How To Get Paid For Your Work

Transcription

1 OQO RESELLER AGREEMENT This OQO Reseller Agreement ( Agreement ) is made as of, 2007 (the Effective Date ), by and between OQO, Inc., a Delaware corporation with its principal place of business at 583 Shotwell Street, San Francisco, CA 94110, USA ( OQO ), and, a corporation with its principal place of business at ( Reseller ). RECITALS A. OQO sells ultra mobile personal computer products. B. Reseller is a provider of integration services and reseller of hardware and software products. C. OQO and Reseller desire that OQO appoint Reseller as a non-exclusive reseller of OQO s products, subject to and in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. APPOINTMENT. 1.1 Appointment. Subject to Reseller s compliance with the terms and conditions of this Agreement, OQO appoints Reseller, and Reseller accepts such appointment, as an independent, non-exclusive reseller of OQO products ( OQO Products ) in the United States. Reseller shall not knowingly or unknowingly sell OQO Products (a) for further resale, (b) to any party located outside of the United States, or (c) via any internet-based order, purchase or payment mechanism. Any violation of these restrictions will be considered a material breach of this Agreement by Reseller. 1.2 OQO s Reserved Rights. OQO reserves the right, from time to time, and without notice, obligation or liability to Reseller of any kind, to: (i) change, eliminate or replace any of the OQO Products; and (iii) change or terminate the level or type of service or support that OQO makes available for the OQO Products. 1.3 Software Distribution. To the extent that the OQO Products contain or consist of software or firmware ( Software ), Reseller only has the right to distribute such Software to its customers for use in conjunction with the OQO Products with which such Software is delivered. For purposes of clarity, it is acknowledged that any reference in this Agreement to a purchase or sale of the OQO Products (or any other similar reference) is not intended to refer to and shall not be deemed to apply to any Software distributed with the OQO Products. Reseller will not use, distribute or otherwise dispose of Software, except as expressly permitted under this Agreement. 1.4 Trademark License. Subject to Reseller s compliance with the terms and conditions of this Agreement, OQO grants to Reseller a non-exclusive, non-transferable license to use OQO s trade names, trademarks, logos and designations ( OQO Marks ), during the term of this Agreement, solely in connection with Reseller s marketing, promotion and distribution of the OQO Products. Any such use of a Mark by Reseller must correctly attribute ownership of such mark to OQO and must be in accordance with applicable law and such other trademark usage guidelines as OQO or Reseller s authorized OQO Distributor may from time to time provide to Reseller. Reseller will not remove or obscure any Marks on or in the OQO Products as delivered to Reseller, or attach any additional trademarks, logos or trade designations on or to the OQO Products. In its advertising, promotion and sale of the OQO

2 Products, Reseller will not refer to any OQO Products by any additional or substitute product, brand or trade name. Reseller acknowledges and agrees that OQO owns the Marks and that any and all goodwill and other proprietary rights that are created by or that result from Reseller s use of a Mark hereunder inure solely to the benefit of OQO. Reseller will at no time contest or aid in contesting the validity or ownership of any Mark or take any action in derogation of OQO s rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any Mark. 2. RESELLER S OBLIGATIONS. 2.1 Promotion. Reseller will vigorously promote and advertise the OQO Products in accordance with OQO s policies, as announced from time to time. Reseller grants OQO the right to list Reseller s company name on the OQO website and in marketing collateral. 2.2 Reseller Personnel. Reseller will maintain sufficient technical and sales personnel having the knowledge and skills necessary to: (i) inform customers about the features and capabilities of the OQO Products and, to the extent necessary, competitive products; (ii) service and support the OQO Products in accordance with Reseller s obligations under this Agreement; and (iii) otherwise perform its obligations under this Agreement. Reseller will, at its expense, comply with OQO s minimum training requirements for resellers of the OQO Products. 2.3 Reseller Promotional Activities. Reseller will immediately cease use, publication or distribution of any of Reseller s promotional or advertising materials (including any webpage or portion thereof on any website affiliated with Reseller or any localized promotional or advertising materials) relating to the OQO Products, upon notice from OQO that such materials are not acceptable to OQO for any reason. Reseller may request pre-approval from OQO of any Reseller promotional or advertising materials, however OQO cannot promise a response to such request and any failure of OQO to respond to such request shall not constitute OQO s approval of such materials. 2.4 Support. Reseller will provide prompt and comprehensive pre-sales and post-sales support services for the OQO Products to Reseller s customers, in accordance with OQO s written OQO Product warranty and written support guidelines published by OQO from time to time. Reseller must maintain adequate locations and staffing to make such services available in person to Reseller s customers. In addition to such in-person services, Reseller may also provide such services by telephone and over the internet. 2.5 Packaging. Reseller will distribute the OQO Products unmodified and with all OQO Marks, packaging and license agreements, limited warranty statements and proprietary rights statements intact as received from OQO. 2.6 Business Conduct. Reseller will: (i) conduct business in a manner that reflects favorably at all times on the OQO Products and the good name, goodwill and reputation of OQO; (ii) make no false or misleading representations or advertisements with regard to OQO or the OQO Products; and (iii) make no representations, warranties or guarantees to customers or others with respect to the specifications, features or capabilities of the OQO Products that are inconsistent with the literature distributed by OQO. 2.7 Notification. Reseller will promptly notify OQO of (a) any claim or proceeding involving the OQO Products, (b) any claimed or suspected OQO Product defects, (c) any material increase in the rate of customer complaints regarding and/or returns of OQO Products. 4. ORDERING. 4.1 Ordering and Delivery of OQO Products. Unless otherwise agreed in writing by OQO and Reseller, Reseller shall order and acquire all OQO Products resold under this Agreement from an authorized OQO Product distributor. 2

3 4.2 No Returns. Reseller may not return OQO Product units to OQO except for warranty repair or replacement under OQO s standard warranty terms as listed at following issuance by OQO of a return authorization. 5. TERM AND TERMINATION. 5.1 Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in effect for a term of one (1) year thereafter. At the end of such one (1) year term, this Agreement will automatically renew for additional one (1) year periods, unless either party notifies the other party in writing of its intention to not renew the Agreement, given at least thirty (30) days prior to the applicable renewal date. 5.2 Termination For Cause. Either party may terminate this Agreement, at any time, if the other party breaches any material term of this Agreement and fails to cure that breach within thirty (30) days after notice thereof from the non-breaching party. OQO may also terminate this Agreement, at any time upon written notice to Reseller, if: (i) Reseller becomes the subject of a voluntary or involuntary petition in bankruptcy or proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) Reseller is merged or consolidated, sells all or substantially all of its assets, or is subject to any substantial change in management or control. 5.3 Termination for Convenience. Either party may terminate this Agreement at any time, and for any reason whatsoever, effective upon thirty (30) days written notice to the other party. 5.4 Effect of Termination. Upon the termination or expiration of this Agreement: (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, and will provide the other party with a certification, signed by one of its officers, certifying the return of all such Confidential Information; and (ii) Reseller will cease using the Marks and promoting and advertising the OQO Products. 5.5 No Expectation of Damages. RESELLER WAIVES ANY RIGHTS IT MAY HAVE TO RECEIVE ANY COMPENSATION OR INDEMNITY UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. Reseller acknowledges that it has no expectation and has received no assurances that any investment by Reseller in the promotion of the OQO Products will be recovered or recouped or that Reseller will obtain any anticipated amount of profits by virtue of this Agreement. 5.6 Survival. The rights and obligations of the parties under Sections 2.6, 5.4, 5.5, 5.6, 6, 7, 8, 9 and 10 will survive the termination or expiration of this Agreement. Furthermore, the obligations of Reseller set forth in Section 2.4 will survive the termination or expiration of this Agreement for the duration of the term of any support agreement that Reseller has in place with a customer; provided, that OQO will have the right, in its sole discretion, to assume such support obligations or to cause Reseller to assign such support obligations to a third party designated by OQO. 6. CONFIDENTIALITY. 6.1 Definition. Confidential Information means: (i) any non-public information of OQO, including, without limitation, any information relating to OQO s current and planned products and services, technology, techniques, knowhow, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists, business forecasts and marketing plans; and (ii) any other information of OQO that is disclosed in writing and is conspicuously designated as Confidential at the time of disclosure or that is disclosed orally, is identified as Confidential at the time of disclosure, and is summarized in a writing sent by OQO to Reseller within thirty (30) days of any such disclosure. 3

4 6.2 Exclusions. The obligations in Section 6.3 will not apply to the extent any information: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by Reseller; (ii) was rightfully in Reseller s possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by Reseller without use of OQO s Confidential Information; or (iv) is rightfully obtained by Reseller from a third party without restriction on use or disclosure. 6.3 Obligations. Reseller will not use OQO s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Reseller will use all reasonable efforts to maintain the confidentiality of all of OQO s Confidential Information in its possession or control, but in no event less than the efforts that Reseller ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict Reseller from disclosing OQO s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Reseller gives reasonable notice to OQO to enable it to contest such order or requirement; (ii) on a confidential basis to Reseller s legal or professional financial advisors; or (iii) as required under applicable securities regulations. 7. WARRANTY. OQO MAKES NO WARRANTIES OR REPRESENTATIONS TO RESELLER OR TO ANY OTHER PARTY REGARDING ANY OQO PRODUCTS OR SERVICES PROVIDED BY OOQ, EXCEPT AS SET FORTH IN OQO S LIMITED WARRANTY TO BE FOUND AT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OQO DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. RESELLER WILL NOT MAKE ANY WARRANTIES OR REPRESENTATIONS IN OQO S NAME OR ON OQO S BEHALF. 8. INDEMNIFICATION. Reseller will defend or settle, indemnify and hold OQO harmless from any liability, damages and expenses (including court costs and reasonable attorneys' fees) arising out of or resulting from any third-party claim based on or otherwise attributable to: (i) Reseller s gross negligence or intentional misconduct; (ii) any misrepresentations made by Reseller with respect to OQO or the OQO Products; or (iii) any breach by Reseller of its obligations pursuant to Section LIMITATION OF LIABILITY. IN NO EVENT WILL OQO BE LIABLE TO RESELLER FOR ANY DIRECT DAMAGES OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE, LOST BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL), OR FOR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF ANY OQO PRODUCTS OR SERVICES PROVIDED BY OQO, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR 4

5 DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 10. GENERAL Assignment. Reseller may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without OQO s express prior consent. Any attempt to assign or transfer this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the City and County of San Francisco, California, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein Compliance with Law. Reseller will have and maintain all permits and licenses required by any governmental unit or agency and will comply with all applicable laws and regulations, including United States export laws, in performing its obligations under this Agreement and with respect to the OQO Products. Reseller will be responsible, at Reseller s expense, for obtaining or making all approvals, certifications, authorizations, registrations, notifications and/or recordations of the OQO Products, this Agreement, or any transaction or act contemplated herein required by any government agency in any jurisdiction in which Reseller distributes the OQO Products Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise Notices. All notices, approvals, consents and other communications required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, postage prepaid, and, in each instance, will be deemed given upon receipt. All such notices, approvals, consents and other communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God Relationship of the Parties. The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party will have the power to bind the other party or to incur any obligations on its behalf, without the other party s prior consent Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. 5

6 10.10 Equitable Relief. Reseller acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information of OQO will cause OQO irreparable injury and significant injury for which there are inadequate remedies at law. Accordingly, OQO will be entitled to obtain immediate equitable relief to enjoin any such breach, in addition to all other rights and remedies that it may have under this Agreement, at law or otherwise Entire Agreement. This Agreement, including all exhibits hereto, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supercedes all prior or contemporaneous agreements or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of each party Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this OQO RESELLER AGREEMENT as of the Effective Date. RESELLER: By: Name: Title: Date: OQO: By: Name: Title: Date: SEND SIGNED AGREEMENT TO: OQO, INC. ATTENTION: ALICIA KING 583 SHOTWELL STREET San Francisco, CA

7