分销协议（Distribution Agreement）.docx

Distribution AgreementDistributor:Company:This Distribution Agreement (this "Agreement") is made effective as of (“Effective Date”), between , a limited company incorporated in with its principle address at (the "Company"), and , a limited company incorporated in with its principle address at (the "Distributor").RECITALS:WHEREAS, the Company is a company that provides and the Distributor is ;WHEREAS, the Distributor and the Company desire to enter into an agreement with regard to the exclusive distribution of specified product(s) of the Company set out in Schedule 2 as amended from time to time upon mutual agreement between the Parties (“Products”) in the Territory in accordance with the terms and conditions set forth; andWHEREAS, the Distributor and the Company are entering into this Agreement in good faith and are relying on its terms;Now, therefore, for and in consideration of the foregoing and the mutual promises, covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:1.DEFINITIONS AND INTERPRETATION1.1 DefinitionsIn this Agreement, unless the context otherwise requires:"Applicable Laws"means all national, provincial, local and municipal legislation, regulations, statutes, by-laws, decrees, orders, Consents and/or other laws of any relevant Governmental Authority and any other instrument having the force of law as may be issued and in force from time to time relating to or connected with the activities contemplated under this Agreement;"Authorised Representative"means a person nominated by each Party to fulfil the role of that Partys authorised representative under this Agreement from time to time, such person being, as set out in Clause20;"Business Day"means any day other than Saturday, Sunday, a public holiday or any day on which banks are obligated to close for business in Hong Kong;"Change of Control"(a)any Distributors competitor acquiring (directly or indirectly) any interest in Company which entitles such Distributors competitor to appoint any person to any position of authority in Company; and/or(b)person or persons acting in concert acquiring (directly or indirectly and whether by means of a single transaction or a series of transactions) the beneficial ownership of 20% (twenty per cent) or more of the shares of Company; and/or(c)person or persons acquiring (directly or indirectly) control of Companys affairs;"Confidential Information"means all information in whatever format howsoever disclosed by one Party to the other Party and concerning the business and affairs of the disclosing Party including any information relating to that Partys operations, processes, plans, intentions, product information, know-how designs, trade secrets, software, market opportunities, customers and shall include this Agreement;"Control"means:(a)the equitable ownership or control (whether directly or indirectly) of more than twenty per cent (20%) of the voting share capital of the relevant undertaking; or(b)the ability to direct the casting of more than twenty per cent (20%) of the votes exercisable at general meetings of the relevant undertaking on all, or substantially all, matters; or(c)the right to appoint or remove directors of the relevant undertaking holding a majority of the voting rights at meetings of the board on all, or substantially all, matters,and "Controls" and "Controlled" shall be construed accordingly;“Distributors Customer”shall have the meaning set out in Clause 3.1;“Distributor Group”means Distributor and its local Affiliates;"Equipment"means any equipment including hardware, computer equipment, communications devices, peripherals, cabling, ancillary equipment supplied by the Company as part of the Product;“First Target”means the execution of five (5) formal contracts with Distributors Customers in aggregate in the Territory during the first twelve (12) months of the Term for the supply of the Products to the Distributors Customers, unless a lower number of contracts is agreed between the Parties after the commencement of the Term;"Force Majeure Event"means an event beyond the reasonable control of the affected Party which was not caused by, and could not have been reasonably planned for, or avoided by, the affected Party including strikes, lockouts and other industrial disputes (except in relation to that Partys own personnel), war, riot, civil commotion or act of God but only where and to the extent that:(a)the non-affected Party agrees (such agreement not to be unreasonably withheld) that the event asserted has prevented the affected Party from performing any or all of its obligations under this Agreement; and(b)the event was not caused by the act or omission of a subcontractor;"Governmental Authority"means any authority having jurisdiction over the Products, the Parties or any other matter under this Agreement, including any federal, state, provincial or municipal authority or any department, subdivision (political or otherwise), municipality, agency, corporation or commission under direct or indirect control thereof;"Intellectual Property Rights"means any and all rights, licenses or consents existing from time to time including copyrights, patents, trademarks (together with all the goodwill associated with such trade marks), service marks, database rights and rights to extract data, registered and unregistered designs, rights in circuit layouts and semi-conductor topography rights, trade secrets, rights of confidence, all whether registered or not, applications for any of the foregoing and all other similar rights recognized in any part of the world. For the purposes of this definition, rights in patents will be deemed to include rights under any and all patent applications and patent (including letters patent and any inventors certificates) anywhere in the world including provisional applications, substitutions, extensions, supplementary patent certificates reissues, renewals, divisions, continuations in part (or in whole), continued prosecution applications, requests for continued examination, and other similar filings or stages provided for under the laws of any country;“Products”shall have the meaning set out in Recitals;“Second Target”means the execution of ten (10) formal contracts with Distributors Customers in aggregate in the Territory during the second year of the Term for the supply of the Products to the Distributors Customers, unless a lower number of contracts is agreed between the Parties after the commencement of the Term;"Software"means computer programs in object code and/or source code (as the case may be), together with any training materials, technical information and documentation necessary for the use of such programs and their respective upgrades;“Territory”means any country/area in List of Countries/Areas set out in Schedule 1 or as amended by the Parties from time to time by mutual agreement;"Virus"means any code, device or other item which may intentionally or unintentionally impair or otherwise adversely affect the operation of any computer; prevent, disrupt disable or harm or hinder access to or use of any program or data; impair, disrupt (including aesthetic disruptions or distortions) or interfere with the operation of any program (or any other associated software, firmware, hardware, computer systems or network) or the reliability or integrity of any data (whether by re-arranging altering or erasing within the computer or any storage medium or device, the program or data in whole or part), including viruses, trojan horses, worms, robots, spiders, logic bombs, spyware, malware and other forms of malicious code, hidden procedures, routines or mechanisms.1.2 InterpretationIn this Agreement:1.2.1 Words importing the singular shall include the plural and vice versa;1.2.2 Words importing any one gender shall not exclude other genders;1.2.3 References to a "person" include any natural person, firm, company, corporation, legal entity, government, state or agency of a state or any association, trust or partnership (whether or not having a separate legal personality) or two (2) or more of the foregoing;1.2.4 The headings and index in this Agreement are for convenience only and do not affect the construction or interpretation of this Agreement;1.2.5 The word "including" and its other grammatical forms shall not limit the general effect of the words which precede and shall be construed without any limitation;1.2.6 Any notice required to be given under this Agreement shall be deemed to be a notice in writing; and1.2.7 Any reference to any legislative provision shall be deemed to include any statutory instrument, by-law, regulation, rule, subordinate or delegated legislation or order and rules and regulations which are made under it, in each case, as modified, consolidated or re-enacted.2.TERM2.1 The Term of this Agreement shall mean the period of years starting on and ending on (both dates inclusive) (“Term”).2.2 If, during the Term, the Distributor Group satisfies or exceeds the First Target and the Second Target, this Agreement shall be extended automatically upon the expiry of the Term for a further period of five (5) years (“Extended Term”) on the same terms and conditions of this Agreement (save for such requirements as the execution of additional five (5) formal contracts with Distributors Customers in aggregate in the Territory on preceding years basis commencing from the third year and subject to Clause 5.5 for Product Price adjustment, etc.).3.EXCLUSIVITY3.1 The Company appoints the Distributor Group as the exclusive distributor of the Products for the Territory during the Term of this Agreement. During this appointment, the Distributor and the Distributors Affiliates shall have the exclusive right to market, promote and/or sell the Products to their respective customers that are, in their reasonable discretion, suitable for the Products within the Territory (the “Distributors Customers”, each a “Distributors Customer”).3.2 During the Term, unless upon the Distributors prior written approval, the Company shall not, and shall cause its Affiliates not to, directly or indirectly, sell, supply or distribute any Products to any third party within the Territory, or any third party who, directly or indirectly, resells or proposes to resell such Products within the Territory.3.3 If the Company or any of its Affiliates is contacted by any third party inquiring about the purchase of the Products within the Territory, the Company shall, or shall cause its Affiliate to, refer such third party to the Distributor or the Distributors local Affiliate(s)for the inquiry and possible purchase of the Products.3.4 The Company hereby irrevocably acknowledges and agrees that the Products are or can be sold to the Distributors Customers, or the third party stipulated in Clause 3.3 above, with or without bundling with other services or other products provided by the Distributor and/or its Distributors Affiliates.4.DISTRIBUTORS OBLIGATIONS4.1 During the Term of this Agreement, the Distributor shall market, advertise, demonstrate and otherwise promote the sale of the Products in its reasonable discretion and in consistent with its core business operations and commercial value in the corresponding Territory.4.2 For each new formal contract agreed with a Distributors Customer, the Distributor shall execute with the Company a purchase order that specifies, among other things, a description of the Products to be provided and any other details related to this particular engagement (“Purchase Order”). Schedule 4 to this Agreement provides a template for a Purchase Order but may be modified by agreement of the Parties to suit the circumstances under discussion.5.PRODUCT PRICE5.1 The Company gives the Distributor the exclusive right to buy and resell the Products at a price not less than 150% of the Purchase Price stated in Schedule 2 (“Purchase Price”). Purchase Price may only be varied by mutual agreement between the Parties. Any variation to the Purchase Price must be negotiated by the Parties in good faith and take into account the market conditions in the Territory to ensure that the Distributor is able to obtain a minimum gross margin of 50% in its sales income of the Products.5.2 In the case of the aforementioned sales income received by the Distributor is in a currency other than Hong Kong dollars, the gross margin shall be calculated by converting such other currency into equivalent Hong Kong dollars at the buying rate of such currency as quoted by Hongkong and Shanghai Bank Corporation as at the close of business on the last business day of the quarterly period with respect to which the payment is made for the relevant purchase.5.3 When customers outside the Territory inquires the Distributor the retail price of the Products outside the Territory, the Distributor shall contact the Company first and reply quotations only after receiving the confirmation from the Company.5.4 In the event that this Agreement is so extended in accordance with Clause 2.2, the Company may adjust the Purchase Price, provided that any increase cannot be more than % of the Purchase Price of the relevant Products at the time of the extension.6.PAYMENTThe Distributor Group shall make payment of the relevant Purchase Price to Company fifteen (15) days after it has executed a formal contract for a Product with a Distributors Customer and upon receiving the corresponding fee from such Distributors Customer(s).6.1 Payment shall be made in Hong Kong Dollars by bank transfer to the Companys bank account, which details are as follows:Bank： Bank Address: Account Name: Account No: SWIFT Code: 6.2 The Purchase Price is inclusive of all applicable costs of delivery, insurance, taxes, custom duties, fees and charges imposed by the government of Hong Kong and/or the Territory in relation to the supply and purchase of the Products.7.TaxIf the Company or its Affiliates is required by law to make any deduction or to withhold from any sum payable to the Distributor Group, then the sum payable by the Company or its Affiliates to the Distributor Group upon which the deduction or withholding is based shall be paid to the Distributor Group net of such deduction or withholding. The Company or its Affiliates shall pay the applicable tax authorities any such required deduction or withholding. Each Party and its Affiliates shall deliver duly completed and timely executed forms as may reasonably be required for the purpose of claiming the benefits of any applicable ta