Exhibit 10.160
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
DEFINITIONS (Capitalized terms used in the Agreement shall be defined as
follows):
A. "Agreement" shall mean this exclusive distributorship agreement.
B. "Confidential Information" shall mean all written information and
data provided by the parties to each other hereunder and marked as
confidential, except any portion thereof which:
A. is known to the receiving party, as evidenced by the receiving
party's written record, before receipt hereof under this
Agreement;
B. is disclosed to the receiving party by a third person who has
a right to make such disclosure; or
C. is or becomes part of the public domain through no fault of
the receiving party.
C. "Patents" shall mean the patents and patent applications on file in
the countries/governmental jurisdictions of the Market Area.
D. "Company Products" shall mean those current products
manufactured/distributed by HiEnergy Technologies, Inc. such as
"stoichiometric technology or AtometryTM based products, and related
support services, software and accessories.
E. "Market Area" shall mean any commercial nuclear power plant in North
America.
AGREEMENT:
This Agreement is made and effective this October 24, 2006, by and between
HiEnergy Technologies, Inc., a Delaware Corporation ("Company") and Xxxxxxxx
Nuclear, Inc., a Massachusetts Corporation ("Distributor"). Company desires to
appoint Distributor, and Distributor desires to accept appointment, as an
exclusive distributor of Company's Products within the defined Market Area.
NOW, THEREFORE, in consideration of the mutual agreements and promises set
forth herein, the parties agree as follows:
1. RIGHTS GRANTED
Company hereby grants to Distributor the exclusive right, on the terms and
conditions contained herein, to purchase, inventory, promote and resell
"Company's Products" within the Market Area.
2. CONFIDENTIAL INFORMATION
It is contemplated that in the course of the performance of this Agreement each
party may, from time to time, disclose Confidential Information to the other.
Each party agrees to take all reasonable steps to prevent disclosure of
Confidential Information; provided; however, no provision of this Agreement
shall be construed so as to preclude such disclosure of Confidential Information
as may be inherent in or reasonably necessary for marketing Company Products
pursuant to this Agreement, or for securing from any governmental agency any
necessary approval or license relating to the subject or performance of this
Agreement.
3. COMPANY PRODUCTS
During the term of this Agreement, Company grants the Distributor the first
right and option to obtain exclusive rights to market, distribute and sell any
new devices or systems (including related software) in the Market Area, on the
terms and conditions of this Agreement.
4. TERMS OF SALE
All sales of Company's Products to Distributor shall be made pursuant to this
Agreement at such list prices and on such standard terms as Company shall
establish from time to time on at least thirty (30) days notice. All list prices
are FOB Company's plant. Except as otherwise expressly agreed by Company in
advance, this Agreement shall control all aspects of the dealings between
Company and Distributor with respect to the Company's Products. Company will
discount all items by, or pay a sales commission of, 15%. Distributor agrees
that all Company Products sold by Distributor will be at prices or in accordance
with Company pricing policies.
5. MARKETING POLICIES
Company will provide adequate access to Company's Products, marketing brochures,
catalogs, manuals, advertising literature and others sales aids to the
Distributor. Company and Distributor will effectively promote the sale of
Company's Products in the Market Area, in conformity with Company's established
marketing policies and programs. Distributor will use its best efforts to sell
Company's Products to reputable and financially capable end users throughout the
Market Area. Company will invite Distributor to national tradeshows where the
Distributor's Market Area is expected to be represented. Distributor will invite
Company to national tradeshows where the Company's Products will be represented,
in order to support the Distributor's marketing effort.
6. DISTRIBUTOR'S GENERAL DUTIES
A. Distributor shall maintain a business presence in the Market Area,
including suitable facilities. Any service and support provided by
Distributor on Company's Products sold in the Market Area shall be
made using qualified personnel trained by Company and subject to
service policies satisfactory to Company. Company will provide
technical support 24/7 to maintenance service technicians.
B. Distributor shall utilize its current sales personnel and/or appoint
representatives to introduce, promote, market and sell Company's
Products in the Market Area. Such personnel and/or representatives
shall be adequately trained by Company. Distributor shall employ
sufficient numbers of sales personnel and/or representatives
properly trained to market Company's Products in the Market Area.
C. Distributor agrees not to engage in the distribution, promotion,
marketing or sale of any goods or products that compete or conflict
with Company's Products. Distributor agrees to supply to Company a
list of items handled by Distributor following Company's request to
ensure that no conflict exists.
7. ADVERTISING POLICIES
Company will cooperate with Distributor in providing for effective promotion of
Company's Products throughout the Market Area, and Distributor agrees to
participate in, actively promote and faithfully comply with the terms and
conditions of such cooperative promotional programs as Company may establish and
offer Distributor from time to time. Nothing herein shall prevent Distributor
from independently advertising and marketing the Company's Products within the
Market Area, provided the form and content of the advertising or marketing
materials are approved by Company in advance.
8. PRODUCT WARRANTY POLICIES
Company shall provide to Distributor information with respect to Company's
limited warranties to be extended to the original purchaser of Company's
Products. COMPANY MAKES NO WARRANTY TO DISTRIBUTOR WITH RESPECT TO THE PRODUCTS,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. SOFTWARE LICENSE GRANT
During the term of this Agreement, Company grants to Distributor a
non-exclusive, non-transferable license to distribute the Company's
Interrogator(TM) software ("Software") to Distributor customers ("License"). The
Software shall be and remain the sole and exclusive products of Company, and
Distributor shall have no rights whatsoever in or to the Software. Distributor
agrees not to remove from any copies of the Software any statements appearing
thereon regarding copyrights or proprietary rights of Company. Distributor shall
not copy (in any form), distribute, sell, lease, assign, encumber, license or
sub-license this Software or programs written using this Software, including
derivative modifications or extensions of them, to any Distributor Customer or
other party without prior written consent from Company. Distributor hereby
acknowledges and agrees that the Software may be licensed by Company to other
users outside the Market Area without limitation of any kind. Distributor
acknowledges that the license granted hereby extends solely to Distributor
Customer and that Software shall not be used by any other division, subsidiary
or affiliated entity. Distributor acknowledges that the computer program,
manuals and related data which comprise or are related to the Software are
proprietary products of Company who retains all rights, title and interest,
including copyright to these products. Distributor agrees that the Software
source code of Interrogator(TM) constitutes protected information, which is
equivalent to trade secret information of Company, whether or not any portion
thereof is or may be the subject of a valid copyright or patent. Distributor
agrees not to reverse assemble, reverse compile, reverse engineer or otherwise
attempt to discover the source code of any of the Software, except to the extent
Distributor may be expressly permitted by Company. The software is provided
subject to Company's standard commercial software license ("Commercial
License"); provided, however, software acquired for use within or for any United
States federal agency is provided with "LIMITED RIGHTS" and "RESTRICTED RIGHTS"
as defined in DFARS 252.227-7015 and FAR 52.227-19.
10. INDEMNIFICATION
A. Company agrees to protect Distributor and hold Distributor harmless
from any loss or claim arising out of defects in any of Company's
Products during the warranty period, provided that Distributor gives
Company immediate notice of any such loss or claim and cooperates
fully with Company in the handling thereof.
B. Distributor agrees to protect Company and hold Company harmless from
any loss or claim arising out of the gross negligence or willful
misconduct of Distributor, Distributor's agents, employees or
representatives in the installation, use, sale or servicing of
Company's Products, or arising out of any representation or warranty
made by Distributor, its agents, employees or representations with
respect to Company's Products that exceeds Company's limited
warranty.
11. ORDER PROCESSING AND RETURNS
Company will employ its best efforts to fill Distributor's orders promptly on
acceptance, but reserves the right to allot available inventories among
distributors at its discretion. Except for Company's Products that are
defective, Company shall not be obligated to accept any of Company's Products
that are returned. In the event such returns are accepted, Company may impose a
reasonable restocking charge.
12. FINANCIAL POLICIES
Distributor acknowledges the importance to Company of Distributor's sound
financial operation and Distributor expressly agrees that it will:
A. Maintain and employ in connection with Distributor's business and
operations under this Agreement such working capital and net worth
as may be required to enable Distributor properly and fully to carry
out and perform all of Distributor's duties, obligations and
responsibilities under this Agreement; and
B. Pay promptly all amounts due Company in accordance with terms of
sale extended by Company from time to time. In addition to any other
right or remedy to which Company may be entitled, shipments may be
suspended at Company's discretion in the event that Distributor
fails to promptly and faithfully discharge each and every obligation
in this Section.
13. USE OF COMPANY'S NAME
Distributor will not use, authorize or permit the use of; the name "HiEnergy
Technologies, Inc." or any other trademark or trade name owned by Company (such
as AtometryTM, AtometerTM, SIEGMATM, CARBOMB FINDERTM, STARRAYTM) as part of its
firm, corporate or business name in any way. Distributor shall not contest the
right of Company to exclusive use of any trademark or trade name used or claimed
by Company. Distributor may, subject to Company's policies regarding
reproduction of same, utilize Company's name, trademarks or logos in advertising
on stationery and business cards, without written permission.
14. RELATIONSHIP OF THE PARTIES
The relationship between Company and Distributor is that of vendor and vendee.
Distributor, its agents and employees shall, under no circumstances, be deemed
employees, agents or representatives of Company. Distributor will not modify any
of Company's Products without written permission from Company. Neither
Distributor nor Company shall have any right to enter into any contract or
commitment in the name of, or on behalf of the other, or to bind the other in
any respect whatsoever.
15. TERM AND TERMINATION
Unless earlier terminated as provided below, the term of this Agreement shall
commence October 24, 2006 and shall continue for one (1) year. Thereafter, the
Company and Distributor shall review the status of this Agreement and determine
whether to extend the term. If at such time, there is no discernable revenue or
any forecasting of revenues, the relationship may be terminated with at least
(30) days prior notice.
Distributor may terminate this Agreement at any time with at least ninety (90)
days prior notice. In the event of termination by the Distributor, the
Distributor agrees not to distribute any competing product or technology for two
years.
Company may terminate this Agreement upon notice to Distributor, upon any of the
following events:
A. failure of Distributor to fulfill or perform any one of the duties,
obligations or responsibilities of Distributor in this Agreement,
which failure is not cured with ten (10) days notice from Company;
B. any assignment or attempted assignment by Distributor of any
interest in this agreement or delegation of Distributor's
obligations without Company's written consent;
C. any sale, transfer or relinquishment, voluntary or involuntary, by
operation of law or otherwise, of any material interest in the
direct or indirect ownership or any change in the management of
Distributor;
D. failure of Distributor for any reason to function in the ordinary
course of business;
E. conviction in a court of competent jurisdiction of Distributor, or a
manager, partner, principal officer or major stockholder of
Distributor for any violation of law tending, in Company's opinion,
to affect adversely the operation or business of Distributor or the
good name, goodwill, or reputation of Company, products of Company,
or Distributor; or
F. submission by Distributor to Company of false or fraudulent reports
or statements, including, without limitation, claims for any refund,
credit, rebate, incentive, allowance, discount, reimbursement or
other payment by Company. Upon termination by the Company and
successful completion of Section 15, Obligations on Termination,
Distributor is free to distribute any product line, even competing
products and technologies.
16. OBLIGATIONS ON TERMINATION
On termination of this Agreement, Distributor shall cease to be an authorized
distributor of Company and:
A. All amounts owing by Distributor to Company shall, notwithstanding
prior terms of sale, become immediately due and payable;
B. All unshipped orders shall be cancelled without liability of either
party to the other;
C. Distributor will resell and deliver to Company on demand, free and
clear of liens and encumbrances, such of Company's Products and
materials bearing Company's name as Company shall elect to
repurchase, at a mutually agreed price, but not in excess of
Company's current price to distributors for such products and
materials, provided that Company shall not be obligated to pay
Distributor for any item originally provided free of charge; and
D. Neither party shall be liable to the other because of such
termination for compensation, reimbursement or damages on account of
the loss of prospective profits or anticipated sales, or on account
of expenditures, investments, lease or commitments in connection
with the business or goodwill of Company or Distributor or for any
other reason whatsoever growing out of such termination.
E. On termination of this Agreement, Distributor will remove and not
thereafter use any sign containing any trade name, logo or trademark
of Company including, but not limited to, "HiEnergy Technologies,
Inc.", and will immediately destroy all stationery, advertising
matter and other printed matter in its possession or under its
control containing such name, or any of Company's trademarks, trade
names or logos. Distributor will not at any time after such
termination use or permit any such trademark, trade name or logo to
be used in any manner in connection with any business conducted by
it or in which it may have an interest, or otherwise whatsoever as
descriptive of or referring to anything other than merchandise or
products of Company. Regardless of the cause of termination,
Distributor will immediately take all appropriate steps to remove
and cancel its listings in telephone books, and other directories,
and public records, or elsewhere that contain the Company's name,
logo or trademark.
17. ACKNOWLEDGMENTS
Each party acknowledges that no representation or statement, and no
understanding or prior agreement, has been made, or exists, and that in entering
into this Agreement each party has not relied on anything done or said or on any
presumption in fact or in law,
(1) with respect to this Agreement, or to the duration,
termination or renewal of this Agreement, or with
respect to the relationship between the parties, other
than as expressly set forth in this Agreement; or
(2) that in any way tends to change or modify the terms, or
any of them, of this Agreement or to prevent this
Agreement becoming effective; or that
(3) in any way affects or relates to the subject matter
hereof. Distributor also acknowledges that the terms and
conditions of this Agreement are reasonable and fair and
equitable.
18. FINAL AGREEMENT
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
19. ASSIGNMENT
Neither this Agreement nor any interest in this Agreement may be assigned by
Distributor without the prior express written approval of Company, which may be
withheld by Company at Company's absolute discretion.
20. NO IMPLIED WAIVERS
Except as expressly provided in this Agreement, waiver by either party, or
failure by either party to claim a default, of any provision of this Agreement
shall not be a waiver of any default or subsequent default.
21. NOTICES
Any notice required by this Agreement or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
by certified mail, postage prepaid, or recognized overnight delivery services.
If to Company:
HiEnergy Technologies, Inc.
0000 Xxxxx Xxxxxxx, Xxxx X
Xxxxxx, Xxxxxxxxxx 00000
If to Distributor:
Xxxxxxxx Nuclear, Inc.
00 Xxxxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, President
22. COMPLIANCE WITH LAWS
Both parties and their duly authorized representatives shall comply, at their
own expense, with all applicable federal, state, and local laws, statues,
ordinances, administrative or executive orders, regulations, and rules. As may
be required by law, both parties agree to submit all reports, certifications,
and other documents and shall provide all product information related to the
handling of the products purchased under this Agreement.
Distributor agrees to comply fully with all relevant export laws and regulations
of the United States ("Export Laws") to assure that the product is not (1)
exported, directly or indirectly, in violation of Export Laws; or (2) intended
to be used for any purposes prohibited by the Export Laws.
23. FORCE MAJEURE
Neither party shall be liable for failing to fulfill its obligations due to
causes beyond its reasonable control and without its fault or gross negligence.
Examples of such causes include but are not limited to (1) acts of God or of the
public enemy, (2) acts of the Government in either of its sovereign or
contractual capacities, (3) fires, (4) floods, (5) epidemics, (6) quarantine
restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe
weather. Each party must use reasonably best efforts to notify the other party
of conditions that are expected to result in a delay in or failure of
performance ("Force Majeure Conditions") within five (5) working days of the
occurrence. If a Force Majeure Condition, which limits, delays or prevents the
Company from performing its obligations under this Agreement, Distributor may
elect to: (1) terminate an Order without any cost or penalty or (2) suspend an
Order for the duration of the Force Majeure Condition.
24. SEVERABILITY
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
25. HEADINGS
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
26. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of
the State of California, USA.
27. DISPUTES
Any dispute not disposed of within one-hundred twenty (120) days from the date
either party receives written notification from the other party of the dispute,
regardless of the causes of action alleged, will be resolved by arbitration in
the State of California, before a single arbitrator who is knowledgeable in
diagnostic equipment and technologies. Such arbitration will be conducted
pursuant to the then current Commercial Arbitration Rules of the American
Arbitration Association The Arbitrator shall be bound to follow the applicable
subcontract provisions and the laws of the State of California and the federal
substantive and procedural law of arbitration in adjudicating the dispute. Both
Parties, may appeal the Arbitrator's decision and may take any action, judicial
or administrative, to appeal and overturn this decision. The arbitrator shall
not have the power to award punitive or exemplary damages. Each Party will bear
its own attorneys' fees and costs related to the arbitration. Any claim or
action must be brought within two (2) years after the cause of such action.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Xxxxxxxx Nuclear, Inc HiEnergy Technologies, Inc.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx
---------------------------- -----------------------------
President & CEO President & CEO
Date: November 3, 2006 Date: November 3, 2006
