XXXX-XXXXXX
MANUFACTURER/DISTRIBUTOR AGREEMENT
OPHTHALMIC
This Agreement is made as of this 16TH day of January,1995, by and
between the United States subsidiaries of XXXX-XXXXXX, X.X., a Swiss
corporation with its principal U.S. operations in Mason, Ohio, such
subsidiaries consisting of XXXX-XXXXXX SERVICE, INC., RELIANCE MEDICAL
PRODUCTS, INC. and XXXXXXX XXXXXX INTERNATIONAL, INC. (hereinafter
collectively called "Xxxx-Xxxxxx") and Franklin Ophthalmic Instruments
Co., Inc., a [corporation] with its principal operations located in
Xxxxxxxxxx, Xxxxxxxx, 00000 [hereinafter called the "Distributor"].
ARTICLE 1. SCOPE OF AGREEMENT.
Xxxx-Xxxxxx hereby appoints the Distributor, on a non-exclusive
basis, to distribute Xxxx-Xxxxxx Products in the United States of America
under the following conditions:
Xxxx-Xxxxxx agrees to sell Products to the Distributor for
Ophthalmic/Optical installations at a price as noted in the applicable
Exhibits here to executed by the parties, in accordance with the terms and
conditions contained in this Agreement and associated Price Lists.
"Products" shall mean those products manufactured or distributed by such
Xxxx-Xxxxxx subsidiaries as have executed this Agreement and as noted in
the appropriate ophthalmic retail price list, which may be amended from
time to time in the future, and related service parts. Such price
discount and other terms and conditions of this Agreement shall supersede,
replace and have priority over any standard terms and conditions on or
attached to any purchase order, quotation, acknowledgement, invoice or
other document issued by either party.
Distributor acknowledges that the Exhibits so executed, including
(without limitation) treatment under Option A or Option B thereunder, have
been freely chosen by Distributor and that any change in status hereafter
is only available with the consent of Xxxx-Xxxxxx (and by execution of
new Exhibits).
The relationship created between the Distributor and Xxxx-Xxxxxx
under this Agreement shall be non-exclusive as to either party.
Furthermore, Xxxx-Xxxxxx may sell Products directly to other parties,
government institutions, teaching institutions and optical chain stores
that, by government regulation, customary practice or pursuant to customer
preference or insistence, are required or desire to purchase products
directly from manufacturers.
1.1 Prices.
Prices for Products will be in accordance with the appropriate Price
Lists current at the time of the sale, discounted in accord with the
applicable Exhibits executed by the parties. Orders for products are
subject to acceptance by Xxxx-Xxxxxx and its best commercial efforts
to satisfy all such orders, consistent with its interests in
effective promotion and sale of its products and a fair allocation
of same to its distributors. Such prices, terms and conditions are
subject to change, including additions and deletions therefrom, at
any time without prior written notice by sending the Distributor a
new Price List; and such new Dealer Price List shall become effective
as of the date appearing thereon.
1.2 Credit Limits.
Distributors' unpaid open accounts with Xxxx-Xxxxxx and affiliated
companies shall be subject to the Credit Limits specified in the
applicable Exhibits executed by the parties and Xxxx-Xxxxxx may
decline orders which would cause such Credit Limits to be exceeded.
1.3 Terms of Payment.
Terms for payments are net thirty (30) days from the issue date of
invoice. If product deliveries are made in installments, each
product shipment invoice shall be paid for when due without regard to
other scheduled product deliveries. Credit limits are the sole
discretion of Xxxx-Xxxxxx.
1.4 Late Payment.
If the Distributor does not pay an invoice before sixty (60) days
from the issue date of invoice, then:
a. Such invoice shall bear late payment fee on its unpaid
balance from the date of such invoice until
the date of its payment at the lower of (i) the highest
rate allowed by applicable law; or (ii) an annual rate of
one and one-half (1-1/2%) percent per month.
x. Xxxx-Xxxxxx reserves the right, at its sole discretion and
without further notice, to cancel outstanding orders or not
accept further orders of the distributor or delay scheduled
shipments of further Products.
x. Xxxx-Xxxxxx reserves the right, at its sole discretion and
without further notice, to refuse to extend any further
credit to the distributor, to terminate any then existing
credit arrangements, to accelerate payment for all Products
theretofore delivered or in transit and/or to demand
payment of any or all of the foregoing amounts.
Continuing late payments may subject distributor to termination under
Article 8.1.
1.5 Transfer of Title and Risk of Loss.
All dealer prices are F.O.B. unless otherwise noted. Title and risk
of loss of Products shall pass to Distributor without regard to
delivery method upon consignment to the carrier.
1.6 Schedule of Orders and Deliveries.
Xxxx-Xxxxxx shall promptly acknowledge acceptance of Distribu-tor
purchase orders and agreement to proposed delivery dates or, in the
alternate, propose a revised delivery schedule and other terms. A
firm order shall exist only when a Distributor submits an accepted
order or a modification accepting any such alternate schedule.
Orders requiring shipment by commercial carrier will be directed to
either the corporate headquarters or the recognized regional or local
sales office or office of Distributor. Further:
1.6.1 Unless otherwise agreed to in writing, Xxxx-Xxxxxx
reserves the right to add an additional charge as to
any order requiring changes at the request of
Distributor, depending upon its stage in the
production process.
1.6.2 Orders for Products may only be cancelled by the
Distributor with prior written approval by Xxxx-
Xxxxxx. Such cancellation will be
subject to a charge established by Xxxx-Xxxxxx and
based upon the stage of production, plus expenses
incurred in arranging such cancellation and diversion,
such charge not to exceed the total price of the
original order.
1.7 Annual Purchase Commitment. (APC)
The Distributor shall purchase a specified dollar amount of assembled
Products for the initial period of this Agreement and for each
subsequent calendar year thereafter, the amount of which is shown in
Exhibit I hereto executed by the parties, such purchases to be at
Distributor net prices (based on Xxxx-Xxxxxx invoices and net of any
accepted returns).
Distributors executing Option A Exhibits agree that (a) Forty percent
(40%) of such purchase commitment must be completed, and the Products
shipped and delivered within the first six (6) months of each full
year, and (b) the remaining purchase commitment must be completed and
the Products shipped to the Distributor by the end of the year and in
minimum amounts not less than the equivalent of equal monthly
increments thereof.
The annual purchase commitment (APC) will be reviewed by both parties
and established by negotiation each year. If no agreement is
reached, Xxxx-Xxxxxx may consider termination under Section 8.1
below.
1.8 Stock of Inventory.
Distributors executing Option A Exhibits agree that the Distributor
will maintain at all times a dollar inventory of assembled Product at
a level which is not less than the amount which is shown in Exhibit
I. Such inventory is intended to be adequate to promptly service
requests for Products. The inventory and Option A Distributor's
records in connection therewith are subject to monitoring by any
designated Xxxx-Xxxxxx representative without advance notice and
Distributor shall fully cooperate with such representative. Option
A Distributors will also submit written monthly reports on inventory
levels in such detail as may be required by Xxxx-Xxxxxx. The annual
Distributor inventory commitment will be reviewed by both parties and
established by negotiation each year. If no agreement is reached,
Xxxx-Xxxxxx may consider termination under Section 8.1 below.
ARTICLE 2. SERVICE PARTS.
Xxxx-Xxxxxx agrees to sell to Distributor such related service parts
as may be required by the Distributor to provide support for Products sold
to the Distributor by Xxxx-Xxxxxx and still in stock and/or currently
manufactured. New or rebuilt service parts which
Distributor may purchase under this Agreement are priced by separate Xxxx-
Xxxxxx quotation or in accord with parts lists which are furnished
Distributor from time to time. All orders, deliveries and payments for
service parts are subject to the same terms and conditions hereof.
ARTICLE 3. RESPONSIBILITIES AND REQUIREMENTS.
3.1 Installation of Products.
The Distributor and Xxxx-Xxxxxx acknowledge that proper installation
of Products is essential to protect the interests of end users and
the goodwill associated with reliable operation of Products. The
Distributor will refrain from selling Products to any other
distributor who is not a uthorized to sell and service Products. Both
parties acknowledge that such sales to unauthorized parties could
jeopardize the reliability and reputation of both Xxxx-Xxxxxx and its
authorized Distributor network.
Accordingly, the Distributor will be responsible for insuring the
proper application and installation of all Products pursuant to
installation instructions provided by Xxxx-Xxxxxx on each Product
line for which Distributor has responsibility hereunder.
The Distributor shall perform all applicable Product installations
and related Products services utilizing only factory certified and
trained Distributor employees. If required by Distributor, Xxxx-
Xxxxxx may provide direct installation and supervision assistance at
Distributor's expense.
3.2 Maintenance and Repair Service.
The Distributor shall provide prompt, efficient and courteous Product
support to all of its customers who properly request such service.
The Distributor will provide its service customers itemized invoices
reflecting the details of all such services performed.
The Distributor acknowledges that certain repairs as specified from
time to time in training seminars must be made by Xxxx-Xxxxxx service
personnel.
3.3 Warranty.
Xxxx-Xxxxxx warrants its products in accordance with the terms of
written warranties provided with each Product line noted in Exhibit
I. The authorized Xxxx-Xxxxxx Distributor must make the installation
or the warranty will be voided. The parties agree that in the event
the Distributor fails to provide necessary warranty service for said
Product, Xxxx-Xxxxxx may elect to contract with a third party to provide
the warranty service required. The fee for the aforesaid service will be
billed by Xxxx-Xxxxxx to the Distributor, and said xxxx will be
paid by the Distributor upon presentation.
The Distributor will deliver copies of the applicable Product
warranties and will fully explain the provisions thereof to the
purchasers of Products. The Distributor will maintain complete and
accurate records of all warranty repairs which it performs on
Products and shall submit to Xxxx-Xxxxxx such reports on and
defective components related thereto as Xxxx-Xxxxxx may from time to
time request.
The Xxxx-Xxxxxx warranty extends only to the original purchaser and
is contingent upon completing and returning the Warranty Card to
Xxxx-Xxxxxx within two (2) weeks from the date of installation.
3.4 Disposition of Parts.
The Distributor will comply with Xxxx-Xxxxxx'x disposition
instructions as to defective parts or to obsolete assembled products.
If the disposition instructions require that such parts and/or
assembly be returned to Xxxx-Xxxxxx, they shall be packed and
shipped, and transportation charges prepaid by the distributor in
accordance with such instructions. Xxxx-Xxxxxx will reimburse
Distributor for such prepaid transportation charges on authorized
shipments.
3.5 Service and Parts Operations of Distributor.
The Distributor shall perform all service on Products for which
Distributor has responsibility hereunder in a good and workmanlike
manner and in accordance with applicable Xxxx-Xxxxxx maintenance
instructions. The Distributor shall organize and maintain a complete
service and parts facility, including a sufficient number of
competent, trained service and parts personnel to enable the
Distributor to effectively fulfill its service and parts
responsibilities hereunder.
3.6 Training Programs.
Xxxx-Xxxxxx will make available to Distributor general and
specialized sales, service and parts training programs for
Distributor's personnel. The Distributor agrees to have members of
its organization attend such courses as part of its responsibilities
under Article 3.5 above.
3.7. Handling of Owner/User Complaints.
The Distributor will receive, investigate and handle all complaints
received from end-use customers with a view to securing and
maintaining their goodwill towards the Distributor and Xxxx-Xxxxxx.
All complaints received by the Distributor which cannot be readily
remedied or frequent complaints concerning the same problems shall be
promptly reported in detail to Xxxx-Xxxxxx.
3.8 Compliance to Regulations.
Xxxx-Xxxxxx and the Distributor are subject to Food and Drug
Administration (FDA) regulation of medical devices. Both parties
acknowledge and agree to act hereunder only in full compliance with
the latest revisions of, and practices required by, the Food, Drug &
Cosmetics (FD&C) Act and Safe Medical Devices Act of 1990.
3.9 Stock of Parts.
The Distributor will carry in stock at all times an inventory of
parts adequate to enable Distributor to provide prompt and efficient
service on Products.
3.10 Representation as to Parts.
In connection with its sales (or offering for sale) of parts, the
Distributor will not represent as parts manufactured or marketed by
Xxxx-Xxxxxx any parts that are not in fact parts manufactured or
marketed by Xxxx-Xxxxxx. If the Distributor sells or uses such non-
conforming parts, Distributor will disclose this to the customer.
3.11 Assistance to be Provided by Xxxx-Xxxxxx.
Xxxx-Xxxxxx will maintain a staff of trained personnel to advise and
counsel the Distributor on sales, service, parts and related
subjects, including customer complaints, technical service problems
and personnel training.
ARTICLE 4. DESIGN CONFIGURATION AND MANAGEMENT.
Xxxx-Xxxxxx shall retain design configuration and management
responsibilities for its Products. All proposed changes in Products which
affect their performance or installation facility will be discussed with
and approved in writing by Xxxx-Xxxxxx prior to implementation by the
Distributor. Such change requests may be initiated by either the
Distributor or Xxxx-Xxxxxx. If design changes are required for products
already in stock or inventory, Xxxx-Xxxxxx will issue service bulletins to
distributors advising what action should be taken in accordance with FDA
regulations.
ARTICLE 5. RECORDS AND EXAMINATIONS.
The Distributor shall prepare, keep up-to-date, and retain at
Distributor's principal place of business for a minimum period of
two (2) years, the following Product records:
1. Xxxx-Xxxxxx Purchase Orders
2. For Option A Distributors Only: Inventory records,
including the dollar value maintained and deleted
3. Warranty Claims
4. Refunds or Credits
5. Service Reports
6. Installation records including equipment model, serial
number, location, owner, date, and installer
Any designated representative of Xxxx-Xxxxxx is authorized to examine
and audit any of the records required to be maintained by the Distributor
under this Agreement. The photocopying of such records by the Xxxx-Xxxxxx
representative will be permitted by the Distributor. Xxxx-Xxxxxx agrees
that all such support information examined by and/or provided by the
Distributor, shall not be disclosed to any third parties unless required
by law. Xxxx-Xxxxxx representatives shall be allowed access to those
portions of Distributor's business and physical facilities or as may be
relevant to the performance of this Agreement.
ARTICLE 6. PROMOTION.
The Distributor agrees to use every effort to promote and solicit
orders for the sale of Products, to prominently display and demonstrate
the use of Products at trade shows and conventions reasonably assigned by
Xxxx-Xxxxxx, and to maintain a designated display are a for Products at the
Distributor's place (s) of business. The assigned trade shows specified in
Exhibit II will be negotiated by both parties after review and discussion
of Distributor annual trade show commitments.
Xxxx-Xxxxxx will assist Distributor in creating an active demand for
Products , utilizing promotional aids available for use by Distributor,
and by advertising Products directed to the consumer. Distributor further
agrees not to promote and/or solicit orders for product lines competitive
with Products covered hereunder which Distributor does not service as a
distributor at the time this Agreement is executed without first advising
Xxxx-Xxxxxx thereof and consulting with Xxxx-Xxxxxx regarding such
relationship.
Distributor agrees not to disclose either directly or indirectly to
any third party (including other distributors of Products) any information
in the public domain regarding Xxxx-Xxxxxx'x business or its Products,
operations or finances.
6.1 Special Promotions.
From time to time, Xxxx-Xxxxxx will offer special promotions to
Distributors in order to stimulate increased product demand and
interest in Xxxx-Xxxxxx products.
ARTICLE 7. PATENT PROTECTION.
Xxxx-Xxxxxx shall defend its customer against any legal action which
may be incurred because of alleged infringement of any United States
patent by reason of the sale of Products furnished hereunder, provided
Xxxx-Xxxxxx is promptly notified in writing of such infringement claims
and given full authority for defense of
such action.
ARTICLE 8. EXPIRATION AND TERMINATION.
8.1 Failure to Meet Agreement Requirements.
The Distributor acknowledges that it understands and accepts the
terms and conditions of this Agreement and that failure to meet any
of the terms hereof, could result at the sole option of Xxxx-Xxxxxx
and upon notice to Distributor in (a) termination of this Agreement
in its entirety and as applied to all product lines specified in the
Exhibits hereto executed by the parties, or (b) termination of
specific product lines noted in one or more of such Exhibits, or (c)
with the consent of both parties (and the execution of one or more
new Exhibits), a change from Option A to Option B.
8.2 Expiration Term.
This Agreement shall continue in force, subject to termination by
either party for any reason or no reason, with or without cause, by
either party giving the other thirty (30) days prior written notice.
Such termination may apply to the entire agreement or to one or more
specific product lines noticed in one or more of the Exhibits hereto.
It is also understood that the applicable Exhibits executed by the
parties are subject to annual review prior to establishing the
commitments for succeeding full calendar years hereunder and that
expiration notice may be issued by either party in case of no
agreement as to such commitments.
8.3 Insolvency.
Either Xxxx-Xxxxxx or Distributor may, at its sole option, terminate
this Agreement effective immediately with respect to any or all of
the Products covered hereunder in case of any filing by or against
either party under any state or federal insolvency, receivership or
bankruptcy proceeding. In such event, Distributor shall return
immediately to Xxxx-Xxxxxx
(or not oppose any reclamation action as to) products held by
Distributor.
8.4 Transfer of Distributor Business.
The Distributorship hereby created is personal in nature and cannot
be assigned or transferred without the written consent of Xxxx-Xxxxxx
and shall automatically terminate upon such assignment or transfer or
upon the insolvency of the Distributor or upon the transfer of the
Distributor's business or control thereof to parties other than thoe
in control at the time of the execution of this Agreement (including
possession or control assumed as a result of court proceedings of any
nature).
8.5 Effect of Transactions after Termination.
Neither the sale of Products nor any other act of Xxxx-Xxxxxx or the
Distributor after termination of this Agreement will be construed as
a waiver of such termination.
8.6 Cost of Termination.
In addition to Xxxx-Xxxxxx'x right to terminate and any other legal
remedies, Distributor agrees to defend, indemnify, and hold harmless
Xxxx-Xxxxxx against all damages, losses and expenses, including but
not limited to attorney fees, arising out of the Distributor's breach
of any provision set forth in this Agreement or such termination by
Xxxx-Xxxxxx. In the event of bankruptcy, indemnification by the
Distributor to Xxxx-Xxxxxx specifically includes all expenses
incurred by Xxxx-Xxxxxx to have this contract rejected, assumed or
assigned by the applicable Trustee or Court.
ARTICLE 9. EXCUSABLE SHIPMENT DELAY.
Xxxx-Xxxxxx shall not be liable for any failure to deliver or for
delay in delivery arising out of acts of God or other causes beyond its
control and with out its fault or negligence including any labor, material,
acts of a public enemy, transportation or utility shortage or curtailment,
computer or equipment failure, acts of any Government in either its
sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, civil disorders, strikes, freight embargoes, and unusually
severe weather. Xxxx-Xxxxxx will endeavor to notify Distributor in
writing within a reasonable time after Xxxx-Xxxxxx first learns of any
such delay. If Distributor and Xxxx-Xxxxxx within one hundred eighty
(180) days from the beginning of any excusable delay do not agree upon a
solution of the problem involved and revised delivery arrangements, then
Distributor or Xxxx-Xxxxxx may, by written notice, cancel accepted
order(s) to this Agreement, or that portion of accepted order(s) to this
Agreement which is delayed, without any liability arising or remaining on
the part of either party to the other in respect to the Products
effectively canceled as provided herein.
ARTICLE 10. DISTRIBUTOR BUSINESS RESPONSIBILITIES.
Distributor, as a Xxxx-Xxxxxx Distributor, represents and warrants
that (a) it has and can produce evidence of insurability, adequate
facilities and personnel to perform distributor install-ation and after-
sales service for the Products, and (b) has the capability to pay all
costs and expenses to be incurred by the Distributor in the conduct of its
business, including all rentals, salaries, taxes, licenses, telephone and
travelling expenses (Distributor understands and agrees that it shall not
be entitled to reimbursement from Xxxx-Xxxxxx for such costs and
expenses).
ARTICLE 11. LIMITATION OF LIABILITY.
Neither party here to shall be liable to the other for any incidental,
special, consequential or exemplary damages arising out of any act of
omission referred to herein or related to the performance of this
Agreement, whether occasioned by breach of contract, breach of warranty,
tort (including negligence), strict liability or otherwise. Distributor
agrees to defend, indemnify and hold harmless Xxxx-Xxxxxx for any
liabilities, obligations, causes of actions, losses or damages incurred by
Xxxx-Xxxxxx arising out of (i) Distributor's misrepresentation of the
applicable Product warranties or (ii) improper installation or repair of
Products. The rights granted to the parties under this Agreement are
solely for their benefits and no third party shall have or derive any
rights thereunder.
ARTICLE 12. TAXES.
Any taxes, charges or duties which may be legally assessed by and
payable to the United States Government or any political subdivision
thereof against either party to this Agreement, including but not limited
to any property, sales, purchase, use, turnover, import or export taxes,
and custom duties or charges as the result of any sales, purchase,
delivery or transfer under this Agreement of any of the Products furnished
or delivered hereunder shall be borne and paid for solely by the
Distributor.
ARTICLE 13. APPLICABLE LAW, JURISDICTION AND CONSTRUCTION.
This Agreement shall be governed by and construed according to the
laws of the State of Ohio and the United States of America. The parties
irrevocably agree that any legal action or proceedings against either
party, with respect to this Agreement, shall be brought only in courts of
applicable jurisdiction located in the State of Ohio and Distributor
irrevocably submits to the jurisdiction of such courts, waiving any
objections to such jurisdiction and venue. Any invalidity of a provision
of this Agreement shall not affect any other provision and in the event of
a judicial finding of such invalidity, this Agreement shall remain in
force in all other respects.
ARTICLE 14. DISTRIBUTOR NOT AGENT OR LEGAL REPRESENTATIVE.
This Agreement does not constitute Distributor as the agent or legal
representative of Xxxx-Xxxxxx or its subsidiaries or suppliers for any
purpose whatsoever. Distributor is not granted any express or implied
right or authority to assume or to create any obligation in behalf of or
in the name of Xxxx-Xxxxxx or its subsidiaries or suppliers or to bind
them in any manner whatsoever.
ARTICLE 15. NO IMPLIED WAIVERS.
The failure of either party at any time to require performance by the
other party of any provision hereof shall in no way affect the full right
to require such performance at any time the reafter. The waiver by either
party of a breach of any provision hereof shall not constitute a waiver of
any succeeding breach of the same or any other provision nor constitute a
waiver of the provision itself.
ARTICLE 16. SOLE AGREEMENT OF PARTIES.
This Agreement, together with the applicable Exhibits executed by the
parties hereunder and theprices, terms and conditions contained in Xxxx-
Xxxxxx'x Price List current at the time of sales, constitutes the entire
Agreement between the parties with respect to the subject matter hereof in
connection with the sale of Products and supersedes all prior Agreements,
if any, whether written or oral with respect thereto. There are no other
Agreements or understandings, either oral or written, between the parties
affecting this Agreement or relating to the sale or servicing of Products
except as otherwise specifically provided. This Agreement cancels and
supersedes all previous representations and/or agreements between the
parties relating to the subject matter covered herein. No change or
addition to or erasure of any portion of this Agreement shall be valid or
binding upon Xxxx-Xxxxxx unless the same is approved in writing by an
authorized officer of Xxxx-Xxxxxx or any subsidiary thereof. Distributor
warrants and represents that any signatory to this Agreement is duly
authorized to execute same.
This Agreement must be signed by both the Distributor and by the
particular Xxxx-Xxxxxx companies. This Agreement is valid only for
product lines of the Xxxx-Xxxxxx companies who have signed this Agreement.
This Agreement may be modified from time to time, and at least annually,
by the execution of new applicable Exhibits hereto (including, without
limitation, to add a product line or change an Option), and this Agreement
shall there after continue in full force and effect as modified by such new
Exhibits.
IN WITNESS WHEREOF, the parties hereto have caused their respective
names to be hereunto subscribed by their duly-authorized representative
effective as of the date first mentioned herein.
Signed for and on behalf of Signed for and on behalf of
DISTRIBUTOR effective as of XXXX-XXXXXX SERVICE, INC.
the date first noted below effective as of the date first
noted below
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ W. Inanbnit
President President
TITLE TITLE
January 17, 1995 January 17, 1995
DATE DATE
Signed for and on behalf of Signed for and on behalf of
DISTRIBUTOR effective as of RELIANCE MEDICAL PRODUCTS, INC.
the date first noted below effective as of the date first
noted below
By:/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
President President
TITLE TITLE
January 17, 1995 January 17, 1995
DATE DATE
