EX-10.9






Exhibit 10.9




DISTRIBUTION AGREEMENT




	 	 	 	 	 	 	 

	Effective Date:

	 	March 25, 2008
	 	Term:
	 	This Agreement
shall continue in
effect until
terminated by
Supplier or
Distributor.
	 
	 	 	 	 	 	 
	Supplier:

	 	RDA Technologies Limited.
	 	Distributor:
	 	Auctus Technologies
(H.K.) LTD
	 
	 	 	 	 	 	 
	Products:

	 	All Integrated Circuit Products	 	 	 	 






     As of the Effective Date of this Agreement, Supplier appoints Distributor and Distributor
agrees to perform as a non-exclusive, authorized distributor of all products offered by Supplier
for sale through distribution, including but not limited to those listed above, in accordance with
the terms and conditions set forth in the following attachments:




	 	•	 	Agreement Provisions
	 
	 	•	 	Territory Term Sheet(s)





	 	 	 	 	 	 	 	 	 	 	 

	Supplier:	 	 	 	Distributor: (company chop)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By: 

Name:

	 	/s/ Vincent Tai
 

Vincent Tai
	 	 	 	By:

Name:
	 	/s/ Dongzhi Cai
 

Dongzhi Cai
	 	 
	Title:

	 	CEO
	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





(Rev. WWD1.04)




 









 





AGREEMENT PROVISIONS



1. RESPONSIBILITIES OF DISTRIBUTOR Distributor will use its reasonable best efforts to
(i) promote the distribution of products, (ii) provide timely delivery of products to Distributor’s
customers, and (iii) participate in such training programs as may be offered by Supplier.



2. RESPONSIBILITIES OF SUPPLIER Supplier will (i) furnish Distributor with current price and
product information via email in mutually agreed upon format together with all available component
parametric information including, but not limited to, part description, active status, and all key
performance attributes, as may be necessary and in a manner that will allow Distributor to supply
such information to Distributor’s customers; and (ii) ensure that the products, as manufactured and
sold to Distributor, fully comply with all applicable laws, standards, codes and regulations.




3. REPORTS AND AUDITS




     a. Distributor Reports Distributor will send to Supplier, in a mutually agreeable format,
(i) a stock status report showing the month-end on-hand quantities of products by device type and
warehouse location no later than the 2nd working day after the end of each month and
(ii) a point of sale report showing product sales for the month by device type, customer, and sale
price, for the products and sales covered by the applicable Territory Term Sheet. No more than
twice during any year, upon reasonable prior notice, Supplier may (i) conduct a physical inventory
count of products in any stocking location (or, in automated facilities, observe cycle counts and
related methodology) or (ii) audit such business records, located at Distributor’s corporate
headquarters, as pertain solely to the purchase of products hereunder during any such year.



     b. Supplier Reports Upon request by the Distributors, within ten days after the request,
Supplier will send to Distributor, in a mutually agreeable format, a point of sale report showing
product sales for the month by device type and Distributor’s share of such sales in each market.
Within three business days after Distributor’s request, Supplier will send to Distributor, in a
mutually agreeable format, an open order status report listing all accepted orders that have not
yet been shipped, and indicating the part number, quantity, order date, purchase order number and
Acknowledged Shipment Date (as hereinafter defined) for each such order.



4. ORDERS; DELIVERY; RESCHEDULING; CANCELLATION




     a. Orders, Rescheduling and Cancellation Supplier will acknowledge each Distributor purchase
order, in writing, within five days of receipt thereof and will confirm the requested shipment date
or specify an alternative shipment date (“Acknowledged Shipment Date”). Distributor may, on at
least thirty (30) days prior written notice, reschedule the Acknowledged Shipment Date of, or
cancel, any order without cost or penalty.



     b. Shipping and Packing All shipments from the point at which the obligation to pay freight
and the risk of loss pass from Supplier to Distributor will be FOB Supplier’s warehouse.



     c. Distributor’s Acceptance Distributor’s acceptance of an order will occur upon its receipt
of the products unless Distributor notifies Supplier that the products are defective or do not
conform to the Supplier’s applicable warranty, the terms of this Agreement, or Distributor’s order.
Distributor will use its reasonable best efforts to provide such notice within 7 days of its
receipt of the products.



     d. Early Shipments Products delivered prior to their Acknowledged Shipment Date may be
accepted or rejected by Distributor. If Supplier is notified of Distributor’s intention to reject
any such delivery, it will issue (or will be deemed to have issued) a Return Material Authorization
within five days. The return will be made freight collect. If Distributor elects to accept any
such delivery, payment terms on the related invoice will be based on the original Acknowledged
Shipment Date.


5. PRICES The prices for products will be as set forth in Supplier’s Price List in effect as of
the date of this Agreement, subject to change from such date forward upon at least thirty days
prior written notice from Supplier to Distributor.




     a. Price Increases Prior to the effective date of a price increase, Distributor may order
products, requesting delivery within thirty days, at the prior (i.e., lower) price. Products
shipped under orders submitted by Distributor prior to the effective date of any price increase
will be shipped and invoiced at the price in effect at the time of order placement



     b. Price Decreases In the event Supplier decreases the price of any product, Distributor will
receive a credit equal to the difference between the price paid for the product by Distributor
(less any prior credits taken by Distributor on such product) and the new decreased price for the
product multiplied by the quantity of such product in Distributor’s inventory, or in transit to
Distributor, on the effective date of the decrease. Price protection will also apply to all
products returned to Distributor by its customers within thirty days of the effective date.
Distributor will submit to Supplier, within



 









 




thirty days following the later of the effective date
of such
price decrease or the date Distributor actually receives notice thereof, a list of the
products upon which such credit is due. All products shipped after the effective date of any any
price decrease will be shipped and invoiced at the price in effect at the time of shipment.




     c. Terms Terms of payment are half percent 5th net 30, unless otherwise provided on the
applicable Territory Term Sheet.



6. RETURN OF PRODUCT




     a. Any return of product, include but not limited to those that are quality related must be
done as freight prepaid and an Return Material Authorization number must be issued by Supplier
prior to the return.



     b. Product cannot be returned unless there is quality problem.



7. PRODUCT CHANGES




     a. Addition and Deletion of Products Supplier may add or delete products from its price list
upon 30 days prior written notice to Distributor.



     b. Obsolescence and Modification Supplier reserves the right, upon at least thirty days
prior written notice to Distributor, to (i) discontinue the manufacture or sale of, or otherwise
render or treat as obsolete, any product, (ii) modify the design or manufacture of any product so
as to preclude or limit Distributor’s sales of such product, or (iii) modify the status of any
product so as to limit Distributor’s right to return or obtain price protection for such product.
Distributor may, in its discretion, within thirty days of its receipt of such notice, notify
Supplier in writing of its intention to return any or all such products which remain in its
inventory for a credit equal to the net price paid by Distributor for such products. The products
will be returned within fifteen days of the date of Distributor’s receipt of Supplier’s return
authorization. Supplier will pay all freight and shipping charges in connection with any such
returns.


8. WARRANTY The products will be covered by Supplier’s standard warranty. The warranty period
will begin with Distributor’s shipment to its customer, and the warranty will extend directly to
Distributor’s customer as if it had purchased the products directly from Supplier. Supplier will
pay (or refund the amount of) all freight and shipping charges for any defective products returned
under its warranty. Supplier will, at Distributor’s election, issue to Distributor a credit equal
to the net price paid by Distributor for any product returned under warranty.



9. COMPLIANCE WITH LAWS Despite anything to the contrary contained in Supplier’s warranty or
elsewhere in this Agreement, Supplier will indemnify Distributor against, and hold it harmless
from, any cost, loss, damage or liability (including reasonable attorney’s fees) arising from or
related to Supplier’s conduct or the failure, or alleged failure, of the products, as manufactured
and sold to Distributor, to fully comply with all applicable laws, standards, codes, specifications
and regulations or to be suitable for resale or other distribution by Distributor as contemplated
by this Agreement. All warranty and indemnification provisions of this Agreement will survive the
termination hereof.



10. INTELLECTUAL PROPERTY Supplier will indemnify, defend and otherwise hold harmless Distributor,
its affiliates and its customers from all cost, loss, damage or liability arising from any
proceeding or claim brought or asserted against Distributor, its affiliates or its customers, to
the extent such proceeding or claim is based on an allegation that the products, any part thereof,
or their distribution or use infringe any patent, copyright, trademark, trade secret, right in a
mask work, or any similar claim, if Distributor notifies Supplier of any such proceeding or claim
promptly after it becomes known and provides all the assistance and cooperation to Supplier that is
reasonably requested. Supplier will not be liable to Distributor under this paragraph to the
extent that any claim is based on a use for which the product or part was not designed, or an
alteration of the product by Distributor or at its direction which caused the infringement.




11. TERM AND TERMINATION




     a. Term This Agreement is effective once signed by both parties and until terminated in
accordance with the provisions of this paragraph. Either party may at any time terminate this
Agreement without cause and for its convenience by giving thirty days prior written notice to the
other. Supplier and Distributor represent that they have considered the making of expenditures in
preparing to perform under this Agreement. In that regard, both parties acknowledge that neither
party will in any way be liable to the other for any loss, expense or damage (including special,
consequential, or incidental damages) by reason of any termination of this Agreement without cause,
excepting only the then current value of equipment purchased or improvements made by either party
and dedicated to the products or services of such other party.



     b. Events of Default Any of the following is a default under this Agreement:



 









 





          i) the assignment of this Agreement by either party without the prior written consent of the
other party;




          ii) either party’s failure to cure any breach of this Agreement within sixty days following
written notice thereof from the other (or, if not curable within sixty days, if the cure is not
commenced within that period and thereafter diligently completed); and,




          iii) the assignment by either party of its business for the benefit of creditors, or the
filing of a petition by either party under the Bankruptcy Code or any similar statute, or the
filing of such a petition against either of them which is not discharged or stayed within sixty
days, or the appointment of a receiver or similar officer to take charge of either party’s
property, or any other act indicative of bankruptcy or insolvency.




     c. Remedies upon Default In the event of either party’s default, the other party may
terminate this Agreement for cause by written notice and/or avail itself of any remedy available at
law or equity.



     d. Return of Inventory In the event of the Supplier terminating this contact without cause,
Supplier will repurchase from Distributor any or all unsold products, that were shipped within the
last 180 days, designated by Distributor from its inventory at the price paid therefor by
Distributor, less any prior credits taken by Distributor on such products. If Distributor
terminates this Agreement without cause, or Supplier terminates it with cause, the price will be
reduced by a five percent handling charge and Distributor will pay all freight and shipping charges
(which otherwise will be paid by Supplier). In the event of any termination, Supplier will, at
Distributor’s request, honor any Distributor purchase order then outstanding.



     In the even of inventory return, Supplier will be required to accept only those products
which are in their original unopened packaging or are undamaged and in merchantable condition. No
termination of this Agreement will affect any obligation of either party to pay amounts due to the
other hereunder.


12. MARKETING COMMUNICATION To assist Distributor in advertising and promoting the products,
Supplier will accrue into a cooperative marketing fund two percent of the net sales dollars
invoiced to Distributor each month percentage (or the amount specified on the applicable Territory
Term Sheet), to be used by Distributor for promotional efforts approved by both Distributor and
Supplier. The cooperative marketing fund accrual will expire after two months of the quarter if the
fund were not used by distributor.



13. NOTICES Any written notice required by this Agreement that relates to the addition, deletion or
modification of any product or to a change in the price of any product, must be delivered to
Distributor upon agreed upon method All other notices under this Agreement will be deemed given
when delivered by hand or deposited in the China Postal services as certified mail, postage
prepaid, addressed to the president of either party at its then principal place of business and as
specified on the applicable Territory Term Sheet.



14. TRADEMARKS This Agreement does not create, and neither party will have any right in, or to the
use of, any mark, name, style or logo of the other party. Distributor is, however, hereby granted
a nonexclusive right to use Supplier’s marks, names or logos to identify itself as an authorized
distributor of the products and for advertising and promoting its services under this Agreement.



15. CONFIDENTIAL INFORMATION Each party will receive and maintain in confidence all proprietary
information, trade secrets or other know-how belonging to the other (including but not limited to
knowledge of manufacturing or technical processes, financial and systems data, and customer
information) provided that any such information, secrets or know-how is expressly designated as
being confidential, except and to the extent that disclosure is required by law, regulation or
court order, or enters into the public domain through no fault of the party obligated to maintain
such confidentiality. Without limiting the foregoing, all material and information made known to
Supplier by Distributor pursuant to paragraph 4 of this Agreement is hereby designated as
confidential.



16. AUTHORIZATION NOT UNREASONABLY WITHHELD Whenever any consent, action or authorization is
required or requested of either party hereunder, it will not be unreasonably withheld or delayed.
Any required return authorization will be granted (or deemed to have been granted) within thirty
days from the day it is requested.



17. FORCE MAJEURE Neither party will bear any liability to the other for any failure or delay to
the extent that it results from acts of God, labor difficulties, inability to obtain materials or
any other cause beyond such party’s reasonable control.



18. RELATIONSHIP OF PARTIES The parties are independent contractors, each in full control of its
business. Under no circumstances will either party have the right or authority to act or make any
commitment on behalf of or bind the other or represent the other as its agent in any way.






 









 







19. PUBLICITY This Agreement is confidential within the meaning of paragraph 15. Except as
required by law, no press release or other like publicity regarding the relationship between
Distributor and Supplier, this Agreement or its termination will be made without the other party’s
prior approval.



20. INTELLECTUAL PROPERTY RIGHTS Supplier warrants that it is the owner or licensee of all
intellectual property provided to Distributor under this Agreement (whether or not included or
embedded in any other product), and has the authority to permit Distributor to use or resell or
sublicense that property to third parties. Distributor will not resell or sublicense the
intellectual property without the license agreement provided by Supplier for that purpose and will
advise Supplier of any known breach of the terms thereof.




21. LIMITATION OF LIABILITY




     a. EXCEPT FOR PERSONAL INJURY, IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, CLAIMS OF RELIANCE OR OTHERWISE, FOR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR REVENUES, TO THE FULL
EXTENT SUCH MAY BE DISCLAIMED BY LAW.



     b. The Parties acknowledge the laws of certain non-U.S. jurisdictions may restrict
Distributor’s ability to limit its liability with its customers. For example, certain non-U.S.
jurisdictions may not enforce a waiver of special, incidental or consequential damages, or a
disclaimer of implied warranties. In the sale of Products, Distributor will use commercially
reasonable efforts to establish contracts with all its customers that achieve enforceability of
such limitations of liability. If, despite such efforts, a customer of Distributor asserts a claim
in a non-U.S. court that refuses to enforce the limitations of liability, Supplier agrees that with
respect to that claim, the limitations of liability of Supplier will be limited to the same extent
that Distributor’s limitations of liability are limited.



22. GENERAL




     a. Entire Agreement This Agreement supersedes all prior communications or understandings
between Distributor and Supplier and constitutes the entire agreement between the parties with
respect to the matters covered herein. In the event of a conflict or inconsistency between the
terms of this Agreement and those of any order, quotation, acknowledgment or other communication
from one party to the other, the terms of this Agreement will be controlling.



     b. Amendment This Agreement cannot be changed in any way except by a writing signed by the
party against which the enforcement of the change is sought.



     c. Governing Law This Agreement is made in, governed by, and will be construed solely in
accordance with, the internal laws of the State of New York. Any action brought under or in
connection with this Agreement must be instituted in the state or federal forum covering the
defending party’s principal place of business. In any such action, the prevailing party’s
reasonable legal fees will be paid by the other party.



     d. Reformation In the event any provision of this Agreement is held to be invalid or
unenforceable for any reason, such invalidity or unenforceability will attach only to such
provision and will not affect or render invalid or unenforceable any other provision of this
Agreement. Any such provision may be reformed by a court of competent jurisdiction so as to render
the same valid or enforceable while most nearly effectuating the intent of the parties.



     e. Assignment Neither party has the right to assign this Agreement in whole or in part
without the prior written consent of the other except to another corporation wholly-owned by or
under common control with it. For purposes hereof, an assignment includes, without limitation, a
merger, sale of assets or business, or other transfer of control by operation of law or otherwise.



 









 





TERRITORY TERM SHEET

to the

Distribution Agreement

Between

RDA Technologies Limited

and

Auctus Technologies (H.K.) LTD




	 	 	 	 	 

	Company Name(s)

	 	 	 	Primary Territory
	 
	 	 	 	 
	Auctus Technologies (H.K.) LTD

	 	 	 	China
	 

	 	 	 	Hong Kong
	 
	 	 	 	 
	Payment Terms

	 	 	 	Shipping Terms
	 
	 	 	 	 
	Net 30

	 	 	 	FOB Supplier Shipping Point
	 
	 	 	 	 
	Currency

	 	 	 	Required Reports
	 
	 	 	 	 
	US Dollars

	 	 	 	Monthly point of sale and inventory
reports
	 
	 	 	 	 
	Supplier Address for Notices

	 	 	 	Distributor Address for Notices
	 
	 	 	 	 
	RDA Technologies Ltd.


3328, 33/F China Merchants Tower,


168 Connaught Road Central, Hong Kong

	 	 	 	Auctus Technologies (H.K.) LTD 

Rm 1204, Hua Qin International
Building, 340 Queen’s Road, Central,
Hong Kong






	 	 	 	 	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Name: Vincent Tai
	 	 	 	 	 	 

Name:
	 	 
	 

	 	Title: CEO
	 	 	 	 	 	Title: