EXHIBIT 10.2
DISTRIBUTOR AGREEMENT
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This Agreement made and entered into this 15th day of May, 1987, by and
between Tokyo Electron Limited, a Japanese corporation organized and existing
under the laws of Japan with its principal place of business located at
Xxxxxxxx-Xxxxxx Xxxx., 0-00-0 Xxxxx-Xxxxxxxx, Xxxxxxxx-xx, Xxxxx 000, Xxxxx
(hereinafter referred to as TEL) and Xxxxxxx Research International, a
corporation organized and existing under the laws of the United States of
America, with its principal place of business located at Xxx Xxxxxxx Xxxx, X.X.
Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000, U.S.A.(hereinafter referred to as
Manufacturer).
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. Appointment. Manufacturer hereby appoints TEL its distributor, and TEL
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hereby accepts such appointment, for the sale of the Products (defined in
Appendix A) in the Territory (defined in Appendix B).
The list of Products as set forth in Appendix A may be changed, abandoned
or added in writing by mutual agreement by the parties.
2. Term Of Agreement. This Agreement shall take effect from the date of
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execution hereof and shall remain in force unless and until terminated pursuant
to Article 10 hereof.
3. Responsibilities.
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(a) Manufacturer agrees:
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To make every reasonable effort to manufacture quantities of the
Products sufficient to meet the resale requirements of TEL.
(b) TEL agrees:
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(i) To use its best efforts to promote the sale of the
Products.
(ii) To maintain an inventory of the spare parts in a quantity
sufficient to meet the needs of its customers in accordance with reasonable
recommendations which may be made by Manufacturer as to specific items and
quantities, provided that TEL shall have the option to sell to Manufacturer, and
then Manufacturer shall purchase from TEL, the spare parts of the Products
remained unused in TEL's inventory, at a reasonable intervals during the term of
this Agreement, which purchases shall be at the price equal to the net price
originally paid therefor by TEL.
(iii) To maintain records of inventory of the spare parts on hand
and provide the same to Manufacturer, on request, at reasonable intervals.
(iv) To hold in confidence during the term of this Agreement, and
thereafter for one (1) year, any and all information of a confidential nature
regarding Manufacturer's business or affairs, including without limitation, data
provided by Manufacturer regarding the design and/or methods of manufacture of
the Products, and not to disclose the same to any person, firm or corporation.
On all such confidential information of tangible nature, Manufacturer shall
stamp "CONFIDENTIAL" thereon. As for confidential information of intangible
nature, Manufacturer shall indicate the nature of confidentiality thereof in
certain other appropriate manner.
The following information shall not be considered confidential:
(1) Information which is already generally available to the public.
(2) Information which hereafter becomes generally available to the public,
through no fault of TEL.
(3) Information which was already known to TEL prior to the disclosure
thereof by Manufacturer.
(4) Information which is developed by TEL independently of and without aid
of the information disclosed by Manufacturer.
(5) Information which lawfully becomes known to TEL through a third party.
4. Price.
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(a) Price. TEL agrees to pay Manufacturer for the Products purchased
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hereunder in accordance with price schedules or bulletins supplied by
Manufacturer from time to time. The presently applicable schedule is attached
hereto as Appendix A.
(b) Price Change. Manufacturer shall give TEL at least ninety (90)
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days written notice prior to the price change which may be made by Manufacturer.
5. Terms Of Payment. The payment shall be made net thirty (30) days after
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the invoice date by cash remittance in U.S. dollars by cable.
6. Delivery. Manufacturer shall use its best efforts to fill all orders
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promptly upon acceptance thereof. Deliveries shall be made F.O.B. Manufacturer's
factory in _______________. Manufacturer shall retain title and bear the risk of
loss until such time as a shipment has been placed on board the carrier, at
which time title shall pass and the risk of loss shall be borne by TEL. TEL
shall have the right to select the carrier of its choice.
7. Advertising. TEL shall conduct advertising activity which is deemed
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appropriate to promote the sale of the Products in the Territory. Manufacturer
shall supply, free of charge, advertising materials for marketing of the
Products such as catalogs, brochures, pamphlets, and the
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like. TEL agrees to refrain from making any claim or representation concerning
the Products in excess of those made by Manufacturer.
8. Trademarks. In connection with sales or advertising of the Products,
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TEL may use such trade name or trademarks owned by Manufacturer as are more
specifically listed in Appendix C. Upon termination of this Agreement, TEL will
take all reasonable and necessary steps to discontinue any use of such trade
name and trademarks.
9. Warranties.
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(a) Materials and Workmanship. Manufacturer shall warrant its
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Products to be free from defects caused by faulty materials or poor workmanship
and to conform to specifications furnished or approved by Manufacturer for a
period of one (1) year from the date of shipment to TEL. The liability of
Manufacturer under this warranty is limited to replacing, repairing or making
refund payment at its option and expense for any Product which is returned by
TEL.
(b) Third Party Infringement. Manufacturer agrees to indemnify and
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hold harmless TEL and its customers from and against all damages and costs,
including legal fees, which may be assessed against TEL or its customers in any
claim or action by third parties alleging unlawful acts or omissions to act,
such as trademark, copyright, mask works right or patent infringement, where
alleged liability of TEL or its customers arises by reason of the use or sale of
any item delivered by Manufacturer to TEL or its customers, provided that TEL or
its customers shall give Manufacturer prompt notice, in writing, of all such
claims or actions instituted against it, and an opportunity to elect to take
over, settle or defend the same through counsel of its own choice and under its
sole discretion and at its own expense, and will make available to Manufacturer
in the event of such election, all defenses against such claims or actions,
known or available to TEL or its customers.
10. Termination.
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(a) General. This Agreement may be terminated:
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(i) By an agreement in writing duly signed by the parties
hereto, or
(ii) By either party at will, with or without cause, upon not
less than sixty (60) days notice in writing, given by registered or certified
mail to the other party.
(b) Sales after Termination. The acceptance of any order from or the
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sale of any Product to TEL after the termination of this Agreement shall not be
construed as a renewal or extension hereof nor as a waiver of termination.
(c) No Liability for Termination. Neither Manufacturer nor TEL shall,
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by reason of the termination, be liable to the other 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 this Agreement.
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(d) Inventory Buy-back. Upon termination of this Agreement,
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Manufacturer shall purchase from TEL and TEL shall sell to Manufacturer all
Products of Manufacturer, including all accessories, parts, options and etc.,
purchased by TEL for resale and then in TEL's inventory, such purchases to be at
a price equal to TEL's book value.
(e) Spare Parts. Despite the termination of this Agreement,
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Manufacturer shall, upon request by TEL, continue to provide TEL the spare parts
for each model of the Products for a period of five (5) years from the shipment
of the last unit of such model at the Manufacturer's then current prices.
11. Arbitration. Disputes hereunder which cannot be satisfactorily
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resolved by the parties themselves shall be finally settled by arbitration
pursuant to the Japan-American Trade Arbitration Agreement of September 16,
1952, by which each party hereto is bound.
If Manufacturer is the initiating party, the arbitration shall be held
in Tokyo, and if TEL is the initiating party, the arbitration shall be held in
Flanders, New Jersey.
12. Force Majeure. Neither party hereto shall be liable for default of any
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obligation hereunder if such default results from the force majeure which
includes, without limitation, governmental acts or directives; strikes; acts of
God; war; insurrection, riot or civil commotion; fires, flooding or water
damage; explosions, embargoes, or delays in delivery, whether of the kind herein
enumerated or otherwise, which are not within the reasonable control of the
party affected.
13. Miscellaneous.
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(a) Assignment. This Agreement is not assignable or transferable by
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either party in whole or in part, except with the written consent of the other
party.
(b) Notices. Any notices provided for under this Agreement shall be
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deemed effective when delivered in person or seven (7) days after deposit in the
mails by registered or certified mail postage prepaid and addressed to the
respective address listed in the introduction of this Agreement, or to such
different address as either party may designate in writing to the other pursuant
to this paragraph.
(c) Relationship of Parties. The parties hereto agree that TEL shall
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operate as an independent contractor and not as an agent or employee of
Manufacturer. TEL has no express or implied authorization to incur any
obligation or in any manner otherwise make any commitments on behalf of
Manufacturer. TEL shall employ its own personnel and shall be responsible for
them and their acts and in no way shall Manufacturer be liable to TEL, its
employees or third parties for any losses, injuries, damages or the like
occasioned by TEL's activities in connection with this Agreement, except as
expressly provided herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above set forth.
TOKYO ELECTRON LIMITED XXXXXXX RESEARCH INTERNATIONAL
By: /s/ X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Title: Director, SP-1 Div Title: President
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Date: May 15, 1987 Date May 21, 1987
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APPENDIX A
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PRODUCTS AND PRICE LIST
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AUTOEL
IN SITU
RESEARCH & SPECTROSCOPIC ELLIPSOMETERS,
including EXTERNAL SOFTWARE AND SPARE PARTS
and ACCESSORIES.
(Price Lists as presently in TEL's possession.)
APPENDIX B
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TERRITORY
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Territory: JAPAN
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APPENDIX C
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TRADEMARKS
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AUTOEL
