1. JOINT VENTURE AGREEMENT
THIS AGREEMENT made this ____ day of ____, 2002 by and between AAA
Corporation, a corporation duly organized and existing under the
laws of Japan and having its principal office at ______, Tokyo, Japan
(hereinafter called "AAA"), and BBB Corporation,
a corporation duly organized and existing under the laws of Delaware
and having principal office at New York, U.S.A. (hereinafter called
WHEREAS, the both parties are desirous of jointly organizing a new
joint venture company (hereinafter called "New Company")
under the laws of Japan;
WHEREAS, the both parties are intending to pay-up allotted shares
of the capital stock of New Company in cash
WHEREAS, AAA is desirous of giving the license within Japan on patents,
as well as furnishing New Company, upon the organization thereof,
with know-how information..
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
I call Heaven to witness that I speak the truth. という神への誓いの表現(?)
>Top 1. Definitions:
Several terms contained herein shall have the following meanings;
- "Patent" as set forth herein is meant as a patent,
utility model and design rights, and know-hows based on a technical
novelty, whereas the patent right is meant by an exclusive and monopolistic
right for control over a patential invention as prescribed in the
Japanese Patent Law.
- "Know-how" as set forth herein is meant by technical
information on the design and manufacture of the products, such
as fundamental specification and drawings, and samples thereof,
technical information on testing procedures, manufacturing materials
and standards of the products including maintenance of the manufacturing
plant, whereas "technical information" is meant by technical
facts and reasons lying therebehind.
- "Giving a license" as set forth herein is meant
by deeds for granting the working of patents owned by BBB to New
- "Product" shall mean ______ as New Company and
the parties hereto may from time to time deem appropriate for the
manufacture and/or sale by New Company.
- "Territory" as defined herein is meant by a geographical
area covering ______.
2. Incorporation of New Company:
- (a) The parties hereto shall, promptly after the date of Validation,
organize under the laws of Japan a joint stock company to be known
as Nippon XXX Inc., having an authorized capital consistent of _____
shares with a par value of ¥500 each.
- (b) The Articles of Incorporation to be adopted by New Company
shall be substantially in the form of the draft set forth in APPENDIX
>Top 3. Issuance of Share Certificates:
- (a) The stock of New Company at the time of incorporation shall
be issued as follows:
Number of Shares
Percentage of Shares
- (b) Each of the parties agrees to pay for its shares as aforesaid
at par value in cash. No additional capital stock of New Company
will be authorized or issued except upon the mutual written agreement
of all the shareholders. Shareholders shall have pro rate preemptive
rights to subscribe to any additional issues of New company's stock.
>Top 4. Assignment:
- (a) None of the parties hereto shall sell, transfer or mortgage
any of their shares of the stock of New Company without the previous
written consent of the other parties except that any party may transfer
its shares, or its right to subscribe to new issues, to any of its
associated companies over which it has control through the direct
or indirect ownership of at least fifty per cent of such associate
company's voting stock.
- (b) The provisions of this paragraph shall not be construed as
restricting the right to any party to transfer its shares of New
Company stock to a corporation succeeding to all of its assets and
obligations in connection with a merger, amalgamation or sale of
substantially all of its assets. However, no such transfer shall
be made unless the transferee shall agree to assume all the obligations
of the transferor under this Agreement and related agreements.
>Top 5. Directors and Auditors:
- (a) New Company shall be managed by the Board of Directors which
is constituted by four Directors two of which have been nominated
by AAA, and the remaining two of which have been nominated by BBB,
and a further Director who has been nominated by the both parties
as a third fair person of the Japanese nationality and having a
profound experience and well-trained knowledge in the art. The number
of the Directors may be subjected to change, if necessary, upon
decision by an agreement made by both parties.
- (b) The President of New Company shall be one of the members of
and voted to by the Board of Directors who shall be one of those
nominated by AAA. Executive Vice-president shall be one of the member
of and voted to by the Board of Directors of New Company shall be
one of those nominated by BBB
- (c) Two auditors of New Company shall be appointed; one of whom
may be appointed by AAA and one by BBB.
- (d) A certified public accountant mush be appointed upon approval
by the Board of Directors of New Company.
>Top 6. Accounting:
- New Company shall keep true and correct accounting records and
books with regard to its whole range of business. These records
and books shall be kept ready for inspection by AAA or BBB, or alternatively
by an authorized person appointed by either party. The accounting
records and books shall be yearly superintended by an authorized
>Top 7. Management of New Company:
- (a) New Company shall at all times use its best efforts to promote
a demand for the products manufactured and/or sold by it, retaining
close supervision of the technical marketing activity and means
of distribution. It shall be operated as a separate entity and the
maximum rate of efficiency and profit without regard to any conflicting
interest of the parties.
- (b) Subject to and in addition to the provision of this Agreement
and the laws and regulations of the Japanese government, the following
items relating to the management of the New Company shall be decide
by the unanimous approval of the parties hereto.
- (1) Formation or acquisition or disposition of any company
by New Company.
- (2) Purchase of fixed assets of more than One Hundred Million
Yen worth in the aggregate per year not counting purchases made
during the twelve month period following the incorporation of
New Company and sale of fixed assets of more than Twenty Million
Yen worth in the aggregate per year.
- (3) Loans by New Company to others (whether or not secure
by mortgages) of more than Ten Million Yen worth in the aggregate
as of any given time.
- (4) Endorsement by New Company of liabilities of more than
Ten Million Yen worth in the aggregate as of any given time.
- (5) Borrowing by New Company of an amount exceeding tin the
aggregate at any given time three times the amount of its own
issued share capital.
- (6) The amounts set forth above in the subparagraphs (2) through
(5) shall be subject to revision from time to time by agreement
of the parties hereto.
>Top 8. Procurement of Factory:
- AAA shall procure real estate and plants for organizing
New Company and establishing a factory of the latter. The purchasing
price of such real estate and plants, the site of the factory and
the expenditure must be acceptable to the both parties. New Company
shall initiate the construction of the factory immediately when
it has become ready of doing so.
>Top 9. Allowance of Patent License:
- (a) BBB shall grant a license to New Company to establish and
maintain the working rights on patents concerning various processes
including possible patents and know-how information on and of further
improvements in the whole field of various processes, devices and
- (b) The establishment of the working rights on patents by New
Company shall be of the exclusive nature without payment of any
- (c) The working rights or license shall continue so far as the
joint ownership of New Company by BBB and AAA is maintained and
will further continue even when either party be replace by a third
party provide that the other party should procure a written approval.
- (a) In connection with the products manufactured under the utilization
of patents owned by BBB and those developed by New Company itself,
New Company shall have a sole and exclusive right for supplying
these products to Japanese market.
- (b) As for the sales of the products of New Company which have
been manufactured by the utilization of patents owned by BBB to
such districts wherein BBB has already established and maintains
its own sales network, including USA and EU, New Company shall individual
and separately consult with the sales organs of BBB in these districts.
- (c) As for the sales of the products of New Company which have
been manufactured under the utilization of patents owned by BBB
to the territory other than the above (a) or (b), the both parties
shall consult with each other, whereupon New Company shall drive
the sales either exclusively or nonexclusively.
>Top 11. Acceptance of Engineers:
- Simultaneous with conclusion of this agreement, BBB is ready for
accepting engineers in the following conditions within reasonable
term as provided herein under so as to furnish every necessary information
on various processes, novel products , including know-how, to train
selected engineers and to realize the purposes of this agreement,
so far the realization of various objects of New Company is concerned.
12. Effective Date:
- This Agreement shall take effect upon the date of the execution
hereof; provided, however, in the event that validation or approvals
have not been obtained within one year from the date hereof, any
party hereto shall have the right and option to declare this Agreement
null and void and of no effect.
>Top 13. Termination:
- This Agreement shall continue in effect until all parties hereto
agree to terminate it.
>Top 14. Notice:
- (a) All notices and demands which shall or may be given pursuant
to this Agreement shall be in writing by personal service or by
prepaid registered air mail and one copy thereof address to each
respective recipient at its address indicated below:
- For AAA: Attention Mr. aaa
- For BBB: Attention Mr. bbb
- (b) Such notices hall be deemed to be served on the day on which
personally served, or, if by mail, on the date of actual receipt.
- (c) Any party may change its address for the receipt of notices
by written notice duly given to the other parties.
>Top 15. Governing Law and Arbitration:
- (a) The formation, validity, constriction and performance of this
agreement shall be govern by the laws of Japan.
- (b) All disputes, controversies or differences which may arise
between the parties our to or in relation to or in connection with
this Agreement, or the for the breach thereof, shall be finally
settle in Japan by arbitration pursuant to the Japan-American Trade
Arbitration Agreement of Sept. 16, 1952 by which each partner hereto
- (c) Matters affecting the organization and operation of the internal
affairs of New Company shall be governed by the laws of Japan.
>Top 16. Force Majeure:
- (a) The both parties shall not be responsible to results of non-fulfillment
of provisions set forth herein which has been brought out from inevitable
causes, and deemed as innocent of default of obligations.
- (b) Irresistible forces to be taken into account in this case
comprise such as fire, explosion disasters, natural calamities,
war breakage, Governmental orders and measures, and the like causes
which cannot be controlled by the both parties related with non-fulfillment.
>Top 17. Miscellaneous:
- (a) New modification or amendment of this Agreement or related
agreement, and no waiver of any of the terms or conditions hereof,
shall be valid or binding unless made in writing duly executed by
the both parties.
- (b) Any and all guarantees and other forms of financing provided
to New Company by its shareholders shall be prorated on the basis
of share ownership.
2. LETTER OF INTENT
BBB CORPORATION ("BBB") is a non-exclusive distributor,
and function as system integrator including the product in connection
with the turnkey bossiness for enterprise internet, intranet, and
2. Territory: Japan
3. Target Area:
- NTT Group: BBB will gain necessary pre-qualification of NTT tender;
- Itochu Group; and
- Other public and private sectors.
4. Technical qualifications:
BBB maintains the qualified engineers as required.
BBB regularly submit business plan, status-quo of the market, and
other necessary information.
BBB perform as primary support & maintenance for the end-users.
BBB will support to make localization of the product and the related
documentation, if needed.
3. BUSINESS LETTER
1. Invitation to an exhibition:
From ____ to ___ there will be ______ Exhibition in _____, Tokyo,
We would like to inform you that our software product will be displayed
at this exhibit.You will find several new features which should be of special interest
to you. Furthermore, we have introduced substantial improvement compared
to the prototype version which would also be of interest.We should be very happy if you would visit our booth number ____
in the exhibit hall No. ___. We have enclosed several tickets for
>Top 2. Commission for referral:
One of our customers of many years requires a large amount of order.
We cannot offer this item and would like to ask you to make them an
appropriate offer, making reference to our firm. Please send a copy
of this offer to us.For our efforts, we would like to suggest a commission of __ %. Please
let us know if you can deliver the goods immediately and if you agree
to our suggested commission. As soon as we hear from you, we shall
inform you of the customer's name and address.
| >Top 3. Application to agency:
I read your letter dated ____ with great interest. I would be happy
to take over your agency in Japan.I consider it necessary to discuss with you in person questions such
as territory, commissions, sole agency right and so forth.
May I suggest that I come to see you on ___, so we can discuss all
outstanding matters. I presume, you will reimburse me for all expenses
covered by proper receipts.
Kindly inform me whether the date of my arrival is agreeable to you.
>Top 4. Apology to defective product:
We regret that our product does not meet with you approval and that
some of the products are defective.
We have asked our representative _____ to call on you immediately
to inspect the product. As soon as we have received a report from
him, we will write you concerning the matter.
Please be patient for several days. You will hear from us.
>Top 5. Reminder payment:
Based on your order dated _____, we delivered the goods to the shipping
company on ____.
According to the terms, the payment should have been made ____ days
after delivery of the shipment. Unfortunately, to date we have not
yet received the payment.
We, therefore, urgently request that you forward the amount of ___.
We await confirmation of your payment.
>Top 6. Miss delivery:
Upon examining your first delivery, we find that it does not contain
the assortment which we ordered. I must say that you have made an
error. We would like to hear from you on this immediately.
While awaiting word from you, we are holding the goods for you disposal
in our warehouse.
>Top 7. Shortcoming:
Your shipment was received on _____. Upon examination, we found that
xxx items (from No.___ to No.__ ) are missing. We assume that this
was caused by a simple mistake in your shipping department.
Please confirm the above and send the missing items immediately,
in which case the additional shipping costs should not be charged
>Top 8. Cancellation:
In our letter dated ____, we informed you a deadline for the delivery
of your order. But unfortunately you have not been able to keep this
Therefore, we must say that our order is hereby canceled.
>Top 9. Refusal to references
We could not supply you with any information on this firm, as they
have no business relationship with us and are totally unknown to us.
We are sorry that we could not be of service.
>Top 10. Making an appointment:
We wish to inform you that Mr. XXX will visit you on ___ in your
This visit will allow us to discuss the matters of mutual interest
and explore the possibilities of further developing our business relations.
We would appreciate a prompt confirmation of this appointment. If
unsuitable, please suggest an alternate date to us.
>Top 11. Resignation:
For various reasons, I am forced to give up your representation effective
____. I have had this representation since _____.
I feel a great regret that I could not continue our cooperation over
the years brought us much success.
I hope you will understand my decision.
>Top 12. Invitation:
Mr. and Mrs. Kanzo Kobayashi
request the pleasure of the compnay of
Mr. and Mrs. Donald Wyatt
at dinner on Friday, twentieth of July, 2002
at seven o'clock at my home.
>Top 13. Congraturations & condolences:
We will offfer our congratulations
to you on your sucess in a difficult role.
Please accept my sincere condolences
on your sad loss of your father.
1. ANNOUNCEMENT OF OPENING OF U.S. OFFICE:
AAA CORPORATION is pleased to announce the opening of an office in
California, U.S.A. as of _____, 2002.
We believe this new office will function in promoting various business
opportunities and services to our customers and partners.
We are pleased to introduce _______ as General Manager and representative
of our US office, we believe, who will be ready for agile responding
for your various contact and requirement.
With best regards,
President & CEO
- Name: Nippon Telematique (U.S.A), Ltd.
- Representative: ___________________
- Address: _______________, CA ____, USA
- Global business activities including investment, finding &
evaluation of new business
- Function as a Liaison Office of headquarter including research
and analysis of latest technology and its marketability, consultation,
evaluation, and coordination of Joint Venture.
- Training and recruiting of human resources needed for our professional
>Top 2. CHANGE OF NAME:
It is my pleasure to inform you that as of _____ 2002, AAA Corporation
will change its name to BBB Corporation.
BBB Corporation group is one of the world's most respected professional
service companies involved in various key IT infrastructure projects
Our new logo emphasizes that BBB is a major component of our parent
company, a leading global busines-to-business media company.
Despite the name change we remain the same company and the same professional
team and we look forward to continuing our relationship with you.
______________, President & CEO
SOFTWARE MAINTENANCE AGREEMENT
1. RESELLER SUPPORT:
Reseller shall offer the following Maintenance and Support to End-Users
- Reseller shall be the primary interface with the End-User regarding
all Maintenance and Support (sometimes refereed to as "Support")
- Reseller shall be responsible for all inquiries that can be resolved
form thorough and competent understanding of the Documentation,
training materials. Such duties shall include;
- telephone assistance with respect to the Products, within
the hours of service as elected by the end-User, such telephone
assistance including (1) clarification of function and features
of the Products; (2) clarification of documentation pertaining
to the Products; (3) guidance in the operation of the Products;
and (4) error verification, analysis and correction to the extent
possible by telephone;
- access to an electronic bulletin board on which End-User may
leave message for Reseller support engineers and receive Updates
notifications and other end-user information, and from which
End-Users may download Updates; and
- when available, dial-in assistance by reseller directly to
the equipment upon which the Products is operation.
- Reseller shall also provide Updates, and related Documentation,
- Reseller shall be responsible for creating, negotiating and executing
the maintenance agreement to be entered into between Reseller and
End-Users, which agreement shall not conflict with the requirement
of this Agreement.
>Top 2. MAKER SUPPORT:
To the extent Reseller is in compliance with the Agreement (including,
without limitation, current in its maintenance fee payments), Maker
shall provide the following;
- During the term of Maintenance and Support, Maker shall (i) use
its reasonable efforts to correct any reproducible programming error
in the Products attributable to Maker and (ii) Maker shall also
provide Updates, and related Documentation; to Reseller.
- The support shall also be subject to the following:
- Properly trained and qualified Reseller employees ("Qualified
Employee") shall have made best efforts to resolve the
error and shall have determined that the error is a programming
- All Support requests shall be made by the Qualified Employee
to Maker through Maker's standard Maintenance and Support channels.
- Maker shall not be responsible for correcting any errors not
attributable to Maker. Errors attributable to Maker shall be
those that are reproducible by Maker on unmodified Products.
Maker is not required to provide any Support relating to problems
arising out of;
- Failure by Reseller or any End-User to implement Current
Versions of the Products;
- Changes to the operation system or environment which adversely
affect the Products;
- Any alterations of or additions to the Products performed
by parties other than Maker or at the direction of Maker;
- Use of the Products in a manner for which it was not designed;
- Accident to, negligence to, or misuse of the Products;
- Operation outside of environmental specifications;
- Interconnection of the Products with other software products
not supplied by Maker;
- Introduction of data into any database used by the Products
by any means other than the use of the Products; or
- Use of the Products on equipment other than the equipment
for which such software was designed and licensed for use
- Contact People:
Reseller shall appoint ___ qualified individuals within its
organization to serve as primary contacts between Reseller and
Maker and to receive support through Maker's telephone support
center. Support inquiries to Maker will be initiated exclusively
through these two primary contacts.
>Top 3. MAINTENANCE FEES:
Maintenance Fees are based on the then-currrent international list
price of the Products, prepaid in full upon execution of each Software
Maintenance Agreement by an End-User, for a twelve months period
following the effective date of such Agreement.
- In the event that Reseller elects Standard Hours of service,
the Annual Maintenance Fee shall be as follows:
- In exchange for Reseller providing Support, the net Maintenace
Fee payable to Maker for providing Reseller and End-User
with Support and all applicable Updates to the Products
will be ___ percent (_%) of the effective international
list price for such Products on the date of payment.
>Top 4. LIMITATION OF LIABILITY:
- Except as provided for in the confidentiality provisions of the
Agreement, in no event shall Maker's liability arising out of maintenance
and support or the termination of maintenance and support exceed
the amount of the annual maintenance fee.
- In no event shall Maker have any liability for any special, indirect,
or consequential damages including, without limitation, damages
for lost profits, loss of data or costs of procurement of substitute
goods or services, arising in any way out of maintenance and support
under any cause of action, whether or not Maker has been advised
of the possibility of such damages. These limitations shall apply
notwithstanding the failure of the essential purpose of any limited
>Top 5. TERM AND TERMINATION:
Maintenance and Support shall take effect on the Effective Date
and shall remain in effect for an initial term of one (1) year.
Maintenance and Support shall automatically renew at the end of
the initial term and each subsequent term for a renewal term of
one (1) year unless either party notifies the other oft its intent
not to renew at least thirty (30) days prior to such renewal date.
Maintenance and Support shall terminate upon (i) termination of
the License Agreement or (ii) upon thirty (30) days notice of material
breach of a party's obligations hereunder if such breach, if capable
of being cured, is not cured within thirty (30) days of notice of
such breach. Upon such termination, all earned and unpaid fees and
other charges payable under this Maintenance and Support shall become
immediately due and payable. In addition, either party may terminate
this Maintenance and support for such party's own convenience and
at such party's own discretion upon ninety (90) days prior written
notice to the other party.
Termination of Maintenance and Support upon failure to renew will
not affect the license of the Licensed Software. The following provisions
shall survive any termination or expiration of the Maintenance and
Support; Payment, Limitation of Liability, Confidentiality and Term
6. PURCHASE ORDER
1. Seller's Name: AAA Corporation
2. Buyer's Name: BBB Corporation
Our Order No. __________________
Order Date: ____________________
Delivery Date: __________________
F. O. B. _______________________
Shipping Instructions __________
THIS ORDER is placed by Buyer subject to the terms and conditions
hereon and on the reverse side hereof, and by accepting this order
Seller agrees to be bound thereby.
No Additions or modifications will be binding upon Buyer unless expressly
agreed to in writing.
Time of delivery is of the essence of this contract. Buyer reserves
the right to refuse any goods and to cancel all or any part of this
order if Seller fails to deliver any part of the goods in accordance
with the terms of this order. Acceptance of any part of the order
shall no bind Buyer to accept future shipments, nor deprive it of
the right to return goods already accepted.
Delivery shall not be deemed to be complete until goods have been
actually received and accepted by Buyer, notwithstanding any agreement
to pay freight, express or other transportation charges, and the risk
of loss or damage in transit shall be upon Seller.
By accepting this order Seller acknowledges that the goods covered
by this order are intended for the manufacture and sales of the goods
described herein and any defect in such goods may occasion special
damage to Buyer.
Acceptance of all or any part of the goods shall not be deemed to
be a waiver of Buyer's right either to cancel or to return all or
any portion of the goods because of failure to conform to order, or
by reason of defects, latent or paten, or other breach of warranty,
or to make any claim of damages, including manufacturing costs and
loss of profits or other special damages occasioned buyer. Such right
shall be in addition to any other remedies provided by law.
Seller agrees to indemnify buyer form and against all liability,
loss and damage, including reasonable counsel fees, resulting from
claimed trademark or patent infringements, or any litigation based
thereon, and such indemnity shall survive acceptance of the goods
and payment therefor by Buyer.
Seller warrants that the goods covered by this order are of merchantable
quality and fit and safe for consumer use. Acceptance of this order
shall constitute an agreement upon Seller's part to indemnify buyer
against all liability, loss and damage, including reasonable counsel
fees, sustained by buyer by reason of failure of goods to conform
to such warranties. Such indemnity shall be in addition to any other
remedies afforded by law.
Seller represents that the goods covered by this order have been
manufactured in accordance with the requirements of the Fair labor
Standards Act and all other applicable federal, state and local laws,
rules and regulations.
8. Markings & labels:
All goods, wrappers and containers must bear markings and labels
required by applicable federal, state and local laws and regulations.
any controversy or claim arising out of or relating to this contract
or the breach thereof, shall be settled by arbitration in accordance
with the rules of the American Arbitration association, and judgment
upon any award rendered in such proceedings may be entered in any
court having jurisdiction thereof.
10. Entire Agreement:
This contract contains the entire agreement of the parties. It may
no be modified or terminated orally, and no claimed modification,
rescission or waiver shall be binding on Buyer unless in writing signed
by a duly authorized representative of Buyer. No modification or waiver
shall be deemed effected by seller's acknowledgment or confirmation
containing other or different terms.
11. Governing Law:
This contract shall be governed by the laws of the Sate of New York.
(Seller) AAA Corporation
(Buyer) BBB Corporation
7. NON-DISCLOSURE AGREEMENT
This MUTUAL NON-DISCLOSURE AGREEMENT ("NDA") is made and
between AAA Corporation, a Delaware corporation ("AAA"),
having its principal office at _________, USA, and BBB Corporation,
a Japanese corporation ("BBB"), having its principal office
at _________, Japan.
- The parties hereto wish to explore a business opportunity of mutual
interest and in connection with this opportunity, each party may
disclose to the other certain confidential technical and business
information which the disclosing party desires the receiving party
to treat as confidential.
>Top 2. Confidential Information:
- "Confidential Information" means any information
disclosed by either party to the other party, either directly or
indirectly, in writing, orally or by inspection of tangible objects
(including without limitation documents, prototypes, samples, plant
and equipment), which is designated as "Confidential,"
"Proprietary" or some similar designation. Confidential
Information may also include information disclosed to a disclosing
party by third parties.
- However, Confidential Information shall not include any
- (1) was publicly known and made generally available
in the public domain prior to the time of disclosure by the
- (2) becomes publicly known and made generally available
after disclosure by the disclosing party to the receiving party
through no action or inaction of the receiving party;
- (3) is already in the possession of the receiving party
at the time of disclosure by the disclosing party as shown by
the receiving party's files and records immediately prior to
the time of disclosure;
- (4) is obtained by the receiving party form a third
party without a breach of such third party's obligations of
- (5) is or has been independently developed by the receiving
party without use of or reference to the disclosing party's
Confidential Information, as shown by documents and other competent
evidence in the receiving party's possession; or
- (6) is required by law to be disclosed by the receiving
party, provided that the receiving party gives the disclosing
party prompt written notice of such requirement prior to such
disclosure and assistance in obtaining an order protecting the
information from public disclosure.
>Top 3. Non-use and Non-disclosure:
- Each party agrees not to use any Confidential Information of the
other party for any purpose except to evaluate and engage in discussion
concerining a potential business relationship between the parties.
- Each party agrees not to disclose any Confidential Information
of the other party to such party's employeees, agents or contracvtors
except to those employees, angents or contractors of the receiving
party who are required to have the information in order to evaluate
or engage in discusssions concerining the conteplated business relationship.
- Neither paty shall reverse engineer, disassemble or decomplile
any prototypes, software or other tangible objects which embody
the other party's Confidential Information and which are povdidde
to the party hereunder.
>Top 4. Technical qualifications:
- BBB maintain the qualified engineers as required.
5. Support & maintenance:
- BBB perform as primary support & maintenance for the end-users.
- 6. Localization:
- BBB will support to make localization of the product and the related
documentation, if needed.
8. DISTRIBUTOR AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of _________ , 2002
(the "Effective Date") is made and entered into by
and between AAA Corporation (hereinafter "Maker"
or "AAA"), a Delaware corporation with offices at
_______, and BBB Corporation (hereinafter "Reseller"
or "BBB"), a Japanese corporation with offices at
_______, and includes all associated exhibits and attachments thereto
- Schedule-I: BBB's distribution partners
- Exhibit-A: Price List
- Exhibit-B: Software License Agreement
- Exhibit-C: Maintenance and Support
- Exhibit-D: Training Program
Whereas, AAA is the proprietor of certain computer software
products specifically designated herein as the Products;
Whereas, BBB has special knowledge concerning the identity
of prospects and has knowledge concerning the applicability of the
Products in xxx market segments;
Whereas, AAA wishes to appoint BBB, on a non-exclusive basis
and only within the Territory defined herein, for the marketing, distribution
and system integration of the Products and the provision of certain
services related to such marketing efforts; and
Whereas, BBB is willing to accept such appointment under the
terms of this agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for such good and valuable consideration, the parties
do hereby agree as follows:
>Top 1. DEFINITIONS:
- "Customer" means End Users obtained through Reseller,
Reseller's System Integrators and Distribution Partners.
- "Documentation" means instruction manuals or
other materials, including on-line help files regarding the use
of the Licensed Software.
- "Product" means copies of the Company's software
products, in object code format, as listed on Exhibit-A.
- "Maintenance & Support" means the services
described on Exhibit-C.
- "Release" means when a Licensed Software undergoes
a major redesign, and is typically designated by a change in the
first number to the left of the first decimal point. The determination
shall be decided by AAA in its sole discretion. New Release and
Updates are not deemed to be part of the Licensed Software and must
be licensed separately to an End User through the purchase of Maintenance
- "Distribution Partners"means BBB's distribution
channels which shall be pre-approved in writing by AAA and identified
on Schedule-I hereto.
- "Territory" means Japan.
- "Updates" means a version of any Licensed Software
containing functional enhancements, modifications, extensions, error
corrections or bug fixes. The content of all Updates shall be decided
upon by AAA at its sole discretion. Until otherwise notified in
writing by AAA, Updates also include upgrades to the most current
Release of the Licensed Software then being generally marketed by
AAA. Updates do not include any new products.
>Top 2. APPOINTMENT OF RESELLER:
Subject to the terms and conditions hereof, AAA hereby designates
and appoints BBB as a non-exclusive reseller of Products to
Customers within the Territory and BBB hereby accepts such designation
and appointment. AAA reserves the right to market and solicit licenses
directly, trough other distributors and dealers at any time and in
any area where BBB is , or contemplates, operating. Unless expressly
agreed to in writing, BBB shall not be entitles to any commission,
discount or other compensation with respect to sales or licenses conducted
by AAA or any other reseller of AAA.
>Top 3. DUTIES OF RESELLER:
3.1 BBB agrees for the term of this Agreement that it shall
perform the following;
- identification of business organizations that may benefit from
the use of the Products;
- contacting of such prospective Customer and arranging for and
conducting competent and effective presentation relating to the
- market and promote sales of the Products to existing and
- demonstrations of the Products to prospective Customers either
on the premises of such Customers or at locations arranged by and
paid for by BBB as necessary to demonstrate the Products effectively;
- serving as a point of contact for communications, if required,
between Customers and AAA with respect to the Products.
3.2 BBB shall ensure that its employees actively involved
with the Licensed Software are technically qualified to give advice
and provide services concerning the use of the Licensed Software.
- BBB shall designate and enroll a minimum of xxx BBB's employees
in the Training Program as set forth Exihibit-D.
- BBB agrees that its employees shall be required to undertake continuing
training as updated from time to time at AAA's sole discretion.
- BBB further agrees that failure to obtain such certification shall
be deemed a material breach of this Agreement.
- 3.3 BBB shall provide and agrees to assume full responsibility
for application development, equipment integration, installation,
Maintenance and Support as defined in Exhibit-C for all of Products
distributed by BBB pursuant to this Agreement.
- 3.4 BBB shall use best efforts to facilitate the license of
the Products to prospective Customers, including coordination
the execution of the software license agreement in the form attached
hereto as Exhibit-B by Customer and AAA. BBB shall use good faith
efforts to negotiate and explain the terms and conditions of the Software
License Agreement with prospective Customers, and assist the Customer
in the completion of information required under the Software License
Agreement. Reseller shall represent AAA and the Products in a favorable
manner. However, BBB shall have no authority to execute such agreement
on behalf of AAA, or to revise or alter the Software License Agreement.
BBB shall use its best efforts to ensure that the Customer fully complies
with its obligations under the Software License Agreement.
- 3.5 BBB shall require each Customer to enter into a software
maintenance agreement , which Customer Maintenance Agreement shall
be consistent with the terms of this Agreement. Such Customer Maintenance
Agreement shall be between BBB and Customer only, and shall not
obligate AAA in any manner to the Customer. AAA agrees to provide
maintenance and support services to Reseller and Reseller agrees to
pay AAA for maintenance and support services provided to Customers
in accordance with Exhibit C hereto.
- 3.6 BBB shall maintain complete and accurate accounting
records, in accordance with sound accounting practices, to support
and document Product payments payable to AAA in connection with this
Agreement. Such records shall be maintained for a period of at least
xxx years after the payments which relate to such records have been
accrued and paid. BBB shall, upon written request from AAA, provide
access to such records to an independent auditor chosen by AAA for
the purposes of audit.
- 3.7 BBB will at its own expense obtain and maintain all necessary licenses, permits and approvals which are necessary for it
to sell Products in the Territory. BBB will comply with all laws and
regulations applicable to this Agreement, the Products and the commercial
transactions contemplated herein.
- 3.8 BBB shall meet the annual minimum sales target of xxx (net of all discounts) for the distribution of Products under
this Agreement. Failure to meet such requirement shall be grounds
for termination under this Agreement.
>Top 4. GRANT OF LICENSE TO PRODUCTS
4.1 Distribution License:
- AAA grants to BBB a limited, non-exclusive, nontransferable
license to distribute copies of the Products, in object code
format only, to Customers within the Territory and to demonstrate
the Products to prospective Customers within the Territory, provided
such demonstration in performed in accordance with the terms hereof.
Except as expressly provided in this Section, BBB shall have no
right to sublicense the rights granted herein by AAA. This license
does not give BBB the right to reproduce the Products and all copies
of the Products must be obtained by BBB from AAA.
- BBB may engage its Distribution Partners as specifically
identified on Schedule I hereto to perform certain of BBB's obligations
hereunder, provided, however, that each such Distribution Partner
agrees to be bound by the restrictions set forth in this Agreement;
provided further that AAA shall have no obligation to such Distribution
Partners and the such parties shall be deemed to be agents of BBB
for which BBB shall be fully responsible under this Agreement.
4.2 BBB's right to resell:
- Obligations and Restrictions:
Any Product distribute under this Agreement may be distributed only
pursuant to a fully executed Software License Agreement as set forth
in Exhibit-B; no distribution of Products is permitted prior to
the full execution of the Software License Agreement.
- BBB shall not and shall not permit others to:
- sublicense, lease, sell or otherwise transfer any Licensed
- reproduce Licensed Software;
- distribute or make Licensed Software in any manner except
as expressly and unambiguously provided in this Agreement;
- decompile, disassemble or otherwise reverse engineer or
attempt to derive source code of, in whole or in part, any
of the Licensed Software; or
- create or develop any derivative works based upon the Licensed
Software, except through the proper use of AAA's published
BBB shall be solely responsible for, and AAA shall have no obligation
to honor, any warranties that BBB provides to Customers with respect
to the Products. BBB shall defend any claim against AAA in connection
with any such warranties to BBB's Customers, express, implied, statutory,
or otherwise, and shall pay any settlements or damages awarded to
AAA that are based on any such warranties.
BBB agrees to use its best efforts to inform AAA of any violations
or infringements under any sublicense agreements for the Products.
4.3 Customer documentation:
BBB shall be responsible for preparing Customer documentation for BBB's products which incorporate the Products. BBB agrees that
each copy of the Products, and all packaging media used for their
distribution, shall include reproductions of the copyright notices
and other proprietary legends of AAA.
4.4 AAA shall retain all right, title and interest
in and to the Products and all associated documentation,
>Top 5. RESELLER SERVICES:
BBB shall be responsible for performing the following obligations
under this Agreement:
- BBB shall provide assistance to Customers with the specification,
design, development, integration and installation of applications
of the Products;
- BBB shall perform technical training at locations secured
by BBB for Customer's personnel relating to the Products; and
- BBB shall provide a telephone hotline as well as on-site service and consulting support to Customers by technically trained personnel
with respect to the documentation, functions, and operation of the
>Top 6. DUTIES OF MAKER:
AAA shall be responsible for performing the following obligations
under this Agreement:
- AAA shall develop the Products as it deems appropriate;
- AAA shall provide reasonable quantities of technical publications and marketing materials (including descriptive brochures, technical
specification materials, and promotional materials suitable for
retail use) as it deems appropriate for activities to be conducted
by BBB. Such material shall be provided to BBB at AAA's pro rata
cost of production.
- AAA shall host demonstrations and presentations about the Products
as reasonably requested by the BBB with appropriate notice to AAA.
- AAA shall provide Maintenance and Support services as per Exhibit-C,
subject to payment of fees for annual maintenance and support.
>Top 7. TERM AND TERMINATION:
- The term of this Agreement shall begin upon the Effective Date
and shall continue for one (1) year thereafter, unless sooner terminated
in accordance with the provisions herein. This Agreement shall continue
thereafter for any number of additional one (1) year terms unless
either party notifies the other in writing of its intent to terminate
this Agreement at least thirty (30) days prior to the conclusion
of then-current term.
- AAA may terminate this Agreement immediately upon written notice
to BBB in the event of a breach of any material obligation hereunder
by BBB (including the failure to meet the annual sales target pursuant
to 3.8) that is not cured within ten (10) calendar days after receipt
from AAA of written notice to BBB of its breach of this Agreement.
- Either party may terminate this Agreement immediately upon written
notice to the other party if:
- the other party ceases to carry on its business; or
- the other party becomes insolvent, admits in writing its inability
to pay debts as they mature, is adjudicated bankrupt, or makes
assignment for the benefit of its creditors or in other arrangements
of similar import.
- Upon expiration or termination of this Agreement for any reason:
- BBB shall, within XXX calendar days of such termination, return
to AAA all copies of the Products, for a price to be agreed
upon by the parties after good faith negotiations, and all copies
of technical materials, brochures, marketing materials and the
- Neither party will be liable to the other for any damages
or indemnity sustained or arising out of, or alleged to have
arisen out of, or compensation on sales or anticipated sales,
or in connection with the establishment, development or maintenance
of BBB's business, or otherwise, but such expiration or termination
will not affect the right of either party to receive or recover
(i) damages sustained by reason of the breach of this Agreement
by the other party, or (ii) any payments which may then be owing
under the terms of this Agreement or any or other instrument;
- BBB will discontinue forthwith all use of the trademarks,
trade names and distinctive packaging designs of the Products,
and all licenses granted under this Agreement shall automatically
- The provision of XXX shall survive the termination or expiration
of this Agreement for any reason.
>Top 8. ORDER & PAYMENT:
- BBB shall order Licensed Software by issuing an Order signed
by an authorized representative, indicating quantity, unit price,
total purchase price, shipping instructions, requested delivery
dates, bill-to and ship-to addresses, and any other special instructions.
- BBB shall deliver with each Order, a copy of the Software License
Agreement signed by the Customer.
- All orders for Products shall be subject to reasonable acceptance
- Any claims against AAA for shortages in shipment or condition
of the Products shall be made within twenty (20) calendar days after
receipt of shipment by BBB, or, in case of latent defects not reasonably
detectable upon inspection of the Product, within twenty (20) calendar
days after discovery of such latent defect.
- BBB agrees to pay license and maintenance fees for each copy of
the Products ordered by BBB under this Agreement.
- BBB further agrees to pay all applicable taxes (except for AAA's
withholding tax), shipping, installation, as incurred.
- If any sum payable under this Agreement is not received by AAA
within thirty (30) days of the due date AAA reserves the right,
without prejudice to any other rights and remedies, to;
- suspend any services, including without limitation the supply
of pending and future orders, and/or,
- charge interest on a day to day basis from the original due
date at the rate of xx % per month, or the maximum rate permitted
by law, if that is lower, and or;
- require that all future payments shall be net cash payable
in advance of the supply of any Product ordered.
- All payments to AAA under this Agreement shall be in Japanese
yen and shall be made by electronic Funds Transfer. Payment shall
be due within thirty (30) calendar days, after receipt of an invoice
- Invoice shall be mailed to: _________________________________
- Electronic Funds Transfer shall be forwarded to: _______________
>Top 9-19 GENERAL CLAUSES:
- Each Software License Agreement provides for a limited warranty
from AAA to each Customer. BBB shall notify AAA of any problems
that arise with any Customer, in which event AAA shall use all reasonable
efforts to correct such problem in accordance with such warranty.
- Notwithstanding any provisions of this Agreement to the contrary,
AAA agrees to defend BBB against any claim that the Products used
within the scope of this Agreement infringe any US or Japan copyright
- BBB acknowledges that any symbols, trademarks and service marks
adopted by AAA to identify the Products and any trade names used
by company ("Trademarks") belong to AAA and that BBB shall
have no rights in such Trademarks except as expressly set forth
- BBB acknowledges and agrees that the Products and any other information
provided to BBB by AAA regarding the Products or this Agreement
herein constitutes the confidential and proprietary information,
and that BBB shall retain in strict confidence and not disclose
to any third party without AAA's written consent any and all such
- All notices, demands, or consent required under this Agreement
shall be in writing and shall be delivered personally or sent by
certified or registered mail to:
AAA _____________________, BBB _______________________
14. GOVERNING LAW & ARBITRATION:
- This Agreement shall be governed by the laws of Japan.
- Except as otherwise provided for in this Agreement, any claim,
dispute or controversy arising between the parties out of or in
relation to this Agreement, or breach thereof, which cannot be satisfactorily
settle by the parties, shall be finally settled by arbitration upon
the written request of either party, in accordance with the rule
of }Conciliation and Arbitration of the International Chamber of
Commerce. The place of arbitration shall be Tokyo, Japan. The award
shall be final and binding upon both parties. Judgment upon the
award may be entered in any court having jurisdiction thereof.
- This Agreement may not be assigned by either party without the
prior written consent of the other party, except in the case of
a transfer of all or substantially all assets, business or stock
of a party to which this Agreement pertains. Notwithstanding the
foregoing, this Agreement shall be binding upon the parties' respective
successors and assigns.
- If any term or provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable,
the remainder of the provisions shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
- It is agreed that both parties must approve all public announcements
or other promotional efforts made regarding this Agreement, provide
however, that the general existence of this Agreement shall not
be treated as Confidential Information.
18. FORCE MAJEURE:
- Except for the obligation to make payments, non performance of
either party shall be be excused to the extent that performance
is rendered impossible by strike, fire, flood, earthquake, governmental
acts or orders or restrictions, failure of suppliers, or any other
reason where failure to perform is beyond the reasonable control
and not caused by the negligence of the non-performing party.
19. ENTIRE AGREEMENT:
- The parties agree that this agreement is the complete and exclusive
statement thereof between the parties and that it supersedes and
merges all prior proposals and understanding, and all other agreements,
whether oral or written, between the parties relation to the subject
matter thereof. This Agreement many not be modified or altered except
by a written instrument duly executed by the parties hereto
WITNESS WHEREOF, the parties have caused this Reseller Agreement
to be executed as set forth below.
- AAA CORPORATION
- Name: ____________
- Title: ____________
- Date: ____________
- BBB CORPORATION
- Name: ____________
- Title: ____________
- Date: ____________
>Top 21. Attachments:
- SCHEDULE-1: List of Integrators and
- EXHIBIT-A: Price List
- EXHIBIT-B: Software License Agreement
- EXHIBIT-C: Maintenance and Support
- EXHIBIT-D: Training Program