{"id":42601,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/non-exclusive-distribution-agreement-dsp-telecommunications.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"non-exclusive-distribution-agreement-dsp-telecommunications","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/non-exclusive-distribution-agreement-dsp-telecommunications.html","title":{"rendered":"Non-Exclusive Distribution Agreement &#8211; DSP Telecommunications Ltd. and Tomen Electronics Corp."},"content":{"rendered":"<pre>                        NON-EXCLUSIVE DISTRIBUTION AGREEMENT\n\n                                       BETWEEN\n                             DSP TELECOMMUNICATIONS LTD.\n\n                              HAVING A PRINCIPAL OFFICE\n                                 11 BEN GURION STREET\n                              GIVAT SHMUEL 51901 ISRAEL\n                             (HEREINAFTER CALLED \"DSPT\")\n\n                                         AND\n                               TOMEN ELECTRONICS CORP.\n                                 A JAPAN CORPORATION\n                       CORPORATION, GENERAL\/LIMITED PARTNERSHIP\n                                (SOLE PROPRIETORSHIP)\n                                WHOSE PRINCIPAL OFFICE\n                                    IS LOCATED AT \n                                2-1-1, UCHISAIWAICHO,\n                               CHIYODA-KU, TOKYO, JAPAN\n                          (HEREINAFTER CALLED \"DISTRIBUTOR\")\n\n\n\n\nTHIS AGREEMENT is made and entered into as of 1st day of January, 1994 between\nDSP TELECOMMUNICATIONS LTD. with place of business at 11 Ben Gurion Street,\nGivat Shmuel 51901, Israel and TOMEN ELECTRONICS CORP.  (Distributor) with place\nof business at 2-1-1, Uchisaiwaicho, Chiyoda-Ku, Tokyo, Japan, which\ncollectively are referred to hereinafter as \"the parties\".\n\nNOW THEREFORE, the parties hereto as follows:\n\n1.   DISTRIBUTOR SALES\n\nDistributor shall have the non-exclusive right to purchase Product (as\nhereinafter defined) from DSPT for resale through its distribution network in\nthe country of JAPAN.  Sales of such Product in the country of JAPAN to other\nthan Distributor directly by DSPT's representatives, agents, or other authorized\ndistributors shall not be of this Agreement.\n\n2.   PERFORMANCE\n\n(a)  Performance under this Agreement shall be in accordance with the terms and\nconditions set forth herein and in Exhibit A (DSPT's current published\nDistributor Price List), Exhibit B (DSPT's Terms of Sale) and Exhibit C\n(Definitions).\n\nExhibits are hereby incorporated fully into and made a part of this Agreement. \nIn the event that any part of any Exhibit has been modified by, or are in\nconflict with the body of this Agreement, the language of the Agreement body\nshall prevail.\n\n(b)  The relationship of DSPT and Distributor established by this Agreement is\nthat of independent contractors, and nothing contained in this Agreement shall\nbe construed to (i) give either party the power to direct and control the\nday-to-day activities of the other (ii) constitute the parties as partners,\njoint ventures, co-owners or otherwise as participants in a joint or common\nundertaking, or (iii) allow Distributor to create or assume any obligation on\nbehalf of DSPT for any purpose whatsoever.  All financial obligations associated\nwith Distributor's business are the sole responsibility of Distributor.  All\nsales and other agreements between Distributor and its customers are\nDistributor's exclusive responsibility and shall have no effect on Distributor's\nobligation under this Agreement.  DSPT shall not create or assume any \nobligation on behalf of Distributor for any purpose whatsoever.\n\n3.   TERM OF AGREEMENT\n\nThe term of this Agreement shall be twelve (12) months, commencing as of the\ndate first written above, subject  to  the terms and conditions  of  Article 14 \nherein  entitled  Termination.  In  the absence  of  any  such  termination, \nthis  Agreement  shall\n\n\n\n\ncontinue from year, automatically renewing upon each anniversary date, subject\nto the same terms and conditions contained herein.\n\n4.   PRODUCT\n\n(a)  Product covered by this Agreement is defined as the terms listed in DSPT's\nDistributor Price List attached as Exhibit A, as modified from time to time by\nDSPT upon written notice to Distributor.\n\n(b)  Additional Product may be added to this Agreement through mutual agreement\non the conditions applicable to each Product by both parties.\n\n(c)  In the event that DSPT shall agree to supply Distributor with any Product\nnot listed in, or under conditions not covered in, DSPT's Distributor Price List\nattached as Exhibit A under this Agreement, where such Product is concerned\ncertain provisions of this agreement may not apply, if both parties so agree in\nwriting.  the provisions which may not apply include price of such Product must\nbe determined prior to acceptance by DSPT of Distributor's purchase order for\nsuch Product.\n\n5.   PRICING\n\n(a)  DSPT shall sell to Distributor, and Distributor shall buy from DSPT Product\nat the prices shown in Exhibit A hereto, with payment therefore to be made in\nU.S. dollars.  Should this Agreement be terminated by either party, for any\nreason, prior to payment of amounts due hereunder or pursuant hereto, such\namount shall be paid as and when due on accordance with the terms hereof.  DSPT\nwill provide Distributor with \"suggested OEM resale pricing\" for the Product as\nguidelines only.  Distributor shall have the unilateral right to establish the\nprices at which it will sell Product to its customers.\n\n(b)  The pricing shown in Exhibit A does not include any federal, state or local\ntaxes that may be applicable to the Product, and is subject to change at any\ntime by DSPT.  DSPT shall provide Distributor with notice of any such change,\nand the effective date thereof, by furnishing written notice to Distributor\nthirty (30) days prior to such effective date.\n\n(c)  In the event DSPT decreases the published Distributor price in any \nproduct shown in Exhibit A, DSPT will furnish Distributor with a listing of \nitems affected, showing the old price and the new price.  Distributor may \napply for a credit equal to the difference between the price paid by the \nDistributor, less any prior credits granted by DSPT and the new decreased \nprice for the product, multiplied by the quantity of such Product in \nDistributor's inventory on the effective date of the price reduction.\n\nIssuance of such credit by DSPT may be contingent upon DSP's verification of\nDistributor's inventory report.  All such credits\n\n\n\n\nwill forthwith be applied to Distributor's account for subsequent purchase of\nProduct.  All products shipped after the effective date of a price decrease will\nbe invoiced at the new\/lower price.\n\n(d)  In the event DSPT increases the published price on any Product shown in\nExhibit A, such Product shipped on or after the effective date of such price\nincrease shall be invoiced at the price in effect at the time Distributor's\npurchase order is accepted by DSPT.\n\n(e)  The price for each item on every purchase order issued by Distributor shall\nbe based on the quantity ordered at the time of purchase order placement and on\nDSPT's published price list in Exhibit A, as amended from time to time by DSPT.\n\n(f)  In the event that a price reduction is authorized prior to the completion\nof an order, or a special situation occurs, where prior approval for a price\nreduction is authorized, a special equivalent to the amount requested times the\nappropriate quantity will be credited in the form of a shipment of no-charge\nProduct at the end of each month in which the appropriate invoice is paid by\nDistributor.\n\n6.   DELIVERY, TITLE AND RISK\n\n(a)  Shipment of all Product shall be F.O.B. DSPT's point of shipment, freight\ncollect.  Title to; and risk of loss or damage to, product shall pass to\nDistributor, upon delivery to carrier at the shipping point.  In the event of\ncarrier's miss-delivery, DSPT shall aid the Distributor in dealing with the\ncarrier in tracing the shipment and obtaining delivery.  Shipment made more than\nfive (5) days ahead of schedule of shipments made against canceled orders are\nmade at DSPT's risk and Distributor is not responsible or liable for the\nProduct, but Distributor will aid DSPT in tracing the shipment and obtaining\ndelivery.\n\n(b)  DSPT shall not be liable for delays in delivery or failure to manufacture\ndue to causes beyond its reasonable control, such as but not limited to: acts of\nGod, acts or omissions of Distributor, priorities, fire, strikes, floods,\nepidemics, quarantine restrictions, riots, war and delays in transportation.  In\nthe event of any such delay, the date of delivery shall be extended for a period\nequal to the time lost by reason of the delay.\n\n7.   EXPORT CONTROL\n\n(a)  Distributor agrees and warrants to DSPT that unless prior authorization is\nobtained from the United States Department of Commerce, neither Distributor nor\nits subsidiaries shall knowingly:\n\n     (1)  export or re-export, directly or indirectly, any technical data (as \n          defined in Part 779 of the U.S. \n\n\n\n\n          Export Administration Regulations), including software, received from \n          DSPT, or\n\n     (2)  disclose such technical data or,\n\n     (3)  export re-export, directly or indirectly, any direct product of such\n          technical data,\n\nto any destination or country to which the export or release of such technical\ndata or products is restricted or prohibited by U.S. law.  Such countries or\ndestinations presently include:\n\n     Afghanistan, Albania, Bulgaria, Cambodia, Cuba, Czechoslovakia,\n     Estonia, the German Democratic Republic (including East Berlin),\n     Hungary, Laos, Latvia, Libya, Lithuania, Mongolian People's Republic,\n     Nicaragua, North Korea, Peoples Republic of China, Poland, Romania,\n     The Union of Soviet Socialist Republics and Vietnam and military\n     police or apartheid-enforcing entities in Namibia and South Africa.\n\n(b)  The foregoing assurance is furnished by Distributor to satisfy the general\nlicense GTDR written assurance requirements under Part 779 of the U.S. Export\nAdministration Regulations.\n\n(c)  Distributor further agrees to obtain any necessary export license or other\ndocumentations prior to export or re-export of any Product or technical data,\nincluding software, acquired from DSPT or any product of such technical data. \nAccordingly, otherwise dispose of any such Product or technical data directly or\nindirectly to any person, firm or entity, or country or countries, prohibited by\nU.S., Japan or applicable other country law.\n\n(d)  Further, Distributor shall give notice to the need to comply with such law\nto any person, firm entity which it has reason to \n\nbelieve is obtaining any such technical data or Product from DSPT with intention\nor exportation.\n\n(e)  Each party shall secure, at its sole expense, such licenses and export and\nimport documents as are necessary for it to fulfill its obligations under this\nAgreement.\n\n(f)  This Article shall survive the cancellation or termination of this\nAgreement.\n\n(g)  Seller shall attempt to give prior written notice of any contingent tax\nwhich might be imposed by the U.S. Government, including any federal, state, or\nlocal taxes.\n\n8.   ORDERING\n\n(a)  All purchases of Products pursuant to this Agreement shall be effected by\nthe issuance of Purchase Orders by Distributor to the terms and conditions of\nthis Agreement.  Such Purchase Orders\n\n\n\n\n                                                           CONFIDENTIAL\n                                                       TREATMENT REQUESTED\n\nshall state unit quantities, unit descriptions, applicable prices, requested\ndelivery dates, F.O.B. point of shipment, payment terms and shipping\ninstructions.  Distributor shall endeavor to provide firm quantity and shipment\nreleases consistent with DSPT's lead time for subject Products.\n\n(b)  All Purchase Orders Issued by Distributor are subject to acceptance by DSPT\nat DSPT's home office in the U.S.A.\n\n9.   RESCHEDULING\/CANCELLATION\n\n(a)  For the purposes of this Article the following definitions shall apply:\n\n     (i)  \"Standard Product\" is defined as any Product which can be sold to any\n          customer free of proprietary restrictions; and\n\n     (ii) \"Custom Product\" is defined as any Product which has been developed\n          for a specific customer and which is not free of proprietary\n          restrictions regarding its use or sale.\n\n(b)  Distributor may reschedule certain deliveries on existing orders for\nStandard Product upon written notice to DSPT according to the following\nschedule:\n\nNumber of Days in Advance of\nDSPT's committed Delivery Date               Permitted Rescheduling\n\n     [**** ** ***** ****]                     [**** *******]\n\n     [********* **** ** *** *******]         [* *** **** **********]\n     [*** ****** *****]                      [** *** **** **** *****]\n                                             [**** **** ** * *** **]\n                                             [***** ******* ***** **]\n                                             [***  *****************]\n                                             [******]\n     [*** ******* *** ********** *****]      [*** ************]\n                                             [*********]\n(c)  Distributor may reschedule certain deliveries on existing orders for Custom\nProduct upon written notice to DSPT according to the following schedule:\n\n Number of Days in Advance of\n DSPT's Committed Delivery Date    Permitted Rescheduling\n ------------------------------    ----------------------\n\n[**** ** ***** ****]               [**** *******]\n[********* **** ** *** *******]    [* *** **** **********]\n[*** ****** ****]                  [** *** **** **** ******]\n                                   [**** **** ** * *** **]\n                                   [***** ******* ***** **]\n                                   [*** ********* ********]\n                                   [******]\n\n\n\n\n                                                           CONFIDENTIAL\n                                                       TREATMENT REQUESTED\n\n[*** ******* *** ********** ****]  [*** ************]\n                                   [*********]                                  \n(d)  Distributor may cancel deliveries on existing orders for Standard or Custom\nProduct upon written notice to DSPT.  In such event, Distributor shall pay a\ncancellation charge according to the following schedule.\n\n                              Cancellation Charge as of % of\n                              Cancelled order Value\n\nNumber of Days in Advance of\nDSPT'S Committed Delivery Date     Standard Product Custom Prodcut\n- ------------------------------     -------------------------------\n\n[**** ** ***** ****]               [****]    [****]\n\n[********* **** ** *** *******]    [***]     [****]\n[*** ****** *****]\n\n[*** ******* *** ********** ****]  [**]      [******]\n                                   [****** *****]\n\n(e)  Notwithstanding the cancellation charges in paragraph (d) above,\nDistributor may, within [**** *** ******** ****] from the placement of any order\nwith DSPT, cancel that order without penalty as long as DSPT has not shipped the\norder.\n\n10.  REPORTS\n\nDistributor shall send to DSPT within twenty (20) working days after the end of\neach month, a written report containing the following information by location:\n\n(a)  A detailed inventory of all Products, at the end of said month, with\nquantities and prices paid.\n\n(b)  A detailed Point of Sale (P.O.C.) activity report including the names of\ncustomers with programs, Products, quantities purchased, and the dollar amounts\ninvoiced to said customers.\n\n(c)  Sales projections and bookings targets for the next six (6) months.\n\n(d)  \"Design-in\" status activity with Distributor's assigned accounts.\n\n11.  ADVERTISING AND PROMOTION\n\n(a)  DSPT agrees to supply Distributor with its usual sales promotion and\nadvertising materia, in quantities to be mutually agreed upon, without cost to \nDistributor  and  to  support  the efforts of Distributor with DSPT's usual\nadvertising and other sales promotion efforts.  All such material shall be\nreturned to\n\n\n\n\n                                                           CONFIDENTIAL\n                                                       TREATMENT REQUESTED\n\nDSPT in good condition, except for reasonable wear, immediately upon demand by\nDSPT.\n                                                                                \n(b)  Distributor agrees to promote the sale of DSPT's Product, at its own\nexpense, through various media advertising and other sales promotional efforts. \nSpecial advertising pr promotion programs may be agreed upon from time to time\nin which the parties will agree to some sharing of the costs.\n\n(c)  A coop advertising program will be defined with a budget established which\nis equivalent to .2% of annual sales.\n\n12.  WARRANTY\n\n(a)  DSPT agrees to extend the [*** ****] limited warranty to Distributor as\nstated in Exhibit B to a period of [******** **** ******] from date of shipment\nby DSPT to Distributor, or [*** *** ****] from date of shipment from Distributor\nto Distributor's customer, whichever comes first.\n\n(b)  THE WARRANTY IN EXHIBIT B AS EXTENDED ABOVE IS EXPRESSED IN LIEU OF ALL\nOTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED\nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND IN LIEU\nOF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OD DSPT.\n\n(c)  DSPT's LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO A REFUND OF THE\nDISTRIBUTOR'S PURCHASE PRICE.  IN NO EVENT SHALL DSPT BE LIABLE FOR THE COST OF\nPROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL\nDAMAGES FOR BREACH OR WARRANTY.\n\n13.  RETURNS AND REPURCHASES\n\n(a)  Within thirty (30) days after the initial twelve (12) month period of this\nAgreement, and within thiety (30) days following each successive twelve (12)\nmonth period thereafter, Distributor may return any slow or non-moving Product\nin a new and  unused condition for credit to be applied against future\npurchases, at the net price paid less any prior credits granted by DSPT to the\nDistributor for such returned Product.  For the purposes of this paragraph,\n\"slow or non-moving Product\" shall mean those Products for which Distributor's\ninventory turns (period unit sales divided by ending unit inventory) for the\nprevious twelve (12) month period are less than six (6).\n\n(b)  Products inventoried as new Products introduced by DSPT for original\nstocking orders of recommended stocking programs may by returned for credit to\nby applied against future purchases by the Distributor at the ecperation of the\ninitial twelve (12) month period of stocking.  These returns will not be subject\nto any offsetting order requirements.\n\n\n\n\n14.  TERMINATION\n\n(a)  Either party may at any time terminate this Agreement with or without cause\nupon ninety (90) days written notice after having a review meeting with the\nother party to discuss the termination.  It is expressly understood and agreed\nthat the rights of termination set forth above are absolute and that both\nparties hereto have considered the making of expenditures in  preparing for\nperformance under this Agreement and possible losses incident and resulting to\nthem in the event of its termination.  Therefore, in agreeing to said terms of\ntermination, it is with full knowledge of such possibilities and either party\nhereto shall not be responsible to the other for damage, or otherwise, by reason\nof the fact of termination of the Agreement.\n\n(b)  Distributor warrants that all identifying signs, literature, logos and\nother evidence provided by DSPT upon termination of this Agreement.  Distributor\nwill cease production of any such materials upon termination, and shall cease\nadvertising that there is any business relationship between the parties.\n\n(c)  Should this Agreement be terminated by either party prior to payment of\namounts due hereunder or pursuant hereto, such amount shall be paid as and when\ndue in accordance with the terms hereof.\n\n(d)  In event of termination of this Agreement without cause, all orders\nreceived and accepted by DSPT as of the date of such termination notice shall be\nunaffected by such notice.  DSPT will accept orders from Distributor os\ncontractually obligated to furnish its customers and does not have in its\ninventory provided Distributor notifies DSPT of any and all such transactions in\nwriting within (30) days of the termination date.\n\n(e)  If this Agreement is terminated by DSPT without cause, by Distributor with\ncause, or by Distributor for any reason during the first twelve (12) months term\nof this Agreement, DSPT shall repurchase at Distributor's option, any of all\nProducts remaining in Distributor's inventory, provided that Distributor\nrequests such repurchases in writing within thirty (30) days of such\ntermination, subject to the following:\n\n     (1)  If price to be paid for the repurchase of said inventory shall be the\n          net amount of Distributor cost at the time of purchase less any\n          subsequent price credits issues by DSPT.\n\n     (2)  All Products must be new, unused, undamaged, and in good merchantable\n          condition after inspection and testing by DSPT will supply proper\n          packaging material.\n\n     (3)  All Products will be shipped F.O.B. Distributor's designated facility,\n          freight collect.\n\n(f)  If this Agreement is terminated by DSPT with cause, by Distributor without\ncause, following the first twelve (12) months term of this Agreement, DSPT shall\nrepurchase at DSPT's option,\n\n\n\n\n                                                 CONFIDENTIAL TREATMENT    \n                                                       REQUESTED\n\nall unsold Products remaining in Distributor's inventory subject to the\nfollowing:\n\n     (1)  The price to be paid for the repurchase of said inventory shall be the\n          net amount of Distributor's cost at time of purchase less any\n          subsequent price credits issued.\n\n     (2)  All Product must be new, unused, undamaged, and in good merchantable\n          condition after inspection and testing by DSPT.\n\n     (3)  All Product will be shipped F.O.B. Distributor's designated facility,\n          freight collect.\n\n15.  ACCOUNTING\n\n(a)  Terms of Payment:\n          [****] discount for [***** *** ****] payment, net \n     [****** **** ****]\n(b)  Billbacks (Rebills)\n\nDSPT and Distributor shall be jointly responsible for reconciling their accounts\nin a timely manner, Distributor adjustments, debit memos, and Billbacks must be\nforwarded to DSPT within [***** **** ****] of the transaction date.  DSPT must\nreply to any such adjustment, debit memo, and billback-in writing within [*****\n**** ****] of the date of notification.  Any other entries will be considered\nvalid and closed to further negotiations.  The only exception to this policy\nwill be for formal DSPT audit findings.\n\n(c)  DSPT Audits\n\nDSPT may request audits of physical inventory and books of record pertaining to\nDSPT Product of annual basis.  No audit shall be retroactive more than fifteen\n(15) months.  Audit findings will be submitted to the Distributor in writing\nwithin ninety (90) days from the day the audit stated.  Therefore, when the\naudit findings are received by the Distributor, no item will be more than\neighteen (18) months old.\n\n16.  GENERAL\n\n(a)  This Agreement, including any Exhibits hereto attached or incorporated \nby reference, constitutes the sole and entire Agreement between DSPT and \nDistributor concerning the subject matter hereof, supersedes all prior \ncommunications or agreements written of oral, and is intended as a complete \nand exclusive statement of the terms of the Agreement between the parties.  \nExcept as explicitly permitted herein, this Agreement may be modified only in \nwriting, signed by authorized representatives of both parties.\n\n\n\n\n(b)  Both parties represent and warrant to each other that each has the right\nand power to enter into this Agreement, and that there are no outstanding\nassignments, grants, licenses, encumbrances, obligations or agreements, either\nwritten, oral or implied, inconsistent with this Agreement.\n\n(c)  The transfer, delegation or assignment by either party of this Agreement,\nor any of its duties, obligations, or rights hereunder, without the prior\nwritten consent of the other party shall be void.\n\n(d)  IN NO EVENT SHALL DSPT BE LIABLE TO DISTRIBUTOR OR ANY OTHER ENTITY FOR ANY\nSPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER CAUSED, INCIDENTAL,\nCONSEQUENTIAL OR OTHER DAMAGES HOWEVER CAUSED, WHETHER OR NOT DSPT HAS BEEN\nADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  THE ESSENTIAL PURPOSE OF THIS\nPROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF DSPT ARISING OUT TO THIS\nAGREEMENT AND\/OR SALE OF PRODUCTS HEREUNDER.\n\n(e)  DSPT shall not be liable or delays in delivery or failure to manufacture\ndue to causes beyond its reasonable control, such as but not limited to\ninability to obtain necessary labor, materials, or manufacturing facilities.\n\n(f)  Distributor agrees that DSPT owns all right, title, and interest in the\nproduct lines that include the Product now or hereafter subject to this\nAgreement, and in all of DSPT patents, trade marks, trade names, inventions,\ncopyrights, know-how and trade secrets relating to the design, manufacture, or\noperation of the Products.  The use by Distributor of any of these property\nrights is authorized only for the purposes herein set forth, and upon\ntermination of this Agreement for any reason such authorization shall cease.\n\n(g)  Distributor acknowledges that by reason of its relationship to DSPT \nhereunder, it may have access to certain information and materials concerning \nDSPT business, plans, customers, technology, and products that are \nconfidential and of substantial value to DSPT, which value would be impaired \nif such information were disclosed to third parties.  Distributor agrees that \nit will not use in any way for its own account or the account of any third \nparty, nor disclose to any third party, any such confidential information \nrevealed to it by DSPT.  Only items marked confidential by DSPT shall not \npublish any technical description of the Products beyond the description \npublished by DSPT.  In the even of termination of Agreement, there shall be \nno use or disclosure by Distributor of any confidential information of DSPT.  \nDistributor shall not manufacture or have manufactured any devices, \ncomponents or assemblers utilizing any of DSPT's confidential information.\n\n(h)  All notices required to be given hereunder shall be given in writing by\npersonal delivery or by a certified letter to the respective address as may be\ndesignated in writing by either party and delivered to the other party.  Notice\ngiven by certified mail shall be deemed given five (5) days after mailing date\nto the current address of the party.  The current addresses of the parties are\nas follows:\n\n\n\n\n          DSPT:          DSP TELECOMMUNICATION LTD.\n                              11 Ben Gurion Street\n                              Givat Shmuel 51901\n                              ISRAEL\n\n          Distributor:        TOMEN ELECTRONICS CORP.\n                              2-1-1, Uchisaiwaicho\n                              Chiyoda-ku, Tokyo, Japan\n\n(i)  This Agreement and all acts and transactions pursuant hereto and the rights\nand obligations of the parties hereto shall be governed, construed, and\ninterpreted in accordance with the laws of the State of California, U.S.A.\n\n(j)  Any dispute between the parties arising out of this Agreement shall be\nsubmitted to final and binding arbitration of San Jose, California, under the\nthen current Arbitration Rules and supervision of the American Arbitration\nAssociation, upon written notification and demand by either party hereto.  The\nAmerican Arbitration Association shall be requested to submit a list of\nprospective arbitrators expericnced in commercial contracts involving the\nsemiconductor industry, and the parties shall select a single arbitrator from\nsuch list to conduct the arbitration.  The arbitrator may not award punitive or\nexemplary damages, and the decision and award of the arbitrator shall be final\nand binding and may be entered and any court of competent jurisdiction.  The\nparties hereto agree to pay their own attorneys' fees associated with the\narbitration, and to pay the other costs and expenses of the arbitration as the\nrules of the American Arbitration Association provided.  The provisions of\nCalifornia Code of Civil Procedure Section 1283.05 permitting the taking of\ndepositions and obtaining discovery shall be applicable to any arbitration.\n\n(k)  The terms and conditions herein contained together with the Exhibits\nattached hereto and incorporated by reference constitute the entire and final\nAgreement between the parties with respect to the subject matter hereof,\nsupersede all previous communications, representations, understanding or\nagreements, either oral of written, between the parties with respect to such\nsubject matter, and shall take precedence over any additional or conflicting\nterms which may be contained in either party's Quotations, Purchase Orders,\nAcknowledgements or invoices.\n\n(l)  No agreement or understanding varying or extending any of the terms or\nprovisions hereof shall be binding on either party unless in writing and signed\nby duly authorized representative of both parties.\n\n\n\n\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed\nby their duly authorized representatives as of the date first written above.\n\n\nDSP TELECOMMUNICATION LTD.         (\"DISTRIBUTOR\")\n(DSPT)                             TOMEN ELECTRONICS CORP.\n\nBy: \\s\\ Gideon Barak               By:  \\s\\ J. Ishikawa         \n    -----------------------             ------------------------\n\nPrinted Name: Gideon Barak         Printed Name: J. Ishikawa    \n             --------------                      ---------------\n\nTitle: President                   Title: President             \n       --------------------               ----------------------\n\nDate: December 1, 1993             Date: February 15, 1994      \n      --------------------                ----------------------\n\n\n\n\n                                      EXHIBIT A\n\n                  DSP TELECOMMUNICATION LTD. DISTRIBUTOR PRICE LIST\n\n                                    TO BE PROVIDED\n\n\n\n\n\n                                                 CONFIDENTIAL TREATMENT    \n                                                       REQUESTED\n\n                                      EXHIBIT B\n\n                             DSP TELECOMMUNICATIONS INC.\n                                      (\"SELLER\")\n\n                             TERMS AND CONDITIONS OF SALE\n\n1.   GENERAL:  The terms and conditions of sale contained herein apply to all\nquotations mad and purchase orders entered into by the Seller.  The said terms\nand conditions may in some instances conflict with some of the terms and\nconditions affixed to the form order blank and\/or specified by the Buyer. \nTherefore, acceptance of the Buyer's order is made only on the express\nunderstanding and condition that insofar as the terms and conditions of this\nacceptance conflict with any terms and conditions of the Buyer's order, the\nterms and conditions of this acceptance shall govern, Irrespective of whether\nthe Buyer accepts these conditions by written acknowledgement, by implication,\nor acceptance and payment of goods ordered thereunder.  Seller's failure to\nobject to provisions contained in amy communication from Buyer shall not be\ndeemed a waiver of the provisions contained herein must specifically be agreed\nto in writing by the general manager of the Sellers before becoming binding on\neither the Seller or the Buyer.\n\nAll orders or contracts must be approved and accepted by the Seller at his home\noffice.\n\nThe said terms and conditions of sale shall be applicable whether or not they\nare attached to or enclosed with the products to be sold or sold hereunder.\n\n2.   PRICES:   Irrespective of any prices quoted by Seller or listed on Buyer's\norder, and order is accepted only at the prices shown on Seller's\nacknowledgement.\n\nPrices quoted for the items described on said acknowledgement are firm and not\nsubject to audit or price redetermination.  Prices are subject to revision only\nwhen interruptions, engineering changes or changes in the quality are caused or\nrequested by Buyer.\n\n3.   TAXES:    All prices are quoted, all orders accepted, and all billings\nrendered exclusive of all federal, state and local excise, sales, use and\nsimilar taxes.  Consequently, in addition to the prices specified herein, the\namount of any present or future excise, sales, use or similar tax applicable to\nthe sale of the product hereunder shall be paid by Buyer, or in lieu thereof \nBuyer.\nShall provide Seller with a tax exemption certificate, to the taxing\nauthorities.  such taxes, when receives a proper tax-exemption certificate from\nBuyer prior to shipment.\n\n4.   TERMS AND METHOD OF PAYMENT:  Where Seller has extended credit to Buyer,\nterms of payment shall be net [****** **** ****] from date of invoice.  No\ndiscounts are authorized.  The amount\n\n\n\n\nof credit may be changed or credit whitdrawn by Seller at any time.  On any\norder on which credit is not extend by Seller, With Order (in whole or part),\nC.O.D.' or Sight Draft attached to Bill of Lading or other shipping documents,\nwith all costs of collection for the account of Buyer.\n\nIf in the judgement of the Seller, the financial condition of the Buyer at any\ntime does not justify continuation of production or shipment on the terms of\npayment originally specified, the Seller may require full or partial payment in\nadvance and, in the event of the bankruptcy or insolvency of the Buyer or in the\nevent any proceeding is brought entitled to cancel any order then outstanding\nand shall receive reimbursement for its cancellation charges.\n\nEach shipment shall be considered a separate independent transaction, and\npayment therefore shall be made accordingly.  If shipments are delayed by the\nBuyer, payments shall become due on the date when the Seller is prepared to make\nshipment.  If the work covered by the purchase order is delayed by the Buyer. \nThe Seller reserves the right to shop to its order and make collection by sight\ndraft with bell of lading attached.\n\n5.   TITLE AND DELIVERY: All sales are made F.O.B. point of shipment.  Seller's\ntitle passes to Buyer and Seller's liability as to delivery ceases upon making\ndelivery of material purchased hereunder to carrier at shipping point in good\ncondition, the carrier acting as Buyer's agent.  All claims for damages must be\nfiled with the carrier.  All shipments will normally be made by Parcel Post,\nRailway Express, Air Express or Air Freight.  Unless specific instructions from\nBuyer specify which of the foregoing methods of shipment is to be used, the\nSeller will exercise his own discretion.\n\nShipping dates are approximate and are based upon receipt from Buyer of all\nnecessary information.\n\nSeller shall not be responsible for any failure to perform arising from causes\nbeyond its control.  These causes shall include but not be restricted to fire.\nstorm, flood, earthquake, explosion, accident, acts of the public enemy, war,\nrebellion, insurrection,  epidemic, quarantine restrictions, labor disputes,\nlabor shortages, transportation embargoes, or failure or delays in\ntransportation, inability to secure raw materials or machinery for the\nmanufacture of its devices, acts of God, acts of the Federal Government or any\nagency thereof, and judicial action.\n\nIn the event of any such delay the date of delivery shall, at the request of the\nSeller, be deferred for a period equal to the time lost by reason of the delay.\n\nIn the event of any delay by Buyer, Seller may decline to make further shipments\nwithout in any way affecting its rights under such order.  If despite any\ndefault by Buyer's Seller elects to continue to make shipments, its action shall\nnot constitute a waiver of any default by Buyer or in any way affect Seller's\nlegal remedies of any such default.  Right of possession of the\n\n\n\n\nproducts sold hereunder shall remain with Seller and such products shall remain\npersonal property until all pay payments hereunder (including deferred payments\nwhether evidence by notes or otherwise) shall have been made in full in each,\nand Buyer agrees to do all acts necessary to perfect and maintain such right and\ntitle in Seller.\n\n6.   ASSIGNMENTS:   The Buyer shall not assign his order or any interest therein\nor any rights thereunder without the prior written consent of Seller.\n\n7.   PATENTS:  Buyer shall indemnify, defend and hold Seller harmless against\nany expenses, damages or costs resulting from any suit or proceeding brought for\ninfringement of patents or trademarks or unfair competition arising from\ncompliance with Buyer's designs or specifications or instructions.\n\nWith respect to products manufactured solely to Seller's designs or\nspecifications, Seller shall defend any suit or proceeding brought against Buyer\nso far as based on a claim that any such products, or any parts thereof,\nfurnished hereunder constitutes an infringement of any patent of the United\nStates, if notified promptly of such claim in writing and given authority,\ninformation and assistance (at Seller's expenses) for the defense of same, and\nSeller shall pay all damages and costs awarded therein against Buyer.  In case\nsaid products or any parts thereof, are in such suit held to constitute\ninfringement and the use of said products or parts is enjoined, Seller shall, in\nits sole discretion, at its own expense, wither procure for the Buyer the right\nto continue using said products or parts or replace same with noninfringing\nproducts, or modify them so they become noninfringing, or remove said products\nand refund the purchase price and the transportation costs thereof.  The\nforegoing states the entire liability of the Seller of patent infringement by\nthe said products or any part thereof.\n\nSeller shall not be liable for any costs or damages incurred by Buyer as a\nresult of any suit or proceeding brought against the Buyer and Buyer will\nindemnify, defend and hold Seller harmless from any expenses, damages or costs\nresulting from any suit or proceeding brought against Seller, either severally,\nor jointly with Buyer, so far as such suit or processing brought against Seller,\nwither severally, or jointly with Buyer, so far as such suit or proceeding is\nbased on claims (a) that use of any product or any part thereof, furnished\nhereunder, in combination with products not supplied by Seller or (b) that a\nmanufacturing or other process utilizing any product, or any part thereof\nfurnished hereunder, constitute either direct or contributory infringement of\nany patent of the United States.\n\nSale of products or any parts thereof, hereunder confers on the Buyer no license\nunder any patent rights of Seller governing or relating to (a) the structure of\nany devices to which the products or parts may be applied, or (b) a process or\nmachine in connection with which they may be used.\n\n8. WARRANTIES AND ADJUSTMENTS:     (a)  Standard Products Warranty and\nAdjustments.    Standard products of Seller are warranted to\n\n\n\n\n                                                          CONFIDENTIAL TREATMENT\n                                                                 REQUESTED      \n\nbe free from defects in materials and workmanship and to meet the applicable\nspecifications when tested to published specifications for a period of [***\n****] from date of shipment.  THE FOREGOING IS IN LIEU OF ANY OTHER WARRANTY,\nEXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF\nMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH OTHER\nWARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.  The liability of Seller under this\nwarranty is limited solely in replacing, or repairing, or issuing credit (at the\ndiscretion of Seller) for such products that become defective or fail to meet\nthe specifications during the schedule period, or prior to the date Buyer uses\nor resells such products, whichever date sooner occurs, provided that, Seller\nwill not be liable under this warranty unless (i) Seller is promptly notified in\nwriting by Buyer upon discovery of defects or failure too meet specifications,\n(ii) the defective unit is received by seller for adjustment no  later than\n[**** *****] following the last day of the warranty periods, and (iv) Seller's\nexamination of such unit shall disclose, to its satisfaction, that such defects\nor failure have not been caused by misuse, neglect, improper installation,\nrepair, alteration or accident.  Any authorization for repairs or alteration\nmust be in writing or prevent voiding warranty.  IN NO EVENT SHALL SELLER BE\nLIABLE TO BUYER FOR LOSS OF PROFITS, LOSS OF USE OR DAMAGES OF ANY KIND BASED\nUPON A CLAIM FOR BREACH OF WARRANT.  This warranty excludes developmental\nproducts, which are covered by separate warranty.\n\n(b)  Developmental Products Warranty.  Developmental products of Seller are \nwarranted to be free from defects in materials and workmanship and to meet \nthe applicable preliminary specifications.  Upon receipt by Buyer.  THE \nFOREGOING IS IN LIEU OF ANY OTHER WARRANTY EXPRESS, IMPLIED OR STATUTORY, \nINCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A \nPARTICULAR PURPOSE ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY \nDISCLAIMED.\n\nThe liability of Seller under this warranty is limited solely to replacing, or\nissuing credit (which will be negotiated by both parties) for such products as\nare defective at the time they are received by Buyer, provided that Seller will\nbe liable under this warranty unless (i) Seller is promptly notified in writing\nupon discovery of defects by Buyer, (ii) the defective unit is returned to\nSeller for adjustment no later than [**** ***** **** *****] following the date\non which such products are first shipped by Seller, and (iv) Seller's\nexamination of such unit shall disclose, to its satisfaction, that such defects\nhave not been caused by misuse, neglect, improper installation, repair,\nalteration or accident.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR LOSS OF\nPROFITS, LOSS OF USE, OR DAMAGES OF ANY KIND BASED UPON A CLAIM FOR BREACH OF\nWARRANTY.\n\nTechnical Advice.  Seller's warranties as hereinabove set forth shall not be\nenlarged, diminished or affected by, and no obligation or liability shall arise\nor grow out of, Seller's rendering of technical advice or service in connection\nwith Buyer's order or the products furnished hereunder.\n\n\n\n\n9.   LIMITATION OF LIABILITY:  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY\nINDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS OR GOODWILL) OR\nSPECIAL DAMAGES RESULTING FROM ITS PERFORMANCE OR PERFORMANCE OR USE OF ANY\nGOODS OR SERVICES SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT,\nBREACH OF WARRANTY, OR SUCH PARTY'S NEGLIGENCE.\n\n\n\n\n\n                                      EXHIBIT C\n\n                                     DEFINITIONS\n\nA.   TERMINATION FOR CAUSE\n\nAny of the following events or occurrences are defined as a breach of the\nAgreement, giving the injured party the right to terminate the Agreement for\ncause, such termination exercisable by the injured party at its option.  The\nwaiver of any instance of breach under the Agreement shall not constitute\nwaiving of the right to terminate the Agreement for any subsequent or like\nbreach.\n\n(1)  Any proceeding in bankruptcy or insolvency filed by or against either\nparty, or appointment of a Receiver or Trustee for such party or of a\nsubstantial assignment for the benefit of the creditors of either party without\nthe prior written consent of the other party.\n\n(2)  Failure by either party to substantially perform any material covenant,\nobligation or warranty set forth in the Agreement; or violation by either party\nof any material covenant, obligation, agreement or warranty set forth in the\nAgreement.\n\n(3)  Any significant change in ownership of wither party that adversely affects\nthe relationship of the parties.\n\nB.   TERMINATION WITHOUT CAUSE\n\nTermination without cause is the termination of the Agreement, by either party,\nupon the unilateral action of the terminating party for its primary convenience\nand interest, for reasons other than those defined as breach.\n\nC.   DISCONTINUANCE\n\nProduct will be considered discontinued by manufacture if it is removed from\nDSP'T Distributor Price List upon advance written notice to Distributor.\n\nD.   TAXES\n\nWhen DSPT has the legal obligation to collect federal, state, or local taxes,\nthe appropriate amount shall be added to Distributor's invoice and paid by\nDistributor unless Distributor provides manufacturer with a valid tax exemption\ncertificate acceptable to the appropriate taxing authority.\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7361],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9613,9619],"class_list":["post-42601","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-dsp-group-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42601","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42601"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42601"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42601"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42601"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}