<PAGE> 1
EXHIBIT 10.12
THIS IS TO CERTIFY THAT
MOTOROLA
LAND MOBILE PRODUCTS SECTOR,
RADIO PRODUCTS GROUP, MIDDLE EAST AFRICA
HAS ASSIGNED
HUGO INTERNATIONAL
to act as an
AUTHORISED MOTOROLA RESELLER
in
S.A.D.C.
/s/ ANDREAS KRUGER
ANDREAS KRUGER
DIRECTOR OF DISTRIBUTION, RADIO PRODUCTS GROUP MIDDLE EAST & AFRICA
1996 MOTOROLA
Radio Products Group
<PAGE> 2
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
RESELLER AGREEMENT
between
MOTOROLA LIMITED
Trading As
Motorola
Land Mobile Products Sector
(L.M.P.S.)
Radio Products Group
(R.P.G.)
WITH A REGISTERED ADDRESS
AT:
Jays Close
Viables Industrial Estate
Basingstoke
Hampshire
England
RG22 4PD
(Registered Number 912182 England)
- HEREINAFTER CALLED
"MOTOROLA R.P.G."
AND
Hugo International
6 Waterside Drive
Langley Business Park
Langley
Slough
SL3 6EX
HEREINAFTER CALLED THE
"RESELLER"
Concerning the right to sell the Products specified in Schedule A (hereinafter
referred to as Products) hereto in the Area of prime market responsibility
specified in the same Schedule. (hereinafter referred to as "Area").
A. DEFINITIONS
The following expressions shall have the following meanings unless the context
otherwise dictates:
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 3
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
A1 "Area" means the area of prime market responsibility of the Reseller in
which the Reseller may sell the products, such Area being defined in
Schedule A hereto
A2 "Products" means those Motorola R.P.G. products referred to in Schedule
A hereto
A3 "Reseller Criteria" means the criteria as set out in Schedule B hereto
A4 "Affiliate of Motorola" means any corporation ultimately owned or
controlled, directly or indirectly by Motorola Inc. - USA
A5 "Resellers End Users" means the persons whether individuals
partnerships or corporate bodies to whom the Reseller sells or hires
the Products
A6 "Reseller" shall have the same meaning as expressed above
A7 "Motorola" means Motorola Inc and any Affiliate of Motorola
A8 "Effective Date" means the date this Agreement was signed by both
parties
A9 "Value Added Resellers" shall have the meaning referred to in Schedule
B hereto
A10 "Approved Resellers" shall have the meaning referred to in Schedule B
hereto
B. RECITALS
(1) WHEREAS Motorola is a producer of Radio Communication Products of
international repute and is interested to engage a Reseller, to market
and sell the Products primarily in the Area.
(2) WHEREAS the Reseller is interested to obtain the Products from Motorola
for marketing and sale primarily in the Area. The Reseller will,
without prejudice to its right to sell the Products elsewhere in
Europe, put its sales and marketing effort and attention into the Area
and recognises that its performance in the Area is key to Motorola.
The Parties hereto now agree as follows:
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 4
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section I Subject Matter of this Agreement.
ARTICLE I
Entire Agreement
1.1 The entire Agreement between the parties shall consist of this terms of
this Agreement together with Schedule A through D attached hereto and
made part hereof the entirety of which supersedes all prior agreements
or representations whether oral or written.
ARTICLE 2
Appointment
2.1 Motorola R.P.G. hereby appoints Reseller and the Reseller hereby
accepts such appointment as a Reseller for Motorola R.P.G. branded
Products. Motorola R.P.G. reserves the right to alter the Products,
parts of the Products or the documentation if deemed necessary. The
Reseller is aware of the existence of products, product groups and
services of Motorola other than those in Schedule A and consents to
limit this appointment solely to the Products.
2.2 The Reseller has satisfied the appropriate Reseller Criteria and will
maintain this as a minimum standard; whilst also actioning any
conditions stated therein.
2.3 Motorola R.P.G. reserves the right to appoint additional Resellers or
to make direct sales itself or by any Affiliate of Motorola in the Area
hence this Agreement is non-exclusive.
2.4 At its sole discretion Motorola R.P.G. may also without any notice
modify the design or specifications of any Products or parts thereof.
Products ordered will comply with relevant published specification as
at the date of acceptance of order by Motorola R.P.G..
Motorola R.P.G. does not warrant to the Reseller the continued
availability of any of the Products, and the Reseller hereby expressly
releases Motorola R.P.G. from liability for any loss or damage to the
Reseller arising out of or by virtue of the failure of Motorola R.P.G.
to accept or fulfil orders due to particular Product shortages or
general Product unavailability however arising.
In respect of spare modules, Motorola R.P.G. will endeavour to make
available spare modules for a minimum period of five years from
cessation of manufacture of the item to which a given spare module
relates.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 5
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section II Duties of the Reseller.
ARTICLE 3
LEGAL SITUATION OF THE RESELLER
3.1 The Reseller will buy and sell in its own name and for its own account.
The Reseller will at all times act as an independent trader with regard
to both Motorola R.P.G. and the Resellers End Users. The Reseller will
use best endeavours to promote the sale of the Products in the Area
without being authorised to act in the name of Motorola R.P.G. Nothing
in this Agreement shall be deemed to create a joint venture or
partnership.
3.2 The Reseller shall safeguard the interests of Motorola R.P.G. with due
diligence of a responsible business and always keep Motorola R.P.G.
informed of its activities as well as of the market conditions within
its Area.
3.3 The Reseller shall, at its expense, during the term of this Agreement:
(a) Operate within its prime area of responsibility; using its
best efforts to promote the sale and/or hire of Products to
End Users throughout the Area.
(b) Maintain from time to time the facilities for and provide such
installation and other services as may be required by End
Users for the Products and conform to Motorola R.P.G.'s
service and engineering instructions when providing such
services on Products in order to attain End User satisfaction;
(c) Maintain, as may be required by Motorola R.P.G. from time to
time, software capability and maintain competent software
personnel;
(d) Maintain such test equipment and installation equipment which
the Parties determine necessary to support the Resellers sales
effort in the Area;
(e) Maintain a suitable place of business in a suitable location
or locations, as the market may require;
(f) Maintain an adequate stock of Product literature for
distribution to End Users as agreed from time to time between
the Parties;
(g) Furnish to Motorola R.P.G. information relating to orders,
sales, sales values, service and inventory of Products and
Product sales budgets and forecasts in such manner as Motorola
R.P.G. may from time to time reasonably request;
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 6
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section II Duties of the Reseller.
(h) Furnish Motorola R.P.G. with detailed market analysis and
reports with respect to the Area on a monthly basis. These
reports shall be as specified in Appendix E of the Motorola
R.P.G. Channel Strategy Document of 27 June 1 1997 or
otherwise as agreed;
(i) Furnish Motorola R.P.G. with a copy of its audited accounts;
(j) Subject to the conditions of this Agreement regarding use of
trade names, trade marks and service marks of Motorola R.P.G.
and its affiliates. Adequately display at its place of or
places of business such identification with the Products as
shall be appropriate to attract and promote sales;
(k) Ensure that its appropriate personnel participate in the
Reseller training sessions that may be offered from time to
time by Motorola R.P.G. at such locations as Motorola R.P.G.
may specify;
(l) Maintain a sales organisation adequate to effectively promote
the Products in the Area;
(m) Without limitation on any obligation of the Reseller
hereunder, co-operate with Motorola R.P.G. to establish and
maintain the highest standards and reputation of the Products
and comply with all reasonable suggestions offered by Motorola
R.P.G. which Motorola R.P.G. deems appropriate for the
stimulation of sales of Products;
(n) Maintain adequate capability for system design and integration
of the Products, as determined from time to time by Motorola
R.P.G.; and offer these facilities to their End Users;
(o) The Reseller shall be responsible for verifying that Products
supplied under this Agreement have the relevant type approval
required for sale and use. In the event that specific type
approval is required for sale of Products by the Reseller then
this shall be at the sole risk and expense of the Reseller;
and
(p) Purchase the minimum quantity of Products as specified in
Schedule A.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 7
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section II Duties of the Reseller.
ARTICLE 4
CONDITIONS OF SALE AND OF DELIVERY
4.1 For any Products to be supplied by Motorola R.P.G., the Reseller shall
issue a firm purchase order. For Reseller's placement of orders, the
Reseller agrees to use Motorola R.P.G.'s standard order forms or an
electronic format as first approved by Motorola R.P.G. (as may be
amended from time to time), and that the terms of this Agreement shall
govern the sale of Products to the Reseller. Such a purchase order is
subject to acceptance in writing by Motorola R.P.G.. Orders are to be
placed in accordance with Schedule A.
4.2 Shipping or delivery dates are best estimates only, unless an exception
is specifically agreed by Motorola R.P.G. in writing. If an order is
accepted by Motorola R.P.G. and if the requirements of clause 5.3. are
met, then Motorola R.P.G. will notify the Reseller of the date of
delivery. Motorola R.P.G. shall in no event be liable for losses
direct, indirect or consequential, damages or penalties or any other
loss caused by delay in delivery of the Products.
4.3 All Products and other items shall be supplied by Motorola R.P.G. "Ex
Works" (Incoterms 1990) Motorola R.P.G. facility Swords, County Dublin,
Ireland. All Products shall be packaged in accordance with Motorola
R.P.G. proprietary specifications.
4.4 In the event of a delay or failure of the Reseller for reasons other
than Force Majeure to accept delivery when tendered by Motorola R.P.G.,
or when tendered by the carrier, respectively, the Reseller shall,
without prejudice to any other claims of Motorola R.P.G., reimburse to
Motorola R.P.G. all additional costs arising from such delay or failure
of the Reseller including but not limited to all transportation and
storage costs.
4.5 Defects in Product packaging or any damage to the Products during
transportation must be notified in writing to Motorola R.P.G. within
fourteen (14) days after receipt of the Products. Thereafter, any
claims resulting from defective packing of the Products or any claims
for damage to the Products arising as a result of transportation will
be excluded. Disposal of packing material is within the Resellers sole
responsibility. The Reseller will hold Motorola R.P.G. harmless and
shall fully indemnify Motorola R.P.G. for any claim under any
regulation relating to disposal of waste.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 8
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION II DUTIES OF THE RESELLER CONTINUED.
4.6 All Products supplied by Motorola R.P.G. shall remain Motorola R.P.G.'s
property until full payment has been received for such products from
the Reseller.
4.7 All sales and supplies of Motorola R.P.G. are made pursuant to Payment
and Credit Terms as specified in Schedule A.
ARTICLE 5
PRICES AND PAYMENTS
5.1 The sales prices and other payment and credit terms for the Products to
be supplied by Motorola R.P.G. are listed in Schedule A.
5.2 All sums due to Motorola R.P.G. as invoiced by Motorola R.P.G. and
shall be paid by the Reseller in Pounds Sterling.
5.3 The Reseller will either effect payment into Motorola R.P.G.'s bank
account, or at Motorola R.P.G. discretion, Motorola R.P.G. will receive
a written bank guarantee (letter of credit) or equivalent to Motorola
R.P.G.'s satisfaction, assuring Motorola R.P.G. of the receipt of the
funds in accordance with this Agreement.
5.4 In case of a delay in payment beyond that agreed in Schedule A for
Products delivered and conforming to published specifications, all
outstanding sums may, at Motorola R.P.G. discretion, carry automatic
interest at a rate specified in Schedule A without prejudice to claims
allowed for at Law or under this Agreement. Such interest shall accrue
at a daily rate from the day the amount becomes due to the day cleared
funds are received by Motorola R.P.G.
5.5 If doubts arise upon the solvency of the Reseller or his willingness to
fulfil his payment obligation or because of non-compliance with payment
obligations or subsequent deterioration in the financial condition of
the Reseller , Motorola R.P.G. shall be entitled to suspend shipments
of the Products or place Reseller on a cash with order basis, without
any liability to the Reseller. In the event of action being taken under
sub-clause 5.5 Motorola R.P.G. will inform the Reseller in writing of
the reasons why such action has been taken.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 9
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section II Duties of the Reseller.
5.6 In the event of a price change, the old prices continue to be valid for
a period of one (1) month from the date of sending the notification by
Motorola R.P.G. For outstanding orders of the Reseller, accepted by
Motorola R.P.G. prior to the date of the notice of price change ,
prices shall remain fixed until fulfillment of respective open orders.
5.7 The Reseller is solely responsible for and shall pay all applicable
fees, customs duties, assessments and taxes, in the Area, which may be
assessed or levied by the government of any applicable jurisdiction and
any department or subdivision thereof, as a result of the performance
of this Agreement or against any of the Products ordered by the
Reseller.
ARTICLE 6
CONDITIONS OF RESALE BY THE RESELLER
6.1 The Reseller is appointed for the re-sale and/or hire of the Products,
generally for their reselling, marketing and system's expertise.
Accordingly, the prime responsibility expected of the Reseller by
Motorola R.P.G. is efforts to promote the sale and/or hire Products to
End Users throughout the Area.
6.2 The Reseller is free to fix his resale prices, without restriction.
6.3 The Reseller will sell the Products specified in Schedule A under the
trademark of Motorola R.P.G. but otherwise is not entitled to use
Motorola R.P.G.'s name or marks for his own use without the prior
written consent of Motorola R.P.G..
In the event that Motorola R.P.G. consents to the Reseller use of trade
marks then such consent shall expire automatically when this Agreement
ceases or terminates for any reason or in the event of written notice
from Motorola R.P.G. that such approval is withdrawn.
6.4 The Reseller will sell, store, transport and advertise any Product
supplied by Motorola R.P.G. in an orderly way and as required by law,
taking into account all appropriate precautions.
6.5 The Reseller will, at his sole expense, provide to his End Users
warranty services for the Products which will comply with all
applicable warranty requirements of the Motorola R.P.G. standard
Warranty Conditions and , as a minimum, compliant with the laws and
competitive conditions of the Area.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 10
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section II Duties of the Reseller.
ARTICLE 7
EXPORT CONTROL
7.1 The Reseller agrees to comply with all applicable Export regulations in
respect of Products or technical data sold or supplied to the Reseller
or other commercial transactions including but not limited to the
provisions of Schedule C hereto.
7.2 Reseller agrees that violation of any provision of Article 7 shall
entitle immediate termination of this Agreement by Motorola R.P.G.
ARTICLE 8
PUBLICITY AND TRADE FAIRS
8.1 The Parties shall inform each other in good time and shall co-operate
with participation in exhibitions or Trade Fairs in the Area as agreed
from time to time.
ARTICLE 9
PROPRIETARY RIGHTS
9.1 All Motorola names, logos, trademarks, designs, rights, copyright,
software, firmware and all other intellectual property rights (IPRs) shall at
all times remain the property of Motorola and nothing in this Agreement (unless
expressly stated otherwise) will be deemed expressly or by implication to grant
any rights whatsoever to the Reseller to use, exploit or otherwise deal with any
such IPRs.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 11
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION II DUTIES OF THE RESELLER CONTINUED.
9.2 The Reseller agrees that it will not impair Motorola R.P.G.'s right,
title or interest in its corporate name(s) or logo(s), or any part
thereof, or to trademarks or trade names used on or in connection with
Motorola R.P.G.'s Products and agrees that nothing herein shall grant
to the Reseller any such right, title or interest in the same. The
Reseller shall not encourage any practice which might be detrimental to
the goodwill of Motorola, of Motorola R.P.G. or Motorola R.P.G.'s
Products. Any brochures, advertising material, packaging or other
material produced by the Reseller bearing the Motorola corporate
signature and logo will be submitted to Motorola R.P.G. for approval
for compliance with Motorola's corporate graphics standards.
9.3 Motorola R.P.G. agrees to defend, at its expense, any suits against the
Reseller based upon a claim that any Product(s) furnished hereunder
directly infringe a patent in the Area and to pay costs and damages
finally awarded in any such suit, provided that Motorola R.P.G. is
notified promptly in writing of the suit and at Motorola R.P.G.'s
request and expense is given sole control of the suit and all requested
assistance for its defence, and that the Reseller does not settle the
dispute without the prior written consent of Motorola R.P.G.
If such claim has occurred or is likely to occur, Motorola R.P.G. will,
at Motorola R.P.G.'s option, procure for the Reseller, the right to
continue marketing the Products or accept the return of the any stock
of Products already supplied to Reseller and refund the aggregate
payments paid therefor by the Reseller. The foregoing states the entire
liability of Motorola R.P.G. to the Reseller for any such infringement.
This indemnity does not extend to any suit based upon any infringement
or alleged infringement of proprietary rights by the combination of any
article supplied by Motorola R.P.G. with other elements if such
infringement would be avoided by the sale or use of the article alone.
The Reseller agrees to indemnify Motorola R.P.G. on reciprocal terms to
those above in respect of proprietary rights infringement by any
article or subject matter supplied by Reseller.
Neither party shall be liable for incidental or consequential damages
suffered by the other party as a result of any suit brought by a third
party.
The supply of articles hereunder does not convey any license, by
implication, waiver or otherwise, under any proprietary rights of
Motorola R.P.G. covering combinations of these articles with other
elements.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 12
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Section II Duties of the Reseller.
9.4 Motorola R.P.G. has certain rights in Motorola R.P.G. software,
firmware or other computer programs or data residing in the Products
(hereinafter referred to collectively as "Software"), including without
limitation the right to prepare works derived from the same in copies
and distribute copies of the same. The Reseller shall not prepare works
derived from, reproduce in copies or distribute copies of, any Motorola
R.P.G. Software.
ARTICLE 10
FORCE MAJEURE
10.1 Neither of the parties shall be responsible for complete or partial
non-fulfilment of any responsibilities under this Agreement (defaulting
party) if this non-fulfilment is beyond the reasonable control of the
defaulting party and/or which was not reasonably foreseeable by either
party at the Effective Date, by way of example and not limitation this
shall include delay in obtaining export and import licenses and acts
and decrees of Government.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 13
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION III DUTIES OF MOTOROLA R.P.G.
ARTICLE 13
WARRANTY
13. The following warranty provisions shall be as modified by Schedule A
13.1 MOTOROLA R.P.G. WARRANTY TO RESELLER:
13.1.1 Motorola R.P.G. warrants that for a period of twelve (12) months
from date of delivery of Products to Reseller. Products will be free
from defects attributable to faulty design, materials and manufacture.
Such warranty excludes deterioration/damage caused by wear and tear,
misuse, abuse and operation/storage of Products outside of their
Published operation/storage environment.
13.1.2 In the event of claims arising under 13.1.1 above, Motorola
R.P.G. will (at its option) repair or replace defective Products or
refund the price paid for the product providing that such are returned
prior to expiry of the warranty period, at the Reseller risk and
expense, to Motorola R.P.G. nominated point of receipt on mainland UK.
13.2 RESELLER WARRANTY OBLIGATIONS TO THEIR END USERS:
13.2.1 The Reseller is responsible for performing at its sole expense
the Warranty services, as set out in Schedule A. to the their End
Users. This obligation shall not relieve the Reseller of the liability
to meet all statutory warranty obligations as applicable to the Area.
13.2.2 In cases where the Reseller cannot fix any defect or fault,
Motorola R.P.G. may supply factory or in-country support at an
additional cost to be paid for by the Reseller, subject to negotiation.
Motorola R.P.G.'s then current daily rate for staff supplied and travel
shall apply, with the Reseller responsible for providing accommodation,
meals and travel in-country.
ARTICLE 14
REMEDIES
14 Motorola R.P.G.'s entire liability whether in Contract or tort
including negligence and the Reseller sole remedies in respect of any
default are as set out in this Article.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 14
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION III DUTIES OF MOTOROLA R.P.G. CONTINUED
14.1 Motorola R.P.G. will accept liability without limitation for death or
personal injury directly arising from Motorola R.P.G.'s negligence and
insofar as liability is imposed on Motorola R.P.G. in accordance with
the requirements of Applicable Law.
14.2 Motorola R.P.G. will accept liability for direct physical damage to
tangible property of the Reseller to the extent it is caused by the
negligence of Motorola R.P.G., up to a limit of pound sterling I
million pounds Sterling in the aggregate, subject only to the
limitations set out in 14.4 below.
14.3 Except in the case of any liability on the part of Motorola R.P.G.
referred to in 14.1 and 14.2 above, Motorola R.P.G. total liability in
respect of any one default shall not exceed 125% of the total purchase
price of all the Products in respect of which Motorola R.P.G. is in
default.
14.4 Except as provided in 14.1 above, Motorola R.P.G. shall not be liable
for loss of profit, business revenue, goodwill, anticipated savings,
special indirect or consequential losses even if foreseeable by, or in
the contemplation of, Motorola R.P.G., or any claim made against the
Reseller by any other person.
14.5 Except in respect of liability referred to in 14.1, no action arising
out of, or in connection with, this Agreement shall be brought by
either party more than two (2) years after the party concerned becomes
aware, or should reasonably have become aware of the facts constituting
the cause of action.
14.6 Except as expressly stated herein, all conditions, warranties,
representations and undertakings implied, statutory or otherwise, are
hereby excluded to the maximum extent permitted by law.
14.7 The Reseller hereby agrees that its liability to Motorola R.P.G. shall
be the same as Motorola R.P.G.'s liability to the Reseller as set out
in clauses 14.1 and 14.2 for those matters referred to in those
clauses.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 15
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION IV DURATION OF THIS AGREEMENT.
ARTICLE 15
EXPIRATION OF THIS AGREEMENT, TERMINATION
15.1 This Agreement shall be subject to the right of either party to
terminate with one (1) months' written notice. This Agreement shall
continue until terminated by either party.
15.2 Either party shall have the right to terminate this Agreement
immediately by giving written notice of termination to the other party
at any time during the bankruptcy, receivership, insolvency liquidation
or dissolution of the other party, or upon the nationalisation,
expropriation, or seizure of all or substantially all of the assets of
the other party by any government or governmental agency or third party
15.3 Either party may terminate this Agreement upon any material breach of
the terms and conditions of this Agreement by the other party by
fourteen (14) days notice and if such breach is capable of remedy it
has not been so remedied within thirty days.
15.4 Open bids and quotations expressly provided by Motorola R.P.G. to the
Reseller, will remain valid for the period no event longer than ninety
(90) days from the termination of this Agreement.
ARTICLE 16
RIGHTS AND OBLIGATIONS UPON TERMINATION
16.1 On the expiration or termination of this Agreement, the Reseller shall
return to Motorola R.P.G. the documents placed at his disposition by
Motorola R.P.G. together with all other property owned by Motorola
R.P.G.
16.2 Termination of this Agreement shall not impact any individual order
executed prior to the effective date of termination between Motorola
R.P.G. and the Reseller unless the termination was given as a result of
default of the Reseller.
16.3 No claims for compensation can be lodged by reason of the termination
of this Agreement, save where such claims are based on the breach of
the provisions of this Agreement by one of the Parties or the default
of one of the Parties.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 16
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION IV DURATION OF THIS AGREEMENT CONTINUED.
16.4 Any amount due and payable by one party to the other under this
Agreement shall, with immediate effect, fall due for payment in the
event of expiry or termination of this Agreement for any reason.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 17
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION V FINAL PROVISIONS
ARTICLE 17
LAW APPLICABLE
17.1 This Agreement shall be governed and construed in accordance with
English Law.
17.2 The parties hereby irrevocably submit to the exclusive jurisdiction of
the English courts.
ARTICLE 18
LANGUAGE
18.1 The formal language of this Agreement and all related correspondence
and legal proceedings shall be English unless agreed otherwise by both
the Parties in writing.
ARTICLE 19
ASSIGNMENT OF AGREEMENT
19.1 Any rights or obligations hereunder are non-assignable by the Reseller
except with prior written approval of Motorola R.P.G. Motorola R.P.G.
is entitled to assign and transfer its rights and obligations under
this Agreement to present or future Affiliates of Motorola.
ARTICLE 20
FINAL PROVISIONS
20.1 All modifications or amendments to this Agreement shall not be binding
or incorporated into this agreement unless made in writing and signed
by authorised representatives of both Parties, prior to the
effectiveness.
These representatives are at the date of this Agreement:
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 18
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION V FINAL PROVISIONS CONTINUED.
Motorola R.P.G.
as advised from time to time.
Hugo International
As at date of Agreement authorised representative shall be: Dave Foden
Address as per page 1 of this Agreement.
20.2 If any provision of this agreement is found by any court or competent
authority to be void or unenforceable, such provision shall be deemed
to be deleted from this Agreement and the remaining provisions shall be
given effect so far as is possible. Notwithstanding the foregoing the
parties shall thereupon negotiate in good faith in order to agree the
terms of a mutually satisfactory provision to be substituted for the
provision so found to be void or unenforceable.
20.3 Both parties will refrain from any activities which are illegal,
unethical or which might bring either Party into disrepute or which
constitute or could be made to be a serious conflict of interest or
which might reasonably give the appearance of impropriety.
Both parties will co-operate fully in any investigation or evaluation
of such matters. Breach of this clause by either Party will entitle the
other Party, not in breach to terminate this Agreement immediately by
written notice.
ARTICLE 21
SCHEDULES
The following Schedules are attached hereto and made a part hereof:
Schedule A - Products, Sales Prices, Discounts, Area, Warranties etc.
Schedule B - Reseller Criteria.
Schedule C - Export Control.
Schedule D - Master International Radio Service Software Licence Agreement.
If there is a conflict between the terms of this Agreement and the Schedules
then the terms of this Agreement shall prevail.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 19
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SECTION V FINAL PROVISIONS CONTINUED.
Motorola LIMITED trading as Hugo International
- L.M.P.S. Distribution
Radio Products Group
By: /s/ Roger Ingleby By: /s/ D. W. Foden
------------------------------ ------------------------------
Printed Name: Roger Ingleby Printed Name: D. W. Foden
--------------------- -------------------
Title: Director of Distribution Title: M.D.
--------------------------- --------------------------
Date: 1 September 1997 Date:
(Effective Date of Agreement) ----------------------------
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 20
MOTOROLA Motorola RPG U.K. Reseller Agreement
To the Reseller Agreement between Motorola Limited and Hugo International Dated
28, July 1997
(a) Applicable entity within Motorola
This Schedule applies only to: Motorola Land Mobile Products Sector Radio
Products Group.
It is not valid for Motorola LMPS Radio Parts & Services Group, (RPSG) or
Radio Network Services Group (RNSG) and Network Service Division (NWSG) or any
other part of Motorola's business.
(b) Products
Products shall mean the products as listed and on condition of meeting the
provisos in Appendix A of the Motorola R.P.G. Channel Strategy Document of 27
June 1997 as amended from time to time.
(c) Prices and Discount Levels.
The discounts from the Suggested End User price in the Motorola R.P.G.
Dealer manual, are as listed in Section 13 of the Motorola R.P.G. Channel
Strategy Document of 27 June 1997 as amended from time to time.
Motorola R.P.G. reserves the right to vary discount levels and/or list
price levels at its sole discretion by one (1) months written notice.
(d) Area.
The prime area of responsibility of the Value Added Reseller and Approved
Reseller categories is to re-sell and/or hire Products to End Users within
the United Kingdom.
(e) Orders.
Orders for Products under this Agreement must be sent to
Motorola Limited
Victory House
3 Fleetwood Park
Barley Way
Fleet
Hampshire
GU13 8US
as amended from time to time by Motorola R.P.G.
In recognition of the sales discounts offered, the minimum order value
shall not be less than L150 excluding Value Added Tax, as amended from
time to time.
<PAGE> 21
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SCHEDULE A
(f) Payment and Credit Terms.
Payment shall be made by Reseller in accordance with the terms of this
Agreement to Motorola Limited in Pounds Sterling and paid into a Bank
account to be advised.
Motorola R.P.G. reserve the right to vary banking details upon one (1)
months written notice.
Motorola R.P.G. may, at its sole discretion, issue and maintain a line
of credit to the Reseller for purchases under this Agreement. The level
of this credit line to be the reviewed by Motorola R.P.G. from time to
time and such review to be based upon the written forecasts of business
provided by Reseller, the Resellers audited accounts and Motorola
R.P.G.'s opinion of the general financial condition of the Reseller
from time to time.
The credit limit as at the Effective Date is pound sterling 100,000
including Value Added Tax, and the payment terms are 30 days net. These
may be varied from time to time by the finance department of Motorola
R.P.G. This credit limit to represent the maximum aggregate value of
credit given by Motorola Limited to the Reseller for the UK account.
Invoices will be issued by Motorola Limited from the address listed in
(e) above.
Payment is the essence of this contract
Payment Conditions:
Set and reviewed by Motorola R.P.G. finance department from time to
time.
(g) WARRANTY
Will be as stated in the Warranty section of the Motorola R.P.G. Dealer
Manual as amended from time to time.
(h) MINIMUM SALES VALUE.
The Reseller shall during each calendar year after the Effective Date,
up to the date of termination or expiry, place orders for the minimum
value excluding Value Added Tax as listed below;
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 22
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Value Added Resellers pound sterling 250,000
Approved Resellers pound sterling 100,000
SCHEDULE B
To the Reseller Agreement between Motorola Limited and Hugo International Dated
28 July 1997
The Criteria for Value Added Reseller and Approved Reseller is as listed in
Sections 4 and 5 of the Motorola R.P.G. Channel Strategy Document dated 27 June
1997.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 23
MOTOROLA Motorola RPG U.K. Reseller Agreement
Schedule C
To the Reseller Agreement between Motorola Limited and Hugo International
Dated 28 July 1997
This Schedule applies to: Motorola Land Mobile Products Sector Radio
Products Group.
Export Control Regulations(7/94)
Motorola Radios, Parts, Software and Technical Data was US. products.
Therefore they are subject to US. Export Control Regulations. The Product
offered are not subject to individual License Validation but are covered by US
General Distribution License.
Not by way of limitation, other restriction to be considered are listed
for your information:
________________________________________________________________________________
1. Because of embargoes imposed by the US. and the United Nations the
following countries as at Effective Date of Agreement may not be
delivered with Motorola products (either directly or indirectly):
Libya, Syria Iran, Sudan, North Korea and Cuba.
2. The US. Government maintains a "Table of Denial Orders" (TDO)
containing embargoed enterprises and individuals. You may not
supply to such enterprises or individuals. Copy of the TDO is
available from Motorola upon request.
3. Restricted also are involvement's in the following end uses:
* Nuclear related activity (i.e. power, fuel, research,
weapons)
* Chemical or Biological Weapons
* Missile Technology
All orders for these end uses require license approval even for
Motorola standard radios.
Willful violations of Export Regulations can lead to legal action and
severe penalties and will automatically terminate this Agreement without
liability on the part of Motorola.
This information is not to make your business more difficult; to the
contrary we, as your partner feel obliged to help you avoiding any
violations.
Export Control Regulations naturally change often. If you intend to export
Motorola products we recommend the latest provision is requested.
In addition to the above the Reseller shall comply with export control
legislation applicable in the Area.
<PAGE> 24
MOTOROLA Motorola RPG U.K. Reseller Agreement
Schedule D
To the Reseller Agreement between Motorola Limited and Hugo International Dated
28 July 1997
(a) This Schedule applies only to: Motorola Land Mobile Products Sector Radio
Products Group.
(b) Master International Radio Service Software Licence Agreement
This Agreement between Motorola Limited (herein after referred to as
"Motorola") and the Reseller (herein after referred to as "Licensee")
becomes effective as of the date of signature of this below by Motorola.
Licence:
Motorola hereby grants to Licensee a personal, non-exclusive,
non-transferable, licence to use Motorola's Radio Service object code
software (the "Software"), any supplements, or any updates to any item of
such Software and any other standard object code software, documentation
and materials provided by Motorola to Licensee in connection with the
Software solely for the purposes of diagnosing malfunctions in, making
repairs to, and creating radio profiles for, re-programmable radio
equipment models serviced by the Software and solely for use on one
computer at a time.
Licensee must:
a. not make any copies of the Software except for backup purposes;
b. not disclose the Software to any third party;
c. not disassemble, decompile or otherwise reverse engineer the Software;
d. pay all taxes, duties and other assessments on the Software or its
licence of use, resulting from this Agreement or on any amount
payable; and
e. comply with all export laws and regulations applicable with the
respect to the Software provided hereunder:
In the event of a default in the performance of any of Licensee's
obligations under this Section 1, Motorola may terminate the licence for an
item of Software and at any time terminate this Agreement, repossess the
Software, and pursue any available legal or equitable remedies.
<PAGE> 25
MOTOROLA Motorola RPG U.K. Reseller Agreement
Schedule D continued
Charges and payment:
Licensee agrees to pay in respect of each item of Software, a one-time,
lump-sum, licence charge in effect on the day Licensee's order is
fulfilled. Each such charge shall be due and payable to Motorola upon issue
of invoice.
Software warranty disclaimer:
For a period of six (6) months from the issue of the software, Motorola
warrants that the software complies with recognised programming principles
and is technically usable having due consideration to the state of the
technology at the time of its creation.
Motorola does not warrant merchantability and fitness for a particular
purpose.
<PAGE> 26
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
SCHEDULE D CONTINUED
Should the software not comply with the warranted principles, Motorola
will, at its own choice and cost, replace the software media or provide
a new software release or, if these alternatives are not feasible or
economically unproportional, Motorola will take back the software
against reimbursement of the licence fee.
The warranty shall not apply, if the Licensee or a third party have
changed or reprogrammed (parts of) the software or if the software was
used under other than the specified operating conditions.
Limitation of liability:
Motorola's entire liability to Licensee and Licensee's sole and
exclusive remedy for damages concerning performance or non-performance
by Motorola under or in relation to this Agreement shall be limited to
the payment by Motorola of actual damages not to exceed the total
licence charge paid by Licensee for the item of software that caused
the damages or is the subject matter of or is directly related to such
claim.
In no event shall Motorola be liable for indirect, special, incidental
or consequential damages (including without limitation loss of use,
time or data, inconvenience, commercial loss, lost profits or savings)
to the full extent such may be disclaimed by law or for any claim
against Licensee by any other party.
General:
This Agreement shall be governed by and construed in accordance with
Applicable Law. No presentation or promise relating to and no amendment
of this Agreement shall be binding unless it is in writing and signed
by both parties. The terms and conditions of this Agreement shall
prevail over the terms and conditions of any order submitted by
Licensee. No waiver by a party of any breach of any provision of this
Agreement shall constitute a waiver of any other breach of that or any
other provision of this Agreement. In the event that any of the
provisions contained in this Agreement are held to be unenforceable,
this Agreement shall be construed without such provisions. Any action
of any kind by Licensee arising as a result of this Agreement, must be
commenced within the minimum period of time which parties may by
Agreement lawfully agree upon under applicable law as the period within
such action must be commenced or within one (1) year from the date this
right, claim, demand or cause of action shall first accrue, whichever
is the longer.
Motorola Private and Confidential Rev 2.1 28 July 1997
<PAGE> 27
MOTOROLA MOTOROLA RPG U.K. RESELLER AGREEMENT
Motorola LIMITED trading as Hugo International
- L.M.P.S. Distribution
Radio Products Group
By: /s/ Roger Ingleby By: /s/ D. W. Foden
------------------------------ ------------------------------
Printed Name: Roger Ingleby Printed Name: D. W. Foden
-------------------- -------------------
Title: Director of Distribution Title: M.D.
--------------------------- -------------------------
Date: 1 September 1997 Date:
-------------------------
Motorola Private and Confidential Rev 2.1 28 July 1997
