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EXHIBIT 10.94
WILSHIRE TECHNOLOGIES, INC.
DISTRIBUTOR AGREEMENT
This Distributor Agreement ("this Agreement") is made effective and entered
into this 5th day of March, 1996 ("Effective Date") by and between WILSHIRE
TECHNOLOGIES, INC. with a principal place of business at 0000 Xxxxxxx Xxxxxxx,
Xxxxx X, Xxxxxxxx, Xxxxxxxxxx 00000 ("WTI").
and
XXXXXXXXX INDUSTRIAL CORPORATION, ("AIC") a corporation organized and existing
under the laws of Singapore with its head office and principal place of business
at 0 Xxx Xxxx, Xxxxxxxxx, 000000 ("DISTRIBUTOR").
1. APPOINTMENT AND ACCEPTANCE.
1.1 WTI hereby appoints DISTRIBUTOR on an exclusive basis to purchase and
resell the Products in the Territory. DISTRIBUTOR accepts this appointment on
the terms and conditions set forth herein and obligates itself to the
requirements of this Agreement.
1.2 The term "Products" shall mean the WTI products listed on Exhibit A
attached hereto. WTI reserves the right to delete discontinued Products upon
thirty (30) days prior written notice to DISTRIBUTOR. If a Product is
discontinued, WTI will fill any outstanding orders placed by the DISTRIBUTOR
before discontinuation notice. WTI will accept returns for credit of
discontinued Products which the DISTRIBUTOR has in stock at the date of the
discontinuation notice.
1.3 The term "Territory" shall mean the geographic area defined on Exhibit
B attached hereto. DISTRIBUTOR shall not reexport the Products from the
territory without the express written authorization of WTI.
2. SPLIT SALES COMMISSION/ACCOUNT EXCEPTIONS
It may be the case that certain accounts will require the involvement of a party
other than appointed distributor to service the business. Distributor and WTI
will discuss the issue of territorial commissions when this unique situation
arises.
3. DISTRIBUTOR'S REPRESENTATIONS.
In order to induce WTI to enter into this agreement DISTRIBUTOR, and its
undersigned officer, warrant and represent that:
3.1 DISTRIBUTOR is a corporate entity duly organized and in good standing,
and will remain in compliance with all applicable laws in the Territory.
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3.2 DISTRIBUTOR is and will remain an independent contractor with respect
to its relationship with WTI. DISTRIBUTOR agrees that WTI has granted it no
authority to make changes to WTI's terms and conditions of sale, to extend WTI
warranties or, in general , to enter into contracts or make quotations on behalf
of or to bind WTI in any transactions with DISTRIBUTOR's customers or any
governmental agencies or third parties. No relationship of employment shall
arise between WTI and DISTRIBUTOR, or between WTI or any employee or
representative of DISTRIBUTOR. DISTRIBUTOR is at all times acting for its own
account, and at its own expense.
4. TERMS.
4.1 Subject to the provisions of Section 14 below, the term of this
agreement shall be for one (1) year, commencing on the Effective Date, unless
renewed as provided in Section 4.2 below.
4.2 This Agreement shall continue in full force and effect for one or more
successive one (1) year renewal periods, at the option of both parties, unless
terminated for Just Cause as defined in Section 14.1 of this Agreement. Exhibit
C will be revised annually as provided in Section 7.3.
4.3 If either party wishes to not renew this agreement, then such party
must give at least sixty (60) days notice before the expiration date of the
agreement. If no such notice is given, the agreement will automatically renew
for one year.
5. PRICES AND TERMS.
5.1 The Product prices and discounts to the DISTRIBUTOR shall be those
listed in the attached price list in Exhibit E. The prices quoted are exclusive
of any national, state or local sales, use, value added or other taxes, customs
duties, or similar tariffs and fees which shall be the responsibility of
DISTRIBUTOR. In the event that WTI is required to pay any such taxes, duties or
fees, such items will be added to the invoice to be paid by DISTRIBUTOR.
5.2 WTI may change the prices of the Products from time to time upon sixty
(60) days prior written notice to DISTRIBUTOR. DISTRIBUTOR shall submit a list
of outstanding quotations to WTI at time of price change and WTI shall use its
best efforts to price protect such quotations for a period not to exceed three
(3) months from the effective date of the price change (provided that WTI will
price protect any product releases made under blanket purchase orders previously
accepted by WTI).
5.3 All payment shall be made in United States dollars. Unless otherwise
agreed by WTI in writing, terms of payment for all international sale
transactions shall be by irrevocable letter of credit acceptable to WTI, due 60
days after the date of shipment; or sight draft due on receipt of goods; or open
account due 30 days after the date of shipment/invoice.
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6. WTI OBLIGATIONS.
WTI will, during the term of this Agreement:
6.1 Provide training for a reasonable number of DISTRIBUTOR'S
representatives in the application, use, and sale of the Products. DISTRIBUTOR
agrees to pay all expenses of its representatives to attend such training
sessions, including salaries and transportation;
6.2 Render periodic assistance to DISTRIBUTOR on technical and sales
problems;
6.3 Invoice DISTRIBUTOR for each Product sold on the day it is shipped or
in accordance with the terms of the accepted order; and
6.4 Participate in trade shows, open houses or exhibits in the Territory as
WTI/DISTIBUTOR deems appropriate in their discretion.
6.5 Prepare and provide to the DISTRIBUTOR, at WTI's expense, product
specifications, product information bulletins, testing/stability certification
and any other information required for initial product registration and
maintaining registration compliance.
6.6 WTI will use its best efforts to ensure that goods ordered will be
shipped to DISTRIBUTOR within 30 days from WTI's receipt of a purchase order
issued for Products included in the forecast referenced in Section 8.1. If WTI
cannot deliver the Products referenced above within 60 days, WTI will pay any
air freight/courier charges to expedite the shipment of the Products.
7. DISTRIBUTOR OBLIGATIONS.
In order to induce WTI to enter into this Agreement, and as a condition of
this continuation in force, DISTRIBUTOR agrees that it shall;
7.1 Actively use its best efforts to promote and penetrate the market for
the Products in the Territory;
7.2 Maintain adequate premises and facilities within the Territory, at its
own expense, from which to inventory, demonstrate and sell the Products;
7.3 Sell the annual minimum purchase quota and/or revenue quota of Products
agreed between DISTRIBUTOR and WTI and as set forth on Exhibit C attached
hereto; such quota to be revised annually by mutual consultation of the parties
at least 60 days prior to the renewal of this agreement under Section 4.2.
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7.4 Employ an adequate number of capable personnel to engage in the sale of
the Products as described in Exhibit D;
7.5 Require its sales personnel from time to time, as may be mutually
agreeable, to visit WTI's facility (or other facility designated by WTI) at
DISTRIBUTOR's expense, for the purpose of developing expertise in the
application, capabilities, competitive advantages, and use of the Products;
7.6 Promote the Products in trade shows, or exhibitions, including mailing
of promotional literature to prospective customers;
7.7 Cooperate with WTI in obtaining marketing and competitive data;
7.8 Submit to WTI regular quarterly status reports reflecting sales
activities and anticipated requirements of customers in the Territory in a
format to be provided by WTI.
7.9 Upon execution of this Agreement, purchase the initial inventory of
$450,000 with delivery over a three (3) month period and thereafter maintain a 2
month inventory of the Products to meet customer requirements;
7.10 Shall submit purchase orders for product(s) to WTI in writing by mail,
courier, or telefax, which shall set forth (a) an identification of product(s)
ordered, (b) quantity, (c) requested delivery dates and (d) shipping
instructions and shipping address. Delivery dates requested in any purchase
order must be at least thirty (30) days from the date of receipt by WTI of such
purchase order.
7.11 Not undertake to represent, distribute, or otherwise handle products
which are in competition with the Products; and
7.12 Furnish WTI copies of DISTRIBUTOR's Annual Financial reports for WTI's
reference.
7.13 Obtain, at DISTRIBUTOR'S expense, all needed import permits and
applicable exemptions from customs duties needed to import the product(s).
8. FORECASTS/PURCHASE ORDERS.
8.1 During the first week of each month, DISTRIBUTOR shall forward to WTI a
three (3) month rolling forecast of Product purchases designating the quantities
of each model of the Products which DISTRIBUTOR intends to sell in this period.
In addition, DISTRIBUTOR will provide WTI with a quarterly forecast for the
period of six (6) months for each of the Products.
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8.2 Any purchase orders issued by DISTRIBUTOR are subject to acceptance by
WTI and will not be deemed accepted until a written confirmation has been
dispatched by WTI.
9. DELIVERY/TITLE/RISK OF LOSS.
9.1 Delivery of all Products ordered by DISTRIBUTOR for domestic shipment
shall be made FOB point of shipment (e.g., WTI's Carlsbad, California facility).
Delivery of all Products ordered by DISTRIBUTOR for international shipment shall
be made EX Works (e.g., WTI's Carlsbad, California facility). ICC Incoterms
(1990 editions) shall apply to all international shipments, except insofar as
these Incoterms may be inconsistent with the terms of this Agreement.
9.2 Risk of loss to the Products shall pass to DISTRIBUTOR at the point of
shipment (e.g., WTI's Carlsbad, California facility).
9.3 All Products ordered pursuant to accepted purchase orders will be
scheduled for delivery in accordance with WTI's then current and normal delivery
times. WTI shall not be responsible for failure to deliver or comply with any
provision of this Agreement if such non-performance is due to causes beyond its
reasonable control such as, but not limited to, acts of God, fire or explosions,
civil and labor disturbances or delays in transportation. In such event, the
time for performance hereunder shall be extended by the period of time
attributable to the delay.
10. PRODUCT WARRANTY.
10.1 DISTRIBUTOR understands and acknowledges that this Product Warranty is
made to DISTRIBUTOR only and shall not be passed through to DISTRIBUTOR's
customer.
10.2 WTI warrants the Products to be free from defects in material and
workmanship until the expiration date on the Product.
10.3 The sole responsibility of WTI under the foregoing warranty shall be
limited, at its option, to the repair or replacement of defective Products
returned by DISTRIBUTOR to WTI, at WTI's expense.
10.4 All WTI warranties hereunder are conditioned upon proper storage,
handling and use of the Products in the application for which they are intended.
10.5 THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). REPAIR OR REPLACEMENT IN
THE MANNER PROVIDED ABOVE SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF
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PURCHASER FOR BREACH OF WARRANTY AND SHALL CONSTITUTE FULFILLMENT OF ALL
LIABILITIES OF WTI WITH RESPECT TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS.
10.6 In no event shall WTI's liability to DISTRIBUTOR, whether in contract
or in tort (including negligence and strict liability), exceed the price of the
Product from which such liability arises.
11. COMPLIANCE WITH LAWS IN THE TERRITORY.
DISTRIBUTOR and WTI shall strictly comply with all applicable laws, rules,
regulations and other governmental requirements governing the manufacture,
packaging, labeling, distribution and sale of the Products in the Territory.
Such compliance shall include, but shall not be limited to, the following:
11.1 DISTRIBUTOR shall keep WTI informed of the particular requirements
imposed on such products by the laws and regulations of the Territory;
11.2 DISTRIBUTOR shall distribute, promote and sell the Products only for
the uses and applications approved by WTI and as permitted under the applicable
laws and regulations in the Territory;
11.3 DISTRIBUTOR shall comply with any recalls of the Products initiated by
WTI or governmental authorities; and
11.4 DISTRIBUTOR shall promptly disclose to WTI all reports, data and other
information received by DISTRIBUTOR relating to the unfavorable (including
physiological or psychological) effects or toxicity of the Products. WTI will
promptly address all reports received and reply in writing to DISTRIBUTOR.
12. WTI'S PROPRIETARY INFORMATION AND RIGHTS.
12.1 Each party acknowledges and understands that all information disclosed
by one party to the other not generally known concerning WTI and DISTRIBUTOR and
the Products, including but not limited to a party's organization and business
affairs, customer lists, sales information, operating procedures and practices,
technical data, designs, know-how, trade secrets, and processes (the
"Proprietary Information"), whether owned by such party or licensed by such
party from third parties, is subject to valuable proprietary interest of the
disclosing party, and that the receiving party is under an obligation to
maintain the confidentiality of such Proprietary Information. Without limiting
the generality of the foregoing obligations, the receiving party agrees that for
the term of this Agreement and thereafter until such time as the Proprietary
Information is in the public domain, such receiving party will (i) not disclose,
publish or disseminate any Proprietary Information, (ii) not use any Proprietary
Information for its own account, (iii) not authorize any other person to
disclose, publish or disseminate the Proprietary
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Information, and (iv) treat all Proprietary Information in a confidential
manner, including appropriate marking and secure storage of written Proprietary
Information.
12.2 During the term of this Agreement, DISTRIBUTOR is authorized to use
WTI trademarks for the Products in connection with DISTRIBUTOR's advertisement,
promotion and distribution of the Products in the Territory. DISTRIBUTOR
acknowledges that WTI owns and retains all patents, trademarks, copyrights and
other proprietary rights in the Products, and agrees that it will not at any
time during or after the termination of this Agreement assert or claim any
interest in or take any action which may adversely affect the validity or
enforceability of any patent, trademark, trade name, trade secret, copyright, or
logo belonging to or licensed to WTI.
12.3 DISTRIBUTOR agrees to use reasonable efforts to protect WTI's
proprietary rights and to cooperate in WTI's efforts to protect its proprietary
rights. DISTRIBUTOR agrees to notify WTI of any known or suspected breach of
WTI's proprietary rights and to cooperate with WTI without making any charge
therefore in any action by WTI to investigate or remedy an infringement of such
rights.
12.4 Neither DISTRIBUTOR nor its employees and agents, shall, without WTI's
prior consent, alter any of the Products or remove, alert, obliterate or mar any
notice or legend of WTI's patent, copyright, trademarks or trade secrets.
13. INFRINGEMENT INDEMNIFICATION.
13.1 WTI shall defend any claim, suit or proceeding brought against
DISTRIBUTOR so far as it is based on a claim that the use, transfer or resale of
any Products delivered hereunder constitutes an infringement of a patent,
trademark or copyright registered in the United States, so long as WTI is
notified promptly in writing by the DISTRIBUTOR of any such action and given
full authority, information and assistance at WTI's expense for the defense of
any such claim or proceedings. WTI shall pay all damages and cost awarded
against the DISTRIBUTOR but shall not be responsible for any settlement made
without its consent. In the event of final judgment which prohibits the
DISTRIBUTOR or the DISTRIBUTOR's customers from continued use of any Products by
reason of infringement of such patent, trademark or copyright, WTI may, at its
sole option and at its expense, obtain the rights to continued use of any such
Product, replace or modify such Product so that it is no longer infringing.
13.2 WTI shall have no liability to the DISTRIBUTOR under any provisions of
this Section 12 if any patent, trademark or copyright infringement or claim
thereof is based upon the use of Products delivered hereunder in connection or
in combination with equipment or devices not delivered by WTI or use of any such
Product in a manner for which the same was not designed.
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14. TERMINATION.
14.1 WTI/DISTRIBUTOR may terminate this Agreement at any time prior to the
expiration of its stated term upon the occurrence of any of the following
events, each of which is expressly declared to be "Just Cause" for termination
of this Agreement:
14.1.1 DISTRIBUTOR defaults in any payment due WTI for Products purchased
under this Agreement and such default continues unremedied for a period of
fifteen (15) days following WTI's notice to default;
14.1.2 DISTRIBUTOR fails to meet the annual minimum quota agreed to and set
forth in Exhibit C;
14.1.3 DISTRIBUTOR/WTI fails to preform any other material obligation,
warranty, duty or responsibility under the Agreement, and such failure or
default continues unremedied for a period of (30) following WTI's notice.
14.1.4 DISTRIBUTOR/WTI becomes insolvent; proceedings are instituted by or
against it in bankruptcy, insolvency, reorganization or dissolution; or it makes
an assignment for the benefit of creditors; or
14.1.5 DISTRIBUTOR/WTI is merged, consolidated, or substantially changes
the nature or character of its business, or substantially changes its management
ownership or principals.
14.2 Upon termination hereby by either party:
14.2.1 All sums due to either party from the other shall be promptly paid;
14.2.2 DISTRIBUTOR orders received and accepted by WTI prior to termination
of this Agreement shall be fulfilled in accordance with their terms;
14.2.3 All property belonging to one party but in the custody of the other
shall be returned;
14.2.4 DISTRIBUTOR shall cease all display, advertising and use of WTI
tradenames, trademarks, logos and designations, except uses on the Products
which remain in DISTRIBUTOR's possession; and
14.2.5 WTI shall have the option to repurchase any or all of the Products
in DISTRIBUTOR inventory which are new and unused at net price paid originally
by DISTRIBUTOR.
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15. GOVERNING LAW.
The place of the making and execution of this Agreement, and the location
of WTI shall be Carlsbad, California, U.S.A. Accordingly, the parties agree that
the law of the State of California (except for the body of law known as
conflicts of law and excluding any applicable provisions of the United Nations
Convention for the International Sale of Goods) shall govern the interpretation,
enforcement and performance of this Agreement. WTI and DISTRIBUTOR each
expressly waive and disavow any rights that may accrue under any other body of
law.
16. LIMITATION OF LIABILITY.
Neither WTI nor DISTRIBUTOR shall be liable to the other, or to
DISTRIBUTOR's customers, for any special, indirect, or consequential damages,
including but not limited to loss of profits, loss of business opportunities, or
loss of business investment.
17. INDEMNIFICATION.
DISTRIBUTOR agrees to indemnify and hold WTI harmless from any costs,
claims, damages, losses, liabilities or expenses (including reasonable
attorney's fees) asserted by any third party resulting from DISTRIBUTOR's breach
of this Agreement, inaccurate representation or warranty made by DISTRIBUTOR, or
failure to conform to local laws and regulations.
18. ASSIGNMENT.
Neither party may assign any of the rights or obligations set forth in this
Agreement without the prior written consent of the other, provided that WTI
shall have the right to assign any portion of the Agreement to its subsidiaries
and affiliated companies.
19. NOTICES.
All notices and demands under this Agreement shall be in writing and shall
be served by personal service or by mail at the address of the receiving party
first stated in this Agreement (or such different address as may be designated
by such party to the other in writing). All notices or demands by mail shall be
by facsimile, or by certified or registered airmail, return-receipt requested,
and shall be deemed complete upon receipt.
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20. INTEGRATED AGREEMENT.
This Agreement (and attached Exhibits) constitutes the entire understanding
and agreement between WTI and DISTRIBUTOR and terminates and supersedes all
prior formal or informal understandings. Should any Section of this Agreement be
held unenforceable by a court of law or other tribunal having jurisdiction over
both parties, WTI or DISTRIBUTOR may elect to terminate this Agreement.
21. LANGUAGE AND ORIGINALS.
This Agreement has been written in the English language. It may be
translated, for convenience, into other languages. However, in case of error or
disagreement, the executed English language version shall prevail.
This Agreement shall be executed in three (3) original copies, one for each
party, and one that DISTRIBUTOR can use for registration purposes as needed.
Entered into in Carlsbad, California, U.S.A.
WILSHIRE TECHNOLOGIES, INC. XXXXXXXXX INDUSTRIAL CORP.
BY: /s/ Xxxx Xxx Xxxxxx BY: /s/ Xxxxxxx Xxx
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TITLE: President & CEO TITLE: Executive Director
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DATE: March 5, 1997 DATE: April 2, 1997
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DISTRIBUTOR AGREEMENT
BETWEEN WTI AND XXXXXXXXX INDUSTRIAL CORP.
EXHIBIT A
The Products
Exclusive distribution of all Wilshire Contamination Control products that
pertain to the Disk Drive market with the exception of DuraCLEAN gloves, which
shall be distributed on a non-exclusive basis.
EFFECTIVE DATE: Xxxxx 0, 0000
XXX: /s/ Xxxx Xxx Xxxxxx
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AIC: /s/ Anthong Ang
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DISTRIBUTOR AGREEMENT
BETWEEN WTI AND XXXXXXXXX INDUSTRIAL CORP.
EXHIBIT B
The Territory / Market
The Disk Drive market in the countries of Singapore, Thailand, Malaysia and
Indonesia.
EFFECTIVE DATE: March 5, 1997
WTI: /s/ Xxxx Xxx Xxxxxx
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AIC: /s/ Xxxxxxx Xxx
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DISTRIBUTOR AGREEMENT
BETWEEN WTI AND XXXXXXXXX INDUSTRIAL CORP.
EXHIBIT C
Annual Minimum Purchases
U.S. $ 1,500,000 for calendar year 1997.
PERIOD COVERED BY QUOTA: ________________
WTI: /s/ Xxxx Xxx Xxxxxx
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AIC: /s/ Anthong Ang
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DISTRIBUTOR AGREEMENT
BETWEEN WTI AND XXXXXXXXX INDUSTRIAL CORP.
EXHIBIT D
Dedicated Sales Staff
On or before April 1, 1997 DISTRIBUTOR must dedicate a qualified Sales Engineer
to the sales of WTI products.
WTI would like to approve this individual and will commit to training this
person in both the U.S. and Territory according to the following schedule.
WTI will commit to at least eight (8) trips to the countries covered in the
agreement to support the DISTRIBUTOR personnel.
WTI will dedicate two (2) weeks of training time for DISTRIBUTOR personnel in
the U.S.
EFFECTIVE DATE: March 5, 1997
WTI: /s/ Xxxx Xxx Xxxxxx
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AIC: /s/ Anthong Ang
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