EXHIBIT 10.10
DISTRIBUTION AGREEMENT
between
DS Datenverarbeitung und Sensortechnik GmbH
Xxxxxxxxxxxxx 00/0
00000 Xxxxxxx
Xxxxxxx
(hereinafter referred to as "DS")
and
DATA TRANSLATION Inc.
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
XXX
(hereinafter referred to as "DT")
Art. 1
Object of the Agreement
DS has developed the Machine-Vision Software Product "NeuroCheck".
DT will distribute that product subject to the terms of the present Agreement.
Art. 2
Obligations and Services of DS
(1) DS herewith grants to DT the worldwide distribution rights, on a
non-exclusive basis, for the Machine-Vision Software Product "NeuroCheck",
with the exception of the distribution in the Federal Republic of Germany
where an existing cooperation agreement with the subsidiary of DT shall
continue in effect.
(2) During the term of the present Distribution Agreement DS shall offer
"NeuroCheck" exclusively in support of DT hardware, so long as DT
continues to meet the Imaging HW needs of the Machine Vision market.
(3) DS shall terminate at the earliest possible date any and all distribution
agreements existing with companies abroad. The distribution
agreements in question are specified in Annex 1 to the present
Agreement, together with the dates on which the termination as provided
for herein will take effect.
(4) During the term of the present Agreement, DS shall allow DT to
participate in the development of concepts for future versions of
"NeuroCheck". The exclusive rights of DS to "NeuroCheck", including the
version described in clause (7) below, shall, however, not be affected
thereby.
(5) For test purposes, a suitable customer, to be named by DT, will be
worked by DS directly.
(6) DS intends to complete in each year two new versions of "Neuro-Check" in
English and German language. Generally, the English version shall have
priority.
(7) DS commits to offer, during the period July - September of 1996, a
version of "NeuroCheck" that will be capable of running under Windows/NT
4.0, which version shall be distributed by DT on the terms and
conditions of this present Agreement.
(8) DS shall make available to DT on a regular basis preliminary versions
("Betas") of any "NeuroCheck" version under development.
(9) DS shall meet DT packaging and shipping requirements for "NeuroCheck" by
ensuring that the product name and SW version number are clearly set
forth both on the individual "NeuroCheck" boxes as well as on the
outside of the shipping container. Should further
requirements develop in the future, DS will make its best efforts to
accommodate these new requirements.
(10) DS will make available to DT, free of charge, a 3.5" floppy disk
containing a demonstration version of "NeuroCheck"; the same applies for
all future versions. DT has the right to redistribute, free of charge, the
demonstration version of "NeuroCheck", to its distributors and customers.
(11) DS will develop a two day instructional "NeuroCheck" training course. DS
will offer the course, to be attended by DT personnel and
distributors/VARs/Integrators, two times a year in the United States, free
of charge. Additionally, DS will provide additional, more in depth
training to nor more than 5 key DT people and provide the two day training
course materials to them so that they may conduct subsequent training,
support, and sales training at will. Place and date of these additional
trainings are coordinated by DT and DS together. If the fixed date
requires a separate journey for the qualified teacher of DS, these
additional trainings and the travel expenses will be charged by DS. With
new versions of "NeuroCheck", incremental training as specified above will
be provided and the training materials will be updated and provided to DT.
Art. 3
Obligations and Services of DT
(1) DT shall actively distribute all versions of "NeuroCheck" (including
successor versions and supplements) on the terms of the present
Agreement through its U.S. and International distribution channel, with
the exception of the Federal Republic of Germany.
(2) So long as DS is complying with its obligations under this Agreement,
including its obligation to develop new versions every year, and so long
as such versions are up to date in the industry, DT shall not select
another vendor with product that is directly competitive as to quality,
price, features and intended customers (OEM, end-user or other) with the
Product sold to DT hereunder.
(3) DT shall include "NeuroCheck" in the next version of its product
catalogue, where "NeuroCheck" will be devoted at least two full pages in
each case, and will to include "NeuroCheck" in subsequent catalogues for
as long as this agreement is in force.
(4) DT will reasonably present "NeuroCheck" at all relevant fairs and other
sales events attended by DT.
(5) During the third quarter of 1996, DT will run a promotional campaign for
"NeuroCheck" in the USA, the details of which are laid down in Annex 2
to the present Agreement.
(6) DT shall advise DS of intended promotional activities for "NeuroCheck",
shall allow DS to provide feedback on these activities and shall inform DS
of their evaluation after conclusion of such promotional efforts.
(7) DT shall advise DS of any planned new development in the image-processing
hardware sector and shall allow DS to provide input and feedback during
the concept and development stages.
(8) DT shall make available to DS, for development purposes, new hardware
components that are to be integrated into "NeuroCheck", in sufficient
numbers and free of charge. DS shall retain these components and not
redistribute said components.
(9) DT will name a suitable engineering contact person for hardware and
software matters.
(10) DT commits to the development of a suitable digital I/O plug-in card for
the Machine Vision market on the ISA bus. DT shall make available plug in
cards, on the same basis as the hardware components in paragraph (8)
above, and its drivers for Windows95 and Windows/NT required for linking
the card with "NeuroCheck".
(11) DT will keep DS currently informed about its activities, the general
development of the market and the purchasers.
Art. 4
Supply and Prices
(1) DT undertakes to maintain sufficient stocks of "NeuroCheck" in order to
meet the current demand.
(2) DS undertakes to advise DT of its delivery dates and times and to keep
its delivery times as short as possible within the limits of its own
capacity.
(3) All deliveries shall be made based on the DS list prices as specified in
Annex 3 of the present Agreement. DS will review, and amend as
necessary, the prices bi-annually unless business conditions warrant a
pricing review prior to bi-annually. DS will consult with DT on any
intended price changes; price changes are subject to not less than three
months prior notice.
(4) The risk of loss and title shall pass to DT upon shipment of the
Products.
(5) All prices are for delivery ex DS' seat. Delivery shall be made by UPS
or FedEx, as requested by DT; the costs of packing, shipment and
transport will be charged separately.
(6) DS, for a period of one year after delivery of the product to DT,
warrants that its product will be free from defects in materials and
workmanship under normal use and service. DS's obligation under this
warranty shall not arise until the Buyer returns the defective product,
freight prepaid, to DS. The only responsibility of DS under this
warranty is, at its option, to replace or repair, free of charge, any
defective component part of such products or return or credit of an
appropriate portion of any payment made or to be made by the Buyer with
respect to the applicable portion of the products. Any additional
claims, especially any claims for damages, based on defective delivery
are herewith excluded, unless they should result from intent or gross
negligence on the part of DS.
(7) DS warrants
(A) that it has full legal right to manufacture, license and sell the
Products and to enter into and perform this Agreement,
(B) that it has no knowledge, that it is not the owner of, or that it is
not the licensee of all patents, copyrights, trade secrets and other
intellectual property rights (collectively "Intellectual Property
Rights") incorporated in or used with the Product,
(C) that it has no knowledge, that the use, marketing, sale and
licensing of the products by DT and its customers does, and will,
infringe any intellectual property right of any third party. DS shall
indemnify and hold harmless DT and its customers from and against
losses, liabilities, damages, costs or expenses (including without
limitations reasonable attorneys' fees and costs) arising out of or in
connection with any suit, proceeding or claim based on an allegation
that any of the Products infringes any Intellectual Property Right.
(8) All invoices shall be payable without any deduction within 30 days from
the date of the invoice. In the event of overdue payments, DS will be
entitled to hold back all future deliveries until all payments due for
former deliveries have been paid in full, and to request advance payment
for future deliveries.
Art.5
Advance Payment
(1) DT shall make a non-recurrent advance payment of [material omitted and
filed separately with the Securities and Exchange Commission] which
shall be due for a payment on July 1, 1996.
(2) The payment made under (1) above will be amortized exclusively by an
increase of the discount by 20% off the current price (Annex 3) granted
on all deliveries made by DS to DT, including deliveries made to DT's
subsidiaries, until full amortization of the payment.
(3) The advance payment to be made by DT under (1) above shall bear no
interest. DS shall not be obliged to repay the advance payment made
under (1) above if and to the extent it should not have been amortized
by the increased discount provided for under (2) above, except that it
shall be obliged to repay in the event of termination by DT with cause.
(4) DT reserves the right to determine where shipments and invoices should
be directed.
Art.6
Duration, Termination
(1) The present Agreement shall come into force at the date of signature
thereof, and shall remain in effect thereafter for an unlimited period
of time.
(2) The present Agreement may be terminated at the end of each calendar year
without cause, subject to twelve month's prior notice, provided that DS
undertakes to supply DT with "NeuroCheck", at the relevant price and
warranty terms of the present Agreement, during an additional time of
twelve months after the effective date of any such termination of the
present Agreement, except only if DS should have terminated the
Agreement for a material breach of this agreement by DT. DS may not
terminate this agreement without cause prior to 12/31/1997.
(3) Each party shall be entitled to terminate the present Agreement
forthwith in the presence of a material breach of this agreement by the
other party, which shall be deemed to exist if the other party should
have violated its obligations under the present Agreement in a
culpable, willful way or have violated the obligations in material
respects and in each case should not, in spite of having been requested in
writing to do so, restore its proper performance of the Agreement within
30 days after notice.
(4) In order to be legally effective, notice of termination must be given in
writing.
(5) Except for prior breaches of the Agreement, there shall be no payment or
liability upon a termination of this agreement.
Art. 7
Secrecy
(1) Both parties undertake to treat as business secret of the other party, and
to maintain secrecy in respect of, any and all facts relating to the other
party that may have come to their knowledge as a result of the cooperation
under the present Agreement, except that this undertaking shall not apply
to any facts that are already in the public domain or come into the public
domain through no fault of the party or to any information that was
already known by a party prior to the date it received such information
from the other party.
(2) Both parties undertake to oblige their employees to secrecy in respect
of the facts to be kept secret under (1) above.
(3) The obligation to maintain secrecy, as provided for under (1) and (2)
above, shall continue in effect even after termination of the present
Agreement for 5 years.
Art.8
Final Clauses
(1) This is the sole and entire agreement between the parties. There do not
exist any ancillary oral agreements. Any changes or amendments to the
present Agreement, including any waiver to the written form, shall be
valid only if made in writing and signed by both partners.
(2) In the event one or more of the provisions of the present Agreement
should be ineffective, this shall not affect the validity of the
remaining provisions. Both parties agree that they will replace any such
ineffective provisions by effective terms by which the economic purposes
of the ineffective provisions will be achieved as fully as possible; the
same shall apply in the event any gap should be found to exist in the
present Agreement.
(3) The present Agreement and all deliveries and services made or rendered
thereunder shall be subject to the Laws of the Federal Republic of Germany.
The application of the CISG is herewith excluded.
(4) The exclusive place of jurisdiction is Stuttgart provided that DS herewith
names Xx. Xxxxxxxxx Xxxxxx and DT herewith names Xxx. Xxx X. Xxxx as
arbitrators to mediate between the parties in the event of any disputes.
The rules of these arbitration are fixed in a separate agreement.
(5) The provisions of Article 8, Clauses (4) and (5), Article 4, Clause (6) and
Article 7 shall survive any termination or expiration of this Agreement.
Remseck, this 06/24/1996 Marlboro, this 6/26/1996
----------
[LOGO AND SIGNATURE OF DS DATENVERARBEITUNG UND
SENSORTECHNIK GMBH APPEARS HERE]
/s/ Xxx X. Xxxx
---------------------------
(DATA TRANSLATION Inc.)
ANNEX 1
-------
List of existing distribution contracts:
-----------------------------------------------------------
Company name Date of termination
-----------------------------------------------------------
XXXXXXX XXXXXXXXXXXXXXXX 00/00/0000
0000 XX Xxxxxxxxx
Xxxxxxxxxxx
-----------------------------------------------------------
FABRIMEX AG 12/31/1996
0000 Xxxxxxxxxxxxx
Xxxxxxxxxxx
-----------------------------------------------------------
LB ELECTRONICS 12/31/1996
0000 Xxxxxx
Xxxxxxx
-----------------------------------------------------------
Annex 2
-------
DT plans on promoting "NeuroCheck" in the following manner:
. Inclusion of "NeuroCheck" in DT's product catalogue
. Featured in DT's Imaging newsletter, which is mailed to over 15,000 U.S.
prospects as well as being placed on DT's Internet website
. Referenced in DT's future Machine Vision advertising
. Included in DT's PR efforts, including press tours with magazine editors,
featured in relevant press releases, identified in magazine PR pick-ups
. Featured in relevant Machine Vision internal and external trade shows
demonstrations
. Featured in future direct mail campaigns
ANNEX 3
-------
Royalties:
----------
NeuroCheck full licensed version, 3.5" discs,
incl. "Getting Started" manual and security key [material omitted
and filed separately
with the Securities
and Exchange Commission]
NeuroCheck light version, 3.5" discs,
reduced communication capabilities,
support for only one camera,
incl. "Getting Started" manual and security key [material omitted
and filed separately
with the Securities
and Exchange Commission]
NeuroCheck upgrade from light to full licensed version [material omitted
and filed separately
with the Securities
and Exchange Commission]
Discount:
--------
DS sells NeuroCheck at a discount of [material omitted
and filed separately with the Securities and Exchange
Commission] to DT. All prices - if required - plus legal
Value Added Tax (VAT).
A G R E E M E N T O F A R B I T R A T I O N
between
DS Datenverarbeitung und Sensortechnik GmbH
Xxxxxxxxxxxxx 00/0
00000 Xxxxxxx
Xxxxxxx
(hereinafter referred to as "DS")
and
DATA TRANSLATION Inc.
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
XXX
(hereinafter referred to as "DT")
Art 1
All disputes between the parties with respect to the Agreement dated 06/24/1996/
_____________ between DT and DS, in compliance with the provisions of said
Agreement or any termination of said Agreement shall be decided solely by
binding arbitration in London, in the English language pursuant to the rules of
the London Court of International Arbitration (or its successor). Each party
shall select one arbitrator and these two arbitrators shall select a third
arbitrator, except as otherwise provided in said rules. Any award of the
arbitrators may be enforced by a court of competent jurisdiction.
Remseck, this 06/24/1996 Marlboro, this 6/26/1996
------------
[LOGO AND SIGNATURE OF DS DATENVERARBEITUNG UND
SENSORTECHNIK GMBH APPEARS HERE]
/s/ Xxx X. Xxxx
---------------------------
(DATA TRANSLATION Inc.)
