DISTRIBUTORSHIP AGREEMENT
Agreement made this 1st day of August, 1995 by and between
Plasma-Therm, Inc., a Florida corporation ("Plasma-Therm") USA;
and Hakuto Co., Ltd., a corporation organized under the laws of
Japan ("Distributor").
In consideration of the agreements contained herein and
intending to be legally bound hereby, Plasma-Therm and
Distributor do hereby agree as follows:
1. Product and Territory. Distributor is hereby appointed
by Plasma-Therm, as the exclusive distributor of Plasma-Therm's
standard, special versions and updated versions of its Complete
2800 ("2800") Inline Wafer Etch Systems, 790, Shuttelockr 700,
7000, and Versalocktm 700 series of plasma processing equipment
(collectively, the "Products") for the country of Japan.
a. Technology. Plasma-Therm's products employ
Reactive Ion Etching (RIE), Plasma Etching (PE), Plasma Enhanced
Chemical Vapor Deposition (PECVD), Electron Cyclotron Resonance
(ECR) and Inductively Coupled Plasma (ICP) technologies.
2. Best Efforts; No Competition. Distributor shall use
its best efforts to sell and promote the sale of the Products
within the Territory. Plasma-Therm will make its best efforts to
fulfill Distributor's purchase orders. It is further understood
that the Distributor will not market, distribute or manufacture
on a world wide basis, any product or technology that competes
with the Products during the life of this agreement (excluding
existing principles).
3. Pricing. Plasma-Therm shall sell and Distributor shall
purchase the Products at a price that equals 85% of Plasma-
Therm's U.S. list price and spare parts at a price that equals
70% of Plasma-Therm's U.S. list price. Special pricing on large
blanket orders will be considered. Therefore, the Distributor
may set its price according to what the market will bare;
however, the Distributor's pricing should not become excessive.
If the Distributor requests additional discounts from Plasma-
Therm, greater than 85% of Plasma-Therm's U.S. list price for the
Products and greater than 70% of Plasma-Therm's U.S. list price
for spare parts, the Distributor will provide selling and cost
price information to Plasma-Therm so that both parties may
cooperate to meet the customer's budget. Any changes in the list
price for such Products shall be determined solely by, and are
subject to the exclusive discretion of, Plasma-Therm.
Distributor shall be promptly notified in writing ninety (90)
days prior to any price changes. The cost of any discounts on
the Products that distributor provides to its customers shall be
borne solely by Distributor. Plasma-Therm, acting in its sole
discretion, shall have the right to reject any non-standard order
from Distributor. Plasma-Therm will consider special changes on
systems, provided they are submitted for approval at the
quotation stage. The terms of all sales by Plasma-Therm to
Distributor shall be ex-works. Plasma-Therm's factory charges
for all crating, handling, shipping costs, insurance, demurrage,
import duties and other taxes or the like to be paid by
Distributor. Risk of loss or damage of Products shall shift to
Distributor upon Plasma-Therm's delivery of Products to the
carrier. The terms of payment shall be net thirty (30) days from
shipment date with all payments to be made by wire transfer;
Title of equipment will pass to Distributor at ex-works
point.
If Distributor fails to comply with the terms of this
paragraph 3 within thirty (30) days following written notice from
Plasma-Therm of Distributor's failure to comply, this Agreement
shall terminate immediately upon written notice from Plasma-Therm
of such termination and all obligations due Plasma-Therm shall
become immediately due.
4. No Sales Outside Territory. Distributor agrees that it
will make no sales of the Products to customers located outside
of the Territory without the prior written consent of Plasma-
Therm, and shall refer all inquiries from prospective purchasers
located outside of the Territory to Plasma-Therm.
5. Term.
a) Initial Term. This Agreement shall be for an
initial term of two contract years commencing August 1, 1995 and
ending July 31, 1997, and for successive contract years
commencing August 1st thereafter until terminated.
(b) Termination. Unless terminated earlier by reason
of breach of contract, this Agreement shall terminate at the end
of the initial term or at the end of a subsequent contract year
upon 180 days or longer written notice prior to the expiration of
the initial term or expiration of any subsequent contract year.
This Agreement shall terminate after thirty (30) days written
notice in the event either Distributor or Plasma-Therm shall
become insolvent, or shall file a voluntary petition in
bankruptcy, or shall be adjudicated as a bankrupt pursuant to any
involuntary petition, or shall suffer appointment of a temporary
or permanent receiver, trustee, or custodian for all or a
substantial part of its assets which shall not be discharged
within thirty (30) days.
(c) Third Party Purchase. If either Plasma-Therm or
Distributor is purchased by a third party, this party must honor
this entire agreement.
6. Sales Requirement. Distributor is required to make a
$3,000,000 minimum purchase of Products for the first contract
year of this Agreement. Thereafter, no later than sixty (60)
days prior to the commencement of the subsequent contract year
and of each contract year thereafter, Plasma-Therm and
Distributor will mutually agree upon the minimum sales
requirement for such contract year. [If the parties cannot
agree, then the minimum sales requirement will be 100% of the
minimum sales requirement for the previous contract year.] The
Distributor may average any two successive years to reach the
minimum sales volume.
In addition to any other remedies herein contained, Plasma-
Therm shall be entitled to terminate this Agreement with ninety
(90) days written notice upon the failure of Distributor to
purchase the foregoing required minimum volume of Products.
7. Additional Obligations of Distributor
(a) The Distributor must purchase a Shuttlelockr 700,
RIE/PE plasma processing system for immediate installation into
its Applications/Demonstration laboratory. Additionally, the
Distributor must purchase and take delivery of a Versalocktm 700
RIE or PECVD system (single chamber) by August 1, 1996. Both
systems will be priced at 75% of U.S. list price and paid in full
by Distributor within thirty (30) days from date of shipment.
The Distributor is also required to sell and replace the
demonstration systems every thirty-six (36) months. When the
Distributor replaces the existing demonstration systems with new
systems, the Distributor will pay 75% of U.S. list price and pay
within thirty (30) days from date of shipment.
(b) Clean Room. Distributor shall be required, at all
times during the term of this Agreement, commencing, August 1,
1995, to maintain clean room facilities adequate for system
demonstrations and eventually the appropriate analytical
equipment, including but not limited to, a scanning electron
microscope to perform customer samples as business permits.
(c) Personnel. Commencing immediately, the
Distributor on a best effort basis shall at all times during the
term of this Agreement, employ an appropriate staff of process,
sales and service personnel, all of whom shall devote their full
time efforts to the servicing and sale of the Products. If
additional service and technical support is required, Plasma-
Therm will provide it on a case-by-case basis, and Distributor
shall pay the standard per diem rate, currently $1,000 a day plus
travel and expenses.
(d) Inventory. Distributor will purchase and maintain
sufficient spare parts inventory for the Products.
(e) No Modification. Unless it has obtained the prior
written consent of Plasma-Therm, Distributor may not sell any non-
standard version of any Product.
(f) No Publicity. No publicity, including any news
release regarding the execution of this Agreement or the
distributorship created by it, shall be authorized or released by
Distributor without the prior written consent of Plasma-Therm.
(g) Product Acceptance. Plasma-Therm will use its
existing test procedure as a standard form for product acceptance
if the Products are not custom made according to customer
specifications. If the Products are custom made to customer
specifications, then the Distributor shall conduct the final
acceptance test after installation of the Products at the
customer's location. Distributor will inform Plasma-Therm of the
customer's date of acceptance for warranty credit purposes.
8. Provision for Product Warranties and Field Service.
Plasma-Therm warrants to Distributor and to end user customers of
the Products that the Products shall be free from defects in
material and workmanship. Plasma-Therm warrants that the
Products shall conform to the published specifications of Plasma-
Therm or the specifications provided by the end user customer.
Distributor will provide all service warranty work, associated
spares and technical support, including process, on all equipment
previously shipped into the field directly by previous
distributor. Distributor will be responsible for warranty work
on all systems sold by Distributor and may be entitled to a
warranty credit therefor. Distributor will be responsible for
all field service and technical support (including process) of
Products shipped into the Territory. Distributor will supply all
materials and will also bear all other out-of-pocket expenses for
warranty work. Where possible, Distributor will be asked to have
component warranty replacements obtained in Japan, assuming the
component manufacturer is agreeable to Plasma-Therm. Warranty
Replacements are normally at no charge from the supplier.
Warranty credit will be given to Distributor in connection with
Products which do not conform to the specifications of Plasma-
Therm or the end user customer, or which have defects in material
or workmanship. If there is a situation where a warranty credit
is involved, Distributor has the right to xxxx Plasma-Therm with
prior notification. The warranty credit term will be 12 months
from the date of customer's acceptance or 455 days after the date
of shipment from Plasma-Therm, whichever is earlier. Distributor
will make a concerted effort to determine that in fact the
warranty credit is justifiable before submitting to Plasma-Therm.
9. Additional Obligations of Plasma-Therm.
(a) Promotional Materials. Plasma-Therm shall supply
all product literature, documentation and advertising copy which
has been reasonably requested by Distributor. All catalogs and
materials in Japanese version shall be made by Distributor at its
own expense. Technical content of such material must be approved
by Plasma-Therm. Unless otherwise stated, the Japanese version
will contain the same information as the U.S. catalog version.
No publicity, including any news release regarding the execution
of this Agreement and the distributorship created by it, shall be
authorized or released by Plasma-Therm without prior consent of
Distributor.
(b) Technical Support. Plasma-Therm will provide
service engineers and process support to Distributor to assist
Distributor with installation and start-up of the Demonstration
systems. Plasma-Therm will also provide two five (5) day
maintenance training classes for Distributor's personnel. These
classes will be held in St. Petersburg, Florida, USA.
Additionally, Plasma-Therm will support the Distributor for the
first two (2) of each product type installations with its process
and maintenance personnel. All expenses (airfare, hotel, meals,
transportation) associated with supporting initial customer and
demonstration system installations in Japan will be borne by the
Distributor. After the initial installations, Plasma-Therm, at
its discretion, will provide assistance in maintenance and
process support to resolve outstanding customer acceptance
issues.
(c) Sales Support. Plasma-Therm will supply a five
(5) day training class on hardware, software and process at
Plasma-Therm's facility. Additionally, Plasma-Therm will provide
the Distributor technical sales support (during the sales
process) at Plasma-Therm's expense.
(d) Warranty.
i) Equipment Warranty. Plasma-Therm warrants
its equipment against defects in material and workmanship. Under
normal use and service, parts are covered for a period of 455
days from the date of shipment. The obligation of Plasma-Therm
under this warranty is limited to the supply of parts (excluding
consumables). A purchase order is required prior to the
execution of any warranty service repairs. These obligations
will be met provided that (A) Plasma-Therm be promptly notified,
by the purchaser, upon the discovery of alleged defects, (B)
defective equipment is returned to Plasma-Therm after receipt of
purchase order for repair and return transportation charges
(repair charges may be incurred due to defect/damage due to
improper use or operation by purchaser) and issuance of return
authorization with the transportation charges prepaid by the
customer. Any unauthorized returns, or returns or non-defective
parts or equipment shall be subject to re-conditioning and
restocking charges.
ii) Warranty Exclusions. This warranty becomes
null and void upon the use of any improper chemicals or in the
event any modifications or improper service is performed to the
equipment by persons other than Plasma-Therm authorized
personnel. The warranty does not apply to consumable material
such as, but not limited to: indicator lamps, fuses, insulators,
all fluids, filters, "O" rings, sight glasses, platen/electrode
covers or coatings, belts, etc. except as specifically stated in
writing, nor to goods or parts thereof provided by the
Distributor/ customer.
All freight and insurance charges due to warranty shipments are
at the expense of the Distributor. This warranty is applicable
to the original Distributor's customer only, and constitutes the
sole and exclusive warranty of Plasma-Therm. No other warranty
is made, express or implied.
iii) Warranty Limitation. Plasma-Therm's
liability under, or for breach of, this agreement shall be
limited to the costs of the goods and services to be provided by
Plasma-Therm under this agreement. In no event will Plasma-Therm
be liable for any expenses incurred by the Distributor or its
customer, including, but not limited to, procurement of
substitute goods. Nor will Plasma-Therm be liable for any
incidental or consequential damages, however caused, whether
Plasma-Therm's negligence or otherwise.
(e) Demonstration Equipment. If Plasma-Therm
terminates this Distributorship Agreement for reasons other than
breach of contract, Plasma-Therm will repurchase the
Demonstration systems and spare parts inventory according to the
following chart/formula:
Equipment Length of Ownership Repurchase Price
Demonstration 0-365 days from date Original Invoice
System of shipment from less 20%
Spare Parts Plasma-Therm
Demonstration 366-730 days from date Original Invoice
System of shipment from less 40%
Spare Parts Plasma-Therm
Demonstration 731-1,095 days from Original Invoice
System date of shipment from less 60%
Spare Parts Plasma Therm
Demonstration 1,096-1,460 days from Original Invoice
System date of shipment from less 80%
Spare Parts Plasma-Therm
Demonstration Over 1,460 days from No repurchase
System date of shipment from required
Spare Parts Plasma-Therm
The Distributor will be responsible for crating,
handling, shipping costs, insurance, demurrage, import duties and
other taxes, if applicable, upon shipment back to Plasma-Therm.
10. Compliance with Law.
(a) Licensing. Both parties agree to take all
necessary steps to ensure compliance with United States
Department of Commerce ("Commerce") and COCOM regulations.
Distributor will not export the technical data or direct product
of Plasma-Therm without first obtaining written authorization
from the United States Department of Commerce. Distributor will
make sales only to end users authorized by Commerce and will
provide Plasma-Therm with the identities of all end users.
11. Restrictive Covenant.
(a) The Distributor or its Parent Company will not
(other than as set forth in this Agreement): (i) engage directly
or indirectly during the term of this Agreement, whether as a
sole proprietor or as a director, officer, employee or
stockholder of, or consultant or a general partner, investor or
owner of any interest in, any entity or person so engaged, or in
any other capacity, in the selling, marketing and manufacturing
of competitive products anywhere in the Territory, (ii) divulge
or use to its advantage any confidential information, including
pricing, costing, revenue or information concerning methods of
production acquired as a result of its relationship with Plasma-
Therm including, but not limited to methods of marketing and
methods of production, or (iii) reverse engineer Plasma-Therm
equipment in order to imitate the manufacture of the equipment or
any component thereof.
(b) If subparagraph (a or b) is held to be in any
respect an unreasonable restriction upon the activities of
Distributor, then the court so holding may reduce the territory
to which the provision pertains, and/or the period of time which
it operates, or effect any other change, to the extent necessary
to render the provision enforceable by said court.
12. Company Property. All materials or data of any kind
furnished to Distributor by Plasma-Therm or developed by
Distributor on behalf of Plasma-Therm or at Plasma-Therm's
discretion in connection with this Agreement or otherwise, are
and shall remain the sole and confidential property of Plasma-
Therm. If Plasma-Therm requests the return of such materials at
any time during, or at or after the termination of this
Agreement, Distributor shall immediately deliver them to Plasma-
Therm.
13. Independent Contractor; Indemnification. The
relationship between Plasma-Therm and Distributor during the term
of this Agreement shall be that of vendor and vendee.
Distributor is an independent contractor and is not an agent to
make any representation or agreement or to incur any liability on
behalf of Plasma-Therm without the prior written approval of an
authorized officer of Plasma-Therm. Distributor will hold Plasma-
Therm harmless from any liability, damage, cost or other loss
arising from any actions taken by Distributor either in violation
of this Agreement or otherwise, without the specific written
authorization of Plasma-Therm.
14. Warranty. There are no warranties, express or
implied, made by Plasma-Therm to Distributor or to Distributor's
customers or other end-users except as indicated in item 8 and
9(d).
15. Packaging of Products and Spare Parts. Plasma-Therm
shall be responsible for packaging of Products and Spare Parts.
Such packaging shall be of sufficient quality and quantity to
reasonably protect the Products and Spare Parts against damage
during air freight, padded van or other standard mode of
transport used by the Distributor to deliver Products and Spare
Parts to its customers.
16. Liability Insurance. Plasma-Therm shall keep and
maintain a policy or policies of comprehensive general liability
insurance including product liability with the limit of not less
than One Million and no/100 ($1,000,000.00) U.S. Dollars with
respect to Products and Spare Parts sold to the Distributor by
insurance carriers which are financially sound, reputable and in
good standing in the State of Florida, naming Plasma-Therm and
Distributor as insured as their interest may appear and providing
for at least thirty (30) days notice of cancellation to be given
to the Distributor, and will provide Distributor with copies of
insurance policies required hereunder.
17. Infringement. Plasma-Therm shall defend vigorously or
settle within a reasonable time any suit or proceeding brought
against the Distributor based upon a claim that any Product or
Spare Part sold hereunder, without modification by Distributor or
any third party (or with modification, if expressly agreed to by
Plasma-Therm, in writing), constitute an infringement of any
existing patent, copyright, or trade secret, provided that Plasma-
Therm is notified promptly in writing and is given complete
authority and information required for the defense. (Plasma-
Therm shall pay promptly all damages and costs and perform or
comply with other court-ordered remedies awarded against the
Distributor, but shall not be responsible for any cost, expense,
compromise, or other such court-ordered remedies incurred or made
by the Distributor without Plasma-Therm's prior written consent.)
If any Product or Spare Part is, in the opinion of Plasma-Therm
likely to or does become the subject of a claim for patent or
trade secret infringement, Plasma-Therm may, at its sole option,
to be exercised within reasonable time, procure for the
Distributor the right to continue using the Product and Spare
Part, modify it to become non-infringing, or cease all sales
thereof, as it deems necessary, provided, however, the
Distributor shall always have the right to comply with any
judicial order.
18. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any
delay on the part of either party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege preclude any other or further exercise
of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege
with respect to any occurrence be construed as a waiver of such
right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing
and is signed by party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all
questions relating to it validity, interpretation, performance
and enforcement (including, without limitation, provisions
concerning limitation of actions), shall be governed by and
construed in accordance with the laws of the State of Florida,
USA and without the aid of any canon, custom or rule of law
requiring construction against the draftsman.
(c) Notices. All notices, requests, demands and
other communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly given,
made and received only when delivered (personally, by courier
service such as Federal Express, or by other messenger) or sent
by telecopy with the original deposited in the United States
mail, registered or certified mail, postage prepaid, return
receipt requested, addressed as set forth below:
(1) When intended for Plasma-Therm:
Xxxxx Xxxxxxxxx, President
Plasma-Therm, Inc.
0000 Xxxxxxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX , XXX 00000
Facsimile No. 000-000-0000
(2) When intended for Distributor:
Xxxxx Xxxxx, Vice President, General Manager
Hakuto Co., Ltd.
0-00, Xxxxxxxx 0-Xxxxx
Xxxxxxxx-xx, Xxxxx 000 Xxxxx
Facsimile No.: 00-0-0000-0000
(d) Binding Nature of Agreement; (No Assignment).
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns,
except that no party may assign or transfer its rights or
obligations under this Agreement without the prior written
consent of the other parties hereto.
(e) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one
and the same instrument. This Agreement shall become binding
when one or more counterparts hereof, individually or taken
together, shall be the signatures of all the parties reflected
hereon as the signatories.
(f) Entire Agreement. The Agreement contains the
entire understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any
course or performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The amendment of
one part of this Agreement does not invalidate the remainder of
this Agreement and is in full force and effect.
(g) Paragraph Headings. The paragraph headings in
this Agreement are for convenience only; they form no part of
this Agreement and shall not affect its interpretation.
(h) Gender, Etc. Words used herein, regardless of
the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and
any other gender, masculine, feminine or neuter, as the context
indicates is appropriate.
(i) Plasma-Therm and Distributor generally agree
that it is the responsibility of both parties to satisfy the
Japanese customers' expectations on service and process
commitments. Plasma-Therm will work diligently and in good faith
to resolve any outstanding service or process support issues that
may arise with any of the Distributor's customers. Plasma-Therm
is fully committed to Hakuto Co., Ltd. as its new Japanese
Distributor.
IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement on the date first above written.
PLASMA-THERM, INC.
By:/s/Xxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx
President
Attest:/s/Xxxx X. Xxxxxxxxx
[Corporate Seal]
HAKUTO CO., LTD.
By:/s/Xxxxx Xxxxx
Xxxxx Xxxxx
Vice President,
GeneralManager
Attest:/s/X. Xxxxxxx
[Corporate Seal]
