Distribution Agreement, dated November 30, 2023, by and between Aviat Singapore and NEC New Zealand

The Supplier supplies wireless network products.

NEC is a renowned systems integrator providing custom ICT technology solutions and services in the Territory.

The Supplier wishes to authorize and appoint NEC, and NEC wishes to accept the authorization and appointment as the Supplier’s distributor, to market, distribute, sell, or incorporate for distribution, the Products and Services listed in Annexure A attached to this Agreement, within the Territory in each case on the terms and subject to the conditions set out in this Agreement.

Definitions

Interpretation

References to Specific Terms

Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the International Financial Reporting Standards defined by the professional accounting industry in effect in New Zealand (“IFRS”).

Currency. Unless otherwise specified, all dollar amounts expressed in this Agreement refer to United States Dollars.

“Including”. Where this Agreement uses the word “including,” it means “including without limitation” and where it uses the word “includes,” it means “includes without limitation.”

“Knowledge”. Where any representation, warranty, or other statement in this Agreement, or in any other document entered into or delivered under this Agreement, is expressed by a Party to be “to its knowledge” or is otherwise expressed to be limited in scope to facts or matters known to the Party or of which the Party is aware, it means:

the then-current, actual knowledge of the directors and officers of that Party, and

the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.

Statutes, etc. Unless specified otherwise, any reference in this Agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.

Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

Headings. The headings used in this Agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

Internal References. References in this Agreement to sections and other subdivisions are to those parts of this Agreement.

Calculation of Time. In this Agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. New Zealand Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. New Zealand Time on the next Business Day.

Construction of Terms. The Parties have each participated in settling the terms of this Agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting Party will not apply in interpreting this Agreement.

Conflict of Terms. If there is any inconsistency between the terms of this Agreement and those in any Annexure to this Agreement or in any document entered into under this Agreement, the terms of the Annexure will prevail. The Parties shall take all necessary steps to conform the inconsistent terms to the terms of this Agreement.

Binding Effect. This Agreement will benefit and bind the Parties and their respective heirs, successors, and permitted assigns.

Appointment of NEC

NEC shall, for the Initial Term or Renewal Term (as applicable), purchase Products and Services only from the Supplier and, subject to the provisions of clause 3.2b), it shall not, for the Initial Term or Renewal Term (as applicable), distribute or manufacture any goods and/or services which compete with the Pasolink Products.

NEC shall, for the Initial Term or Renewal Term (as applicable), be the Supplier’s:

For the avoidance of doubt, the relevant restrictions set on Supplier under the terms of clause 3.2 (a) and (c) shall only apply with respect to sales resulting from Supplier actively targeting Customers/End-Customers listed in or added to Annexure B.1, but they shall not apply in those documented instances where, in the absence of any active sales targeting by Supplier, Customers/End-Customer solicit the Supplier for sales offers directly or via channels other than NEC. For the avoidance of doubt, any territorial exclusivity is subject to any previously agreed upon distribution agreements entered into by NEC Corporation or any of NEC Corporation’s affiliates prior to the Effective Date of this Agreement.

For the Initial Term or Renewal Term (as applicable), the Supplier agrees to supply NEC with Products and Services on a continuous basis in line with NEC’s Purchase Orders.

NEC shall act as an independent contractor, purchasing the Products from the Supplier and reselling them in its own name, on its own behalf and on its own account. NEC shall have no authority to enter into any contract or commitment in the name of or for the account of the Supplier or to bind the Supplier in any manner whatsoever.

The Parties may revise the list of Products and Services at any time during the Initial Term or Renewal Term (as applicable) by agreement in writing.

To the extent not specifically covered in this Agreement, sales transactions between the Parties shall be covered by Supplier’s standard Terms and Conditions of Sale in effect at the time of Supplier’s acceptance of a Purchase Order issued by NEC (“Supplier’s Terms”), incorporated by reference in this Agreement, which shall prevail over any terms and conditions included on any purchase order submitted by NEC. In the event of any conflict between this Agreement and Supplier’s Terms, the order of precedence is as follows: (a) this Agreement; (b) Supplier’s Terms.

Orders

Purchase Orders. From time to time, NEC shall submit orders for Products to the Supplier in writing and in accordance with the respective quotation provided by the Supplier to Supplier’s address listed in the introduction to this Agreement or as the Supplier otherwise specifies in writing (each, a “Purchase Order”) and include in each Purchase Order:

each Product and/or Service it is ordering, identified by model, part number or service description;

the amount of each Product and/or Service it is ordering;

the unit price of each Product and /or Service it is ordering;

the Incoterm applicable to the Purchase Order;

the location for delivery; and

the delivery date (the “Delivery Date”).

Accepting, Modifying, and Rejecting Purchase Orders

By Notice. Within 3 (three) Business Days’ of receiving a Purchase Order from NEC, the Supplier shall accept, reject, or propose a modification to the Purchase Order by sending NEC written notice of its acceptance, rejection, or proposed modification (as applicable), save that the Supplier shall not be permitted to reject or propose any modification to any Purchase Order that is consistent with Annexures A & B and all the terms and conditions of this Agreement.

Modification of Purchase Order. The Supplier may propose a modification to a Purchase Order by including in its notice to NEC a modified Purchase Order format for NEC to process and re-send to Supplier for acceptance or rejection, according to the acceptance and rejection procedure under clause 4.2.1.

Cancelling Purchase Orders. NEC may, at no expense to itself, cancel part or all of a Purchase Order before it is accepted by Supplier. After the acceptance of a Purchase Order by Supplier, any Order cancellation shall entitle Supplier to charge cancellation charges up to the full amount of the Purchase Order.

Deal Registration

NA

License Keys

Supplier shall provide NEC with the ability to generate license keys necessary for NEC and/or its End Customers to access, unlock or otherwise enable purchased Product features.

Delivery of Products or Services

Delivery. The Supplier shall deliver each order of Products or Services to NEC:

on the Delivery Date and at the Delivery Location (which shall be the Supplier’s manufacturing facilities)

using any delivery method that the Parties shall agree to in writing and the ExWorks Supplier’s manufacturing facilities Incoterm.

Risk of Loss Shifts on Delivery. The Supplier will remain liable for any damages, losses to the Products until the risk of loss or damage to the Products is transferred to NEC in accordance with the Incoterm that is applicable to a Purchase Order, after which NEC will assume the risk of loss or damage to the Products.

Title transfer: The title in the Products (including software media, where applicable) shall transfer from Supplier to NEC upon shipment of the Products from the Supplier’s manufacturing facilities.

Acceptance and Rejection of Product Deliveries

Inspection Period. NEC will have 20 Business Days after the Products reach the named place of Delivery to inspect the Products for defects, missing items, items shipped in error, items damaged in transit (the “Issues”) and to ensure the deliveries meet the specifications of the applicable Purchase Order (the “Inspection Period”).

Acceptance. For the Products which satisfy the specifications of the applicable Purchase Order, NEC shall accept the Products and notify the Supplier in writing of such acceptance within 2 days after the end of the Inspection Period.

Deemed Acceptance. NEC will be deemed to have accepted Products if:

NEC fails to notify the Supplier on or before the expiration of the Inspection Period; or

if during the Inspection Period, NEC sells, runs, or otherwise uses the Products beyond what is necessary for inspection and testing, and in a way a reasonable Person would consider consistent with NEC having accepting the delivery from the Supplier.

Rejection and Cure. For the Product Issues supported by undisputed evidence:

NEC shall deliver to the Supplier a written list detailing each Issue and the affected Products;

On NEC returning the Products having an Issue at Supplier’s cost and in accordance with Supplier’s Return Material Authorization process, the Supplier shall promptly deliver to NEC any Products necessary to remedy each Issue, at no expense to NEC.

Changes to Products.

required by Law;

the Supplier is able to replace such Products and Services with similar or better products or services that achieve the same purpose and/or outcome;

the End Customer has agreed to such replacement of the Products and Services; and

the replacement products are no more expensive that the Products being replaced.

Price

Price. NEC shall pay the Supplier’s listed price for each Product or Service as advised by the Supplier. The price list in effect between the parties at the Effective Date is set out in Annexure A.5. All prices are quoted, shall be invoiced and paid in United States Dollars. Supplier’s listed price for each Product or Service are exclusive of all sales, use, excise, and other taxes, duties, assessments, or fees or charges. All prices given by Supplier pursuant to this Agreement represent net amounts the Supplier is entitled to receive and shall not be subject to any deductions for any reason whatsoever.

Resale Prices. NEC may determine its own resale prices.

Changes to Prices

Notice of Upcoming Price Changes. If the Supplier changes its pricing, the Supplier shall give NEC at least 30 calendar days’ notice before implementing such changes.

No Effect on Outstanding Purchase Orders. Changes to the Supplier’s prices will not affect any Purchase Orders already submitted prior to the effective date of such price changes.

Payment of Prices

Invoice Delivery. The Supplier shall invoice NEC for Product purchases at the time of shipment of the Products from Supplier’s manufacturing facilities . In the case of Services, and unless differently agreed in a Purchase Order for Services, the Supplier shall invoice NEC monthly in arrears on completion of the Services or, in the case of Support Services, annually in advance.

Invoice Procedure and Requirements. The Supplier shall:

issue each invoice to NEC in writing, including:

an invoice date and number;

the total amount due;

the calculation of the total amount; and

the details of its nominated bank account; and

send each invoice to the nominated recipient of NEC as advised by NEC in writing.

Payment. NEC shall pay each properly rendered invoice by the 20^th of the month following the invoice date to the account whose details are set out in the relevant invoice in accordance with clause 9.2.1.4. If NEC fails to timely pay any outstanding amounts, Supplier may, in its sole discretion, and in addition to any other rights and remedies it may have under this Agreement and at law, including the right to suspend any delivery and to terminate any outstanding Purchase Order after 30 days of suspension, charge interest on such unpaid amounts equal to a rate of 1,5% per month or the maximum rate permitted by law, whichever is less, from the date such amounts become due until the date such amounts are received in full, save that nothing contained in this provision shall apply to any improperly rendered or bona fide disputed invoice.

Taxes.

Subject to the Incoterm that applies to the Purchase Order, both NEC and the Supplier shall bear and pay any tax that may be imposed on each payment hereunder in their own countries.

If the payment by NEC of any sum due under this Agreement is subject by law to withholding tax, NEC shall:

withhold such legislated levied amount from the payment to the Supplier;

account to the relevant tax authority for that withholding tax; and

supply to the Supplier a certificate certifying such payment of withholding tax.

Services to be provided by Supplier

Where NEC issues a Purchase Order for Support Services, the Supplier shall provide the Support Services to NEC in accordance with this Agreement and that Purchase Order.

Where NEC issues an upfront Purchase Order for Support the Supplier shall provide the Support Services for the duration covered by NEC’s Purchase Order.

Support Services Charges

In consideration of Supplier providing the Support Services to NEC, NEC shall pay the Support Service Charges to Supplier.

The Supplier shall invoice NEC at the beginning of each year for the Support Services to be provided to NEC during the invoiced year. NEC shall pay the Support Service Charges net 30 days following receipt of Supplier’s invoice, to the bank account nominated in writing by Supplier.

If NEC disputes any invoice or other request for payment, NEC shall immediately notify the Supplier in writing. The Parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the Parties have not resolved the dispute within 30 days of NEC giving notice to the Supplier, the dispute shall be resolved in accordance with clause 33.15.

Unless differently agreed between the Parties in writing, the Supplier shall be responsible for the payment of all invoices due to third party suppliers of the Supplier in connection with the provision of the Support Services.

NEC shall be entitled to require the Supplier to provide all such evidence as may be reasonably necessary to verify the Support Service Charges and any other matters set out in an invoice.

Term

Initial Term. The initial term of this Agreement will begin on the Effective Date and continue for 5 years thereafter (the “Initial Term”), unless terminated earlier in accordance with the provisions of this Agreement.

Automatic Renewal. Subject to clause 13.3, at the end of each Initial Term, this Agreement will automatically renew for a renewal term of 12 (twelve) months, unless terminated earlier in accordance with the provisions of this Agreement (“Renewal Term”).

Election Not to Renew. Either Party may elect not to renew this Agreement, by providing notice of at least 6 (six) calendar months to the other Party before the end of the Initial Term or Renewal Term, as the case may be.

Save for the termination provisions as set out in clause 28, neither Party may terminate this Agreement prior to the end of the Initial Term or the Renewal Term.

Marketing Development / Sales Development Plans

The Parties shall discuss in good faith at the beginning of each anniversary of this Agreement NEC’s Marketing and Sales Development strategy and specific plans in the Territory for the contract year to come and the Parties shall agree in good faith if Supplier should contribute in any way to those efforts. Supplier shall make reasonable commercial efforts to participate with NEC in fairs, exhibitions and similar events in the Territory, but shall be under no obligation to do so unless such participation is agreed by the parties in writing sufficiently in advance of each event to enable proper preparation by the parties.

Employee Training. The Supplier shall provide sufficient technical and other training for NEC’s employees who are responsible for the marketing, sales, and technical support services for the Products at no cost to NEC at reasonable intervals.

Marketing and Informational Materials. Supplier shall provide NEC with the latest marketing, promotional, and other information in English about the Products and Services that Supplier typically provides to other distributors of its Products free of charge.

Other Information. The Supplier shall provide NEC with such information as NEC may reasonably and lawfully require in connection with this Agreement as soon as reasonable upon NEC’s written request.

Representations

Mutual Representations

Existence. The Parties are corporations incorporated and existing under the Laws of the jurisdictions of their respective incorporation.

Authority and Capacity. The Parties have the authority and capacity to enter into this Agreement.

Execution and Delivery. The Parties have duly executed and delivered this Agreement.

Enforceability. This Agreement constitutes a legal, valid, and binding obligation, enforceable against the Parties according to its terms.

No Conflicts. Neither Party is under any restriction or obligation that the Party could reasonably expect might affect the Party’s performance of its obligations under this Agreement.

No Breach. Neither Party’s execution, delivery, or performance of its obligations under this Agreement will breach or result in a default under:

its articles, bylaws, or any unanimous shareholders agreement;

any Law to which it is subject;

any judgment, Order, or decree of any Governmental Authority to which it is subject; or

any agreement to which it is a Party or by which it is bound.

Permits, Consents, and Other Authorizations. Each Party holds all Permits and other authorizations necessary to:

own, lease, and operate its properties, and

conduct its business as it is now carried on.

No Disputes or Proceedings. Each Party confirms, represents and warrants that there are no Legal Proceedings pending, threatened, or foreseeable against itself, which would affect its ability to complete its obligations under this Agreement.

No Bankruptcy. Neither Party has taken or authorized any proceedings related to that Party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.

Supplier’s Representations

Ownership. The Supplier is the sole owner or rightful licensee of the Products, free of any claims by a third party or any Encumbrance.

Legal Right. The Supplier warrants that it has all rights necessary to supply or license the Products & Services to NEC on the terms of this Agreement.

No Infringement. The Supplier’s sale of the Products does not infringe on or constitute a misappropriation of the Intellectual Property or other rights of any third party.

Limited Warranties

Products. All Products are covered by the Supplier’s warranty statements that are provided with the Products or Services, otherwise made available or advised by the Supplier from time to time. Unless differently agreed in an accepted Purchase Order, the Warranty Period for the Supplier-manufactured Products listed in Annexures A1 (i.e. the Pasolink Products) shall be 2 years from the date of shipment of the Products from the Supplier’s manufacturing premises (‘Product Warranty Period’). Notwithstanding anything to the contrary, the Supplier warrants that all Products supplied to NEC are free of manufacturing defects (including known security vulnerabilities), and will conform to their specification(s) for their respective Product Warranty Period.

Third Party Products. Non-Supplier branded products or services receive warranty coverage as provided by the relevant third party supplier.

Software Warranty. The Supplier hereby warrants that for the Software Warranty Period, which shall be 90 days from the date at which the Software is put into production by an End Customer of NEC, or 90 days from the time the SW licence is delivered by Supplier to NEC, whichever comes first, that when operated according to the documentation and other instructions the Supplier provides, software will perform substantially according to the functional specifications listed in the documentation.

Support Services Warranty. The Supplier warrants any repairs performed by Supplier as part of the Product Warranty and/or Support Services purchased by NEC for a period which is the longer of (a) the balance of the initial Product Warranty Period or (b) 6 months from the return shipment date.

The limited warranties listed in clauses 16.1 to 16.4 apply only to the NEC and its End Customers. Supplier shall provide the above-mentioned warranties for the most current version of Supplier’s products. Supplier shall have no obligation to provide warranty if a material defect in the Supplier’s product is caused by the malfunction of non-Supplier hardware or Software, by modification of the Supplier’s product not made the Supplier, by use of the Supplier’s products that is not in accordance with the Supplier’s written instructions for the Supplier’s products. Supplier will accept warranty returns only from NEC and NEC must arrange all details of such returns with End Customers, eligible under the aforementioned warranties. EXCEPT FOR THE WARRANTIES STATED ABOVE, SUPPLIER DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ON SUPPLIER’S PRODUCTS FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AND NON-INFRINGEMENT.

Compliance with Laws. The Supplier hereby warrants that the Products and Support Services comply with any applicable laws, statutes and regulations relevant to the manufacture, design, packaging, sale and use of the Products or Support Services (as applicable) in connection with this Agreement.

Software Updates. Software Updates will be made available for all Software licensed under a Purchase Order, at the time of release, , provided that the concerned Software is still under its initial Software Warranty period or that a Software support contracts is in place between Supplier and NEC at the time of the release of the Software Updates.

Return Material Authorisation/RMA. NA

Support. NA

Dead on Arrival / Out-of-box Failures. NA

Service Level Agreement on warranties. NA

Intellectual Property.

The Supplier hereby grants to NEC a perpetual, non-transferable, non-exclusive, non-sublicensable, and royalty-free license to use and distribute the Products solely for use by NEC’s Customers and/or End Customers, and in connection with their use of the Products under this Agreement, within the Territory.

Except for rights expressly granted under this Agreement:

nothing in this Agreement will function to transfer any of either Party’s Intellectual Property rights to the other Party, and

each Party will retain exclusive interest in and ownership of its Intellectual Property developed before this Agreement or developed outside the scope of this Agreement.

The Supplier indemnifies and holds NEC harmless against all losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by NEC in connection with any claims, actions or proceedings arising out of or in connection with any actual or alleged infringement by the Products sold or licensed by Supplier to NEC and/or by the Support Services provided by Supplier to NEC of the Intellectual Property or other rights of a third Party. The preceding indemnification obligation shall not apply (i) to any Products and/or Support Services, or portion thereof, manufactured and/or provided to specifications furnished by NEC or on NEC’s behalf, or (ii) to any infringement arising out of the use of such Products and/or Support Services in combination with other equipment, software or services not sold or recommended by Supplier, or (iii) to use in a manner not normally intended, or (iv) to any patent, copyright, trademark or trade secret in which NEC, or any of NEC’s affiliates has a direct or indirect interest, or (v) if NEC has not provided Supplier with prompt notice, authority, information and assistance necessary to defend the action, or (vi) to any claim alleging infringement of any intellectual property right or interest in FOSS.

The Supplier shall retain the right, in its sole discretion, to modify or replace the infringing Products or Services with non-infringing Products or Services and the Supplier shall give NEC reasonable advance notice of such action.

The provisions of this clause 17 shall survive the termination of this Agreement, irrespective of the reasons for termination.

Supplier Responsibilities

Supply of Products and Support Services. The Supplier shall supply the Products and Support Services to NEC in accordance with the provisions of this Agreement.

Insurance. The Supplier shall put in place and maintain public liability insurance for not less than USD$10M in respect of each claim and product liability insurance for not less than USD$10M in respect of each claim for the Initial Term and/or Renewal Term, as the case may be. The Supplier shall promptly provide copies of the insurance certificates to NEC on NEC’s request.

Licences and permits. The Supplier shall obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to supply the Products and Support Services in accordance with this Agreement.

Personnel. The Supplier shall employ a sufficient number of competent and qualified personnel to carry out its obligations under this Agreement.

NEC Responsibilities

Marketing. Subject to clause 14 hereof, NEC shall use reasonable efforts to market, advertise, and otherwise promote and sell the Products in the Territory.

Employee Training. NEC shall ensure that any of its employees who are responsible for the marketing, sales, and technical support services for the Products have proper skill, training, and background to enable them to provide these services in a competent and professional manner.

Sales Forecast. NEC shall provide the Supplier with a non-binding quarterly sales forecast, in a mutually agreed-upon format.

Markings and Notices. NEC will not remove or alter any trademarks, Product identification, notices of any proprietary or copyright restrictions, or other markings or notices that appear on the Products or their packaging.

No Reverse Engineering. NEC will not:

create or attempt to, or aid or permits others to, create by reverse engineering, disassembly, de-compilation, reverse engineering or otherwise, the internal structure, the source code, hardware design, or organization of any Product, unless expressly permitted by Law;

copy, modify, translate, or create derivative works of software included in any Product, unless the Supplier consents in writing; or

separate the Product into component parts for distribution or transfer to a third party.

License Grants

Software License Grant. Supplier hereby grants NEC a perpetual, non-transferable, non-exclusive, non-sublicensable, and royalty-free license to use and distribute any software incorporated in Products solely for use by NEC’s Customers and/or End Customers in the Territory in and in connection with their use of Products and always subject to such End Customers abiding by the terms of Supplier’s End-User License Agreement included in Supplier’s Terms.

Documentation License Grant. Supplier hereby grants to NEC a perpetual, non-transferable, non-exclusive, non-sublicensable, and royalty-free license to:

reproduce or transmit documentation Supplier provides NEC for marketing, selling, and distributing the Products (provided such documentation is not modified and Supplier’s proprietary notices are not removed); and

reproduce and transmit any user manuals and other documentation Supplier creates for customers in connection with the Products.

Supplier Trademark License Grant. Supplier hereby grants to NEC a perpetual, non-transferable, non-exclusive, non-sublicensable, and royalty-free license to use Supplier’s name, trademarks, logos, and other identifying information on marketing literature, advertising, promotions, customer information, and programs NEC creates in connection with the Products, subject to Supplier’s written approval as well as guidelines for use, in each instance.

Trademark Use. NEC shall comply with all of Supplier’s policies regarding the use and display of Supplier’s name, trademarks, logos, and other identifying information that Supplier provides to NEC in writing.

Compliance with Laws.

comply with all applicable Laws relating to the subject matter of the Agreement and in the performance of its duties under this Agreement, and

notify the other Party if it becomes aware of any non-compliance in connection with this clause 21.

Data Protection

Compliance With Code of Conduct:

Confidentiality Obligations.

Each Party (“Recipient”) undertakes to the other Party (“Disclosing Party”) that:

it will treat all Confidential Information as confidential and will not disclose such Confidential Information to any third Party, other than its auditors and other professional advisers, without the Disclosing Party’s prior written consent;

if it discloses any Confidential Information to its auditors and other professional advisors, it will ensure that such auditors and professional advisors are bound by obligations of confidentiality no less onerous than those contained in this clause 24;

it will only disclose the Confidential Information to those of its employees, contractors and agents who require such Confidential Information to perform their duties and all such employees, contractors and agents will be bound by obligations of confidentiality no less onerous than those contained in this clause 24; and

will not use such Confidential Information other than for the purposes of this Agreement.

The provisions of clause 24.1 shall not apply to Confidential Information which:

was developed by Recipient independently of the Confidential Information disclosed by the Disclosing party which can be verified by independent evidence ; or

has been or becomes now or in the future published in the public domain without breach of this Agreement or breach of a similar agreement by a third party; or

is disclosed or used by Recipient after receiving express written consent from an authorized representative of the Disclosing party to disclose or use; or

is required to be disclosed by law or in terms of a court order of a court of competent jurisdiction or otherwise in accordance with any direction or request issued by any governmental or regulatory body, in which event the recipient shall (i) only disclose such of the Confidential Information as is strictly required; (ii) use its reasonable endeavours to seek confidential treatment of such Confidential Information; and (iii) notify the disclosing Party as soon as reasonably possible (and if possible prior to any disclosure) of its obligation to so disclose.

The obligations contained in this clause 24 shall survive termination of this Agreement.

Publicity

Consent. Save for the use as set out in this Agreement, neither Party will use the other Party’s name, logo, or trademarks, or issue any press release or public announcement regarding this Agreement, without the other Party’s written consent, unless specifically permitted under this Agreement or required by Law.

Cooperation. The Parties shall cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this Agreement and the relationship between the Parties.

Force Majeure

Notwithstanding any other provision of this Agreement, neither Party shall be deemed to be in breach of this Agreement or otherwise liable to the other Party (or its Affiliates) as a result of any delay or other failure in the performance of its obligations under this Agreement (other than an obligation to pay money, including the Fees) if and to the extent that such delay or other failure is caused by an event or circumstance which was unforeseeable and not within the reasonable control of the Party concerned (“Force Majeure Event”). The Party affected by a Force Majeure event shall be granted with an equitable extension of time for performance of the relevant obligation(s) provided that it complies with clause 26.2.

A Party whose performance of its obligations under this Agreement is delayed or prevented by a Force Majeure Event shall:

notify the other Party of the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure Event as soon as reasonably practicable; and

after cessation of the Force Majeure Event, as soon as reasonably practicable notify the other Party thereof and resume full performance of its obligations under this Agreement.

Non-Solicitation

Neither Party shall, whether directly or indirectly and whether for its own benefit or the benefit of any third party, at any time while this Agreement is in force and for a period of 12 (twelve) months from the date on which this Agreement terminates encourage, entice, induce, solicit, offer employment or employ any person employed by the other Party who has had a material role in the performance of this Agreement, other than via a job advertisement to the general public.

Termination

Termination for Material Breach. Each Party may terminate this Agreement with immediate effect by delivering written notice of the termination to the other Party, if:

the other Party fails to materially perform, has made or makes any material inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations in this Agreement; and

such failure, inaccuracy, or breach is either non-remediable or continue unremedied for a period of more than 14 (fourteen) Business Days’ after the injured Party delivers notice to the breaching Party reasonably detailing the breach.

Termination for Insolvency. If either Party becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other Party may terminate this Agreement with immediate effect by delivering notice of the termination to the first Party.

Termination due to Force Majeure. If due to Force Majeure, a Party is or shall be unable to perform a material obligation under this Agreement or is delayed or prevented from performing its obligations for a continuous period exceeding 90 Business Days or a total of more than 180 Business Days in any year, NEC may terminate this Agreement with immediate effect by delivering notice of the termination to the Supplier.

Termination for convenience. Either Party shall be entitled to terminate this Agreement without cause and without liability to the other Party during the Renewal Term, by observing a two (2) months’ notice period prior to the effective termination date.

Effect of Termination

Termination of Obligations. On termination for any reason or expiry of this Agreement, the following shall occur:

NEC shall cease to represent itself as Supplier’s authorized distributor, cease to use Supplier’s trademarks, and promptly return to Supplier any demonstration equipment or Products not intended for sale.

Except for termination for cause, Supplier agrees to fill NEC’s Purchase Orders accepted by Supplier prior to the effective date of termination, provided that NEC can and will comply with all provisions of the Agreement, and NEC agrees to make full payment for such Purchase Orders, all in accordance with this Agreement, to the same extent as if termination had not occurred. Supplier’s acceptance of any Purchase Orders from NEC after the effective date of termination (or payment therefor), will not have the effect of renewing, or extending the Term of this Agreement.

Neither Supplier nor NEC shall be liable to the other by reason of expiration or termination per se of this Agreement including, without limitation, any liability for compensation, reimbursement, or damages on account of the loss of prospective profits on anticipated sales or on account of expenditures, investments, leases, or commitments made in connection with the business or goodwill of Supplier or NEC, or otherwise.

No Further Liability. On termination or expiration of this Agreement, neither Party will be liable to the other Party, except for liability that arose before the termination or expiration of this Agreement.

Continued Assistance. Subject to the issuance by NEC of one or more Purchase Orders for Support Services, the scope and terms of which shall be agreed between the Parties, the Supplier shall provide Support Services to NEC after the termination or expiry of this Agreement.

Reserved.

Return or Destroy of Materials Confidential Information. Each Party shall promptly cease to use and shall return or (at the other Party’s reasonable request) securely destroy all Confidential Information and other equipment, materials and property of the other Party then in its possession or control in connection with the supply of the Products and Support Services under this Agreement and shall on request certify in writing that this has been done.

Continuing Provisions. Any provision of this Agreement which expressly or by implication is intended to continue in force after termination shall do so notwithstanding termination or expiry of this Agreement.

Indemnification

Indemnification by Supplier. The Supplier (as an indemnifying Party) shall indemnify NEC (as an indemnified Party) against all losses, damages, liability, costs and expenses (including reasonable professional fees) arising out of any claims, actions or proceedings brought by a third party claiming:

a breach of any provision of this Agreement by Supplier or Supplier’s representatives;

any negligence or act or omission, wilful misconduct, or other tortious conduct of Supplier or Supplier’s representatives including any resulting bodily injury, death of any person, or damage to real or tangible personal property;

a loss or damage howsoever caused by the Supplier’s supply of Products, Services, Support Services or any defects therein solely attributable to Supplier;

any failure by Supplier or Supplier’s representatives to comply with any applicable laws;

a breach by Supplier or Supplier’s representatives of its agreement with a third party as a result of, or in connection with, entering into, performing under, or terminating this Agreement.

Indemnification by NEC: NEC shall indemnify Supplier and Supplier’s affiliates against all losses, damages, liability, costs and expenses (including reasonable professional fees) arising out of any claims, actions or proceedings arising out of or relating to any third party claim relating to or alleging:

a breach of any provision of this Agreement by NEC or NEC’s representatives;

any negligence or act or omission, wilful misconduct, or other tortious conduct of NEC or NEC’s representatives, including any resulting bodily injury, death of any person, or damage to real or tangible personal property;

any promotion, demonstration, implementation, or integration made by NEC and not expressly directed by Supplier infringes any Intellectual Property Right of a third party;

a purchase of the Products by any person or entity purchasing through NEC or NEC’s representatives and not directly relating to a claim of Limited Warranties breach;

any representations or statements made by NEC or NEC’s representatives not specifically authorized by Supplier herein or in writing;

any failure by NEC or NEC’s representatives to comply with any applicable laws;

a breach by NEC or NEC’s representatives of its agreement with a third party as a result of, or in connection with, entering into, performing under, or terminating this Agreement.

Exclusions. Neither Party will be required to indemnify the other Party against losses to the extent such losses are caused or contributed to by the other Party.

Limitation on Liability

Nothing in the Agreement limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; or (b) fraud or fraudulent misrepresentation.

Subject to clause 31.1, Each Party’s total liability to the other Party (“Aggrieved Party”) or any third party claiming through the Aggrieved Party shall not exceed the actual value of Purchase Orders issued to Supplier by NEC under this Agreement. Each Party’s total and liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement.

Notwithstanding any provision to the contrary of this Agreement, the following types of loss are wholly excluded from recoverable damages: (a) loss of revenue, (b) loss of profits, (c) loss of sales or business, (d) loss of agreements or contracts, (e) loss of use, (f) loss of anticipated savings, (g) loss of or damage to goodwill, (h) lost or corrupted data, (i) losses resulting from system shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, (j) system incompatibility or providing incorrect compatibility information, (k) breaches in system security, and (l) special, indirect, incidental, punitive or consequential losses of any party, including third parties, even if Supplier has been advised of the possibility of such losses. The exclusions stated in this clause 31.3 shall apply to any claim or cause of action whether in contract or tort (including negligence, strict liability or breach of warranty).

This clause shall survive the termination or expiration of this Agreement.

Anti-Corruption Obligation

Each Party shall not, and shall procure that its employees and agents shall not, offer, give or agree to give any person, or accept or agree to accept from any person, whether for itself or on behalf of another, any gift, payment, consideration, financial or non-financial advantage or benefit of any kind, which constitutes an illegal or corrupt practice under the laws of any country, either directly or indirectly in connection with this Agreement, or otherwise than in connection with this Agreement (the “Anti-Corruption Obligation”).

Each Party shall immediately disclose in writing to the other Party details of any breach of the Anti-Corruption Obligation. This is an ongoing obligation.

Each Party shall:

always maintain strict compliance with the Anti-Corruption Obligation;

monitor its employees, agents and sub-contractors who are acting in connection with this Agreement to ensure compliance with the Anti-Corruption Obligation; and

make clear, in all its dealings in connection with this Agreement, that it is required by the other Party to act, and is acting, in accordance with the Anti-Corruption Obligation.

Any breach of this clause 32 by a Party shall entitle the other Party to immediately terminate this Agreement by delivering notice of the termination to the Party in breach and the Party in breach hereby indemnifies the other Party in full for any damages and losses of any nature incurred, caused, arising out of or in connection to such breach.

General Provisions

Entire Agreement. The Parties intend that this Agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this Agreement and refer to this Agreement:

represent the final expression of the Parties’ intent relating to the subject matter of this Agreement;

contain all the terms the Parties agreed to relating to the subject matter; and

replace all of the Parties’ previous memorandums of understanding, discussions, understandings and agreements relating to the subject matter of this Agreement.

Counterparts

Signed in Counterparts. This Agreement may be signed in any number of counterparts.

All Counterparts Original. Each counterpart when signed and dated is an original.

Counterparts Form One Document. Together, all counterparts shall constitute one single document.

Electronic exchange. Each Party may evidence their signature of this Agreement by transmitting by email a signed signature page of this Agreement in PDF format together with the final version of this Agreement in PDF or Word format, which shall constitute an original signed counterpart of this Agreement.

Severability. If any part of this Agreement is declared illegal, unenforceable or invalid, the remainder will continue to be legal, valid and enforceable. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the Parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

Amendment. This Agreement can be amended only by a writing signed by both Parties.

Waiver

Affirmative Waivers. No Party’s failure, delay or neglect to enforce any rights, power or remedy provided by law or under this Agreement will operate as a waiver of that Party’s right, power or remedy nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

Written Waivers. A waiver of any term, provision, condition or breach of this Agreement is only effective if it is in writing and signed by the Party granting the waiver and then only in the instance and for the purpose for which it is given.

No Course of Dealing. No single or partial exercise of any right, power or remedy provided by law or under this Agreement will preclude any further exercise of it or the exercise of any other right, power or remedy.

No Relationship. Save for the provisions set out in this Agreement, nothing herein creates any special relationship between the Parties, such as a partnership, joint venture, or employee/employer relationship between the Parties.

No Authority. Save for the provisions set out in this Agreement, neither Party will have the authority to, and will not, act as agent for or on behalf of the other Party or represent or bind the other Party in any manner.

Assignment. Neither Party may assign this Agreement or any of their rights or obligations under this Agreement without the other Party’s written consent, such consent not to be unreasonably withheld or delayed; provided, that the Supplier may assign to one or more of its affiliates, provided that such affiliate and the Supplier are jointly and severally liable for all of the Supplier’s obligations under this Agreement.

Further Assurance. Each Party shall do all acts and execute all documents which are necessary to give full effect to this Agreement.

Not Used

Costs and expenses. Each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).

Language. The language of this Agreement is English. All documents, notices, waivers, variations and other written communications relating to this Agreement shall be in English.

Third party rights. Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights to enforce any of the provisions of this Agreement.

Notices

Method of Notice. The Parties shall give all notices and communications between the Parties in writing by: (i) personal delivery; (ii) a nationally-recognized, next-day courier service; (iii) first-class registered or certified mail, postage prepaid; or (iv) electronic mail to the Party’s address specified in this Agreement, or to the address that a Party has notified to be that Party’s address for the purposes of this section.

Receipt of Notice. A notice given under this Agreement will be effective on

the other Party’s receipt of it; or

if mailed, the earlier of the other Party’s receipt of it and the fifth business day after mailing it.

Dispute Resolution

Arbitration. Any dispute or controversy arising out of or in connection with this Agreement may be settled by arbitration in New Zealand according to the the Arbitration Act 1986 or any succeeding legislation, and by 1 (one) arbitrator.

Judgment. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.

Arbitrator’s Authority. The arbitrator will not have the power to award any punitive or consequential damages.

Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of England and Wales.

Domicilium Citandi ex Executandi

Any notice in terms of this Agreement may be hand delivered to the physical address of the Parties, in which event proof of acknowledgment shall be endorsed upon a copy of the notice, together with the name of the recipient and date of receipt, or may be sent by registered post to the nominated postal addresses of the Parties, in which event proof of postage issued by the relevant postal authority will serve as proof.

The Parties respectively choose their domicilium citandi ex executandi for all purposes under this Agreement, whether in respect of notices or other documents or communications of whatsoever nature at the following addresses:

/s/ Wilma Burich

/s/ Melanie Barber

(who warrants that he/she is duly authorised)

Name: Melanie Barber

/s/ Anca Pocan

/s/ Erin Boase

(who warrants that he/she is duly authorised)

Name: Erin Boase