EXHIBIT 10.9
Non-exclusive Distributor Agreement
This Agreement made as of JULY, 1ST, 1998 by and between OmniVision
Technologies, Inc., a California corporation having its principal office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇ ("OmniVision") and Holy Stone
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Enterprise CO., LTD _____________________________________________________, a
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limited corporation, having its principal place of business at 1FL, NO. 62, SEC
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▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇, ROC __________________________
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("Distributor").
The parties agree as follows:
1. Distributorship
OmniVision appoints Distributor as a non-exclusive distributor for the products
designed and manufactured by OmniVision (hereinafter referred to as "Products"
or "Product"), as listed on Exhibit A attached hereto. Exhibit A will be updated
and distributed to Distributor by OmniVision from time to time. Distributor
agrees not to carry any other products, which in OmniVision's sole judgment, are
directly competitive to OmniVision's Products.
Distributor's appointment covers Distributor's marketing location ("Territory")
shown on Exhibit B attached hereto and, if so agreed in writing by both parties,
additional marketing locations established by Distributor. Distributor may
relocate the business locations at Distributor's discretion as said on Exhibit
B.
Distributor is appointed to make sales to certain identified potential customers
("the Customers") specified in Exhibit C, as that Exhibit may be modified from
time to time. Distributor may make sales to additional potential customers
within the Territory provided that such potential customers are not otherwise
identified as Customers of another OmniVision Distributor, or as an OmniVision
house account. OmniVision reserves the right to appoint additional Product sales
distributors in the same geographical area. Distributor shall maintain an
adequate and aggressive sales organization at all times during the term of this
Agreement in order to assure maximum distribution of Products.
2. Sales
Subject to the terms of this Agreement, OmniVision agrees to sell and
Distributor agrees to buy Products for resale. However, OmniVision shall not be
required to sell any Products to Distributor if the manufacturing or sale of
such Product has been discontinued by OmniVision, or if such Product is or
becomes unavailable, or if OmniVision should withdraw such Product from sale to
distributors.
3. Prices
The Price Schedule will include all Products available for purchase by
Distributor as well as the unit prices for each of the Products. The Price
Schedule normally will be updated once a quarter by OmniVision and released to
Distributor. If there is any delay of this update, the Distributor shall use the
latest received Price Schedule as the purchasing price for OmniVision Products.
All prices are subject to change or withdrawal by OmniVision without prior
notice to Distributor, although
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OmniVision shall use its best efforts to give prior notice to Distributor of any
change in the prices. Except as otherwise provided in this Agreement, all sales
of Products to Distributor shall be at OmniVision's price in effect when
Distributor's order is accepted by OmniVision.
4. Taxes
Distributors located within the United States of America must submit a current
Resale License for each ship-to location operated by the Distributor. The
Distributor is responsible for any and all local, State or Federal taxes and is
responsible for abiding by all tax laws and regulations which may apply
regarding the resale of OmniVision Products. Distributors located outside of the
United States of America are responsible for paying any duties, taxes, fees or
any other charges which may be levied by governmental authorities in the Country
where shipments are made.
5. Reports
Distributor shall provide OmniVision with a Monthly Resale Report, Monthly
Inventory Report, and Monthly Quote Report, defined below. These reports shall
be made available to OmniVision by Distributor each month. These reports shall
be received by OmniVision within fifteen (15) days from the Distributor's sales
closing date of each month. OmniVision and Distributor may mutually agree to
modify the specific details of these reports to accommodate specific
requirements or conditions of the Territory or Customers.
a. The Monthly Resale Report will summarize the following information
provided to OmniVision by Distributor: customer name, sales location and
zip code, invoice or credit number (if applicable), shipment date, invoice
date if different from shipment date, type of sales (i.e., stock shipment,
drop shipment, sample sale, billing adjustment, customer return, sales to
other re-sellers, etc.).
b. The Monthly Inventory Report shall list products, by OmniVision part
number, shipped to Distributor, and all transactions to and by Distributor
during the month. OmniVision may stop shipments of Products to Distributor
to facilitate verification of inventory levels.
c. The Monthly Quote Report summarizes the new Product Quotes, old Product
Quotes that have expired, and the status of all other OmniVision Product
quotes.
6. Terms
All Products are sold to Distributor by OmniVision based on the following
shipment terms: F.O.B. OmniVision's warehouse. Terms of payment are: COD or T/T
in advance before credit checking approval and credit line set by OmniVision
credit department. After credit checking and credit line approved, the payment
term will be net amount of invoice due within thirty (30) days from the date of
invoice. Invoice shall be sent on or soon after the date of shipment.
Distributor shall not take any credit or offset against accounts owing
OmniVision without OmniVision's prior written authorization. OmniVision may at
any time, either generally or with respect to any specific order by Distributor,
change the amount or duration of credit to be allowed to Distributor, including
requiring cash in advance of shipment to Distributor (or COD term), if
Distributor has failed to pay previous invoices when due or if Distributor's
creditworthiness, in OmniVision's judgment, makes such action necessary. To
assist OmniVision determining Distributor's creditworthiness, Distributor has
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furnished, or agrees to furnish OmniVision immediately with a copy of its
financial statements for the most recent fiscal year for which audited
statements are available, and during the term of this Agreement Distributor
shall furnish OmniVision copies of Distributor's financial statements each
fiscal quarter and audited financial statements every fiscal year. "Financial
Statements" means balance sheet at the end of the financial period, income
statement of the specified period, and "audited" means examined or reviewed by a
certified public accountant. The financial statements shall be furnished to
OmniVision no later than thirty (30) days of Distributor's fiscal quarter end or
sixty (60) days of Distributor's fiscal year end.
7. Acceptance of Orders
a. All orders sent by Distributor to OmniVision must be in writing,
including changes to existing orders.
b. Distributor shall address all orders to OmniVision's Sales Department.
Inquires concerning availability, delivery or technical information should
be directed to OmniVision's Marketing Department. All orders are subject to
acceptance by OmniVision, and OmniVision reserves the right to reject any
order given by Distributor even if a price quotation has been made
previously.
c. OmniVision will package Products in a standard package or container,
but OmniVision may change such package or container at any time without
prior notice to Distributor, or use a standard bulk or quantity package for
any shipment. Distributor may specify a carrier, but if no carrier is
specified, OmniVision may select a suitable carrier without notice thereof
to Distributor.
d. Sales and shipments will be made on the terms and conditions set forth
herein and on OmniVision's order confirmation form in effect at the time of
order. If a term set forth in this Agreement is inconsistent with
OmniVision's order confirmation form, the former shall govern. Unless
otherwise in writing, OmniVision shall not in any event be bound by the
terms and conditions of Distributor's purchase order forms or any other
forms submitted by Distributor.
e. Delivery dates given by OmniVision for orders placed by Distributor
shall be considered OmniVision's best estimates only. To cancel a purchase
order or delay delivery, Distributor must first give OmniVision written
notice thereof and OmniVision shall have until the end of five (5) full
business or working days after such notice is actually received by
OmniVision in which to process, after (but not before) which such order may
be canceled if Distributor so requests.
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8. Commission Sales
Distributor may act as a commission sales representative for identified
potential customers ("the Customers") specified on Exhibit C, as that Exhibit
may, by mutual agreement, be modified from time to time.
a. Distributor shall solicit orders for Products from the Customers, and
shall forward all such orders to OmniVision in a timely manner. OmniVision
shall accept or reject each such order and shall notify Distributor and the
Customer placing such order of acceptance or rejection. OmniVision may
accept an order conditioned on such different or additional terms as
OmniVision may deem appropriate. Distributor shall have no power or
authority to accept or reject any order on behalf of OmniVision, but
Distributor may communicate to Customers the standard pricing then
available. Quotation of pricing other that the standard pricing must be
approved by OmniVision in advance.
b. OmniVision shall pay commissions to Distributor based on net receipts
attributable to direct sales from OmniVision to Customers listed on Exhibit
C, but only to such authorized Customers. Such commissions will constitute
full compensation for all of Distributor's services under this Agreement.
Commissions shall be calculated based on net actual receipts, and shall be
subject to reduction and charge back for returns as well as for other
necessary reimbursements by OmniVision to purchasers agreed to as part of
the sale of the Products. Net receipts means the amount of receipts from a
purchaser attributable to the invoice price of goods sold, excluding any
receipts attributable to shipping, handling, taxes, duties, insurance, or
other mounts not attributable to the price of goods sold.
c. Should OmniVision and Distributor mutually decide to deliver Products
sold on a commission bases from the Distributor's inventory, then
OmniVision will credit any difference between the Customer price and the
Distributor's inventory purchase price to the Distributor's commission
account.
d. Payment of compensation to Distributor shall be made on a monthly basis
by OmniVision, within thirty (30) days following the close of each month in
which commissions accrue under this Agreement. True copies of invoices and
proof of payment shall be made available and, upon written request by
Distributor, will be provided with payment of commissions.
9. Force Majeure
OmniVision assumes no obligation, and shall not be liable to Distributor, for
any delay or failure to deliver Products by reason of any contingencies beyond
OmniVision's control or beyond the control of OmniVision's suppliers including
but not limited to force majeure; strikes; labor disputes; lockouts or other
labor trouble; fire; earthquake; flood; civil commotion; war; riot; act of God;
casualties; accidents; shortages of transportation facilities; detention of
goods by custom authorities; loss of goods in public or private warehouses;
quotas or actions of any government, foreign or domestic, or any other agency or
subdivision thereof; delays in the delivery of raw or finished materials; parts
or completed merchandise by the suppliers thereof; or other casualty
contingency, or cause beyond the reasonable control of or occurring without the
fault of OmniVision or of OmniVision's suppliers, or otherwise unavoidable, or
because OmniVision's volume of orders at any time renders deliveries in the
ordinary course of business impractical. In such event, OmniVision
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shall have the right, at its election and without liability to Distributor, to
(i) cancel all or any portion of this Agreement; or (ii) perform the Agreement
as so restricted or modified to the extent determined by OmniVision in its sole
and absolute discretion; or (iii) perform the Agreement within a reasonable time
after the causes for non-performance or delay have terminated.
10. Inventory
Distributor will establish and maintain an inventory of Products adequate to
support sales revenue plans developed with OmniVision and will cooperate with
OmniVision in periodic reviews of inventory quantities. Distributor shall
maintain and use its facilities in such a manner to ensure proper care for the
Products including, at a minimum, proper temperature and humidity controls;
proper anti-static equipment; and proper facilities to permit incoming, outgoing
or other inspections of the Products.
OmniVision shall have the right at all times to purchase the Products from
Distributor. In the event OmniVision purchases Products from Distributor,
OmniVision shall pay Distributor the invoice price charged to Distributor by
OmniVision for such Products, less prior credits allowed by OmniVision with
respect to such Products under this Agreement or any predecessor agreements.
11. Returns
a. Distributor shall obtain OmniVision's prior authorization for any
return of Products. Such authorization will not be unreasonably withheld
for return of Products which are obsolete, defective, or shipped to but not
ordered by Distributor. Distributor shall send all authorized return of
Products within thirty (30) days after receiving OmniVision's
authorization, or such returns will be refused. All returns shall be
shipped F.O.B. destination, freight prepaid, to OmniVision specified
location. Return of Products not expressly authorized hereunder will be
refused by OmniVision and returned to Distributor at Distributor's expense.
b. Return of defective Products under OmniVision's product warranty policy
is governed by that policy.
c. Credit replacement will be allowed for returned Products only if
OmniVision's examination discloses to its satisfaction that the Products
has not been improperly handled or used. Credit or replacement will be
allowed for returned Products based on the price in effect on the day they
are received by OmniVision, or the purchase price paid by Distributor less
prior credit allowed under Section 5, whichever is less.
d. Unless specially approved by OmniVision, OmniVision will not accept
return of Products which were purchased and shipped from OmniVision more
than six (6) months prior to the requested date of return.
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12. Inventory Records and Inspection
Distributor shall keep current stock, cost and sale records of its inventory of
Products. Distributor's records shall accurately and sufficiently itemize and
describe the kind, type and quantity of such inventory and the cost thereof.
Distributor shall at any reasonable time allow OmniVision, or any of its agents,
to examine, audit or inspect such inventory wherever located and, for such
purposes, to enter Distributor's premises whenever any of such inventory may be
found; or, at OmniVision's option and expense, permit OmniVision to pick up
portions of Distributor's inventory for count by OmniVision and return, provided
Distributor's business is not unreasonably disrupted thereby.
13. Trademark
Distributor may so long as this Agreement is in force, and only for the purpose
of advertising and selling Products indicate to the public that it is an
authorized distributor of products manufactured by OmniVision Technologies,
Inc., and advertise such Products under the trademark "OmniVision". Distributor
shall not alter or remove any trademark or trade name applied to the Products in
the manufacture thereof. Permission to display the word "OmniVision" or any
other OmniVision proprietary word or symbol is only as started above and nothing
herein shall grant to Distributor any right, title or interest in the word
"OmniVision" (either alone or in association with other words or names), or any
part thereof or in any other trademark or trade name by OmniVision or its
related companies or in any copyright or good will of OmniVision or related
companies, nor is any permission or right given hereby to Distributor to use any
such trademark or trade name in connection with its corporate firm trade name or
tradestyle, nor shall Distributor permit a corresponding use of such trade ▇▇▇▇
or trade name by a dealer.
14. Advertising and Advertising Assistance
OmniVision may advertise Products and list Distributor's name in its
advertising. Distributor may advertise and promote the sale of Products through
all appropriate media including trade show exhibits, catalogue and direct
mailing, space advertising, educational meetings and sales aids. OmniVision
agrees to allow Distributor to provide a complete listing in Distributor's
catalogue of all Products carried by Distributor.
15. Literature
OmniVision will supply Distributor with reasonable quantities of distributor
price lists and schedules which shall list Products available to be sold by
Distributor. OmniVision may suggest resale prices in its resale price schedules,
but Distributor, in its sole discretion, shall determine prices charged by
Distributor for Products. Distributor shall maintain an adequate supply of
printed sales, technical and product application information as OmniVision may,
from time to time, make available. Such printed material may or may not be
provided free of charge, subject to OmniVision's current literature pricing
policy. If OmniVision approves, at Distributor's request, Distributor's
customers may be added to OmniVision's mailing list.
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16. Confidentiality
OmniVision may, from time to time, during the term of this Agreement, furnish to
Distributor confidential information and know-how relating to Products. This
information may be furnished orally or in written form, including descriptive
material, diagrams, specifications and other documents. Distributor agrees that
all such confidential information and know-how made available to it by
OmniVision shall be kept strictly confidential by it, and it agrees not to
divulge any such information or know-how to others without the prior written
consent of OmniVision. Distributor further agrees that it will not use any
confidential information or know-how in connection with the manufacture by it or
by others, on its behalf, of any Products or items similar thereto. The
obligations of Distributor to preserve the secrecy of the technical information
and know-how supplied to it by OmniVision shall survive any termination of this
Agreement.
17. Compliance with Laws
Neither party shall commit any act or request the other party to commit any act
which would violate either the letter or spirit of the export control laws,
rules or regulations, and neither party shall fail to take any action reasonably
within its capacity to assure compliance with such laws, rules or regulations.
Distributor represents and warrants that it shall not, directly or indirectly,
export, re-export or transship Products and/or technical data ("the
Commodities") in violation of any applicable export control laws promulgated and
administered by the government of any country having jurisdiction over the
parties or the transaction(s) contemplated herein.
OmniVision shall have the right to refuse to accept distributor's orders for
Commodities, or to deliver Commodities to fulfill any previously accepted
Distributor order, if OmniVision determines, in good faith, that such proposed
sale or other disposition of the Commodities poses an unreasonable risk of a
violation of any applicable export control law or regulation.
In the event OmniVision refuses to deliver Commodities to fulfill previously
accepted Distributor orders as set forth in the paragraph immediately preceding,
or the necessary export or re-export authorizations are not obtained within a
reasonable period of time, OmniVision, at its option, may cancel the order or
contract, without penalty.
18. Term and Termination
a. The term of this Agreement shall be one (1) year commencing as of the
date first shown on the first page of this document, and this Agreement
shall automatically be renewed thereafter for additional one (1) year
periods at the anniversary dates hereof unless this Agreement is otherwise
terminated as elsewhere provided herein. Neither party is under any
obligation, express or implied, to renew this Agreement or to otherwise
continue their distributorship relationship after this Agreement expires.
After termination, this Agreement shall continue to govern any transactions
between OmniVision and Distributor that arose prior to expiration. This
Agreement may be terminated before expiration of its term by either party
upon written notice to the other party thirty (30) days in advance, or for
cause in accordance with sub-paragraph (b) below. OmniVision shall have the
right to terminate this Agreement for cause with respect to any of
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Distributor's marketing locations, while not terminating the Agreement with
respect to the balance of such locations.
b. OmniVision shall have the right to terminate this Agreement immediately
by written notice to Distributor, if Distributor fails to comply with any
of the terms and conditions set forth in this Agreement, or if Distributor
fails to perform to OmniVision's satisfaction. If either party hereto shall
become insolvent or admit in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of its creditors, or to
conduct its operations in the normal course of business, or if either party
hereto shall fail to perform any of the obligations imposed upon it under
the terms of this Agreement irrespective of the nature of the obligations
or the type of breach, the other party shall have the right to immediately
terminate this Agreement by written notice.
c. Upon termination or expiration of this Agreement, OmniVision shall
purchase and Distributor agrees to sell, under OmniVision's terms and
conditions, Distributor's inventory of Products which (i) after testing and
inspection OmniVision determines to be undamaged and in good condition;
(ii) were purchased by Distributor from OmniVision or another authorized
distributor no more than six (6) months prior to the date of termination or
expiration; (iii) appear on the Inventory Report as of the date of
termination or expiration; and (vi) were identified by OmniVision as
returnable as of the date of purchase and remain returnable as of the date
of termination or expiration (the "Returnable Inventory"). Products that do
not meet these criteria are not returnable. Distributor shall ship the
Returnable Inventory to OmniVision: F.O.B. OmniVision's warehouse, freight
prepaid.
If this Agreement expires, or is terminated by OmniVision for its
convenience or by Distributor for cause, the price which OmniVision shall
pay for Returnable Inventory shall be the OmniVision price to Distributor
in effect as of the date of termination or expiration, or the purchase
price paid by Distributor less prior credit allowed, whichever is less. If
this Agreement is terminated by OmniVision for cause, OmniVision shall
purchase the Returnable Inventory at such price less fifteen percent (15%).
Further, upon termination or expiration of this Agreement, OmniVision at
its option may cancel any or all unfilled orders by Distributor.
d. Upon the termination or expiration of this Agreement, neither party
shall be liable to the other for any damages, expenditures, loss of profits
or prospective profits of any kind or nature sustained or arising out of or
alleged to have been sustained or to have arisen out of such termination or
expiration.
e. The termination or expiration of this Agreement shall not relieve or
release either party from making payments which may be owing to the other
party under the terms of this Agreement.
19. Injunction; Governing Law
a. All covenants herein may be enforced by way of injunction obtained from
any duly constituted court having jurisdiction, upon prima facie proof that
either party intends to engage in conduct which would violate the terms of
this Agreement. Such remedy shall be in addition to any other remedies
available to the parties for the breach or threatened breach of this
Agreement.
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b. This Agreement and rights of the parties hereto shall be construed and
determined in accordance with the laws of the State of California, USA.
20. Miscellaneous
a. The relationship created between the parties hereto is that of seller
and purchaser, and neither party nor any of its employees, dealers,
customers or agents shall be deemed to be representatives, agents or
employees of the other party for any purchase whatsoever, nor shall they or
any of them have any authority or right to assume or create any obligation
of any kind or nature, express or implied, on behalf of the other party,
nor to accept service of any legal process of any kind addressed to or
intended for the other party.
b. Each party hereto warrants and represents to the other that it is
legally free to enter into this Agreement, that the execution hereof has
been duly authorized, and that the terms and conditions of this Agreement,
and each party's obligations hereunder, do not conflict with or violate any
terms or conditions of any other agreement or commitment by which such
party is bound.
c. This Agreement is intended to be the sole and complete statement of the
obligations of the parties relating to the subject matter hereof, and
supersedes all previous understandings, agreements, negotiations and
proposals as to this Agreement. Except as otherwise provided herein, no
provisions of this Agreement shall be deemed waived, amended or modified by
any party unless such waiver, amendment or modification shall be in writing
and dully signed by the party against whom the waiver or modification is
sought to be enforced. The paragraph headings are for purposes of
convenience only.
d. This Agreement may be executed in several counterparts, each of which
shall be deemed the original, but all of which shall constitute one and the
same instrument.
e. Neither party shall voluntarily or by operation of law, assign this
Agreement or any right accruing to it hereunder or delegate any duty owed
by it, without the prior written consent of the other party. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, their
respective permitted successors in interest and permitted assigns.
f. Notices hereunder shall be deemed properly given if in writing and
given by telegram, telex, facsimile, certified mail or personal delivery,
addressed to the parties at their addresses set forth above or any
substitute address established after notice, and shall be deemed effective
upon sending or personal delivery.
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IN WITNESS WHEREOF, the parties hereto agree and have affixed their signatures
as of the date and year first written above.
OmniVision Distributor
By /s/ ▇▇▇▇ ▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇
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Print Name ▇▇▇▇ ▇▇▇▇ Print Name ▇▇▇▇ ▇▇▇▇
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Title Director, Asia Business Title President
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Date July 2, 1998 Date July 1, 1998
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Exhibit A
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Exhibit A
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OmniVision Product List
Part Number Product Description
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OV5016 B&W analog 320x240 EIA or 352x288 CCIR device
OV5026 B&W analog 320x240 EIA device w/mirror image
OV5036 B&W analog 320x240 EIA (60 Hz) device with N/50
OV5017 B&W digital 384x288 device
OV7210 B&W digital 704x480 (60Hz) 704x576 (50 Hz) device
OV6023 Color analog RGB/YUV 352x240 device
OV6510 Color analog RGB 356x292 device for external PAL encoder
OV6610 Color digital 356x292 CCIR601 device
OV510 USB interface device
OmniVision Distributor
Signature _______________________ Signature ______________________
Date _________________________ Date ________________________
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Exhibit B
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Exhibit B
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Distribution Territory
The following Territories are the business locations which are defined to be the
marketing locations for Distributor. Unless discussed and agreed by both
parties, the following Territories are the only appointed business territories
for Distributor:
OmniVision Distributor
Signature______________________ Signature_____________________
Date________________________ Date_______________________
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Exhibit C
Exhibit C
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Distributor Customers
Distributor is appointed to make sales to the following identified potential
Customers:
OmniVision Distributor
Signature___________________________ Signature____________________
Date_____________________________ Date______________________
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