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EXHIBIT 10.10
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT is made and entered into by and between
ANSYS DIAGNOSTICS, INC. (hereinafter referred to as the "Company"), a
corporation organized and existing under the laws of the State of California,
having its principal place of business at 00000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx,
Xxxxxxxxxx 00000, and xxxxxxxxxxxxx, a corporation organized and existing under
the laws of the State of [Delaware] and having its principal place of business
at xxxxxxxxxxxxxxxxxx (hereinafter referred to as the "Distributor").
W I T N E S S E T H:
WHEREAS, the Company desires to promote the distribution, sale and use of
the Products (defined in Section 1.2 hereof) in the Territory (defined in
Section 1.3 hereof) and is willing to appoint Distributor as its non-exclusive
distributor of the Products listed on Exhibit A attached hereto and incorporated
herein by this reference in the Territory, on the terms and conditions set forth
hereinafter;
WHEREAS, the Distributor desires to be appointed as such non-exclusive
distributor of the Products listed on Exhibit A, on the terms and conditions set
forth hereinafter; and
WHEREAS, the Company and the Distributor have engaged in extensive
negotiations over the terms and conditions set forth hereinafter and each of
them, after careful consideration in conjunction with legal counsel, is willing
and able to enter into an exclusive distributorship arrangement, on such terms
and conditions;
NOW, THEREFORE, in consideration of the premises set forth above and the
mutual promises hereinafter contained, the parties hereto agree as follows:
ARTICLE 1. APPOINTMENT
SECTION 1.1 APPOINTMENT AND ACCEPTANCE OF APPOINTMENT. The Company appoints
the Distributor, and the Distributor accepts appointment, as the Company's
non-exclusive distributor to promote, distribute and sell the Products (defined
in Section 1.2 hereof) listed on Exhibit A in the Territory (as defined in
Section 1.3 hereof).
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SECTION 1.2 PRODUCTS. The Distributor is authorized to promote, distribute
and sell in the Territory only those products specified in Exhibit A attached
hereto and incorporated herein, as such Exhibit A may be amended in writing by
the parties hereto from time to time during the term hereof (all of such
products hereinafter collectively referred to as the "Products"). The Company
reserves the right, with respect to any of the Company's products to make direct
sales in the Territory or to appoint other distributors in the Territory.
SECTION 1.3 TERRITORY. The territory in which the Distributor is authorized
to solicit customers of the Products is limited to the geographic area(s)
specified in Exhibit B attached hereto and incorporated herein, as such Exhibit
B may be amended in writing by the parties hereto from time to time during the
term hereof (hereinafter referred to as the "Territory"), and does not include
any other place in the world. The Distributor shall not actively solicit sales
of the Products outside the Territory and shall not establish any branch or
maintain any distribution depot or warehouse outside the Territory for the
Products, except with the prior written consent of the Company, which may be
granted or denied in the Company's sole discretion.
SECTION 1.4 RESTRICTIONS ON AUTHORITY. For all purposes under this
Agreement, the Distributor is an independent contractor and shall not be deemed
to be an employee, agent, partner or legal representative of the Company. This
Agreement does not grant, and the Distributor shall not have, any authority,
express or implied, to create or assume any obligation, enter into any
agreement, make any representation or warranty, file any document with any
governmental body or serve or accept legal process on behalf of the Company, to
settle any claim by or against the Company, or to bind or otherwise render the
Company liable in any way in the Territory or anywhere else in the world,
without the prior express written consent of the Company. The Distributor shall
purchase the Products for its own account from the Company and shall re-sell the
Products for its own account in the Territory.
SECTION 1.5 EMPLOYEES OF DISTRIBUTOR. The Distributor shall be responsible
for the selection, training and supervision of, and the payment of remuneration
and benefits to, its employees who assist it in the performance of its
obligations hereunder and in no event shall the Company have any obligation to,
or authority over, such employees of the Distributor.
ARTICLE 2. TERMS OF SALE
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SECTION 2.1 PURCHASE ORDERS. In making its purchases of the Products from
the Company, the Distributor shall submit written purchase orders to the Company
at the address set forth in Article 15 below, which the Company may, in its sole
discretion, accept or reject, in whole or in part, for any one of the following
reasons: the Company is unable to fill a purchase order due to commercial
reasons; the Company has experienced an event of force majeure as defined in
Article 14; the Company has decided to cease manufacturing the Products or to
cease selling the Products in the Territory; the order(s) contain terms or
conditions inconsistent with the terms of this Agreement or the course of
dealing between the parties hereto or violative of applicable law; or if the
Company determines that fulfilling the order would cause the Company to be in
breach of any other contract, order, judgment, decree or other authority to
which it is a party or by which it is bound. The Company reserves the right to
distribute unusually large orders over an extended period of time. The Company
may, in its sole discretion, determine whether an order is unusually large and
what extended shipment period is appropriate. The Company may, in its sole
discretion, accept and act on telecopy or telephone purchase orders issued by
the Distributor; provided, however, that, upon the request of the Company, the
Distributor shall promptly confirm telephone purchase orders in writing or by
telecopy. No purchase orders accepted by the Company may be cancelled by either
the Distributor or the Company, unless the parties hereto agree otherwise in
writing.
SECTION 2.2 PRICES TO DISTRIBUTOR. The purchase prices for the Products
shall be the prices specified in Exhibit A, as such may be amended from time to
time during the term hereof by the Company, in its sole discretion, on sixty
(60) days calendar days' prior written Notice to the Distributor; provided,
however, that, within the ten (10) calendar days following the date of such
Notice by the Company, the Distributor may order, at the previously prevailing
prices, such quantities of the Products as are reasonably needed by the
Distributor during the thirty (30) calendar day period immediately following the
date of such Notice to fill contracts and outstanding quotations existing on the
date of the Company's Notice of such price changes.
SECTION 2.3 PAYMENT TERMS.
2.3.1 Each purchase order hereunder shall specify the amount, manner
and timing of payment thereunder; provided, however, that, in all cases, the
Company shall be paid in the same currency reflected on the Company's invoices
to the Distributor, and payment shall be made, at the option of the
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Company, by one of the following three methods: a bank draft or a wire transfer
of immediately available funds. In all cases, the following payment terms shall
prevail: 2% discount on those prices specified in Exhibit A attached hereto if
paid within ten (10) calendar days of the date of the company's invoice, and the
full amount of those prices specified in Exhibit A attached hereto if paid
within thirty (30) days of the date of the Company's invoice; provided, however,
that in the event the Company changes its payment terms applicable generally to
substantially all of its distributors who conduct a comparable volume of
business in the Products, then the Company may, in its sole discretion, upon
Notice to the Distributor, alter the payment terms at any time during the term
hereof and any such alteration shall be effective with respect to any and all
purchase orders not theretofore accepted by the Company.
2.3.2 Acceptance and endorsement by the Company of any instrument for
less than the full amount that the Company claims to be due and payable to it
under a purchase order or hereunder shall not be deemed to be an admission of
payment in full, and any conditions to the contrary that are noted on such
instrument shall not be binding on the Company.
SECTION 2.4 DELIVERY.
2.4.1 Delivery schedules stated by the Company are estimates only and
are not guaranteed by the Company, but the Company shall, subject to Article 14
hereof, attempt to make delivery within a reasonable time, taking into account
the Distributor's need to obtain the Products, the availability of
transportation, the needs of other customers of the Company, the existence of
special orders and other commercial matters. The Company shall not be obligated
to deliver any Products without timely receipt of shipping instructions from the
Distributor, and the Company shall not be obligated to ship Products that have
been discontinued or that are temporarily out of stock.
2.4.2 Unless the parties hereto otherwise agree in writing or by
telecopy with respect to a given purchase order, the Distributor shall be solely
responsible for all shipping, duty and customs charges applicable to the
Products.
SECTION 2.5 RETURN OF PRODUCTS. Distributor agrees to abide by the terms of
the Company's returned goods policy, and no Product may be returned after
shipment to the Distributor, except as permitted in the Company returned goods
policy as such may be amended from time to time by the Company.
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SECTION 2.6 TAXES. Any and all customs, tariffs and duties or excise,
sales, use, value-added or other taxes or levies imposed by any governmental
body in the Territory on the Distributor or the Company in connection with the
sale of the Products to or by the Distributor shall be paid by the Distributor.
The Distributor shall fully reimburse and indemnify the Company for any amount
actually paid by the Company or withheld by the Distributor for any such taxes
or levies within thirty (30) calendar days after the date on which the Company
gives notice thereof to the Distributor or after the date of withholding by the
Distributor, as the case may be.
ARTICLE 3. INTELLECTUAL PROPERTY AND TRADEMARKS
SECTION 3.1 CERTAIN DEFINITIONS.
3.1.1 "Company's Property" shall mean any and all inventions, trade
secrets, manufacturing processes, know-how, product designs, formulas,
formulations, machine designs, technical information, technical designs,
engineering and product data, specifications, blueprints, drawings, manuals,
customer lists, vendor and supplier lists and agreements, distributor and sales
representative lists and agreements, marketing and other business strategies,
forms, sales aids, and other confidential information and materials, whether or
not in documentary form and whether or not patented by the Company or its
parent, subsidiaries or other affiliates in the Territory or elsewhere, that are
heretofore and hereafter owned or controlled by the Company or its parents,
subsidiaries or other affiliates and that relate to the design, manufacturing,
production, operations, marketing, sale, distribution and use of the Products or
that otherwise relate to the business, products and services of the Company or
its parents, subsidiaries or other affiliates.
3.1.2 "Company's Trademarks" shall mean any and all of the trademarks,
service marks or trade names, whether or not registered by the Company or its
parents, subsidiaries or other affiliates in the Territory or elsewhere, and all
good will related thereto, that are heretofore and hereafter owned or controlled
by the Company or its parents, subsidiaries or other affiliates and that are
associated with the Products.
SECTION 3.2 OWNERSHIP AND LIMITED LICENSE TO REPRODUCE COMPANY'S
TRADEMARKS. Any and all of Company's Property and Company's Trademarks are and
shall remain the exclusive property of the Company or its parents, subsidiaries
or other affiliates. This Agreement affords the Distributor no rights therein;
the Distributor shall have no rights therein; and the Distributor shall never
assert any rights therein; provided, however, that
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the Company grants the Distributor a limited, non-exclusive, fully paid-up
license to reproduce Company's Trademarks in advertisements and other
promotional materials during the term of this Agreement. Such license is granted
for the sole purpose of assisting the Distributor in promoting the sale and use
of the Products in the Territory under this Agreement. Subject to Section 18.7
hereof, such license shall expire immediately upon the expiration of this
Agreement or the termination of this Agreement, with or without cause.
SECTION 3.3 CERTAIN ADDITIONAL RESTRICTIONS.
3.3.1 The Products to be sold to the Distributor hereunder shall bear
Company's Trademarks. The Distributor shall not remove, conceal or alter any of
Company's Trademarks on the Products. The Distributor shall promote and sell all
Products in their original packages and under the original labels provided by
the Company; provided, however, that the Distributor shall fully and timely
advise the Company of all laws and regulations of the Territory governing the
packaging and labelling of the Products and provided further that, upon receipt
of such information, the Company shall use its best efforts to ensure that the
packaging and labelling of the Products are in substantial compliance with all
such laws and regulations. The Distributor shall make no modifications,
alterations, changes, enhancements or additions in or to the Products or the
Company's Trademarks, except for the addition of the name and address of the
Distributor to the Products, displaying the name and address of the Distributor
and the Company in the same-size print on the Products.
3.3.2 The Distributor shall include an appropriate trademark or trade
name notice on its advertisements, sales literature, press releases and all
other marketing materials that use Company's Trademarks.
3.3.3 The Distributor shall not use Company's Trademarks on its
letterhead or in its Company name; provided, however, that the Distributor may
include a short plain language statement on its letterhead and promotional
literature to the effect that it is an authorized distributor of the Company's
Products.
3.3.4 The Distributor represents and warrants that it has not sought
or obtained, and agrees that it shall not seek or obtain, in the Territory or
elsewhere, any trademark or tradename registration embodying Company's
Trademarks or any patent or other intellectual property protection for any of
the Company's Property, unless authorized to do so in advance in writing by the
Company.
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SECTION 3.4 CONFIDENTIALITY.
3.4.1 During the term of this Agreement at all times after the
expiration of this Agreement or the termination of this Agreement, with or
without cause, the Distributor shall treat all Company's Property disclosed or
supplied to it by the Company as confidential and shall cause, instruct and
oblige its directors, officers, employees and agents and any other person acting
in concert with it or on its behalf and having access to such Company's Property
to keep the same in confidence. The Distributor shall not, at any time, in any
way, directly or indirectly, publicly or privately (i) communicate, disclose,
disseminate, lecture upon or publish articles concerning Company's Property nor
(ii) aid anyone else in such communication, disclosure, dissemination, lecturing
or publishing, nor (iii) use, nor aid anyone else in using, Company's Property,
without the prior express written consent of the Company. Provided, however,
that the Distributor's obligation of secrecy and non-use under this Agreement
shall not apply to (a) information that the Distributor is using strictly in
accordance with the terms of this Agreement for the limited purpose of promoting
the sale and use of the Products in the Territory; (b) information that at the
time of the disclosure by the Company to the Distributor is in the public
domain; (c) information that, after disclosure by the Company to the
Distributor, becomes part of the public domain by publication or otherwise,
through an authorized source other than the Distributor and without the fault of
the Distributor; and (d) information that the Distributor can show by written
records was in the Distributor's possession prior to the disclosure by the
Company to the Distributor and was not acquired, directly or indirectly, from
the Company. Provided further, however, in order for the above proviso in this
Section 3.5.1 to be applicable, Distributor must make a claim to the Company in
writing and with specificity that it contends this proviso applies to some or
all of the Company's Property disclosed to it by Company within ten (10) days of
the date of Company's disclosure. Such writing must identify the portion of the
Company's Property that Distributor contends is the subject of this proviso and
the factual basis upon which its claim is grounded. If Company disputes such
claims by Distributor then the parties shall submit the issues to JAMS-
ENDISPUTE for binding arbitration in Orange County, California. The Distributor
shall have the burden of proving that the exceptions set forth in the proviso
apply by clear and convincing evidence and, until there is a final resolution of
the dispute in Distributor's favor. Distributor shall be bound by the provisions
in the first part of Section 3.5.1. If Distributor
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fails to deliver timely notice under this Section, then all such information
shall be conclusively deemed to be Company Property belonging to Company and
subject to all of the other provisions of this Agreement.
3.4.2 During the term of this Agreement, the Distributor shall not,
under any circumstances, copy, replicate, imitate, or reverse engineer any
products of the Company, including, but not limited to, the Products.
3.4.3 Upon the expiration of this Agreement or the termination of this
Agreement, with or without cause, the Distributor shall, subject to Section 18.7
hereof, immediately return to the Company any and all Company's Property,
including, but not limited to, any documentary embodiment thereof.
SECTION 3.5 INFRINGEMENT. The Distributor shall give immediate Notice to
the Company of any and all infringements of Company's Property Trademarks that
come to the Distributor's attention during the term of this Agreement and shall
assist the Company in taking such action against such infringement as the
Company may, in its sole discretion, decide to take; provided, however, that all
costs and expenses, including reasonable attorneys' fees incurred by counsel
approved by the Company, incurred in connection with any such infringement
action shall be borne by the Company. The Company shall hold the Distributor
harmless from, and shall indemnify the Distributor against, any and all claims,
losses, liabilities, damages and costs and expenses (including, but not limited
to, costs of investigation, court costs, arbitrators' fees and attorneys' fees)
that the Distributor may incur by reason of any infringement by the Company of
any trademark or patent or other proprietary right of any third party.
SECTION 3.6 INJUNCTIVE RELIEF. The parties hereto understand and agree that
remedies at law may be inadequate to protect against any breach of any of the
provisions of this Article 3 by the Distributor or any of its employees, agents,
officers or directors or any other person acting in concert with it or on its
behalf. Accordingly, the Company shall be entitled to the granting of injunctive
relief by a court of competent jurisdiction against any action that constitutes
any such breach of this Article 3. It is understood that such injunctive relief
is intended solely as provisional relief pending arbitration in accordance with
Article 10 hereof.
SECTION 3.7 INDEMNIFICATION. Each party shall hold the other harmless from,
and shall indemnify the other against, any and all claims, losses, liabilities,
damages and costs and
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expenses (including, but not limited to, costs of investigation, court costs,
arbitrators' fees and attorneys' fees) that the indemnified party may incur by
reason of any breach of any of the provisions of this Article 3 by the
indemnifying party or any of its employees, agents, officers, or directors or
any other person acting in concert with it or on its behalf.
ARTICLE 4. PROMOTIONAL ACTIVITIES
SECTION 4.1 PROMOTIONAL ACTIVITIES OF THE DISTRIBUTOR. During the term
hereof, the Distributor, at its sole cost and expense, covenants and agrees to:
4.1.1 Assign at least one (1) full-time product manager, whose sole
responsibility shall be to promote vigorously and consistently the sale of the
Products and provide technical support regarding the Products for the
Distributor's customers;
4.1.2 Monitor closely the activities of sub-distributors, if any, all
of which must be approved by Company in writing in advance;
4.1.3 Participate actively and engage in sufficient advertising and
publicity campaigns, scientific meetings and exhibitions, trade fairs and shows,
and other marketing activities, to promote vigorously and consistently the sale
of the Products throughout the Territory.
SECTION 4.2 Promotional Activities of the Company. During the term hereof,
the Company, at its sole cost and expense, covenants and agrees to provide at
least one (1) technical support specialist to (a) conduct appropriate training
sessions and workshops for all employees of the Distributor engaged in promoting
the Products, and (b) conduct in-service support for key purchasers and users of
the Products.
ARTICLE 5. MINIMUM SALES
SECTION 5.1 MINIMUM SALES. In addition to all of its other obligations
under this Agreement, the Distributor shall achieve the annual minimum sales of
the Products specified on Exhibit A attached hereto, as such may be amended in
writing by the parties hereto from time to time during the term hereof. The
Distributor understands and acknowledges that its strict fulfillment of such
minimum sales is an essential condition to this Agreement and that its failure
to make any of such sales shall be just cause for termination of this Agreement
pursuant to Section 18.3 hereof.
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SECTION 5.2 REPORTING OBLIGATIONS.
5.2.1 During the term hereof, the Distributor shall provide: (a)
quarterly in arrears, a sales report, on a customer by customer basis, including
detail as to type of customer, and (b) a current inventory report within ten
(10) days of the Company's request therefor.
5.2.2 To underscore that the arrangement contemplated by this
Agreement is a distributorship and not a sales agency, the parties hereto agree
that under no circumstances shall the Distributor be required to provide the
Company at any time after its expiration or termination, the names and addresses
of any of the Distributor's customers of the Products in the Territory.
ARTICLE 6. WARRANTY COVERAGE
SECTION 6.1 WARRANTY LIMITATION. The sole warranties that the Company makes
with respect to the Products are set forth on the Products or their packaging.
EXCEPT AS STATED IN THE FOREGOING SENTENCE, THE COMPANY DISCLAIMS ANY AND ALL
WARRANTIES ON THE PRODUCTS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OF THEIR MERCHANTABILITY OR THEIR FITNESS FOR A
PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF
TRADE. TO THE EXTENT THAT ANY IMPLIED WARRANTIES MAY NOT BE DISCLAIMED, SUCH
WARRANTIES ARE EXPRESSLY LIMITED TO THE DURATION OF THE EXPRESS WARRANTY STATED
BY THE COMPANY ON THE PRODUCTS OR THEIR PACKAGING.
SECTION 6.2 WARRANTY CLAIMS.
6.2.1 All of the Products shall be received by the Distributor subject
to the Distributor's visual inspection and may be rejected on the grounds that
the warranties that the Company states on the Products or their packages have
been breached. The Distributor shall assert all such warranty claims in writing
to the Company as soon as possible but in any event during the warranty period
stated in the warranty on the Products or their packaging. At the Company's
request, the Distributor shall promptly supply such evidence of warranty breach
as the Company may reasonably request.
6.2.2 THE DISTRIBUTOR'S EXCLUSIVE REMEDY AND THE COMPANY'S LIMIT OF
LIABILITY FOR ANY AND ALL WARRANTY CLAIMS HEREUNDER, SHALL BE FOR THE
REPLACEMENT OF THE PARTICULAR
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PRODUCTS WITH RESPECT TO WHICH SUCH CLAIMS ARE ASSERTED. THE COMPANY SHALL NOT
BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES
RESULTING FROM THE USE OF THE PRODUCTS OR ARISING OUT OF ANY BREACH OF ANY OF
THE WARRANTIES THAT THE COMPANY STATES ON THE PRODUCTS OR THEIR PACKAGING OR ANY
BREACH BY THE COMPANY OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR
APPLICABLE LAW.
SECTION 6.3 INDEMNIFICATION FOR UNAUTHORIZED WARRANTIES. The Company shall
not be responsible for any warranty that the Distributor or any of its
sub-distributors makes concerning the Products other than those warranties made
by the Company as set forth in Section 6.1 hereof. The Distributor shall hold
the Company harmless from and indemnify it against any and all claims, losses,
liabilities, damages, and costs and expenses (including, but not limited to,
costs of investigation, court costs, arbitrators' fees and attorneys' fees) that
the Company may incur arising out of or relating to (i) any such additional
warranty made by the Distributor or any of its agents, employees or
sub-distributors, (ii) the act or omission of the Distributor or any of its
agents, employees or sub-distributors in connection with the transporting,
receiving, handling, storing, advertising, promoting, selling and distributing
any of the Products, and (iii) any breach by the Distributor of any of its
obligations under this Agreement or any purchase order issued by the Distributor
and accepted by the Company hereunder or under applicable law.
SECTION 6.4 PRODUCT LIABILITY INSURANCE. The Distributor shall at all
times maintain adequate product liability insurance with respect to its sale of
the Products with underwriters, limits and terms reasonably acceptable to the
Company.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES BY THE DISTRIBUTOR
SECTION 7.1 The Distributor represents and warrants to the Company as
follows:
7.1.1 It is a marketing and sales company duly organized and validly
existing and in good standing under the laws of the state or country of its
organization and all applicable foreign jurisdictions, and is duly qualified to
conduct its business as presently conducted in all those jurisdictions in which
it presently conducts business.
7.1.2 It has full power and authority to execute and deliver this
Agreement and to perform the terms and conditions hereof.
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7.1.3 It has taken all necessary legal action to authorize the
execution and delivery of this Agreement. The representative who has executed
and delivered this Agreement on behalf of the Distributor has been duly and
validly authorized and will bind the Distributor by his action.
7.1.4 This Agreement constitutes the legal, valid and binding
obligation of the Distributor enforceable against the Distributor in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
except as the availability of equitable remedies may be limited under applicable
law.
7.1.5 The execution, delivery and performance of this Agreement will
not violate any provision of the Articles of Incorporation or Bylaws of the
Distributor, or any law, rule, regulation, order or decree of any court or
arbitrator that is or may be binding upon the Distributor or any of its assets.
The execution, delivery and performance of this Agreement will not result in the
breach of any provision of or any default under any agreement to which the
Distributor is a party or which is or may be binding upon the Distributor or any
of its assets.
7.1.6 There are not pending or, to the knowledge of the Distributor,
threatened legal actions, arbitrations or other proceedings against the
Distributor or any of its assets that, if adversely determined, might have a
material adverse effect on the validity or enforceability of this Agreement or
on the financial condition of Distributor or the capability of the Distributor
to perform its obligations hereunder.
7.1.7 The Distributor has never been and is not now the subject of any
bankruptcy or insolvency proceeding or other proceeding, voluntary or
involuntary, for the benefit of creditors.
7.1.8 Neither this Agreement nor the appointment of the Distributor
hereunder must be notified to, approved by, or registered with, any governmental
body, agency or instrumentality in the Territory.
7.2 Each of the representations and warranties set forth in this
Article 7 and in Section 1.6.2 hereof shall be deemed to be confirmed by the
Distributor on each date on which it submits a purchase order to the Company
hereunder.
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7.3 The Distributor shall immediately give Notice to the Company if
any of the representations and warranties made by it in this Article 7 or in
Section 1.6.2 hereof should prove to have been incorrect, incomplete or
misleading on the date of this Agreement or should become incorrect, incomplete
or misleading during the term of this Agreement.
ARTICLE 8. REPRESENTATIONS AND WARRANTIES BY THE COMPANY
SECTION 8.1 The Company represents and warrants to the Distributor as
follows:
8.1.1 It is a corporation duly organized and validly existing and in
good standing under the laws of the State of California and is duly qualified to
conduct its business as presently conducted in all those jurisdictions in which
it presently conducts business.
8.1.2 It has full power and authority to execute and deliver this
Agreement and to perform the terms and conditions hereof.
8.1.3 It has taken all necessary legal action to authorize the
execution and delivery of this Agreement. The representative who has executed
and delivered this Agreement on behalf of the Company has been duly and validly
authorized and will bind the Company by his action.
8.1.4 This Agreement constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally and except as the
availability of equitable remedies may be limited under applicable law.
8.1.5 The execution, delivery and performance of this Agreement will
not violate any provision of this Articles of Incorporation or Bylaws of the
Company or any order or decree of any court or arbitrator that is or may be
binding upon the Company or any of its assets. The execution and delivery of
this Agreement will not result in the breach of any provision of or any default
under any agreement to which the Company is a party or which is or may be
binding upon the Company or any of its assets.
ARTICLE 9. GOVERNING LAW
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This Agreement and each purchase order issued by the Distributor and
accepted by the Company hereunder shall be exclusively governed by and construed
in accordance with the laws of the State of California, United States of
America, without giving effect to the choice-of-law principles thereof.
ARTICLE 10. DISPUTE SETTLEMENT
SECTION 10.1 ARBITRATION.
10.1.1 Any dispute, controversy or claim arising out of or relating to
this Agreement or any purchase order issued by the Distributor and accepted by
the Company hereunder or a breach hereof or thereof shall be finally resolved by
arbitration in accordance with the Rules and Procedures of JAMS - ENDISPUTE in
Orange County, California.
10.1.2 The arbitration proceedings, all documents submitted therein
and the award shall be in the English language, and the arbitrator shall be
fluent in the English language. The arbitration proceedings shall be held in
Orange County, California. The arbitrator shall apply such rules of procedure as
it thinks appropriate in the circumstances; provided, however, that both parties
hereto shall be entitled to representation by counsel, to appear and present
written and oral evidence and argument and to cross-examine witnesses presented
by the other party. The award shall be in writing and the arbitrator shall
provide written reasons for its award. The award of the arbitrator shall be
final and binding upon the parties hereto.
10.1.3 The provisions of this Article 10 shall survive and bind the
parties hereto, notwithstanding any expiration or termination of this Agreement
or any purchase order, whether by way of the exercise of rights of termination
hereunder or thereunder, passage of time or otherwise. The provisions of this
Article 10 shall be severable and binding on the parties hereto, notwithstanding
that any other provisions of this Agreement or any purchase order may be held or
declared to be invalid, illegal or unenforceable.
SECTION 10.2 SERVICE OF PROCESS.
10.2.1 The Distributor irrevocably and unconditionally consents to
service of process upon it in any proceeding brought pursuant to Section 3.6 or
10.1 hereof by mailing copies of any Notice or pleading thereof by U.S.
registered mail, postage prepaid, return receipt requested. The foregoing shall
not limit the right of the Company to serve process in any other manner
permitted by applicable law and shall not limited the ability of
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the Company to bring any such proceeding or to obtain execution for any judgment
rendered in any such proceeding any other jurisdiction in which the Distributor
or any of its property or assets may be found.
10.2.2 The Distributor specifically hereby waives any claim or right
it may have by statute, treaty or law to contest the jurisdiction or venue of
JAMS - ENDISPUTE in Orange County, California or any United States state or
federal court in any action or proceeding instituted pursuant to this Agreement.
10.2.3 The Distributor specifically waives any claim of forum non
conveniens and specifically consents to venue as provided herein.
SECTION 10.3 ENFORCEMENT OF JUDGMENT.
The Distributor agrees that final judgment on an arbitral award rendered
against it in any action or proceeding relating in any way to this Agreement or
any purchase order issued by the Distributor and accepted the Company hereunder
shall be conclusive and may be enforced, to the extent permitted by applicable
law, in any other jurisdiction within or outside the United States of America by
suit on the judgment, a certified copy of which judgment shall be conclusive
evidence thereof, or by such other means provided by applicable law.
ARTICLE 11. SEVERABILITY AND SURVIVAL
SECTION 11.1 SEVERABILITY. In the event that any provision or part of any
provision of this Agreement or any purchase order issued by the Distributor and
accepted by the Company hereunder is held to be invalid or unenforceable in any
respect, then, unless such provision or part of a provision is material to the
performance of this Agreement or such purchase order, as the case may be, as
determined by the Company or the Distributor or both of them, this Agreement or
such purchase order, as the case may be, shall continue in effect and such
provision or part of the provision shall be excised herefrom or therefrom. In
the event that either party hereto, in its sole discretion, determines that such
provision or part of a provision to the operation or performance of this
Agreement or such purchase order, as the case may be, then either such party
may, in its sole discretion, elect to terminate this Agreement or such purchase
order, as the case may be, or both, upon thirty (30) calendar days' prior to
notice to the other party.
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SECTION 11.2 SURVIVAL. Sections 1.4, 1.5, and 2.5 and the Articles 3, 6, 7,
8, 9, 10, 16 and 19 hereof shall survive the expiration of this Agreement or the
termination of this Agreement, with or without cause.
ARTICLE 12. ASSIGNMENT
Neither party hereto may assign its rights or obligations under this
Agreement or any purchase order issued by the Distributor and accepted by the
Company hereunder except upon the prior written approval of the other party
hereto; provided, however, that the Company may assign its rights and
obligations hereunder or thereunder to its parent or any of its subsidiaries or
other affiliates or the surviving entity in any corporate merger or
reorganization, but shall give prompt Notice thereof to the Distributor. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
ARTICLE 13. WAIVER
The failure or delay of either party hereto to require performance by the
other party or to enforce its rights under any provision of this Agreement or
any purchase order issued by the Distributor and accepted by the Company
hereunder shall not affect the rights of such party to require performance and
to enforce its rights with respect to such provision unless and until such
performance has been waived in writing by such party. No waiver of any failure
or delay in performance hereunder or thereunder shall constitute waiver of a
continuance or reoccurrence of such failure or delay or of any other failure or
delay, except as provided in such waiver. The rights granted to each party
hereunder and under any purchase order issued by the Distributor and accepted by
the Company hereunder and any rights available to it at law or in equity shall
be cumulative and may be exercised in whole or in part from time to time.
ARTICLE 14. FORCE MAJEURE
Neither party hereto shall be liable or responsible to the other party
hereto for delay or failure to perform any of its obligations, other than an
obligation to pay money arising under this Agreement or any purchase order
issued by the Distributor and accepted by the Company hereunder, due to events
of force majeure, including, but not limited to, acts of God or of the public
enemy, fire, flood, storm, explosion, earthquake, riots, wars, hostilities,
civil commotion, strikes and labor disputes, interruption of supply, inability
to obtain fuel, power, raw materials or freight or transportation services, any
law or
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regulation, any decision by any judicial or arbitral tribunal or any other acts
of any government or any agency or instrumentality thereof or persons purporting
to act with governmental authority, or any other cause beyond the reasonable
control of such party or which such party is not able to overcome by the use of
reasonable measures or which such party is able to overcome only at substantial
expense. This Article 14 shall not be interpreted to relieve the Distributor
from its obligation to pay as and when due in the applicable currency all
payments required to be made by the Distributor under this Agreement or any
purchase order issued by the Distributor and accepted by the Company hereunder.
If any such event of force majeure should occur, the affected party shall
promptly give Notice thereof to the other party hereto. If any such even of
force majeure continues, in whole or in substantial part, whether continuously
or intermittently, for a period of sixty (60) calendar days or more, the other
party may terminate this Agreement or any relevant purchase order or both on
thirty (30) calendar days' prior Notice to the affected party.
ARTICLE 15. NOTICES AND OTHER COMMUNICATIONS
All notices ("Notices"), purchase orders, acceptances of purchase orders,
and other communications between the parties hereunder shall be in the English
language and in writing (by mail, telecopy or telegraph), postage or
transmission costs prepaid, and shall be addressed to the parties hereto at
their respective principal places of business, which shall initially be:
If to the Company: If to the Distributor:
ANSYS DIAGNOSTICS, INC.
00000 Xxxxxxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attention: President
Telecopy: (000) 000-0000
All such Notices and communications shall be deemed effective on (i) the date of
transmission, if sent during normal business hours by telecopy, or (ii) the date
that is five (5) calendar days after the date on which transmitted, deposited or
sent, if sent by mail or telegraph. Each party hereto may change its address for
purposes hereof by Notice given to the other party in the manner prescribed
herein.
ARTICLE 16. COMPLIANCE WITH LAW
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SECTION 16.1 COMPLIANCE WITH LAW. The Distributor shall at all times comply
fully and timely with all laws of the United States of America that may be
applicable to it in performing its obligations under this Agreement, and the
Distributor shall refrain from taking any action that might cause it or the
Company to be deemed to be in violation of any law of the Territory or any law
of the State of California or of the United States of America.
SECTION 16.2 LICENSES, PERMITS, ETC. The Distributor shall use its best
efforts to obtain and maintain all licenses, consents, qualifications and
approvals of governmental bodies in the Territory necessary or advisable to
perform this Agreement and render this Agreement valid, binding and enforceable
in the Territory; provided, however, no disclosures, filings and other
submissions cornering this Agreement or the Products may be made to any such
governmental body without the prior approval of the Company. If for any reason,
including, but not limited to, an event of force majeure, the Distributor does
not obtain all such necessary and advisable government registrations and/or
approvals of the Products within six (6) months after the Effective Date (as
defined in Section 17 hereof) or such other time as may be permitted under
applicable law, then this Agreement shall, without any notice or other act by
the Company, terminate, unless the parties hereto agree in writing to extend the
deadline by which the Distributor must obtain all such government registrations
and/or approvals. Throughout the term of this Agreement, the Distributor shall
immediately give the Company Notice of any revocation of, or any other notice,
investigation, inquiry, action or decision with respect to, Distributor, the
Products of this Agreement or any registration and/or approval of Distributor or
the Products by governmental bodies in the Territory.
ARTICLE 17. EFFECTIVE DATE; TERM
This Agreement shall become effective on the date this Agreement is signed
by the Company, as shown on the signature page hereto, (the "Effective Date")
and shall expire on the day prior to the third anniversary of the Effective
Date, unless terminated earlier in accordance with the terms and conditions
hereof. The parties hereto expressly understand and agree that this Agreement is
a fixed term agreement and shall, unless terminated earlier in accordance
herewith, expire at the end of its term without Notice or any other act by
either party hereto. Subject to Section 18.7 hereof, neither party hereto shall
continue with its performance hereunder after the expiration or termination
hereof, unless the parties agree otherwise in writing.
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ARTICLE 18. TERMINATION
SECTION 18.1 TERMINATION DUE TO BANKRUPTCY AND OTHER EVENTS.
This Agreement shall terminate immediately, without Notice or other act by
the Company in the event that:
18.1.1 a voluntary or involuntary case, action, petition or other
proceeding is initiated seeking liquidation, reorganization or other relief of
Distributor under any bankruptcy, insolvency or similar law now or hereafter in
effect, or seeking appointment of a trustee, receiver, liquidator or other
similar official of Distributor or any of its property, or Distributor shall
consent to have any such relief, or shall make a general appointment for the
benefit of its creditors, or Distributor shall fail generally to pay its debts
as they become due, or Distributor shall take any corporate action in
furtherance of any of the foregoing;
18.1.2 the Distributor shall be dissolved or its assets liquidated;
18.1.3 a substantial change influencing Distributor's ability to
service this Agreement shall occur in the ownership, control, organization,
personnel or operations of the Distributor, including, but not limited to, a
sale or transfer of all or substantially all of its assets or a merger between
the Distributor and another entity; then in any such event, without Notice or
other act by the Company, this Agreement shall terminate immediately.
SECTION 18.2 TERMINATION FOR BREACH OF CONFIDENTIALITY. If the Distributor
breaches any of its obligations under Article 3 hereof or if any of its
directors, officers, employees, agents or others acting in concert with it or on
its behalf breach any of their obligations under the separate confidentiality
agreements referred to in Section 3.5(e) hereof, then this Agreement shall
terminate immediately, without any Notice or other act by the Company and
without prejudice to any other remedy available to the Company.
SECTION 18.3 TERMINATION BY THE COMPANY FOR CERTAIN OTHER CAUSES. The
Company may, at its option and without prejudice to any other remedy available
to it, and without being deemed to have made an election of remedies, terminate
this Agreement upon the occurrence of any of the following events:
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18.3.1 The Distributor fails to pay any amount that is obligated to
pay under this Agreement or under any purchase order or under any other written
agreement between the Company and the Distributor within thirty (30) calendar
days of the date on which such amount became due and payable;
18.3.2 The Distributor fails to make any of the minimum sales
specified in Exhibit A attached hereto;
18.3.3 The Distributor breaches any of its other obligations hereunder
(other than its obligations under Article 3 hereof, breach of which is cause for
immediate termination pursuant to Section 18.2 hereof), or under any purchase
order issued by the Distributor and accepted by the Company hereunder or any
other written agreement between the Company and the Distributor, and fails to
remedy such breach within thirty (30) calendar days after its receipt of Notice
thereof from the Company;
18.3.4 Any representation or warranty made by the Distributor in this
Agreement or in any other written agreement between the Company and the
Distributor shall prove to have been incorrect, incomplete or misleading in any
material respect at the time it was made or deemed made; or
18.3.5 It becomes unlawful under the law of the Territory for the
Distributor to perform its obligations hereunder or under any purchase order
issued by the Distributor and accepted by the Company hereunder; or an
enactment, modification or change in the interpretation of the law of the
Territory subsequent to the date first above written interferes with or
prohibits the full and faithful performance by the Distributor of its
obligations hereunder or under any such purchase order or interferes with or
prohibits the full and complete enforcement of the Company's rights under this
Agreement or any such purchase order.
SECTION 18.4 TERMINATION BY THE DISTRIBUTOR FOR CERTAIN OTHER CAUSES. The
Distributor may, at its option, terminate this Agreement upon the occurrence of
any of the following events:
18.4.1 The Company materially breaches any of its obligations
hereunder and fails to remedy or commence to cure such breach within thirty (30)
calendar days after its receipt of written notice thereof from the Distributor;
or
18.4.2 Any express representation or warranty made by the Company in
this Agreement shall prove to have been
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materially incorrect, incomplete or misleading in any material respect at the
time it was made.
SECTION 18.5 TERMINATION FOR OTHER CAUSES BY EITHER PARTY. Either party
hereto may terminate this Agreement in accordance with other express provisions
hereof. This Agreement shall terminate automatically in accordance with Section
16.2.2 hereof.
SECTION 18.6 NO COMPENSATION. Upon expiration of this Agreement and upon
termination of this Agreement by either party hereto, with or without cause, the
Company shall not be liable or obligated to the Distributor with respect to
future profits, exemplary, special or consequential damages, indemnification or
other compensation regarding such expiration or termination, irrespective of
whether such obligations or liabilities may be provided for in the law of the
Territory or elsewhere, and the Distributor waives and relinquishes any rights,
pursuant to law or otherwise, to any such indemnification or compensation.
SECTION 18.7 DUTIES OF THE DISTRIBUTOR UPON TERMINATION. Upon the
expiration of this Agreement or upon the termination of this Agreement by either
party hereto, with or without cause, the Distributor shall (i) cease immediately
all of its efforts to promote the sale of the Products; (ii) cease immediately
use of Company's Trademarks; (iii) immediately discontinue making any statements
or taking any actions that might cause third parties to infer that any business
relationship continues to exist between the parties hereto and, where necessary
or advisable, inform third parties that the Distributor no longer has a business
relationship with the Company and is no longer authorized to sell the Products
in the Territory; and (iv) within ten (10) calendar days after the date of
expiration of this Agreement or the termination of this Agreement, with or
without cause, return to the Company, at the Company's expense, any and all
Company's Property, including, but not limited to, promotional material, that
has been furnished to the Distributor by the Company; provided, however, that if
the Distributor has an inventory of the Products on hand on the date of
expiration or termination, the Distributor may, subject to Section 18.9, sell
such Products, and may use Company's Trademarks and Company's Property in
connection therewith, for a period of ninety (90) calendar days thereafter. In
no event, however, shall the Distributor sell the Products in a commercially
unreasonable manner or in a manner that could harm the future sales potential of
the Products or the good will of the Company or Company's Trademarks in the
Territory.
SECTION 18.8 UNFILLED PURCHASE ORDERS. Unless otherwise agreed to in
writing by the parties hereto, Notice of termination
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of this Agreement by either party automatically cancels all unfilled purchase
orders. The Company's acceptance of a purchase order from the Distributor after
the Company has given Notice of termination hereunder shall not be deemed a
waiver or a rescission of such Notice.
SECTION 18.9 REPURCHASE OF PRODUCTS BY THE COMPANY. During the ninety (90)
calendar-day period after the date of expiration or termination of this
Agreement, the Company may, at its option, repurchase from the Distributor, at
the net price paid by the Distributor to the Company any and all of the Products
on hand in the Distributor's place of business or elsewhere. Upon demand and
tender by the Company of such repurchase price, the Distributor shall deliver
such Products and all rights, title and interest therein, free and clear of all
liens and encumbrances, to the Company and the Company shall pay all reasonable
freight costs associated with shipping such Products back to the Company. The
Company, however, reserves the right to reject any such repurchased Products not
in first class or acceptable condition, as reasonably determined by the Company.
SECTION 18.10 RIGHT TO SELL. Upon the expiration of this Agreement or the
termination of this Agreement by either party hereto, with or without cause, the
Company shall have the right to sell the Products in the Territory itself and to
appoint one or more other distributors of the Products in the Territory. The
Distributor waives and relinquishes any rights that it may have, under the law
of the Territory or elsewhere, to seek to enjoin the Company from making such
sales or appointing such other distributors and the Distributor shall not
attempt to exercise any such rights.
ARTICLE 19. ENTIRE AGREEMENT AND AMENDMENT
SECTION 19.1 ENTIRE AGREEMENT; REVOCATION OF ALL PRIOR AGREEMENTS. This
Agreement constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof and all parties hereto expressly intend and agree that
this Agreement shall supersede any prior agreement or expression of intent or
understanding, oral or written, with respect to the subject matter hereof. In
addition, Distributor expressly acknowledges and agrees there have been no
representations, warranties, inducements or promises made by Company which are
not set forth in this Agreement.
SECTION 19.2 AMENDMENT. Neither this Agreement nor any purchase order
issued by the Distributor and accepted by the Company hereunder nor any Exhibit
hereto may be amended except by
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a writing executed by duly authorized representatives of the parties hereto, or
except pursuant to other provisions hereof.
ARTICLE 20. HEADINGS
Headings are inserted in this Agreement for reference and convenience only
and shall not form part of this Agreement for the purpose of interpretation.
ARTICLE 21. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of
which is in the English language and each of which is an original, true and
correct version hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized representatives on
the date first above written.
ANSYS DIAGNOSTICS, INC.
By: By:
----------------------------------- ------------------------------------
Name: Name:
--------------------------------- ----------------------------------
Title: President Title:
------------------------------- --------------------------------
Date: Date:
--------------------------------- ----------------------------------
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EXHIBIT A
TO DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS DIAGNOSTICS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX DATED ______________________
PRODUCTS, PRICES AND MINIMUM SALES REQUIREMENTS
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EXHIBIT B
TO DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS DIAGNOSTICS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX DATED ______________________
TERRITORY
United States of America
25
