LENOVO's marks or symbols
which are not supplied by LENOVO or its Channels.
15.5 The use of LENOVO's trademarks, special signs and other unique commercial
expressions by Your Company shall be under XXXXXX's authorizations in written
form, and shall follow XXXXXX's instructive documents.
15.6 Should Your Company notice or discover any infringement of XXXXXX's
patents, trademarks, trade names, copyrights and designs (regardless of apparent
or potential), or lawsuits, petitions, counterfeits and unfair competitions
relating to LENOVO, you shall notify LENOVO of all such dealings within
reasonable time. Besides, Your Company shall provide LENOVO with necessary
assistance, including collecting evidence materials, file a joint lawsuit
together with LENOVO, etc. XXXXXX agrees that it would bear all the legal costs
of such litigations, unless otherwise agreed by the parties.
16 Confidentiality
Before signing the Agreement or during its valid period, the commercial,
marketing, technical, scientific or other types of materials which have been or
would be disclosed from one party (the disclosing party) to the other (the
receiving party) shall be designated as confidential information (or similar
expressions) at their disclosure, or disclosed secretly, or confirmed to be
confidential information under a reasonable judgment by both parties.
16.1.1 Confidential information shall be kept secretly.
16.1.2 Confidential information shall not be used for the purposes not stated in
the Agreement.
16.1.3 Confidential information shall not be disclosed to any agency other than
the employee of one party who shall know the information due to his/her own duty
(or associations, lawyers, accountants or consultants of that party). The
personnel mentioned above shall sign an Agreement of Confidentiality in written
form, whose confidentiality obligations shall be as serious as, if no more than,
this article.
16.2 Article 16.1 is not applicable to the information below:
16.2.1 The non-receiving party has written records that suggest it has already
known the information before the disclosure from the disclosing party.
16.2.2 The information has been, or would be publicized not by the receiving
party's violation of the confidentiality obligation.
16.2.3 The receiving party acquires the information from a third party who is
not bound for the confidentiality obligation.
16.3 During the administrative and legal proceeding, the receiving party shall,
according to the commands or requirements of the authorities with qualified
jurisdictions, disclose the confidential information that is necessary as
required by the administrative or legal proceeding. A written notification to
the other party shall be sent before such disclosures.
16.4 Your Company shall not issue any newsletter or other promotion of any news
with direct or indirect relations to the Agreement and other related agreements.
16.5 After the expiration or termination of the Agreement, or at the request of
the disclosing party, the receiving party shall: 1) return (or extinguish at the
request of the other party) all the materials that contain the confidential
information (including photocopies) to the other party; and 2) issue a written
guarantee within ten days after the request that the above mentioned materials
have been returned to the other party or extinguished.
17 Remedies
17.1 General Rules
17.1.1 Either party, if breaches the contract, shall take reasonable remedial
measures as acceptable to the other party to rectify its breach of the contract
upon its notice of the breach or the receipt of the notice of breach from the
other party.
17.1.2 Both parties agree that it is necessary to observe the Agreement and the
agreements involved in order to maintain the interests of Your Company and
LENOVO, as well as all the LENOVO's Channels. As any breach of the Agreement and
the agreements involved would cause damages to others, the breaching party shall
make immediate and sufficient compensations for its breach of the contract. When
it may be difficult to calculate the amount of damages, both parties consider it
necessary to fix the penalty in advance. Both parties agree that the penalty
fixed in the Agreement is reasonable and shall be paid as soon as a breach of
contract occurs without proving the damages. Additionally, the non-breaching
party is entitled to judge the amount that shall be paid by the breaching party
unilaterally within the range of amount stipulated in the Agreement. In the
event that the penalty paid by the breaching party cannot cover the damages of
the non-breaching party, the non-breaching party is entitled to a petition of
continuous compensation. Damages mentioned in the Agreement shall include the
non-breaching party's damages caused by a breach of contract, as well as the
legal costs and expenses, including investigation, arbitration, litigation,
payments for lawyers, etc.
17.1.3 The penalty and compensation born by Your Company shall be firstly
deducted from the rewards and supports for Your Company. If such deduction
cannot cover all the penalty and compensation, LENOVO is entitled to require a
further payment. The deduction of rewards and supports comes into effect as soon
as LENOVO notifies Your Company. As for the amount of penalty and compensation
that exceed the deduction, Your Company shall give a reasonable explanation
within seven days after receiving LENOVO's written notification. Without a
reasonable explanation from Your Company within the time limit, the amount of
money in the notification shall be Your Company's due payment.
17.1.4 The above stipulation does not affect other remedial measures that may be
taken by the non-breaching party under agreements or laws.
17.1.5 The two parties may stipulate other breaching liabilities in any related
agreements.
17.1.6 In particular, "Your Company" shall include the associations and Lower
Channels of Your Company in this article.
17.2 Should Your Company breaches article 4 of the Agreement and causes
confusion to customers regarding Your Company's identity, XXXXXX may charge you
a RMB3,000 penalty each time, according to its reasonable judgment.
17.3 Should Your Company does not comply with the payment obligation as
stipulated in article 6 of the Agreement, you shall pay the higher of the
penalties agreed by both parties. Penalty for default payment is stipulated in
the Articles of Product Policy or the order forms.
17.4 Should Your Company breach article 7 (article 7.7 excluded) and/or rules of
sales relating to that article, Your Company shall bear a penalty ranging from
RMB5,000 to RMB20,000, subject to the following:
17.4.1 Products outflow under pricing support: Should the Products with Your
Company's applied pricing support outflows, whether handled by other Channels or
not, Your Company shall bear a penalty to LENOVO ranging from RMB10,000 to
RMB100,000. Meanwhile LENOVO shall reduce the sales reward for Your Company
according to all the discounts at this round of pricing support and may
terminate the authorized credits and pricing support to Your Company.
17.4.2 Products outflow under sales price support: Should Your Company spreads
the Products that are under sales price support without registering in LENOVO,
Your Company shall bear a penalty to LENOVO ranging from RMB5,000 to RMB20,000
RMB.
17.4.3 Supplying to companies that are enjoined from acquiring LENOVO's
Products: should Your Company supply LENOVO's Products to companies that are
enjoined from acquiring LENOVO's Products, Your Company shall bear a penalty to
LENOVO ranging from RMB10,000 to RMB20,000.
17.4.4 Regional Sales: 1) Should Your Company sell or transfer Products across
the Authorized Region, whether handled by other Channels or not, Your Company
shall bear a penalty to LENOVO of RMB1,000 per computer amounting to RMB20,000
in total. 2) Should Your Company sell computers marked by non-authorized region
signs without registering to LENOVO, Your Company shall bear a penalty to LENOVO
ranging from RMB5,000 to RMB20,000.
17.4.5 Sales at low price: should Your Company sell Products in low price or low
quotation, or supply Products to sales companies in low price or low quotation,
Your Company shall bear a penalty to LENOVO ranging from RMB5,000 to RMB20,000.
17.4.6 Sales across the Authorized Region at low price: should Your Company sell
or transfer Products across the Authorized Region in the price or quotation
lower than LENOVO's lowest retail price, whether handled by other Channels or
not, Your Company shall bear a penalty to LENOVO of RMB10,000. Should Your
Company sell Products across the Authorized Region in low price over three times
within three months, or sell Products across the Authorized Region which causes
order loss to other Channels, or supply LENOVO's Products to companies that are
enjoined from acquiring LENOVO's Products, or sell over ten computers across the
Authorized Region in low price at once, or cause other fundamental damages, Your
Company shall bear a penalty to LENOVO of RMB20,000.
17.4.7 Low quotation prices on the media: should Your Company publish a price on
the media (including the pamphlets and quotation forms made by Your Company)
which is lower than LENOVO advertising price, Your Company shall bear a penalty
to LENOVO ranging from RMB2,000 to RMB20,000.
17.4.8 Leaking the purchasing price: should Your Company leak the purchasing
prices of LENOVO's Products, Your Company shall bear a penalty to LENOVO of
RMB5,000.
17.4.9 Customers' complaints: should any customers complain Your Company for
deceiving or threatening, Your Company shall bear a penalty to LENOVO ranging
from RMB2,000 to RMB20,000.
17.5 Should Your Company submit to LENOVO the sales statistics and sales
information which are not in accord with LENOVO's criteria, such sales
statistics and sales information shall be invalid and shall not be calculated in
the sales reward. Should Your Company submit fake sales statistics and sales
information to LENOVO, Your Company shall bear a penalty to LENOVO of 50% of the
sales reward in that round, in addition to deleting the fake statistics and
information from sales reward.
17.6 Should Your Company breaches article 8 and/or the service rules cited by
that article, Your Company shall bear a penal of RMB500. But you shall stick to
additional stipulations, if there are any.
17.6.1 Should Your Company breach article 8.1 in the Agreement and take unfair
measure or provide no services, Your Company shall bear a penalty ranging from
RMB2,000 to RMB20,000 each time.
17.6.2 Should Your Company breach article 7.7 and 8.7, and change the Products
or dishonor Your Company's extra undertakings to customers without
authorization, Your Company shall bear a penalty ranging from RMB1,000 to
RMB3,000.
17.7 Should Your Company fail to perform the Agreement or its cited rules which
result in customers' complaints or claims for compensation, once confirmed by
LENOVO that it should be Your Company's responsibilities, Your Company shall
bear the expenses caused by those complaints or claims for compensation,
including but not limited to the costs to comfort customers and the depreciation
due to the Products' reimbursement or replacement, (2.5ie of the product's
terminal selling price per day). In addition, Your Company shall bear a penalty
ranging from RMB500 to RMB2000 for every usual complaint and a penalty ranging
from RMB2,000 to RMB5,000 for every serious complaint, or a penalty of RMB10,000
for every vicious compliant. In this article, "usual complaint" refers to
customers' complaints or claims for compensation caused or partly caused by Your
Company's fault, while Your Company settles the disputes actively without going
depravation; "serious complaint" means that Your Company does not settle the
above-mentioned complaints or claims for compensation until LENOVO urges you to
do so, or Your Company does not take effective measures and result in customer's
complaints in a third organization such as LENOVO's central management
department, the association for consumers, the Industry and Commerce
Administration Bureau, etc. Usual complaints risen over twice shall be regarded
as serious complaints; "Vicious complaint" means that Your Company has not take
effective measures on customers' complaints or claims for compensation and leads
to exposure on the media, lawsuits or propaganda via the internet, etc. Serious
complaints risen over twice shall be regarded as vicious complaints.
17.8 Should Your Company incurs customers' complaints or claims for compensation
due to breach of the channel agreement or any stipulations cited therein, and
such event is exposed to the public in the ways including but not limited to
media reports, notifications released by the government or other authorities,
Your Company is deemed to cause severe damages to XXXXXX's public image and
reputation. Hence Your Company shall bear a penalty according to the Agreement
and shall make further compensations if the penalty cannot cover LENOVO's loss.
The amount of loss arisen from the damages to LENOVO's image and reputation is
calculated according to the total amount of market promotion and advertising
expenses (including costs specially invested for the Authorized Region and the
whole sum shared by Channels nationwide) invested by LENOVO into Your Company's
Authorized Region in the past three years since the breach of contract.
17.9 Should Your Company breach the contract in other forms, Your Company shall
compensate RMB500~RMB10,000 per time.
17.10 Should Your Company breach the channel agreement and its cited rules not
stipulated in the Agreement, LENOVO shall take the following measures
accordingly, which would not affect LENOVO rights to seek other legitimate
remedies: a) reduce, or even cancel Your Company's authorized credits; b) stop
all types of supports to Your Company; c) stop supplying LENOVO Products to Your
Company, or even stop other Channels to do so, until LENOVO considers it all
right to restart the supply; d) LENOVO shall terminate the channel agreement
and/or any other relevant agreements (including but not limited to any articles
or product policies) without bearing any liabilities; and/or e) investigate Your
Company's administrative and criminal liabilities.
18 Force Majeure
18.1 Force majeure refers to the objective events that are unforeseeable, and
its occurrence and consequences are insurmountable and unavoidable.
18.2 Should there be any failure to perform the Agreement or perform it fully
due to force majeure, liabilities of the affected party shall be partly or
wholly exempted. But the affected party shall notify the other party immediately
after the occurrence of the force majeure and provide proofs issued by
governmental departments, chamber of commerce or notarization authorities or
reports given by authoritative local media for evidence of the force majeure.
18.3 After the removal of the force majeure, the affected party shall inform the
other party without delay if it could continue to fulfill its obligations. With
approval of the other party, the affected party shall continue to perform the
Agreement.
18.4 Should the occurrence of force majeure is attributable to the late
performance of the Agreement by one party, its liabilities shall not be exempted
due to force majeure.
19 Applicable Law
19.1 The Agreement is governed by laws of the mainland, People's Republic of
China (excluding Hong Kong and Macao).
20 Dispute Settlements
20.1 Both parties shall make reasonable efforts and friendly consultations to
settle any disputes arisen from or relating to the performance and
interpretation of the channel agreement. Either party shall seek for legal
remedies if a dispute cannot be solved within a reasonable period. Both parties
agree that disputes shall be submitted to the courts where LENOVO is located.
20.2 The above stipulations shall not affect the rights of either party to seek
for injunctions, property reserving, pre-litigation reserving and other
temporary remedy order.
21 Period and termination
21.1 The Agreement shall be valid from April 1st, 2005 to March 31st, 2006
unless the Agreement is terminated in advance. The Agreement shall be performed
continuously until either party terminates it. It shall also take in effect if
after the expiration of the term if both parties agree to extend the cooperation
relations. If Your Company fails to sign the Commercial Articles and any
Articles of Product Policy according to LENOVO's requirements, the Agreement
shall be suspended.
21.2 Either party shall terminate the channel agreement by informing the other
party by a notice two months in advance, but the executing order forms and
stipulations relating to the order forms shall not be terminated for the same
reason.
21.3 The Agreement shall be terminate under such circumstances:
21.3.1One party applies for bankruptcy or is sued by others for bankruptcy, or
enters analogous legal procedures;
21.3.2 The sales of one party are seriously deteriorating.
21.3.3One party engages in transferring properties, withdrawing capital or
escaping debts.
21.3.4 Termination according to prescriptions in the Agreement and other
agreements involved.
21.4Consequence of Termination:
21.4.1 Should the Agreement be terminated due to any reason, the rights and
obligations of both parties prescribed in the Agreement and its Affiliated
Agreements shall be terminated immediately. But articles in the Agreement and
its Affiliated Agreements concerning statements and warranties, supporting
services, liabilities for breach of contract, intellectual property rights,
confidentiality, defending, applicable laws, jurisdictions and other articles
whose validation shall be extended by its nature shall continue to be valid.
21.4.2 Termination of the Agreement shall not affect Your Company's liabilities
for the product quality and post-sale service. Your Company shall continue to
provide your Lower Channels and/or customers with repairing guarantees and
maintenance services outside the guarantee scope. Termination of the Agreement
shall not affect the claim for compensation of either party for the breach of
contract or tort by the other party.
21.4.3 With the termination of the Agreement or the channel agreement, Your
Company shall return all the materials and Products provided by LENOVO under the
terminated agreement back to LENOVO fifteen days from the termination.
21.5 Should there be any changes to the controlling right or ownership of Your
Company or the associations of Your Company, or other fundamental alterations
with respect to bankruptcy, liquidation, etc., LENOVO is entitled to take the
following measures: 1) stop supplying Products; 2) deliver Products after the
remittance arrives; 3) ask for guarantees from Your Company; 4) terminate the
channel agreement.
22 Notice and Contacts
22.1 All the notices issued according to or relating to the Agreement and the
agreements involved shall be in written form. Addresses for receiving notices of
both parties shall be the ones stipulated in the Agreement or additionally
informed by both parties. If not additionally informed, the addresses of both
parties shall refer to the ones written on the first page of the Agreement.
Should there be any changes of the address of either party, the changing party
shall inform the other party without delay.
22.2 The service of all the notices issued under the channel agreement shall be
delivered by: 1) delivered to the addressee 2) fax or email that is confirmed or
registered; 3) post with the address written clearly and the expense paid; 4)
formal express services. The notice is valid since the date of delivery if by
delivered to the addressee, or three working days from the delivery if sent in
other qualified ways.
22.3 LENOVO shall send the written notices and bulletins issued under the
Agreement to Your Company directly (including mail, fax or email), or publish
them on LENOVO's websites. Such notices and bulletins come into effect on the
day they reach Your Company or are published. Your Company shall consult the
website regularly.
23 General articles
23.1 Any amendments or supplements to the Agreement shall be made in written
form and confirmed and signed by both parties in effective manner. Such
documents would form a valid part of the relevant channel agreements after
confirmation.
23.2 The channel agreement and other related agreements shall be negotiated and
signed by both parties, and be accepted and confirmed after sufficient
consideration in the commercial conditions of the other party. Both parties have
noticed and understood thoroughly the articles that limit or exclude the rights
or obligations of either party unilaterally and do not see any unfairness
contained in the channel agreement and other agreements involved. All the
articles shall be interpreted literally and reasonably, but shall not be
strictly interpreted towards the advantage or disadvantage of either party.
23.3 LENOVO shall publish on its website or provide Your Company with kinds of
rules and regulations. LENOVO shall amend such documents at times. Such
documents and their amended version would come into effect as soon as offered or
published by LENOVO.
23.4 Neither party shall sub-contract the channel agreement or part of it, nor
shall it transfer it to a third party. With XXXXXX's written approval, Your
Company shall sub-contract or transfer the channel agreement or part of it, and
Your Company's obligations shall not be reduced. In the convenience of the
service, LENOVO shall assign all or part of the services under the channel
service to its to associations or appointed factories, including confirming the
order forms, delivery Products and offering services, etc. Conditions and
articles in the relevant channel agreements shall be applied to such services.
23.5 Your Company shall not provide any money, gifts or other tangible or
intangible interests to LENOVO's staffs and/or their family members who have
actual or potential service relations with Your Company. Such dealings, once
detected, shall be treated as business bribery that has caused material damages
to LENOVO. LENOVO shall ask for a penalty of RMB100,000 in addition to
terminating the Agreement. But advertising presents under business customs shall
be excluded.
23.6 Should there be any articles in the channel agreement that are judged by
authorities with qualified jurisdictions as invalid or unenforceable, while such
articles do not affect the rights of both parties substantially, the Agreement
shall continue to be valid. Any articles judged as partly invalid or
unenforceable shall have complete force within the part that is not judged as
invalid or unenforceable.
23.7 Valid waivers of the channel agreement need subscriptions of both parties.
One party's negligence or delay of certain rights regardless of the reason, or
its negligence or delay of the investigation to the breaching or tort of the
other party, shall not be regarded that it has waived its right to do so, nor it
waives the investigation to such matters in the future.
23.8 The channel agreement shall also be made for the interests of both parties
and their own legitimate successors or assignees and bind both parties and their
own legitimate successors or assignees equally.
23.9 Title of the channel agreement is made for reading convenience, rather than
an integral part of the contract, nor an interpretation of the Agreement.
23.10 The Agreement shall include but not confine to the following parts:
23.10.1 Commercial Articles.
23.10.2 Articles of Product Policy.
23.10.3 Order forms, sales contracts that are involved.
23.10.4 Amendments and supplements to the Agreement and its annex.
23.10.5 All the regulations and documents cited in his agreement.
23.11 The original of the Agreement shall be held in two copies of the same
form. Each party shall preserve one copy with equal legal effect. This form
shall come into force after signed by two parties and from the valid date
indicated on the first page. Should there be no valid date on the first page,
the later date on which the party signs the contract shall be the valid date.
End of Main Context.
Cooperation Agreement of Service Channel with LENOVO
Commercial Articles
The Commercial Articles of this Cooperation Agreement of Service Channel with
LENOVO ("the Commercial Articles"/ "Commercial Articles") is signed by the two
parties indicated on the first page: LENOVO Corporation (hereinafter referred to
as "LENOVO") and its Service Channel partner (hereinafter referred to as "Your
Company"). According to the Commercial Articles, LENOVO supplies its product to
Your Company and Your Company purchases the contract Products from LENOVO.
1 Definition Terms of this commercial has the same meaning as those defined in
the Master Agreement, unless there are other explanations as the following:
1.1 Product refers to that is defined in the Master Agreement. Product shall
include its accessories, spare parts, documents and materials going with the
product, unless defined otherwise.
1.2 Appointed Websites refer to the e-commerce websites defined in the Master
Agreement.
1.3 Electronic Order Form refers to the order form with digital signatures of
both parties exchanged via the Appointed Websites.
2 Ordering
2.1 Your Company's ordering for LENOVO's Products shall under the conditions set
forth when LENOVO accepts your ordering.
3 Order form
The order for Products shall be started when Your Company issues an order. The
order form shall be written in the format approved by LENOVO with contents of
quantity, product, applicable price (including unit price and total price),
transportation guidance and date of delivery on it. If the order form does not
state clearly, XXXXXX's judgment shall prevail.
3.2 All the orders issued by Your Company shall be bound by the Commercial
Articles. Should there be any conflicts between the Commercial Articles and the
order forms, Your Company's confirmations or other written information, the
Commercial Articles shall be applied in preference. The applicable price and
ordering quantity mentioned by Your Company shall be in accordance with LENOVO's
temporal pricing policies and its lowest requirement for ordering quantities.
3.3 Your Company shall fax the order forms with official stamps to LENOVO,
unless you can submit and confirm the order forms via the electronic way as
stipulated below.
3.4 With the agreement of both parties, both parties may adopt the electronic
exchange based on the agreement of e-commerce system service signed by both
parties. Electronic orders shall be confirmed in digital signatures via digital
certificates. Both parties shall observe the specific stipulations in the
agreement of e-commerce system service.
3.5 Order forms issued by Your Company become valid orders ("valid order") after
LENOVO confirms and it thereafter constitute XXXXXX's undertaking to Your
Company. LENOVO would audit Your Company's credits and the feasibility of your
orders according to its inside risk control process and decides whether to
confirm or reject Your Company's orders.
3.6 Your Company's revoking or alteration to the valid orders shall be approved
by LENOVO, otherwise Your Company shall pay a penalty to LENOVO according to the
Master Agreement and any related agreements, as well as the cited regulations,
policies and documents released or notified by LENOVO. Your Company's default to
perform the valid orders (including but not limited to the delay of payment),
which causes LENOVO holds that the valid orders shall not be continuously
performed, is regarded as Your Company's withdrawal. LENOVO is entitled to
cancel Your Company's valid orders or reserve them according to your written
application. In addition, Your Company shall pay a penalty to LENOVO according
to the Master Agreement and any related agreements, as well as the cited
regulations, policies and documents released or notified by LENOVO.
4 Price
4.1 Product prices shall be in compliance with the channel prices released by
LENOVO should there be no other stipulations. Other service fees, transportation
fees and taxes out of the standard services are excluded in the product prices.
LENOVO would release price notices at times according to its marketing policies
and fixed channel prices, suggested retail prices and discount prices which are
applicable at that time.
4.2 Except for extra stipulations, LENOVO would release notices, administrative,
technical and proceeding information, manifesto, promotion activities, project
proposals, product and price notifications and other notices ("documents of
notices"). Such documents of notices can make amendments to the articles in the
Agreement within the stipulated scope and shall come into force on LENOVO's
appointed date, unless Your Company notifies LENOVO in written form within
fifteen days from receiving the documents of notices.
4.3 After receiving Your Company's notification, LENOVO shall reserve the
amended contents and clarify or confirm them to Your Company, or cancel the
accepted but not yet delivered orders which are affected by the documents of
notices, or cancel all the ordering rights.
4.4 LENOVO may make lowest requirements for the ordering quantities of every
order form and release them through the documents of notices and documents of
relevant business policies.
4.5 According to the authorized Products sold by Your Company and the identity
of Your Company, you may have a price protection or sales discount, which would
be implemented under the Articles of Product Policy specifically.
5 Payment
5.1 Unless agreed otherwise, the payment shall be made prior to the product
delivery. LENOVO shall audit and evaluate Your Company's qualifications and
decide to authorize a certain degree of credit to Your Company based on its
unilateral judgments. LENOVO may make account sales to Your Company within that
degree of credit. LENOVO shall reduce or cancel Your Company's relevant rewards
(including but not limited to sales discounts) during the account sales, in
order to compensate for LENOVO's increased selling costs due to account sales.
The highest amount of account sales and methods and proportions to reduce or
cancel Your Company's relevant rewards are fixed by LENOVO.
5.2 Your Company shall pay to LENOVO within the contracted paying period, which
shall be in compliance with the Commercial Articles and LENOVO's relevant
regulations for payments. If the paying period is not stipulated or contracted
clearly, Your Company shall made the payment before product delivery; If the
Products have been delivered, Your Company shall pay the money all within one
business day from the date of delivery.
5.3 Should Your Company fail to pay as required, LENOVO shall: 1) ask Your
Company to pay a penalty of 0.4ie of the unpaid amount per day from the due date
to the date of payment; if the payment is overdue three days, Your Company shall
pay LENOVO extra penalty, which shall be 0.4ie of the unpaid amount per day from
LENOVO selling date (refer to LENOVO delivery and sales confirmation date) to
the due date; 2) ask Your Company to bear certain expenses and re-possess any
unpaid Products that are possessed, kept or controlled by Your Company,
regardless of wherever they are; 3) stop supplying Products to Your Company
without bearing any liabilities; and/or 4) take measures under the Commercial
Articles or applicable laws.
5.4 Your Company shall inform LENOVO after your payment with relevant payment
information in written forms such as applicable order numbers for LENOVO's audit
on Your Company's payment. If LENOVO cannot audit the payment due to Your
Company's fault, Your Company's payment shall be regarded as delayed.
5.5 LENOVO may issue an invoice at the delivery. Possessing LENOVO's invoice
does not mean that Your Company has paid the amount written on the invoice.
Unless agreed otherwise, LENOVO is not obligated to change the issued invoice
which cannot offset taxes if not due to its fault. But if it is caused by
XXXXXX's fault, Your Company shall notify LENOVO within ten days from receiving
the invoice and send the invoice back. Overdue invoices shall not be changed. If
Your Company's requirement for changing invoice is caused by your own fault,
Your Company shall, with XXXXXX's permission for the change, bear the expenses
to re-issue an invoice according to any relevant stipulations in the
LENOVO-released regulations, policies or documents, or notifications to Your
Company.
5.6 LENOVO shall audit Your Company's cash flows and invoices regularly or
randomly. Your Company shall give a confirmation within fifteen days from
receiving LENOVO's documents of account verification. If Your Company approves
LENOVO's documents of account verification, you shall add an official or
financial stamp on them and fax them to LENOVO's commercial department or send
them in a LENOVO-granted manner. Should Your Company have any objections to the
documents of account verification, you shall notify LENOVO in written form
within the period mentioned above with detailed reasons and sufficient
evidences. Your Company is regarded to have approved XXXXXX's documents of
account verification if Your Company does not make any written reply within the
contracted period. Should the two parties have any disputes concerning the
documents of account verification, LENOVO shall suspend the performance of the
successive orders.
5.7 If LENOVO publishes the payment and check-out rules, payment and check-outs
for Products shall comply with such rules.
6 Transportation and Delivery
6.1 Delivery information: Your Company shall guarantee to LENOVO the veracity
and completeness of the delivery information, which shall include, but not
limited to, date of delivery, address, consignee (company or natural person) and
special delivery methods. Expenses and losses caused by Your Company's failure
to offer verified and complete delivery information shall be born by Your
Company.
6.2 Delivery plan: Your Company shall point out the date of delivery under a
certain order form. If Your Company requires delivery the Products urgently, or
an urgent delivery is indicated in the date of delivery in the order form, Your
Company shall pay the urgent fees according to the standards released or
notified by LENOVO. The delivery date pointed out by Your Company in the order
form shall comply with LENOVO's relevant transportation and delivery rules. If
Your Company points out no date of delivery in the order form, LENOVO may select
a date of delivery according to its service arrangements.
6.3 Delivery methods:
6.3.1 Unless otherwise stated in other contracts (including but not limited to
special contracts of delivery methods), LENOVO shall choose to deliver Products
by means of door-to-door, door-to-station, etc. according to the delivery
addresses, or choose to consign and deliver by LENOVO itself or other entrusted
consigners.
6.3.2 LENOVO provides a single free delivery service to one place for each order
form. If Your Company requires delivery Products to several places, or to one
place in many times, or in other special ways, you shall pay extra fees
according to the standards released or notified by LENOVO. Such fees shall be
taken directly from Your Company's prepaid money to LENOVO or deducted from Your
Company's sales rewards. Your Company shall make extra payments if required by
LENOVO.
6.3.3 Door-to-door delivery: LENOVO shall be responsible to transport the
Products to the delivery addresses and fulfill the take-over procedures with
Your Company's appointed consignee. The appointed consignee of Your Company
shall inspect and sign for the Products with LENOVO or its entrusted consigner
in front of the truck.
6.3.4 Door-to-station delivery: LENOVO may transport the Products to the airport
or station closest to the delivery address according to the plane or train
schedules and fax the pick-up warrant to the consignee pointed out in the order
form. Your Company or the appointed consignee shall pick up the Products at the
station or airport in person.
6.3.5 Your Company's delay to receive the Products shall be approved by LENOVO
and Your Company shall bear the costs arisen from the delay according to the
standards published or notified by LENOVO.
6.4 Inspection:
6.4.1 Your Company or the appointed consignee shall inspect the quantity, type
and shape of the Products together with the consigner at the delivery locale and
fulfill the take-over and signing procedure.
6.4.2 Should Your Company or the appointed consignee discover the following
problems during inspection: 1) discrepancy of product name, type or assemblies;
2) discrepancy in quantities; 3) damages in package. Your Company or the
appointed consignee shall make further inspections and detailed written records
which would be signed/stamped by Your Company or the appointed consignee and the
consigner for confirmation. Proofs issued by the bureau of railway or aviation
are also needed if transported by train or plane.
6.4.3 Should the events mentioned in 6.4.2 occur, Your Company shall notify
LENOVO in written form within two business days from the delivery, otherwise the
delivery is regarded as qualified. LENOVO shall change the Products that are not
qualified during inspection. Your Company shall not deny receiving LENOVO's
Products that are qualified during inspection. Should Your Company deny or delay
to receive the qualified Products, LENOVO shall withdraw the delivery while Your
Company shall bear such expenses and costs. LENOVO may stop supplying Products
to Your Company. The above mentioned expenses and costs can be taken from Your
Company's prepaid money or deducted from the rewards.
6.5 Risks of product's extinguishment or damages shall be transferred to Your
Company at the delivery. If the product is or contains software, the ownership
shall still be possessed by LENOVO or its licensed party.
6.6 LENOVO may make reasonable business efforts to implement Your Company's
orders, but it shall be limited by the credit verification, product provision
and the manufacturing cycle. LENOVO shall not be responsible for any losses in
service, revenue or profit and their incidental or consequential losses due to
Your Company's default at the product delivery. Should the consigning of the
affected Products be delayed for over two months, Your Company may revoke the
accepted order form or certain Products contained in it.
6.7 The limited product guarantees and the service responsibilities of both
LENOVO and Your Company shall be performed under the Master Agreement and its
related agreements.
7 Projection 7.1 Your Company shall provide a market projection via LENOVO
e-commerce system and order the contract product by issuing order forms. Your
Company's market prediction may be amended.
8 Report
8.1 Your Company shall make report to LENOVO on sales or other relevant aspects
according to XXXXXX's required time limit, format, standard and contents, and
such reports would be used in LENOVO's marketing analysis and its support and
evaluation on Your Company's operation. Your Company shall make such reports in
honesty.
9 Liabilities for breach of contract
9.1 Liabilities for breach of contract shall follow the Master Agreement unless
agreed otherwise.
10 Others
10.1 The Commercial Articles forms are an integral part of the Master Agreement
with equal legal force.
Text ends
Record with stamp
To guarantee a smooth cooperation between both parties, LENOVO make a record for
Your Company's official stamp put as the following:
Financial stamp: The Stamp of Shenzhen Hengtaifeng Technology Co., Ltd. is
affixed.
Contract stamp: The Stamp specially for sealing contract of Shenzhen Hengtaifeng
Technology Co., Ltd. is affixed.
LENOVO shall perform the agreement, confirm the order form, etc. according to
the stamps put above. All the legal effects arisen from that shall be born by
Your Company.
Should there be any changes in the above recorded stamps, Your Company shall
notify LENOVO within three days from the changing day.
Your Company: (signature/stamp) The Stamp of Shenzhen Hengtaifeng Technology
Co., Ltd. is affixed.
Date: March 31, 2005
Remark: Your Company shall add an official stamp or contract stamp on your
signature.
