EXHIBIT 10.26
CELL ROBOTICS, INC.
DISTRIBUTION AGREEMENT
This AGREEMENT is made this 3rd day of January, 2000 by and between CELL
ROBOTICS, INC., a corporation organized under the laws of the State of New
Mexico having its principal place of business at 0000 Xxxxxxxxx Xxxxxxx, XX,
Xxxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "CELL ROBOTICS") and
Meiwa Shoji Co., Ltd. (hereinafter referred to as "DISTRIBUTOR"), a corporation
with its principal place of business at 0-0-00 Xxxxxx, Xxxxxxxxx-xx, Xxxxx,
000-0000 XXXXX.
The parties hereto agree as follows:
1.0 APPOINTMENT
1.1 Subject to the limitations contained in this AGREEMENT, CELL
ROBOTICS hereby appoints the DISTRIBUTOR as the exclusive
DISTRIBUTOR for all PRODUCTS of Cell Robotics in the specified
TERRITORY. This AGREEMENT pertains to distribution throughout,
but not outside, the country of JAPAN, hereinafter referred to
as the TERRITORY. This AGREEMENT initially pertains to CELL
ROBOTICS' product line known as the Cell Robotics, Inc.
Workstation, LaserTweezers Workstation, LaserScissors
Workstation, Microscope Workstation and its options and
accessories (the PRODUCTS) as specified in Exhibit A.
1.2 CELL ROBOTICS' sales of its PRODUCTS to United States
government agencies and international agencies, such as United
Nations agencies, which may then place the PRODUCTS in the
TERRITORY, incur no obligation to the DISTRIBUTOR. However,
CELL ROBOTICS may ask DISTRIBUTOR to install or service
instruments sold to these agencies for a reasonable fee and
DISTRIBUTOR agrees to honor any such request.
1.3 CELL ROBOTICS shall not knowingly ship its PRODUCTS to a
customer which it knows has a regular scientific or medical
PRODUCTS distribution in the TERRITORY. DISTRIBUTOR shall not
knowingly sell to customers outside the same TERRITORY or to
customers for export.
1.4 Should other than CELL ROBOTICS or its subsidiary companies ship any of
CELL ROBOTICS' PRODUCTS into the TERRITORY, without CELL ROBOTICS'
knowledge, CELL ROBOTICS shall have no responsibility or obligations to
DISTRIBUTOR for sales of such PRODUCTS in the TERRITORY.
2.0 DISTRIBUTOR'S ACTIVITIES AND RESPONSIBILITIES
2.1 The DISTRIBUTOR shall diligently promote the sale of CELL ROBOTICS'
PRODUCTS in the TERRITORY, maintain at all times a sales and office
force adequate to meet market needs.
2.3 DISTRIBUTOR shall not divulge any information with respect to CELL
ROBOTICS' business except as may be necessary to carry on its
activities under the AGREEMENT. This obligation shall survive any
termination or expiration of this AGREEMENT.
2.4 All expenses incurred by DISTRIBUTOR are to be paid by DISTRIBUTOR.
2.5 DISTRIBUTOR shall not remove, change or add to labels associated with
the PRODUCTS except with prior written approval of supplier.
DISTRIBUTOR shall have no rights under this AGREEMENT to any trademarks
or trade names of CELL ROBOTICS. DISTRIBUTOR agrees to use
advertisements and promotional material containing CELL ROBOTICS'
trademarks only after prior written approval of CELL ROBOTICS.
DISTRIBUTOR agrees that CELL ROBOTICS shall own the copyright in any
advertising and promotional material given to DISTRIBUTOR by CELL
ROBOTICS and all translations, and DISTRIBUTOR shall so xxxx all such
materials.
2.6 DISTRIBUTOR shall submit to CELL ROBOTICS a projected sales forecast
for the first twelve (12) months following the effective date of this
AGREEMENT, and submit annual updates based on the DISTRIBUTORS
realistic marketing information. DISTRIBUTOR will be committed to
establish a minimum quota based on the annual forecast. In the first
year of the AGREEMENT, the quota shall be a minimum of three (3) sales.
Failure to meet quota could serve as cause for CELL ROBOTICS to
dissolve the agreement for reason of non-performance. DISTRIBUTOR shall
have the option, but not be required, to purchase CELL ROBOTICS'
PRODUCTS during the period this AGREEMENT is in force.
2.7 DISTRIBUTOR further agrees to do all of the following:
a. Assign at least one person who shall be responsible for the
sales, applications support and service management of CELL
ROBOTICS' PRODUCTS;
b. After an initial sales and service training that shall be
mostly provided by CELL ROBOTICS (see 3.1 and 3.2 below),
ensure at DISTRIBUTOR's own expense the availability of
trained sales and service staff for effective marketing of
CELL ROBOTICS' PRODUCTS in the TERRITORY;
c. Assist CELL ROBOTICS to obtained PRODUCT clearance validation
as may be required by agencies in the TERRITORY in respect of
CELL ROBOTICS' PRODUCTS, and, in such event that the parties
may agree to add further PRODUCTS, to take such action in
respect of these further PRODUCTS;
d. DISTRIBUTOR shall be responsibie for all instrument
installations that follow the sales and service training.
3.0 CELI ROBOTICS' ACTIVITIES AND RESPONSIBILITIES
3.1 CELL ROBOTICS shall be responsible for one (1) sales, applications
support and service training course in Albuquerque, New Mexico or other
designated site. Only the training course, materials, hotel and meals
are included. Air fare, transportation and other expenses are not
included, and shall be the responsibility of the DISTRIBUTOR.
3.2 CELL ROBOTICS shall sell its PRODUCTS to DISTRIBUTOR at the pre-set
negotiated list price established by CELL ROBOTICS, which shall be
subject to change at any time on ninety days notice. Notification shall
normally be by new price sheets, or other price notifications sent to
the DISTRIBUTOR. DISTRIBUTOR shall not be entitled to receive any
commissions on sales of PRODUCTS that it purchases for its own account.
Discounts for CELL ROBOTICS' PRODUCTS for the DISTRIBUTOR shall be 25%
off the published International Price List.
3.3 With respect to government tenders or bids, DISTRIBUTOR shall follow
the instructions of CELL ROBOTICS in connection with each tender or
bids, DISTRIBUTOR shall follow the instructions of CELL ROBOTICS in
connection with each tender or bid for which DISTRIBUTOR seeks
confirmation of PRODUCT availability or price protection.
3.4 CELL ROBOTICS shall use all reasonable efforts to fill any order of
DISTRIBUTOR but shall have no responsibility to DISTRIBUTOR by reason
of any delay or failure to deliver caused by stock shortages, transit
accidents, strikes, acts of God, severe weather, or other events beyond
the control of CELL ROBOTICS.
3.5 CELL ROBOTICS shall not be responsible for accepting returns of any of
its PRODUCTS except in the event wrong items are delivered or products
do not meet quoted specifications for each order
3.6 CELL ROBOTICS shall provide regular technical and marketing updates
plus technical assistance from its Albuquerque, New Mexico
headquarters.
4.0 DELIVERY
4.1 Delivery of CELL ROBOTICS' PRODUCTS to customers shall be F.O.B. at
CELL ROBOTICS' warehouse facility.
5.0 PAYMENT
5.1 Unless otherwise agreed for a particular shipment, payment shall be net
30 days upon delivery of the product or by confirmed irrevocable letter
of credit or cash against documents. Payment terms shall always be at
CELL ROBOTICS' sole discretion.
5.2 A letter of credit must:
a. Be confirmed by commercial U.S. bank or U.S. agency of
domestic U.S. bank;
b. Allow transshipments;
c. Be preferably a site draft;
d. All opener's account fees to be paid by DISTRIBUTOR;
e. U.S. bank fees to collect the money shall be paid by CELL
ROBOTICS;
6.0 WARRANTY
6.1 CELL ROBOTICS shall give its limited instrument warranty as follows:
a. FOR AN INSTRUMENT WHICH IS FOUND TO BE FAULTY WITHIN NINETY
(90) DAYS OF ITS INITIAL RECEIPT BY DISTRIBUTOR AND PRIOR TO
DELIVERY TO A CUSTOMER BY DISTRIBUTOR OR AN APPROVED
SUB-DISTRIBUTOR, CELL ROBOTICS SHALL REPLACE SUCH INSTRUMENT
OR REPAIR AND RETURN IT AT ITS OWN EXPENSE, UPON CONFIRMATION
TO CELL ROBOTICS' SATISFACTION THAT THE FAULT IS NOT DUE TO
DAMAGE IN TRANSIT OR MISHANDLING;
b. For instruments which fail during the period ending twelve
months after delivery to DISTRIBUTOR, CELL ROBOTICS shall
replace faulty parts free of charge.
6.2 CELL ROBOTICS gives no other warrant either express or implied. Any
warranty which might be implied in law shall expire within the period
of the express warranty. In no event shall CELL ROBOTICS be responsible
for remote or consequential damages.
7.0 AUTHORIZATION
7.1 DISTRIBUTOR shall attend to any official notification or registration
of this contract at its expense, including translation, and shall
advise CELL ROBOTICS of full particulars of same.
8.0 DURATION
8.1 Unless sooner terminated as set forth within, this AGREEMENT shall
remain in full force and effect for an initial period of two years from
its effective date. Provided the parties can agree, the AGREEMENT may
be extended for additional two-year periods. If for any reason the
business relations between the parties to this AGREEMENT shall continue
without formal written renewal, such continuance shall not be deemed a
renewal or extension and DISTRIBUTOR's appointment shall be subject to
termination upon ninety-day written or telegraphic notice by either
party to the other. In all other respects the terms and conditions
would be identical to those previously agreed to in writing.
8.2 Should DISTRIBUTOR at any time during the period of this AGREEMENT
discontinue business, be adjudged bankrupt, have a Receiver appointed
in respect of its assets, or make a general assignment for the benefit
of creditors, then in such event CELL ROBOTICS may at its option,
terminate this AGREEMENT by giving thirty days notice in writing.
8.3 Should DISTRIBUTOR at any time during the period of this AGREEMENT fail
to meet any of the agreed upon provisions of this AGREEMENT, then CELL
ROBOTICS may at its option terminate this AGREEMENT by giving thirty
(30) days notice in writing to DISTRIBUTOR, except that if DISTRIBUTOR
shall correct the breach or default within the notice period, this
AGREEMENT shall remain in force.
8.4 Should CELI ROBOTICS at any time during the period of this AGREEMENT
fail to make timely delivery of its PRODUCTS, or other wise fail to
meet any of the agreed upon provisions of this AGREEMENT, then
DISTRIBUTOR may at its option terminate this AGREEMENT by giving thirty
days notice in writing to CELL ROBOTICS, except that if CELL ROBOTICS
shall correct the breach or default within the notice period, this
AGREEMENT shall remain in force.
8.5 NEITHER PARTY SHALL BE LIABLE TO THE OTHER BECAUSE OF THE TERMINATION
OR NON-RENEWAL OF THIS AGREEMENT, FOR COMPENSATION, REIMBURSEMENT OR
DAMAGES ON ACCOUNT OF THE LOSS OF COMMISSION ON ANTICIPATED ORDER,
PRESENT OR PROSPECTIVE, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS,
LEASES OR COMMITMENT IN CONNECTION WITH THE BUSINESS OR FOR ANY OTHER
REASON. CELL ROBOTICS SHALL, SUBJECT TO OTHER TERMS AND CONDITIONS OF
THIS AGREEMENT, HONOR PAID ORDERS TRANSMITTED TO CELL ROBOTICS PRIOR TO
TERMINATION OR EXPIRATION.
8.6 Upon the termination or expiration of this AGREEMENT, DISTRIBUTOR shall
immediately cease using all advertising matter and other printed matter
in it possession or under its control containing any of the trade names
or trademarks of CELL ROBOTICS whether or not registered in the
TERRITORY. DISTRIBUTOR agrees not to do business under or use any of
CELL ROBOTICS' trademark or trade names as part of its company name
during the term of this AGREEMENT or following its expiration or
termination.
9.0 NO AGENCY
9.1 THE RELATIONSHIP OF DISTRIBUTOR TO CELL ROBOTICS IS THAT OF AN
INDEPENDENT CONTRACTOR. NOTHING CONTAINED IN THIS AGREEMENT SHALL BE
DEEMED TO AUTHORIZE OR EMPOWER DISTRIBUTOR, ITS AGENTS OR EMPLOYEES, TO
ACT AS AGENT FOR CELL ROBOTICS OR CONDUCT BUSINESS IN THE NAME, OR FOR
THE ACCOUNT OF CELL ROBOTICS, OR OTHERWISE BIND IT IN ANY MANNER.
DISTRIBUTOR SHALL, IN PARTICULAR, HAVE NO POWER TO ACT IN THE NAME OF
CELL ROBOTICS BY AGREEING TO TERMS AND CONDITIONS OF SALES AND CLOSING
SALES TRANSACTION.
10.0 NON-ASSIGNABLE AGREEMENT
10.1 This AGREEMENT is exclusive to DISTRIBUTOR and non-assignable and
non-transferable. Any attempt by DISTRIBUTOR to assign or transfer
rights or obligations
under this AGREEMENT shall be a breach by DISTRIBUTOR. This prohibition
shall extend to any transfers of owner ship, sales of interest, or
withdrawal or death of a proprietor or partner. In the event ownership
of any controlling shareholder of DISTRIBUTOR changes, DISTRIBUTOR
shall promptly notify CELL ROBOTICS, and CELL ROBOTICS may then
terminate this AGREEMENT upon notice.
11.0 MISCELLANEOUS
11.1 All notices under this AGREEMENT shall be in writing. If to CELL
ROBOTICS, it shall be sufficient for all purposes if delivered in
person or sent by courier or registered mail to: 0000 Xxxxxxxxx
Xxxxxxx, XX, Xxxxxxxxxxx, Xxx Xxxxxx 00000 U.S.A.. If to DISTRIBUTOR,
it shall be sufficient if delivered in person or sent by courier or
registered mail to:
Meiwa Shoji Co., Ltd.
0-0-00 Xxxxxx, Xxxxxxxxx-xx,
Xxxxx, 000-0000 XXXXX.
A different address may be used by either party, provided that it has
been specified in a notice to the other.
11.2 DISTRIBUTOR shall assist CELL ROBOTICS in obtaining all documents
necessary for importation of CELL ROBOTICS' PRODUCTS in to the
TERRITORY.
11.3 The headings used herein are for ease of reference only and not to be
used in interpretation or construction of this AGREEMENT.
11.4 The provisions of this AGREEMENT shall not be extended, varied,
changed, modified or supplemented other than by AGREEMENT in writing
signed by both CELL ROBOTICS and DISTRIBUTOR. There are no terms or
conditions, representations or understandings except as set forth
within this AGREEMENT.
11.5 This AGREEMENT shall be governed by the laws of the State of New
Mexico, U.S.A. The English version shall control all interpretation and
construction of this AGREEMENT.
11.6 This AGREEMENT and attached exhibit (A) represent the entire
understanding of the parties with respect to the purchase, marketing,
and sale by DISTRIBUTOR of the PRODUCTS. All prior understandings and
AGREEMENTs between the parties are merged herein. This AGREEMENT may
not be modified in any respect except in writing signed by both parties
hereto.
IN WITNESS WHEREOF, the parties hereto have cause this AGREEMENT to be duly
executed the day and year first above written.
MEIWA SHOJI, CO., Ltd.:
By: /s/ Xxxxxxx Xxxx January 31, 2000
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Printed Name: Xxxxxxx Xxxx
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Title: President & CEO
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CELL ROBOTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx March 1, 2000
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Xxxxxx X. Xxxxxxxx, Ph.D.
President and CEO
