MARCO OPHTHALMIC, INC.
AUTHORIZED DISTRIBUTOR AGREEMENT
This Agreement made effective as of July 1, 1992 (the "Effective
Date") by and between MARCO OPHTHALMIC, INC., a Florida corporation
("Marco") having its principal place of business at 00000 Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and the party who has executed this
Agreement as Distributor (the "Distributor") whose address is set forth
following Distributor's signature hereto.
In order to set forth and formalize the understanding between Marco
and the Distributor, and in consideration of the mutual covenants set
forth below and other good and valuable consideration Marco and
Distributor agree as follows:
l. The Distributor and Products Covered by This Agreement. Marco
appoints Distributor as an authorized nonexclusive distributor to
distribute Marco ophthalmic instruments and equipment (the "Products")
in the United States of America and its possessions as well as all other
countries as may be agreed upon between Marco and the Distributor from
time to time (the "Territory"). The Distributor agrees to operate as a
distributor of the Products only at the locations set forth beneath
Distributor's signature, unless Marco otherwise agrees in writing.
2. Minimum Requirements. The Distributor agrees to purchase, from
Marco a minimum of $200,000.00 (but not less than $80,000.00 during any
consecutive six month period) of Products per calendar year at the
appropriate dealer net prices prevailing from time to time. If the
initial term of this Agreement is for less than a full calendar year,
the minimum purchase requirement will be prorated on a monthly basis.
3. Inventory. The Distributor is expected to inventory
sufficient quantities of the Products, representing a cross section of
the Marco product line. To enable Marco to be informed of the current
market situation, the Distributor agrees to furnish to Marco, upon
request, an itemized list of Distributor's inventory of Products.
4. Promotion. Distributor agrees to use best efforts to promote
the sale of Products, to advertise and solicit sales for the Products,
to prominently display and demonstrate the use of the products at trade
shows and conventions and to maintain a designated display area for the
Products at the Distributor's places of business within the Territory.
5. Service Facilities. It is the Distributor's responsibility and
obligation, at Distributor's sole cost and expense, to develop and
maintain service facilities, trained service personnel and maintain an
inventory of service parts adequate to provide service in accordance
with the limited warranties Marco may, but will not be obligated to
provide, and in compliance with normal trade practices for the products
heretofore and hereafter sold by the Distributor. In order to be
familiar with technical characteristics and parameters of the Products,
the Distributor shall, at Distributor's sole cost and expense, send
technical or sales personnel to the Marco sales and service seminars as
required.
6. Restriction. The Distributor shall not lease or sell the
Products to any non-authorized distributor or sub-dealer for lease or
resale within the Territory.
7. Territorial Limitation. The Distributor will not solicit
business for the Products outside of the limits of the Territory.
8. Distributor Handbook. Marco has published, and will, from time
to time, revise and update a "Distributor Handbook" a copy of which has
been previously furnished to the Distributor. The Distributor agrees to
abide by all of the terms of the Distributor Handbook, and to all
revisions and updates to the same, if provided to the Distributor.
9. Prices. Prices for products on sales by Marco to Distributor
will be as determined from time to time by Marco. All prices are FOB
Marco's principal place of business as set forth above.
10. Payment.
A. Payment for Products purchased will be in accordance with
the terms provided in the Distributor Handbook.
B. Distributor grants Marco a security interest in the
Products, and any proceeds therefrom, to secure payment in full of all
indebtedness of Distributor to Marco, whether now or later created as
well as all sums due by Distributor to Marco under this Agreement and
all obligations of Distributor to Marco pursuant to this Agreement
(including, but not limited to, Paragraph 10C hereof). If the
Distributor defaults under this Agreement, Marco will be entitled to all
the remedies of a secured party under the Uniform Commercial Code of the
State of Florida. Distributor grants Marco an irrevocable power of
attorney to execute, and to file with the appropriate governmental
authority, any and all financing statements (and other documents) on
behalf of Distributor necessary to perfect Macro's security interest in
the Products. In addition to any other remedy available to it, Marco
may, upon Distributor's default in payment, enter upon Distributor's
premises to peaceably take possession of the Products during normal
business hours. If Marco is required to retain possession by judicial
process, Distributor expressly waives any right to require Marco to post
any security as a precondition to securing a judicial order granting
immediate repossession. Marco may, in addition to any other remedies it
may have, retain as rental all payments made pursuant to this Agreement
to the extent such payments do not exceed the fair and reasonable rental
charges for the Products.
C. As Marco has a security interest in the Products, the
Distributor shall keep the same insured against loss by fire, theft and
all insurable risks or physical damage thereto to its full value in such
insurance company as is satisfactory to Marco. All such policies of
insurance shall provide that any loss thereunder shall be payable to the
Distributor and Marco as their respective interests may appear. Copy of
each such policy shall be furnished to Marco upon demand .
11. Relationship of the Parties and Indemnification.
A. Nothing contained in this Agreement shall be construed to
make the Distributor the agent for Marco for any purpose, and neither
party hereto shall have any right whatsoever to incur any liabilities or
obligations on behalf of or binding upon the other party except as
provided in Paragraph 10B. The Distributor specifically agrees that it
shall have no power or authority to represent Marco in any manner; that
it will solicit orders for Products as an independent contractor in
accordance with the terms and conditions of this Agreement; and that it
will not at any time represent orally or in writing to any person or
corporation or other business entity that it has any right, power or
authority not expressly granted by this Agreement.
B. Distributor agrees to hold Marco free and harmless from
any loss, damage or cost, including legal expenses and counsel fees,that
Marco becomes liable for by reason of (i) acts of the Distributor
in marketing and servicing the products including, but not limited to,
misrepresenting the terms of Macro's limited warranty to end-users,
breach of warranties made by Distributor's personnel or agents and
improper installation, support or maintenance of the Products, (ii)
Distributor's failure to maintain service or pay for outstanding orders
upon termination or cancellation of this Agreement in accordance with
its terms and (iii) acts of third parties, such as the execution of
liens and security interests, in relation to Products sold to the
Distributor hereunder.
12. Term. The term of this Agreement will begin when executed by
all parties and expire on December 31 of such year. This Agreement
shall automatically be renewed for consecutive one year terms unless
either party elects not to renew, in which event written notice must be
given not later than October 1, of the current year. In addition,
either party may terminate this Agreement, with or without cause upon 90
days written notice to the other party.
13. Conditions For Termination of Agreement by Marco. The
Distributor understands that if Distributor becomes unable or unwilling
to comply with the forgoing requirements that it will have made it
impossible to continue a successful business relationship with Marco.
Accordingly, if the Distributor fails to carry out any conditions of
this Agreement then notwithstanding anything herein otherwise provided,
the term of the Agreement is subject to cancellation by Marco effective
upon giving a notice of cancellation.
14. Extension of Credit. Nothing herein contained obligates
Marco to extend credit to the Distributor, it being understood and
agreed that the extension of any credit shall be determined by Marco
from time to time.
15. Integration. The Agreement cancels any other agreement or
understanding which may exist between the Distributor and Marco
affecting this Agreement, or related to the selling or servicing of the
Products.
16. Governing Law. This Agreement shall be governed by the laws of
the State of Florida, except the conflict of laws provisions. Xxxxx County,
Florida will be the proper venue for any action brought hereunder.
17. Attorney's Fees. In any dispute arising from this Agreement,
the prevailing party will be entitled to recover all costs, including
reasonable attorney's fees (through appeal, if necessary) from the other
party.
18. Notices. Notices required or permitted by this Agreement shall
be in writing and will be deemed given and received (i) upon personal
delivery to the president of the respective parties or if Distributor is
an individual to such individual, or (ii) 3 days after mailing,
certified mail, return receipt requested, postage prepaid to the
addresses set forth in this Agreement or to any other address later
provided, from time to time, by giving notice of the same to the other
party.
19. Misc. This Agreement shall not be construed against the party
causing it to be prepared. The Distributor unconditionally guarantee the
fulfillment of all of the Distributor's obligations under this
Agreement, as the same may be amended or renewed from time to time, and
the repayment of any sums now or later owed by the Distributor to Marco
and with respect to such guarantee waive notice of nonpayment, and
protest and acceptance and agree that Marco will not be required to xxx
the Distributor prior to enforcing this guarantee. Said guarantee maybe
terminated only by written cancellation sent to Marco and will be
effective only as to debts incurred subsequent to such notice.
MARCO OPHTHALMIC, INC., (SEAL)
a Florida corporation
By: Xxxxx Xxxxx
Its President
Distributor Name: Franklin Ophthalmic Instruments Co., Inc.
By: (signature) Xxxxxx X. Xxxxx
TITLE: President and CEO
