Distributor Agreement - Leadtek Research Inc. and Viseon PVT Inc.
DISTRIBUTOR AGREEMENT
THIS AGREEMENT made this 19th day of September, 2002
BETWEEN:
LEADTEK RESEARCH, INC.
a corporation organized and existing under the laws of
the State of California, having its principal office at
46732 Lakeview Blvd., Fremont, CA 94538
("LEADTEK")
And
VISEON PVT, INC.
a corporation organized and existing under the laws
of the State of Nevada, having it's principal office at
8700 North Stemmons Freeway, Suite 310, Dallas, TX 75247 (Distributor)
THIS AGREEMENT WITNESSETH THAT in consideration of the mutual covenants and
agreements set forth below, the parties covenant and agree as follows:
1 DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings set forth below:
1.1 "Products" means the IP Broadband Videophones currently sold as the BVP
8770 with the trademark of Leadtek.
1.2 "Market" mean those parties within the "Territory" who can be identified
as seeing value in the "Products" by the Distributor.
1.3 "Territory" means North America, including the United States of America
and Canada.
1.4 "Trademarks" means the trademarks "LEADTEK", together with such other
trademarks, service marks, trade dress, logos, brand names and/or trade
names of LEADTEK, as the parties may add subsequently by mutual
agreement in writing.
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2 APPOINTMENT
2.1 Subject to all terms and conditions set forth herein, LEADTEK hereby
appoints the Distributor as the exclusive distributor of the Products to
customers within the Market with physical and operating offices in the
Territory and the Distributor hereby accepts such appointment.
2.2 Subject to the date and terms of this Agreement, LEADTEK shall not have
the right to appoint other distributors or dealers for the Products in
the Territory or to sell, market, the Products through its own
employees, resellers, distributors, agents or sales representatives in
the Territory.
2.3 The following customers and/ or Accounts are also excluded from this
Agreement:
3 RIGHT TO USE TRADE MARKS
3.1 LEADTEK hereby grants to the Distributor for the term of this Agreement,
and subject to the terms and conditions herein, a non-exclusive,
non-transferable right to use the Trade Marks within the Territory in
connection with the Products sold by the Distributor in the Territory in
accordance with the terms of this Agreement, in the manner as approved
by LEADTEK in writing by an authorized officer of LEADTEK prior to each
type of usage (e.g., co-branding, advertising, Packaging). Such approval
shall not be unreasonably withheld.
3.2 The Distributor shall use the Trademarks only in the Territory and only
in connection with the marketing, use, sale and distribution of the
Products. The Distributor acknowledges LEADTEK's right, title and
interest in and to the Trademarks and agrees to make no use of any of
the Trade Marks except as herein specifically provided. The Distributor
shall use or display the Trademarks only in conjunction with such words
as indicate that the Trademarks are the property of LEADTEK. The
Distributor acquires no right, title or interest in or to the Trademarks
hereunder and any and all goodwill associated with the Trademarks will
inure exclusively to the benefit of LEADTEK and its licensors. During
the term of this Agreement and after termination hereof, the Distributor
shall not dispute or contest, for any reason whatsoever, directly or
indirectly, the validity, ownership or enforceability of any of the
Trademarks. The Distributor shall execute such documents and do all such
acts and things as may be necessary in LEADTEK's reasonable opinion to
establish ownership of any rights in and to the Trademarks.
3.3 The Distributor agrees that if it is notified or otherwise obtains
knowledge of any Alleged infringement of the Trademarks, the Distributor
will promptly notify LEADTEK. No legal proceedings shall be instituted
by the Distributor against Any third party in respect of any such
alleged infringement without the prior Written consent of LEADTEK.
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4 OTHER RIGHTS
4.1 Rights of the Distributor. Subject to Section 2 hereof, the Distributor
shall have the exclusive right to market, distribute or sell the
Products within the defined Territory, including, without limitation (a)
the right to market, distribute or sell the Products, on a stand-alone
basis in packages as approved in writing by LEADTEK, and (b) the right
to market, distribute or sell the Products in combination with (i)
products, components, systems or services the right to use of which has
been obtained by the Distributor from third parties (ii) products,
components, systems or services developed or provided directly by the
Distributor subject to Leadtek prior written approval in each instance
and/or (iii) any other product, component, system or service mutually
agreed upon by the parties to this Agreement. LEADTEK acknowledges that
Distributor is in the business of selling video conferencing systems
from a variety of manufacturers, but there will be no products sold by
Distributor in the Market, throughout the Territory that directly
compete with the same features and pricing with sales of LEADTEK
manufactured products as defined in Paragraph 1.1, except for products
sold by Distributor on an OEM basis which are manufactured by Leadtek.
Distributor will not modify Product or Product packaging in any way
without prior written approval by Leadtek.
4.2 The Distributor cannot make any changes to the Products or their
packaging without the prior written consent of LEADTEK.
5 TERM
5.1 This agreement shall be effective on the date first set forth above and
shall continue in effect for until February 29, 2004, unless earlier
terminated in accordance with the provisions of Section 26 hereof. The
terms and conditions of this Agreement shall continue to apply to any
purchase order issued under the normal course of business hereunder
("Purchase Order") until final delivery is made even if such delivery is
made after this Agreement terminates.
5.2 This Agreement may be extended for an additional one (1) year term by
mutual written agreement of the parties at least thirty (30) days prior
to the expiration of the current term.
6 PRICES
6.1 The current LEADTEK Price List for each of the Products is contained in
Schedule "B" attached hereto. LEADTEK shall have the right to reduce the
Price List for any Product upon thirty (3) days prior notice to the
Distributor. The resulting change(s) shall not apply to purchase orders
accepted by LEADTEK before the effective date of the change.
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6.2 The prices are exclusive of any taxes of any nature whatsoever,
including, without limitation, sales, or privilege taxes, all of which
shall be paid by the Distributor, except for any taxes based on
LEADTEK's net income. Any and all taxes related to the import of the
Products shall be paid by LEADTEK.
6.3 In the event of a reduction of the prices (net of any discounts), orders
for Products affected by the price reduction shall be adjusted to
reflect the price decrease, meaning that all outstanding Purchase Orders
will be adjusted to take this new price. The Distributor will receive a
credit equal to the difference between the original Distributor price
and the new lower price (net of any discounts) on inventory in the
Distributor's stock not over forty-five (45) days old upon the effective
date of the price reduction to be applied against the new purchase
orders.
7 PURCHASE ORDERS
7.1 All purchase orders submitted by the Distributor to LEADTEK shall be
directed to:
LEADTEK RESEARCH, Inc.
46732 Lakeview Blvd.
Freemont, CA 94538
Attn: Margaret Huang
7.2 The terms and conditions of the Agreement shall apply to any purchase
order placed by Distributor. In the event of any inconsistent, different
or additional terms as set forth in any purchase order issued by
Distributor, such inconsistent, different or additional terms shall be
of no force and effect whatsoever and this Agreement shall be governing.
Any such purchase order shall be deemed to Have been issued by
Distributor solely for its internal administrative purposes.
7.3 All Purchase Orders are issued, non-cancelable, by Distributor to
Leadtek, thirty days before beginning of each quarter, and will include
delivery dates for three monthly shipments no one month of which will
contain less than twenty five (25) percent of the total order volume,
based upon minimum commitment levels outlined in Schedule C. Additional
purchase orders can be placed at any time with a thirty day lead time
for shipment of Products included on these purchase orders.
8 PAYMENT TERMS
8.1 Payment for Products will be made by Distributor to LEADTEK by wire
transfer within three days of shipment of product from FOB point at
Fremont, CA based on the applicable bill of lading. A standby Letter of
Credit shall be provided by Distributor for the benefit of Leadtek in an
amount sufficient to cover shipments Within the following 30 days.
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8.2 If, at Leadtek's sole judgment, the distributor's financial condition at
any time prior to shipment so warrants, the Leadtek may suspend delivery
of Products until the Distributor provides assurance of performance,
satisfactory of Leadtek, or prepay for such Products before shipment.
8.3 All payments shall be made in accordance with the instructions appearing
on LEADTEK's invoices. The Distributor agrees that if any payments due
to Leadtek are not made when due, the distributor shall thereupon pay a
late charge to Leadtek on such overdue payment at the rate of the higher
of (i) five (5%) percent per annum or (ii) the highest permissible by
the laws until such overdue payments have been paid in full. This
obligation to pay a late charge shall not be constructed to obligation
of Leadtek to allow any payments to be made after the dates upon which
are due or to obligate Leadtek to grant any extension of time in the
terms of payment. All fees and expenses (including attorney fees and
expenses) incurred for the collection of delinquent charges will be
payable by the Distributor
9 TERMS OF SHIPMENT
9.1 All shipments will be made F.O.B. Fremont, CA. The Distributor shall
make all shipping arrangements and denote them on each purchase order or
release. The Distributor shall pay for all shipping charges, cost of
insurance, and any Applicable sales or usage tax.
9.2 The delivery date for purposes of this Agreement shall be the date that
the Distributor and LEADTEK agree upon, in writing, for delivery of the
Products and that is incorporated in writing by the Distributor in its
Purchase Order.
9.3 LEADTEK will provide standard packaging for the Products, suitable for
shipment via UPS or other common carrier.
10 TITLE AND RISK OF LOSS
Title to all Products passes to the Distributor upon LEADTEK's delivery of
Products to carrier or the Distributor's agent, whichever occurs earlier.
LEADTEK will not be liable for loss, delay in delivery, or damage to any
Product after title has passed to the Distributor.
11 RETURNS (OTHER THAN FOR AUTHORIZED STOCK ROTATION)
11.1 Any Products returned to LEADTEK will be repaired or replaced by
Leadtek within twenty-one (21) days of receipt of returned merchandise,
depending upon which course of action and resolution is deemed more
appropriate in a given circumstance, based on the following conditions:
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11.1.1 A written request for a Return Merchandise Authorization (RMA)
must be made and granted by LEADTEK, in advance of the return.
11.1.2 All returns by Distributor must be made freight pre-paid unless
Leadtek has provided Products that aggregate to a failure rate
in excess of three percent (3%) of the total products
purchased. If such failure rate exceeds three percent (3%) then
Leadtek shall pay the freight for the returned defective
Products above this three percent (3%) and shall pre-pay the
freight for same to Distributor FOB Dallas, Texas for any
replacement Products.
11.1.3 Product will not be accepted that was held by the Distributor
for a period Longer than six (6) months from the shipping date.
11.1.4 LEADTEK will not accept for return discontinued Products unless
such products were purchased prior to the announcement of their
discontinuance.
12 TERMINATION/CANCELLATION/RESCHEDULING CHARGES
12.1 The Distributor shall have the right to delete, cancel, and/or
reschedule standard Products to be delivered under any purchase order.
Such deletions, cancellations and/or rescheduling must be submitted to
LEADTEK in writing at least thirty (30) days prior to the scheduled
ship date of said Products in order to avoid cancellation/rescheduling
charges. Any deletions, cancellations, or rescheduling made less than
thirty (30) days prior to shipment shall be subject to the following
charges:
12.1.1 Standard Units & Options: Twenty percent (20%) of the selling
price;
12.1.2 Modified or Special Units: One Hundred percent (100%) of the
selling price;
12.2 Cancellation charges will not be applicable to any order, which the
Distributor is forced to cancel, due to late or missed delivery by
LEADTEK by at least 14 days.
13 EXPENSES
The Distributor shall pay all costs and expenses incurred by its
organization and/or its employees, agents and representatives.
14 CONFIDENTIAL INFORMATION
14.1 The Distributor shall not utilize or disclose any confidential
information, knowledge, or data concerning inventories, improvements,
business, engineering, production methods, and/or trade secrets of
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LEADTEK (the "Confidential Information"), except as LEADTEK may
otherwise consent to in writing or unless the same information has
become public knowledge through no fault by the Distributor.
14.2 LEADTEK shall not utilize or disclose any confidential information,
knowledge, or data concerning inventories, improvements, business,
engineering, production methods, customer information and/or data
and/or trade secrets of the Distributor, except as the Distributor may
otherwise consent to in writing or unless the same information has
become public knowledge through no fault by LEADTEK.
15 DISTRIBUTOR'S DUTIES
15.1 The Distributor will use its best efforts to actively promote the
marketing, sales, and distribution of Products to meet and hopefully
exceed the minimum purchase requirements necessary to maintain
exclusivity.
15.2 The Distributor will provide prompt and effective service to customer
orders, questions, and problems.
15.3 The Distributor will uphold LEADTEK's image by handling claims,
complaints, and customer service issues expeditiously and
professionally so that LEADTEK's Trade-marks will retain their value in
the market place.
15.4 On a monthly basis, the Distributor will submit to LEADTEK a
comprehensive sales forecast covering the next six (6) month period for
all Products.
15.5 On a quarterly basis, the Distributor will supply LEADTEK with
information summarizing significant marketing activity, trends and
conditions.
15.6 During the term of this Agreement, the Distributor shall secure a
minimum quarterly quota of orders for Products within the Territory.
The minimum quarterly order quota shall be set forth in Schedule "C".
The Distributor, to maintain its exclusivity, shall be obligated to
purchase and pay for such minimum quarterly commitment, to be satisfied
by submitting orders reflective of these quantities to LEADTEK. Placing
purchase orders and fulfilling payment conditions consistent with
minimum quarterly quotas outlined, as well as complying with all other
terms and conditions of this Agreement ensures maintenance of exclusive
distribution rights by the Distributor. The exception to this is that
for one quarter during the duration Of the Agreement, the Distributor
may procure 80% of the minimum Quarterly quota without invalidating its
exclusive distribution rights.
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15.7 On a monthly basis, the Distributor shall supply LEADTEK with a list of
Products sold and their destinations by zip code or state (Point of
Sale Report).
15.8 The Distributor will maintain an adequate and representative inventory
of the Products to insure an exemplary level of customer service.
15.9 The Distributor will maintain adequate service facilities to execute
Product support and implement RMA procedures in an efficient manner to
meet customer's service requirements.
15.10 The Distributor will use best efforts to promote the Products through
media advertising, trade shows, internet, seminars, public relations
activities, direct sales or any other means designed to bring them to
the attention of potential customers.
15.11 The Distributor will keep LEADTEK informed regarding conditions in the
Territory relevant to the sale of the Products, including marketing
trends, competing products, rules and regulations affecting the sale or
use of the Products and all extraordinary events relating to the
Products.
15.12 The Distributor will refer to LEADTEK all inquiries regarding the sale
or use of the Products outside the Territory.
15.13 Except with the prior written approval of LEADTEK, the Distributor
shall not make sales or deliveries of the Products to purchasers who
are located outside the Market or the Territory unless otherwise agreed
by LEADTEK. LEADTEK will allow Distributor to make sales to other
territories so long As there is no exclusive distributor with marketing
or sales activities being Implemented in those territories.
15.14 The Distributor hereby represents and warrants to and covenants with
LEADTEK that the Distributor is and shall be for so long as the
Agreement is in effect, in compliance with all federal, state and local
laws, regulations, orders, decrees, rulings and judgments applicable to
the Distributor's ability to perform its obligations hereunder.
16 RESTRICTIONS ON AUTHORITY
16.1 The Distributor has no authority, under any circumstances, either
expressed or implied, to incur any liability or obligations on behalf
of LEADTEK, including, but not limited to:
16.2 Making any quotations on any special Products, modifications to
standard Products, special engineering or systems without a written
quotation from LEADTEK;
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16.3 Binding LEADTEK to any contract of employment. The Distributor is
solely responsible for its own sales persons and its representatives,
and for their actions. The Distributor has no authority to endorse
checks or commercial papers, or to carry any accounts in the name of
LEADTEK;
16.4 Making any warranties or representations to third parties with regard
to the Products without LEADTEK's prior written approval.
17 INSPECTION BY MANUFACTURER
The Distributor agrees that LEADTEK shall have the right to inspect the
manner of use of the Trade Marks and Confidential Information (as
herein defined) by the Distributor and the quality of the Distributor's
distribution of the Products in connection with which the Trade marks
and the Confidential Information are used. The Distributor also agrees
that LEADTEK shall have the right to review any documents or items
which are to be made available to the public which contain the Trade
Marks and Confidential Information, including, without limitation,
advertising, promotional materials and devices and contract forms.
LEADTEK agrees to designate an employee to review all such documents or
items. The Distributor shall consult regularly with LEADTEK's
designated representative on the proper and appropriate use of the
Trade Marks and Confidential Information in all such documents or items
and shall submit representative samples thereof for written approval.
18 INDEMNIFICATION BY THE DISTRIBUTOR AND BY LEADTEK
18.1 The Distributor agrees, during and after the term of this Agreement, to
indemnify and to hold LEADTEK harmless from and against any and all
loss, damage, liability and costs and expenses (including reasonable
attorney's fees and expenses) in connection therewith incurred by
LEADTEK as a result of any breach of this Agreement by, or any act of
omission or commission on the part of, the Distributor or any of its
agents, servants or employees, from all claims, damages, suits or
rights of any persons, firms or corporations arising from the operation
of the business of the Distributor.
18.2 LEADTEK agrees, during and after the term of this Agreement, to
indemnify and and to hold the Distributor harmless from and against any
and all loss, damage, liability and costs and expenses (including
reasonable attorneys' fees and expenses) in connection therewith
incurred by the Distributor as a result of any breach of this Agreement
by, or any act of omission or commission on the part of, LEADTEK or any
of its agents, servants or employees, from all claims, damages, suits
or right of any persons, firms or corporations arising from the
operation of the business of LEADTEK
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19 LEADTEK RESPONSIBILITIES
19.1 LEADTEK will provide the Products to the Distributor at the prices
listed in Schedule "B" hereto.
19.2 LEADTEK will provide technical support to the Distributor via telephone
consultations during normal business hours of LEADTEK.
19.3 LEADTEK will use reasonable efforts to provide assistance to the
Distributor In special customer situations, when so requested, subject
to the availability of LEADTEK's own resources.
19.4 LEADTEK will support the Distributor by assisting in sales and
marketing through joint calls and literature, at times reasonably
satisfactory to LEADTEK.
19.5 LEADTEK hereby represents and warrants to and covenants with The
Distributor That Leadtek is and shall be for so long as this Agreement
is in effect, in compliance with all federal, state and local laws,
regulations, orders, decrees, rulings and judgments applicable to
Leadtek's ability to perform its obligations hereunder.
20 RESERVATION OF RIGHTS BY LEADTEK
LEADTEK reserves the right, in its sole discretion and without thereby
incurring any liability to Distributor, to modify or upgrade the
Products as it sees fit during the term of the Agreement. Modification
or upgrade of the "Products" may be implemented for many reasons
including improving reliability and/or compatibility of the Products,
enhancing Products performance, and substituting integral components of
the Products with replacement components similar in function. If
LEADTED upgrades the Products in a manner that reduces the Products
ability to be used by Distributors customers, LEADTEK agrees to supply
Distributor Products that do not contain the modification or upgrade
for the term of this agreement.
21 FORCE MAJEURE
LEADTEK and the Distributor shall not be liable for delays in delivery
or failure to manufacture due to causes beyond their reasonable
control. Such causes may include, but are not restricted to Acts of
God, fires, floods, strikes, accidents, riot, war, government
interference, rationing allocations and embargoes. In the event of a
delay, the date or dates for performance of this Agreement shall be
extended for a period equal to the time lost by reason of delay,
provided that either party who is not affected by any of such causes
may terminate the Agreement immediately upon written notice to the
other party should any of such causes last over 60 days.
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22 WARRANTY
22.1 LEADTEK warrants that for a period of twelve (12) months from the date
of Shipment to the Distributor, the Products shall be free from defects
in material and workmanship. Any claim for defect in material or
workmanship shall be submitted promptly in writing and shall include an
explanation of the circumstances leading to such claim. Upon receipt
and verification of such claim, and upon LEADTEK taking possession of
this defective Product, LEADTEK shall take action to correct such
defect by repair and/or replacement with a turnaround time for such
corrective action taking no more than twenty-one days. LEADTEK's
liability under this warranty is limited to repair or replacement of
defective parts, and that liability shall in no case exceed the initial
purchase price of the applicable Product.
22.2 The above warrant is based on all work being done at LEADTEK's plant.
If the Distributor wishes LEADTEK to accomplish any corrections or
rework at the Distributor's plant or any other facility designated by
the Distributor, regardless of the responsibility of said defect, the
Distributor agrees to compensate LEADTEK at is prevailing Field Service
man/day rate, plus travel, per diem, and local transportation costs.
22.3 If a defect is determined by LEADTEK to have been caused by the
Distributor, The Distributor's customer, or by other equipment under
the control of the Distributor, the Distributor shall pay all repair or
replacement costs.
22.4 The Distributor shall be responsible for return transportation and the
safe arrival of all items returned to LEADTEK under this warranty,
except pursuant to section 11.1.2.
22.5 There are no other warranties, expressed or implied, including any
warranty of merchantability, non-infringement of third party rights
and/or fitness for a particular purpose.
23 INDEMNITY
23.1 LEADTEK agrees to defend the Distributor in any suit brought against it
alleging that the Products sold hereunder, uncombined with non-LEADTEK
equipment directly infringe United States Patent, United States
Trademark, United States Copyright or other United States intellectual
property right owned by others, provided LEADTEK is promptly notified,
given assistance required and permitted to direct the defense. Further,
LEADTEK will pay any judgment based on such infringement, rendered in
such by final judgment of a court of last resort, but shall have no
liability for settlements or costs incurred without its written
consent.
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23.2 If the Distributor's use of the Product is enjoined, or in the event
that LEADTEK desires to minimize its liabilities hereunder, LEADTEK
may, at its option, either substitute other equally suitable articles,
modify the Products so that they no longer infringe, obtain for the
Distributor the right to continue their use, or accept return of the
articles. In the latter event, LEADTEK will reimburse to the
Distributor the purchase price actually paid.
23.3 The foregoing constitutes the entire liability of LEADTEK for any
infringement of any intellectual property of a third party. No
indemnity shall apply to equipment or Product made or modified to the
Distributor's or their customer's own specifications or design.
24 CONSEQUENTIAL DAMAGES
In no event shall LEADTEK be liable to the Distributor or to the
Distributor's employees, officers, directors, shareholders, customers
or affiliates for any incidental or consequential damages, including,
without limitation, or any loss, damage, claim, liability or expense,
of any kind or nature, caused directly or indirectly by the furnishing
of services or Products pursuant to this Agreement, or by any
interruption of service, or loss of use thereof or for any loss of
business or damage to the Distributor or end user whatsoever and
however caused, even LEADTEK is aware of the risk of such damages.
24.1 In no event shall Distributor be liable to LEADTEK or to LEADTEK's
employees, officers, directors, shareholders, customers or affiliates
for any incidental or consequential damages, including, without
limitation, or any loss, damage, claim, liability or expense, of any
kind or nature, caused directly or indirectly by the furnishing of
services or Products pursuant to this agreement, or by any interruption
of service, or loss of use thereof or for any loss of business or
damage to LEADTEK or end user whatsoever and however caused, even if
Distributor is aware of the risk of such damages.
25 TERMINATION OR CANCELLATION
The term of this agreement shall be for an initial period of eighteen
(18) months from its Effective Date as the date appear on the first
page, and in the event that Distributor faithfully performs its entire
obligation required hereby. At any time during the initial term or any
extended term of this Agreement either party shall have termination
right except for the reason as stated in Section 25.1. The Agreement
shall automatically expire at the end of the said period.
25.1 Termination by the Distributor. The Distributor may, upon ten (10) days
prior Written notice to LEADTEK, terminate this Agreement and/or any
Purchase Order issued hereunder if:
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25.1.1 LEADTEK fails to perform any material provision of this
Agreement for thirty (30) days after written notice of such failure has
been provided by the Distributor to LEADTEK and fails to cure such
failure within such thirty (30) day period; or
25.1.2 Any receiver of any property of LEADTEK shall have been
appointed; LEADTEK shall have made an assignment for the benefit of
creditors; LEADTEK shall have made any assignment or have had a
receiving order made against it under the applicable bankruptcy laws;
LEADTEK shall have become bankrupt or insolvent; LEADTEK shall have
made application for relief under the provisions of any statute now or
hereafter in force concerning bankrupt or insolvent debtors; or any
action whatever, legislative or otherwise, shall have been taken with a
view to the winding up, dissolution or liquidation of LEADTEK.
25.2 Termination by LEADTEK. LEADTEK may, by ten (10) days prior written
Notice to the Distributor, terminate this Agreement if the Distributor
fails to:
25.2.1 Pay invoices submitted by LEADTEK within the time specified
herein for fifteen (15) days after written notice of such failure has
been provided by LEADTEK to the Distributor; or
25.2.2 Meet the minimum commitment level as specified I Section 15.6;
25.2.3 Perform any material provision of this Agreement for thirty (30)
days after written notice of such failure has been provided by LEADTEK
to the Distributor; or
25.3 Any receiver of any property of the Distributor shall have been
appointed; the Distributor shall have made an assignment for the
benefit of creditors; the Distributor shall have made any assignment or
have had a receiving order made against it under the applicable
bankruptcy laws; the Distributor shall have become bankrupt or
insolvent; the Distributor shall have made application for relief under
the provisions of any statute now or hereafter in force concerning
bankrupt or insolvent debtors; or any actions whatever, legislative or
otherwise, shall have been taken with a view to the winding up,
dissolution or liquidation of the distributor.
25.4 Continuing Obligations
25.4.1 In the event of termination of this Agreement, LEADTEK shall in
no event be excused from performing in accordance with its terms and
the terms of this Agreement, all open Purchase Orders for Products to
the extent such Purchase Orders have not been terminated. The
Distributor's sole obligation with respect to such Purchase Orders
shall be to pay for the Products delivered pursuant thereto that have
been accepted in writing by the Distributor. Except for such
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obligation, the Distributor shall have no liability to LEADTEK whether
based on this Agreement or a Purchase order or any other basis
whatsoever.
25.4.2 In the event of the termination of this Agreement for any reason
except pursuant to Section 26.1.2 hereof, all rights and interest
granted to the Distributor by LEADTEK under the terms of this Agreement
shall immediately revert to LEADTEK and the Distributor shall within
thirty (30) days after said termination return to LEADTEK, at the
Distributor's expense, all written documents of LEADTEK of whatever
kind including drawings and copies of any kind made thereof by anybody,
relating to the Products or the sale thereof. The Distributor agrees
that, in the event of such termination it will immediately discontinue
and no longer use in any manner whatsoever any of LEADTEK's documents
or Confidential Information received hereunder relating to the Products
and that it will immediately discontinue the sale of the Products
except those already purchased and the use of the Trademarks of
LEADTEK.
25.4.3 In the event of the termination of this Agreement, all rights
and interest granted to LEADTEK by the Distributor under the terms of
this Agreement shall immediately revert to Distributor.
25.5 Survival of Provisions.
The following provisions shall survive the termination of this
Agreement for whatever reasons: Sections 1, 8.1, 8.3, 10.1, 11, 12, 13,
14, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32.
26 GENERAL CONDITIONS
26.1 No amendment, change or revision, or discharge of this agreement shall
have any Force or effect unless set forth in writing and signed by duly
authorized representatives of both parties.
26.2 The sale of Products covered by this agreement does not convey any
license, By implication, estoppels or otherwise, under any proprietary,
patent, trademark or copyrights of LEADTEK or of the Distributor.
26.3 ILLEGAL PAYMENTS; The Distributor certifies, and will certify each
year, that Distributor does not make payments which are illegal in the
USA or in the country in which such payments are made in connection
with the political contributions which are illegal in the USA or in the
country in which such contributions are made, to any Government,
Government official, political party, political candidate, or other
political organization.
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27 COMPLETE AGREEMENT
27.1 This Agreement, including all attachments, constitutes the entire
agreement Between the parties with respect to the subject matter
hereof, and supersedes all previous communications, representation,
understanding, and agreements, either oral or written between the
parties or any official or representative thereof. This Agreement shall
be modified only by the instrument in writing and signed by duly
authorized representatives of both parties.
27.2 Notwithstanding any other provisions in this agreement to the contrary,
LEADTEK shall indemnify, defend and otherwise hold harmless the
Distributor from all cost, loss, damage, liability, or expense of
whatsoever nature, including attorney's fees, arising from or in any
way connected with any proceeding (legal or equitable) or claim brought
or asserted against the Distributor by any third party arising from or
in any way connected with the design, materials or manufacture of
Products purchased under this agreement by the Distributor, provided
that such proceeding or claim did not arise from any conduct or
omission of the Distributor.
27.3 Notwithstanding any other provisions in this agreement to the contrary,
the Distributor shall indemnify, defend and otherwise hold harmless
LEADTEK from all cost, loss, damage, liability, or expense of
whatsoever nature, including attorney's fees, arising from or in any
way connected with any proceeding (legal or equitable) or claim brought
or asserted against LEADTEK by any third party arising from or in any
way connected with the conduct or omission of Distributor, other than
those arising from the conduct or omission of LEADTEK.
28 NOTICES
28.1 All notifications, reports, requests for changes, or additions to this
Agreement Shall be in writing and addressed as follows:
The Distributor: VISEON PVT, Inc.
8700 North Stemmons Freeway
Suite 310
Dallas, TX 75247
LEADTEK: LEADTEK RESEARCH, Inc.
46732 Lakeview Blvd.
Fremont, CA 94538
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<PAGE>
28.2 Addresses may be modified at any time by written notification from one
party to the other party. Any such notice or other communication shall
be deemed given and effective when delivered personally or by e-mail or
three (3) days after the postmark date if mailed by certified or
registered mail, postage prepaid, return receipt requested, addressed
to a party as stated above.
28.3 SEVERABILITY
If any provision herein shall be held to be invalid or unenforceable
for any reason, such provision shall, to the extent of such invalidity
or unenforceability, be severed, but without in any way affecting the
remainder of such provisions or any other provision contained herein,
all of which shall continue in full force and effect.
28.4 ASSIGNMENT
The delegation or assignment by either party hereto of any or all of
its duties, obligations or rights hereunder, without the prior written
consent of the other party hereto, shall be void. However, nothing
herein shall be construed to prevent LEADTEK from assignment its right
to receive payments due it under the terms of this Agreement.
29 GOVERNING LAW
This Agreement and all disputes and suits related thereto shall be
governed by and construed and interpreted in accordance with the laws
of the State of California without regard to any conflicts of law
rules.
30 NO WAIVER
No delay or failure by either party to exercise or enforce at any time
any right or provision of this Agreement shall be considered a waiver
thereof or of such party's right thereafter to exercise or enforce each
and every right and provision of this Agreement. A waiver to be valid
shall be in writing, but need not be supported by consideration.
31 RELATIONSHIP OF THE PARTIES
The relationship between LEADTEK and the Distributor shall be that of
vendor and purchaser; neither party hereto, its agents and employees,
shall under no circumstances be deemed agents or representatives of the
other party hereto and neither party hereto shall have any right to
enter into any contracts or commitments in the name or on behalf of the
other party hereto or to bind the other party hereto in any respect
whatsoever.
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32 MISCELLANEOUS
32.1 Unless otherwise specified herein, all payments required to be made
hereunder Shall be made in United States funds.
32.2 Time shall be of the essence of this Agreement and of each and every
part Hereof.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
LEADTEK RESEARCH, INC. VISEON PVT, INC.
By: /s/ Hun Shen Yue By: /s/ John Harris
------------------------------ ------------------------------
Hun Shen Yue John Harris
Title: VP Operations President
Date: September 19, 2002 Date: October 07, 2002
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