Xxxxxx, Inc Product Resale Agreement
Version of 1 June, 2004
AGREEMENT made effective as of the _11th_ day of _May, 2004, between XXXXXX,
INC., a Minnesota company with its principal place of business at 0000 Xxxxxxx
Xxxx. X. Xxxxxxxxxxx, Xxxxxxxxx 00000 hereinafter referred to as "Company", and
CinTel Co., Ltd., a Seoul company with its principal place of business at
#891-43 MSA Xxxx. Xxxxxx-xxxx 0xx Xx. Xxxxxxx-xx, Xxxxx, XXXXX (fax:
00-0-000-0000; Tel : 00-0-000-0000 (Ext 201); email: xxxxx@xxxxxxxxxx.xxx)
hereinafter referred to as "Reseller".
WHEREAS, Company is the manufacturer of products that Company has designated, or
that Company hereafter may designate, on the attached Exhibit A as revised from
time to time (hereinafter "Products" or "a Product"); and
WHEREAS, Reseller has expressed a desire to engage in the sale and distribution
of such Products; and
WHEREAS, Company has agreed to appoint Reseller to act as such on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the agreements herein contained, the parties
agree as follows:
1. APPOINTMENT
(a) Company appoints Reseller as an authorized retail reseller and
reseller for the period commencing on the above date and ending in
two (2) years from the above date, or on any earlier date upon which
termination of this Agreement may become effective (the "term of
this Agreement"). In the event that this agreement is not
terminated, the agreement will automatically renew for an additional
two (2) year period.
(b) Neither Reseller nor any of its officers, agents or employees is
authorized to bind Company or to transact business for the account
of Company in any way whatsoever. The relationship of the parties is
that of buyer and seller, and this Agreement shall not be deemed to
create any agency or joint venture between the parties.
2. OBLIGATIONS OF RESELLER
(a) Reseller shall use its best efforts to sell and promote the sale of
Products. Reseller acknowledges its obligation to maintain the high
standard associated with and the good will symbolized by Products,
and to safeguard the interests of Company and to refrain from any
conduct which would lessen the image of Company or Products.
(b) Company is entering into this Agreement in reliance upon the
representations, warranties and agreements of Reseller that (i) the
persons who on the date of this Agreement participate in the
ownership and control of Reseller will be the only persons who have
any interest, of record or beneficially, in Reseller; (ii) no other
person, firm or corporation has or will have any right, option or
privilege under any circumstances to acquire any interest, of record
or beneficially, in Reseller; (iii) Reseller will provide written
notice to Company prior to any contemplated change in the control of
Reseller, or in the identity of the persons who have authority and
responsibility for the management of Reseller's business. Failure to
notify Company in writing is grounds for termination of Agreement.
If a change in control of Reseller occurs which may reasonably be
deemed adverse to Company, Company has the option to terminate this
Agreement immediately.
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Xxxxxx, Inc Product Resale Agreement
Version of 1 June, 2004
(c) Reseller will hold as confidential and proprietary any information
that is given by Company to Reseller. Items deemed confidential
include, but are not limited to; price lists, product plans, and
commercial relationships.
3. SALES OF PRODUCTS
(a) Company will sell Products to Reseller, all such Products, other
than tools and maintenance equipment, to be purchased by Reseller
for resale subject to the provisions of section 15 regarding a
nonexclusive limited license.
(b) Reseller's appointment as an authorized Company reseller shall be
exclusive to the following geographic areas: South Korea
(c) The term of geographic exclusivity is to be two years, which will
automatically renew for an additional period of two years upon the
second anniversary if not terminated by either party. Termination of
the agreement is covered in Section 12.
(d) Leads given by Company directly to Reseller shall be used to sell
Company's products, and products sold will be ordered from Company
directly by Reseller.
(e) Company agrees that if Reseller registers a potential prospect, that
Company will refrain from any direct sale to the prospect. A
potential prospect must have a valid and current quotation from
Reseller for Company's products to qualify for registration. A
prospect is defined as the group or division within the enterprise
that received the quotation.
(f) Registration of prospects will occur in required periodic sales
forecasts as specified in Section 5.
(g) Reseller agrees not to promote, sell or service a competitive line
of products to Company.
(h) Company agrees not to appoint another reseller or sales agent in the
assigned geographic territory during the period of exclusivity.
Company also agrees not to sell directly into the geographic area
where Reseller has geographic exclusivity. Company also agrees to
forward commercial inquiries received from the exclusive territory
to Reseller.
(i) Company retains the right to develop OEM relationships where Company
Products are embedded into other products and are promoted and sold
as a system, and not as components that would compete with Reseller
under a brand other than Company.
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4. PRICES; PAYMENT FOR PRODUCTS
(a) Company will sell Products to Reseller at such prices as may be
announced from time to time by Company, which prices shall be based
upon the suggested retail selling price less a discount which has
been established in Exhibit A. Reseller will also pay any tax
imposed --------- by any law of the United States, or any state,
municipality or other taxing authority, on the manufacture,
ownership, distribution, use or sale of any such Products if the
same is not included in the invoice price payable to Company by
Reseller. Company represents and warrants that currently, it is not
aware of any such tax that would be applicable to any sale made to
Reseller under this Agreement. Reseller will be responsible for any
customs, duties, and any other shipping charges if the same is not
included in the invoice price payable to Company by Reseller.
Company will keep Reseller informed of any changes or additions made
from time to time in suggested retail prices, or discount schedules,
and Company reserves the right to change such prices or discounts
from time to time, upon notice of 10 days to Reseller to that
effect, by written notice pursuant to Section 21, provided no change
in amounts charged to Reseller shall apply to Products which have
been shipped to Reseller prior to the effective date of such change.
(b) For the first six (6) months of the agreement, and to be negotiated
thereafter; payment of the full purchase price of the Products shall
be made by Reseller in full by wire transfer (T/T) two business days
prior to shipping, with the exception of those products specified as
special order (-S) which will require prepayment prior to
manufacturing. Interest will be charged on the outstanding balance
at the rate of 1.0 percent per month for each month (or, if part of
a month, then ratably) after 30 days after invoicing or at the
highest rate allowed by law. The amount of such payment shall
include any additional charges or taxes payable under the foregoing
paragraph (a) of this Section 4.
(c) Should Reseller fail to pay for, or fail to comply with any agreed
financing arrangement in respect of, any Products which have been
ordered by Reseller within ten days after notice by Company that
such Products are ready for shipment to Reseller, Company may, with
respect to any such Products (i) cause the same to be stored at
expense of Reseller; or (ii) cause them to be shipped elsewhere
(including return to Company) and Reseller shall pay to Company
promptly upon demand, the expense sustained by Company for storing,
handling and shipping occasioned thereby; or (iii) sell such
Products directly to any other persons, firm or corporation without
obligation to pay any sum to Reseller. Reseller agrees that in the
event of any such non-payment or failure Company shall be entitled
to set off any deposit paid in respect of the Products involved
against any claims Company may then or thereafter have against
Reseller. The foregoing rights of Company are in addition to, and
not in lieu of, any rights or remedies it may have by law as an
unpaid seller. Any such stopped shipments shall be considered to
have been cancelled by Reseller for purposes of this Agreement. Late
payment may be deemed a breach of Reseller's obligations at
Company's option and is grounds for termination of this Agreement by
Company upon proper written notice.
(d) Reseller shall execute and deliver, and shall where appropriate
cooperate with Company in causing to be filed with the appropriate
authorities, any and all statements and documents required or
permitted by the Uniform Commercial Code and any other local laws
for the protection of an unpaid seller. Company shall have a
continuing security interest in Products in Reseller's possession,
including proceeds therefrom, which are acquired by Reseller on
credit from Company.
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Xxxxxx, Inc Product Resale Agreement
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(e) Company shall at all times have the right to retain or retake
possession of Products until paid in full there for. The cost of
such retention or repossession, including any counsel fees and
expenses, shall be paid by Reseller.
(f) All risk of loss or damage after shipment shall be borne by
Reseller.
(g) All shipments are FOB Minneapolis, Minnesota or the then current
manufacturing facility of Company.
5. FORECASTS; ORDERS AND REPORTS
(a) Reseller shall furnish to Company the following reports: (i) a
report as specified by Company from time to time, showing Products
held in stock by Reseller at the commencement of each interval, and
Products received during such interval; and (ii) Semiannual
forecasts for one (1) year from the agreement date and thereafter
quarterly forecasts due at the commencement month of each interval.
And if there is any additional or updated item, Reseller will from
time to time furnish report to Company. The forecast will include
prospects that have received a quotation from Reseller, and any
prospect on the forecast will be considered registered with Company.
Any inquiries from registered prospects will be referred back to
Reseller. The format of the required forecast is in Appendix b.
(iii) Orders will include the same information as the forecast, but
must have the customers PO number included, as well as Reseller's PO
as in Appendix C. Company and Reseller agree that forecasts are for
indicative purposes only and shall not oblige Reseller to perform
according to the forecasts.
(b) Reseller will also promptly report to Company all changes in its
corporate name or trading style and all changes in its articles of
incorporation, by-laws or similar documents.
6. COMPANY'S RIGHT OF REJECTION OR MODIFICATION OF ORDERS; ALLOCATIONS;
LIMITATION OF LIABILITY
(a) Company shall give careful and favorable consideration to each order
received from Reseller, but Company shall have the unqualified right
to accept or reject each order as received, or to reduce the
quantities of Products which may be ordered by Reseller. An order
accepted by an employee of Company in writing (Company: Xx. Xxxx
Xxxxxx / Reseller: Xx. Xxxxx Xxx) shall be deemed a firm order by
Reseller.
(b) In no event shall Company be deemed to have assumed any obligation
except to fill orders as quickly as practicable, in accordance with
subsections (a) and (b), and Reseller expressly agrees that Company
shall not be liable for any direct or consequential loss or damage
caused by Company's failure or inability, whether or not the same
shall have been caused by any act or omission of Company or any
other person, to make shipment of any Products to Reseller,
Reseller's sole remedy being to cancel the order and to recover the
deposit in respect of Products so delayed or remaining unshipped for
more than 15 days after the agreed shipment date. In the event,
however, that any shipment is delayed by a strike, lockout or by an
act of God or government, or by some other cause beyond the control
of Company, Company shall have the option to extend the time for the
shipment for the period of delay so caused. Company shall not be
required to continue to make available for sale Products or spare
parts and accessories therefor.
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Xxxxxx, Inc Product Resale Agreement
Version of 1 June, 2004
(c) All orders placed by Reseller and all sales to it shall be subject
to the provisions of this Agreement and the standard terms and
conditions of sale of Company, and any provision of any purchase
order placed by Reseller which is inconsistent herewith or with such
terms and conditions shall be null and void unless specific
reference is made to such inconsistent provision in such purchase
order and unless such inconsistent provision is accepted by an
employee of Company in writing.
7. CHANGE OF SPECIFICATIONS
Company may at any time discontinue the supply of any Products or make any
changes in the design, specifications or materials of Products.
Company shall be under no liability to Reseller on account of any
such changes; nor shall Company be required to modify or install
such changes on Products previously purchased by Reseller. Reseller
shall not alter any Products, whether new or used, or do anything
which will in any way tend to infringe, impeach or lessen the
validity of the patents or trademarks under which Products may be
made or sold or which will in any way tend to impair the reputation
of Company. Reseller shall not do anything which will impair or
terminate the applicability of the warranty with respect to any
Products.
8. SALES FACILITIES
(a) Reseller shall establish and maintain suitable facilities for the
sale of Products.
(b) Reseller shall employ qualified personnel in all its departments,
including a sufficient number of salesmen to handle the sale of
Products, and parts and accessories therefore with respect to
Products.
(c) Reseller shall comply with all rules and regulations issued by
Company in relation to service of Products. Reseller shall promptly
investigate and handle any complaint relative to Products which may
be assigned to Reseller by Company for investigation and handling,
and shall supply such senile as may be reasonably required in the
circumstances.
(d) In accordance with Section 10, Reseller agrees to implement and
fulfill a sales promotion program, to give proper market
representation to Products and to provide satisfactory sales
performance.
(e) Company shall have the right from time to time to inspect Reseller's
premises and its records and accounts with respect to the sales of
Products, and to make recommendations concerning the maintenance and
operation thereof and the methods of displaying and selling
Products. Resellers shall give careful consideration to such
recommendations and shall take such recommended steps as may
reasonably be necessary for the improvement of its sales facilities
and activities.
9. COMPANY'S LIMITED WARRANTY
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Xxxxxx, Inc Product Resale Agreement
Version of 1 June, 2004
(a) Company's Limited Warranty shall be incorporated as a condition of
each sale made by Reseller. No order shall be accepted by Reseller
without calling the attention of the purchaser to the provisions of
Company's Limited Warranty relating to Products which are the
subject of the order. Company's Limited Warranty in use at the time
of this Agreement, a copy of which is annexed hereto, is accepted by
Reseller, and the express Company's Limited Warranty shall exclude
the implication of all other warranties, liabilities, conditions or
obligations, whether or not arising from the negligence, breach of
contract or other default of Company or its agents, secants or
employees. Company will notify Reseller in writing of any change in
the provisions of Company's Limited Warranty to be issued in the
future, but no such change shall be effective as to shipments made
to Reseller, or to an ultimate purchaser, respectively, prior to the
effectiveness of such notice pursuant to Section 21. Acceptance by
Reseller of delivery of any Products covered by Company's Limited
Warranty after effectiveness of such notice shall be deemed
acceptance by Reseller of such Warranty as changed.
(b) COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF
PRODUCTS OR AS TO SERVICE TO Reseller OR TO ANY OTHER PERSON, EXCEPT
AS SET FORTH IN COMPANY'S LIMITED WARRANTY ACCOMPANYING DELIVERY OF
PRODUCTS. COMPANY RESERVES THE RIGHT TO CHANGE THE WARRANTY AND
SERVICE POLICY SET FORTH IN SUCH LIMITED WARRANTY, OR OTHERWISE, AT
ANY TIME WITHOUT FURTHER NOTICE AND WITHOUT LIABILITY TO Reseller OR
TO ANY OTHER PERSON BY REASON OF ANY SUCH CHANGE. UNLESS CONSIDERED
UNENFORCEABLE OR UNLAWFUL UNDER APPLICABLE LAW:
(i) ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE HEREBY EXCLUDED.
(ii) THE LIABILITY OF COMPANY, IF ANY, FOR DAMAGES RELATING TO
ALLEGEDLY DEFECTIVE PRODUCTS SHALL, UNDER ANY LEGAL OR
EQUITABLE THEORY, BE LIMITED TO THE ACTUAL PRICE PAID BY
Reseller FOR SUCH PRODUCTS AND SHALL IN NO EVENT INCLUDE
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.
10. ADVERTISING AND PROMOTION
Reseller will not advertise or trade in Products for resale in such a manner as
to prejudice the sale thereof, and will immediately withdraw any advertisement,
or cease any method of trading, on being notified by Company that it considers
the same objectionable. If requested by Company Reseller will submit all
advertisements, sales brochures and other promotional literature to Company.
11. INDEMNIFICATION
Each of Reseller and Company agrees to indemnify and hold other harmless from
and against any and all claims, damages and liabilities whatsoever, asserted by
any person or entity, resulting directly or indirectly from any breach of this
Agreement by it or any of its employees or agents. Such indemnification shall
include the payment of all reasonable attorneys' fees and other costs incurred
by it in defending any such claims.
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Xxxxxx, Inc Product Resale Agreement
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12. TERMINATION OF AGREEMENT
(a) Upon no less than sixty (60) days notice in writing, either Reseller
or Company, at their respective option, may terminate this
agreement.
(b) Company shall not, by reason of any action taken pursuant to this
Section or by reason of non-renewal of Reseller's appointment at the
end of the term of this Agreement, be liable to Reseller for
compensation, reimbursement, or damages or on account of the loss of
prospective profits on anticipated sales or on account of
expenditures, investments, leases or commitments in connection with
Reseller's business or good will, or on any other account.
(c) In the event of any dispute regarding termination, both sides agree
to submit claims to arbitration in Minnesota according to the rules
of the American Arbitration Association then in use in lieu of legal
action.
13. EFFECT OF TERMINATION OR EXPIRATION
Upon the date on which termination of this Agreement becomes effective, or at
the end of the term of this Agreement (unless it is immediately succeeded by a
new written agreement between the parties):
(a) Reseller shall forthwith return to Company all books, user manuals,
service manuals, signs illustrating Products and the like supplied
by Company.
(b) Company shall have the option but not the obligation to reacquire
from Reseller unused, undamaged and unsold Products in Reseller's
stock at their original cost to Reseller.
(c) Reseller will promptly remove at its own expense all signs bearing
Company's name and all other trademarks owned or used by Company in
the distribution of Products and will erase or obliterate such names
and trademarks from letterheads, stationery, website, and other
forms used by Reseller. Reseller will discontinue all advertising
and promotional activities representing itself to be an authorized
reseller of Products.
(d) Reseller shall turn over to Company, free of charge, all of its
sales records, and customer lists and other records and data
relating to sales of Products.
(e) The acceptance of any order from or the sale of any Products to
Reseller after the termination or expiration of this Agreement shall
not be construed as a renewal or extension thereof nor as a waiver
of termination, but except with respect to discounts and in the
absence of a new written agreement signed by both parties, each such
transaction shall be considered to be undertaken pursuant to a
contract at will and shall otherwise be governed by provisions
identical with the relevant provisions of this Agreement.
(f) NEITHER COMPANY NOR Reseller SHALL BE LIABLE TO THE OTHER FOR
DAMAGES OF ANY KIND INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES ON
ACCOUNT OF TERMINATION OF THIS AGREEMENT FOR ANY REASON WHATSOEVER.
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Xxxxxx, Inc Product Resale Agreement
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14. USE OF TRADEMARKS, TRADE NAMES AND SERVICE MARKS
Reseller is allowed to use in its advertising or elsewhere Company's name or any
trademark or trade name (or any xxxx or name closely resembling the same) now or
hereafter owned or licensed by Company subject to the prior written approval of
Company.
15. RESELLER LIMITED LICENSE
Company grants Reseller an exclusive limited license to sell and distribute the
Product and integrate the Product into its own products within the defined
Geographic area in Section 3. No other license is contemplated for Reseller or
granted to Reseller by this Agreement. Specifically, no license is granted to
copy the software or firmware or hardware embodied in the Product.
16. EXPENSES OF RESELLER
Reseller shall pay all expenses incurred by Reseller in performing its duties
under this Agreement, including, but not limited to, all salaries, wages,
commissions and fringe benefits paid to any salesmen employed by Reseller, and
all travel, entertainment, advertising and other selling expenses.
17. CONFIDENTIAL INFORMATION
Each party shall retain as confidential all information and data delivered to it
by the other party, which are designated in writing as confidential at the time
of delivery (collectively the "Confidential Information"). Confidential
Information shall not be disclosed to any third party, unless required by law or
regulation. However, nothing herein is meant to preclude either party from
disclosing and/or otherwise using Confidential Information (i) when the
Confidential Information is actually known to the receiving party before being
obtained or derived from the transmitting party; or (ii) when Confidential
Information is generally available to the public without the receiving party's
fault at any time before or after it is acquired from the transmitting party; or
(iii) where the Confidential Information is obtained or acquired in good faith
at any time by the receiving party from a third party who has the same good
faith and who is not under any obligation to the transmitting party in respect
thereof; or (iv) where a written release is obtained by the receiving party from
the transmitting party. The obligations of Reseller under this Article shall
survive the termination of this Agreement.
18. TRADEMARKS and PATENTS
(a) All Products sold to Reseller by Company may bear a trademark owned
by Company or may be patented or having a patent pending. Any
trademark or patent affixed to the Products by Company shall remain
the sole property of Company. Reseller hereby acknowledges Company's
exclusive right, title and interest in and to any such trademark of
Company; and Reseller shall not at any time do or cause to be done
any act or thing in any way contesting or in any way impairing or
tending to impair any part of such right, title and interest. In
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Xxxxxx, Inc Product Resale Agreement
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connection with the use of any such trademark or company patentable
technology by Reseller, Reseller shall not in any manner represent
that it has any ownership in the trademark or company patentable
technology, and Reseller acknowledges that the use of any such
trademark or company patentable technology shall not create in
Reseller's favor any right, title or interest in or to the
trademark, but that any uses of the trademark by Reseller shall
inure to the benefit of Company. Upon the termination of this
Agreement, Reseller shall cease and desist from all uses of any
trademark or company patentable technology owned by Company,
including, but not limited to, uses in connection with the sale of
goods similar to the Products. Furthermore, Reseller shall at no
time adopt or use, without Company's prior written consent, any word
or xxxx which is likely to be similar to or confusing with a
trademark owned by Company. The term "trademark", "patent" or
"patent pending" as used herein, includes any trademark, ", "patent"
or "patent pending" or trademark rights of Company, whether the
trademark, ", "patent" or "patent pending" is registered pursuant to
the laws of the federal government of the United States of America,
or exists pursuant to the common law or the laws of any state or
nation.
(b) In the event of any infringement of the rights of Company to any
trademark, ", "patent" or "patent pending" coming to the notice of
Reseller during the term of this Agreement, Reseller shall promptly
notify Company, in writing, and Reseller shall join with Company, if
required by Company and at the expense of Company, in taking such
steps as Company may deem advisable against the infringement or
otherwise for the protection of the rights of Company.
19. SEVERABILITY
Should any provision of this Agreement be unenforceable or prohibited by any
applicable law, this Agreement shall be considered divisible as to such
provision, which shall be inoperative, but the remainder of this Agreement shall
be valid and binding as though such provision were not included herein.
20. ASSIGNMENT
Neither party may assign this Agreement, or any of its interest herein, without
the prior written consent of the other party, except that Company may assign
this Agreement without such consent to any person, firm or corporation
succeeding to its business in the event of any change of control and also to any
parent, subsidiary or affiliated company of Company. Any assignment in violation
of this section shall be void.
21. NOTICE
Any notice under this Agreement shall be in writing and shall be sent by first
class certified mail, postage prepaid, return receipt requested, telegram,
mailgram, fax or email to the addresses set forth at the head of this Agreement
or such other addresses as may be designated in writing by like notice from time
to time. Such notice shall, when mailed or telegraphed, be effective on the day
after it has been deposited in the mails or delivered to the telegraph company.
22. ENTIRE AGREEMENT; GOVERNING LAW
Reseller acknowledges that it has not relied on any representations, warranties
or promises not contained herein, that no oral statement has been made to it
that in any way tends to change or modify any of the terms of this Agreement,
that there is no oral agreement or understanding between the parties affecting
this Agreement or relating to the subject matter hereof, and that this
Agreement, including the schedule(s) and exhibit(s) appended hereto, sets forth
the entire understanding of the parties, and that there are no agreements or
understandings between the parties except as set forth herein. This Agreement
shall at all times be deemed a Minnesota contract, and all questions as to its
interpretation and enforcement shall be governed by the laws of that state,
excluding its conflict of laws rules. This Agreement may not be changed or
terminated orally. All captions contained in this Agreement are for convenience
only and are not a part of this Agreement.
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Xxxxxx, Inc Product Resale Agreement
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23. AGREEMENT TO REVIEW
Company and Reseller agree to review this Agreement in six (6) months.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
[RESELLER]
By __________________________
Title _______________________
[COMPANY]
By __________________________
Title________________________
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