Exhibit 10.25
AGENT AGREEMENT
This AGENT AGREEMENT is made and entered into this 29th day of October,
1997, by and between Silicon International Ltd., a corporation organized and
existing under the laws of Hong Kong with its principal place of business
located Xxxx 000, Xxxx Xxxx Xxxxxxxx, 000-000 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
(hereinafter referred to a as "Agent") and CFM TECHNOLOGIES, INC., a
Pennsylvania corporation, with its principal place of business located at 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx, 00000 (hereinafter referred to as
the "Company").
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. APPOINTMENT OF AGENT. Company hereby appoints Agent as its
exclusive agent for the sale of certain items described in Attachment "A"
(hereinafter referred to as "Products") in the countries and locations
listed in Exhibit "B" (hereinafter referred to as "Territory").
Agent is authorized by the above appointment to sell Products only to
customers located in Agent's territory for use in manufacturing facilities
located in Agent's territory, and Agent shall refer to Company all
inquiries made from prospective customers which do not fall under the scope
of this Agreement. All inquiries or orders received by Company for Products
from any party in the Territory shall be referred to Agent.
The list of Products as set forth in Appendix A may be changed, abandoned,
or supplemented in writing by mutual agreement between the parties.
It is understood by the parties that the Agent shall be acting as an
independent sales agent of Company's Products, and Agent shall be solely
responsible for all expenses connected with the operation of its business. Agent
shall have no authority to contract in the name of or bind the Company in any
manner whatsoever. Agent shall defend and hold Company harmless from all claims
arising out of Agent's conduct. All transactions or activities in connection
with this Agreement will comply with the letter and the spirit of all applicable
laws as well as ethical business standards. Care must be taken to avoid
disseminating inaccurate or misleading technical or business information.
2. TERM OF AGREEMENT. This Agreement shall continue in effect for a period
of one (1) year from the date of its execution and shall automatically renew
year after year, unless terminated pursuant to Paragraph 10 hereof.
3. RESPONSIBILITIES.
a. COMPANY'S RESPONSIBILITIES. Company shall make every reasonable
effort to manufacture quantities of the Products sufficient to meet the
requirements of end user customers sold to by Agent. Company shall have
responsibility for Product installation, service, and support.
b. AGENT'S RESPONSIBILITIES. Agent agrees to:
(i) use its best efforts to promote the sale and use of the
Products and to solicit and secure orders for the Products within its
Territory, and further to serve the best interests of Company in any
and all matters in accordance with this Agreement;
(ii) Refrain from manufacturing or selling of products which
directly compete with the Products of the Company for the duration of
this Agreement and for a period of six (6) months following the
termination of this Agreement for any reason.
(iii) Agent shall prepare a sales forecast for each quarter
providing projections of end-user sales of Products by item, by end
-user name, by quarter for (6) six fiscal quarters of the Company,
including the quarter in which the forecast is prepared. This forecast
shall be updated monthly to be received by CFM by the 15th day of each
month.
4. CONFIDENTIALITY. Agent acknowledges that this Agreement creates a
relationship of trust and confidence between Agent and Company. Agent
acknowledges that proprietary data and proprietary information are embodied in
the Company's Products, and in data, information, and material supplied by
Company to Agent or acquired by Agent in the course of performance of this
Agreement. Agent acknowledges that all such proprietary data and proprietary
information, including such data and information as is contained in the Products
and their constituent parts, constitute the sole
and exclusive property to the Company, and Agent will carefully protect such
information and use it only in furtherance of the Company's business.
Agent hereby agrees to hold in confidence during the term of this
Agreement, and thereafter for a period of three (3) years, any and all
information of a confidential nature regarding Company's business or affairs,
including without limitation, data provided by Company regarding the design
and/or methods of Company of the Products, and not to disclose the same to any
person, firm, or corporation.
On all the above information of a confidential or proprietary nature,
Company shall stamp "CONFIDENTIAL" or so indicate in other appropriate ways for
software or other intangible materials.
The following information shall not be considered confidential:
a. information which is already generally available to the public;
b. information which hereafter becomes generally available to the
public, except as a result of a fault of the party to whom the information
was disclosed;
c. information which Company agrees to disclose in writing;
d. information which can be shown to have been properly known to Agent
prior to the transmittal thereof from Company; or
e. information which is obtained by Agent from a third party which had
the right to possess and to disclose the information.
5. PRICE AND PRICE CHANGES.
a. PRICE. The Company will from time to time provide the Agent with price
schedules for the Company's products in the Territory. Agent agrees that it will
not sell the Company's Products in its Territory at prices other than those on
the Territory price list without Company's express knowledge and written
consent. The company agrees to pay the Agent a commission for the Products
purchased by the customer/end-user according to the price paid by the customer/
end-user. Commission will be a pre-determined rate of four and one-half percent
(4.5%) of collected funds. The commission rate may be changed upon the written
agreement of both parties.
6. TERMS OF PAYMENT. The terms of payment shall be as follows:
a. One-half (50%), after receipt of payment by Company from
customer/end user based upon shipment of equipment.
One-half (50%), after receipt of payment by Company from
customer/end user based upon final acceptance.
b. Company to pay Agent commission within 10 days of receipt of
payment by Company from customer/end-user.
7. SPARE PARTS. Agent agrees to purchase spare parts for resale to
customers or to the Company (when used for warranty repairs) during the term of
this agreement. Such purchases shall be made from recommended listings of spare
parts to be supplied by the Company. Orders placed by Agent for such spare parts
shall be in an amount not less than 22.2% of any commissions paid to Agent
during each annual period ending on October 31.
8. APPLICATION ENGINEER SUPPORT. Agent agrees to hire and retain a minimum
an applications engineer to support each customer site at which three or more
Full Flow systems are installed or on order. The Company agrees to provide
technical training to such application engineers at no cost to Agent and Agent
agrees to pay for all travel, living and incidental expenses of such
applications engineers during the period of any such training. Additional
applications engineers may
be hired by Agent and trained by Company for customer sites with more than three
Full Flow systems, subject to mutual agreement between Agent and Company.
9. DELIVERY. The Company shall use its best efforts to fill all orders
promptly upon acceptance thereof. However, if conditions beyond the control of
Company arise which prevent compliance with normal delivery schedules, Company
shall not be liable for damages, general, special or otherwise. Deliveries shall
be made Ex-Factory West Chester, Pennsylvania. Customer shall have the right to
select the packer and carrier of its choice and shall bear all costs related
thereto.
The Company shall retain title and bear the risk of loss until such time as
a shipment leaves the Company's dock, at which time title shall pass to the
Customer, and the risk of loss shall be borne by Customer. Customer shall
arrange and pay for insurance against loss or damage to the equipment during
transit.
10. SALES AND SUPPORT. Agent agrees to provide competent personnel for the
sales, specification review, negotiation, and technical sales support to
customers within its Territory. Company agrees to provide reasonable training
for Agent's personnel at its offices in West Chester, Pennsylvania.
11. ADVERTISING. Company shall supply Agent with reasonable quantities of
sales materials such as catalogs, brochures, and reprints of its advertising
materials at no charge to Agent. Agent shall have the right to conduct
advertising campaigns with respect to the Products at its expense. Agent shall
refrain from making any claims or representations concerning the Products in
excess of those made by Company. Agent will translate the above materials into
local languages as may be needed from time to time. Upon termination of this
Agreement, Agent shall return all unused sales materials to Company and shall
refrain from further use of all such materials in its activities.
12. TERMINATION.
A. This Agreement may be terminated:
1. by an agreement in writing duly signed by the parties hereto; or
2. by either party at will, with or without cause, less than one
hundred and eighty (180) days notice in writing, given by registered or
certified mail to the other party. The date of termination (Termination
Date) is defined a180 days following the date of notification.
B. Commissions, preceding and following the Termination shall be paid as
follows:
1. Following notification and preceding the Termination Date,
commissions to Agent will be paid in accordance with Sections 6(a) and
6(b).
2. Any order for shipment of Product into the Territory which shipment
(Ex-Works) shall occur prior to the Termination Date shall result in full
payment of any commission due to Agent based upon shipment of equipment,
subject to Section 6(b). No commissions will be paid for shipments into the
Territory made after the Termination Date.
3. Any Product shipped into the Territory for which Final Acceptance
is received prior to the Termination Date shall result in full payment of
any commission due to Agent based upon final acceptance, subject to Section
6(b). No commissions will be paid for final acceptance events which occur
after the Termination Date.
The acceptance of any order from a customer in the Agent's territory after
the Termination Date of this Agreement shall not be construed as a renewal or
extension hereof nor as a waiver of termination. Neither Company nor Agent
shall, by reason of the termination or non-renewal of this Agreement, 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 in connection with the business or goodwill
of Company or Agent, or otherwise.
13. MISCELLANEOUS.
a. ASSIGNMENT. This agreement is not assignable or transferable by either
party in whole or in part, except with written consent of the other party.
b. GOVERNING LAW AND LANGUAGE. This Agreement shall be governed in all
respects by the laws of the Commonwealth of Pennsylvania. This Agreement has
been negotiated and executed in the English language, and the rules of
construction and definition of the English language shall be applied in
interpreting this Agreement.
c. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties.
d. SEVERABILITY. If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
e. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefits of the parties hereto and their respective successors and assigns.
f. TITLES AND SUBTITLES. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
g. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall construe one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above set forth.
THE COMPANY:
BY: /s/ Xxxxx X. Xxxxxxx
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THE AGENT:
/s/ Xxxx Xxxx
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Xxxx Xxxx
President
Silicon International Ltd.
EXHIBIT A
PRODUCTS
Full Flow(TM) systems for semiconductor applications.
EXHIBIT B
TERRITORY
People Republic of China
Hong Kong, P.R. China
