Exhibit 10.5
AUGUST TECHNOLOGY CORPORATION
INTERNATIONAL SALES DISTRIBUTOR
AGREEMENT
This Agreement is made as of the 3rd day of September , 1996, between August
Technology Corporation, a Minnesota (USA) corporation with a principal place of
business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, and Firfax
Systems Ltd., (Firfax), an entity organized and existing under the laws of
England, having its principal place of business at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇.
▇▇▇ ▇▇▇, ▇▇.
In consideration of the mutual covenants and agreements hereinafter set forth,
the parties agree as follows:
The following are the terms and conditions under which August Technology sells
and licenses its image capture technology, vision system controlled
manufacturing tools, licensed software programs, and related spare parts
specified in Exhibit-A (hereinafter jointly referred to as "Product" or
"Products"). Firfax wishes to purchase all or selected Products for resale and
commits to actively provide its customers the necessary service and support to
successfully market and maintain the Products.
1. DEFINITIONS.
The terms listed below will have the following meaning, unless the
context clearly indicates otherwise:
1.1 "AGREEMENT" will mean this International Sales Distributor
Agreement and all Exhibits.
1.2 "COMPETITIVE PRODUCTS" will mean image capture technology,
vision system controlled manufacturing tools, licensed
software programs, and related spare parts, of substantially
the same functionality as August Technology's Products.
1.3 "Price List" will mean the published prices that August
Technology shall issue from time to time.
1.4 "TERRITORY" will mean the countries specified in Exhibit-D.
2. APPOINTMENT AS DISTRIBUTOR
August Technology hereby appoints Firfax as an authorized, independent,
exclusive Distributor for the Products, for the purpose of reselling
and servicing the Products directly to its customers in the Territory
(except to those customers listed in Exhibit-C, which are consider
exclusive August Technology accounts). Fir-fax agrees that it will
re-sell Products directly, without the use of any dealers, sub-agents,
and the like, unless agreed to in writing by August Technology.
3. TERM OF AGREEMENT
This Agreement will begin on the date an authorized officer of August
Technology executes the Agreement and will continue in full force and
effect until terminated as provided in this Agreement.
4. TERRITORY
Firfax will have the exclusive right to actively market, sell, and
promote the Products in the Territory (see Exhibit-D).
5. RESTRICTIONS
5.1 Firfax agrees not to make any sale, transfer, exchange, or
other conveyance of any Products whatsoever to any person that
Firfax knows, or has reason to know, is purchasing such
Products for the purpose of resale without first notifying
August Technology for written approval.
5.2 Firfax will have no rights to the Products, any software
included in the Products, or any improvements in the Products.
Firfax agrees not to copy, manufacture, re-manufacture, or
otherwise modify any Products without the written consent from
August Technology (signed by an officer of the company). If
Firfax is permitted to modify Products to conform to customer
requests or specifications, such modifications must not
degrade the original August Technology operating
specifications or impede the reliability of the Products. Any
modifications performed in violation of this Section 5.2 will
void all warranties.
5.3 Firfax agrees not to promote, market, or sell any Competitive
Products or services, directly or indirectly, within the
Territory. Firfax agrees not to establish a branch office or
other entity or association with plans to distribute Products
outside the Territory, or to appoint any sub-distributor
outside the Territory.
6. PRICE, PAYMENT, TAXES, DUTY & COMMISSION
6.1 Prices for the Products purchased under this Agreement will be
as specified in Exhibit-B. August Technology will have the
right at any time to change its prices and must provide Firfax
with a thirty (30) day advance written notice of any pricing
changes. Price changes will not apply to unfilled purchase
orders that have been accepted by August Technology prior to
the effective date of the price change.
6.2 Payment will be made by the wire transfer of funds in U.S.
Dollars from Firfax to August Technology's bank account in the
United States.
6.3 Product prices are to be stated in U.S. Dollars and are
Ex-works (as defined by Incoterms 1990) exclusive of all
sales, use, and like taxes. Firfax agrees to pay all freight
storage fees, bank transfer fees, and all taxes and duties
associated with the sale of Products purchased under this
Agreement.
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6.4 All risk of loss to Products will pass to Firfax upon
surrender by August Technology to the carrier at the point of
shipment (Edina, Minnesota, USA). Firfax agrees to make all
arrangements for export, select the carrier, and insure
Products against loss, damage, theft, or destruction upon
surrender to the carrier at August Technology's facility.
6.5 Both Firfax and August Technology agree that a customer order
has three primary components: (1) project/equipment
specification, (2) purchasing/negotiations, and (3) training,
installation, and follow on service support. The Distributor's
purchasing discount from the August Technology published list
price will be effected by these primary components (see
Table-1).
TABLE 1: Equipment Discount Schedule
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ORDER LOCATION WHERE LOCATION WHERE LOCATION WHERE % OF STANDARD
POSSIBILITY PROJECT SPECIFIC P.O. ISSUED EQUIP. INSTALLED ▇▇▇▇▇.▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 100%
----------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Not In Territory 6-1/3%
----------------------------------------------------------------------------------------------------------------------
3 Not in Territory Territory Territory 66-1/3%
----------------------------------------------------------------------------------------------------------------------
4 Territory Not in Territory Territory 66-1/3%
----------------------------------------------------------------------------------------------------------------------
5 Territory Not in Territory Not in Territory 33-1/3%
----------------------------------------------------------------------------------------------------------------------
6 Not in Territory Territory Not in Territory 33-1/3%
----------------------------------------------------------------------------------------------------------------------
7 Not in Territory Not in Territory Territory 33-1/3%
----------------------------------------------------------------------------------------------------------------------
8 Not in Territory Not in Territory Not in Territory 0%
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7. PURCHASE ORDERS, SHIPMENTS, CANCELLATIONS & CHANGES
7.1 In order to receive Products, Firfax agrees to deliver to
August Technology a hard copy purchase order. All Firfax
purchase orders are subject to acceptance at August
Technology. All purchase orders issued by Firfax will included
in the following information:
(a) Final customer's name (end-user), location, and
official purchase order (P.O.) number
(b) Firfax purchase order number
(c) "Ship To" location (generally Firfax address)
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(d) "▇▇▇▇ To" location (generally Firfax address) and
accounts payable contact person
(e) Method of shipment, including contact person and
telephone number
(f) Quantity and description of each item being purchased
(g) Details of any options purchased
(h) Pricing
(i) Requested ship date(s) power requirements
(k) Environmental requirements - if any (such as
cleanroom specifications)
(l) Any other special requirements
August Technology reserves the right to reject any order which
does not conform with the provisions of this Agreement. All
orders accepted for delivery will be governed exclusively by
the terms and conditions of this Agreement and its
incorporated Exhibits. Unless August Technology expressly
agrees in writing, no additional or different terms and
conditions appearing on the face or reverse side of any order
issued by Firfax will become part of such order.
Acknowledgment of a Firfax purchase order by August Technology
will not constitute acceptance of any additional or different
terms and conditions.
7.2 No purchase order will be binding on August Technology until
accepted by August Technology in writing. August Technology
agrees to use its reasonable best efforts to accept or reject
a purchase order, and will notify Firfax within three (3)
working days from receipt of order.
7.2 In no event will August Technology accept purchase orders from
any Person other than Firfax. All purchase orders must
originate from Firfax.
7.4 Firfax may cancel a shipment or request a change in a
scheduled shipment date at no charge up to ninety (90) days
prior to shipment. In the event Firfax cancels or requests a
schedule change within ninety (90) days prior to shipment, a
portion of the purchase order amount (price) will be charged
as provided below. No cancellation or changes in a scheduled
shipment may be made within fifteen (15) days of shipment.
7.4.1 Rescheduling (Later Delivery)
Firfax may reschedule shipment of Products for a
later date by up to sixty (60) days, on a one-time
basis per purchase order, without cost or liability.
Rescheduling of shipments can not occur within
fifteen (15) days of the original shipment date on
the purchase order. Firfax agrees to
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immediately provide August Technology with a written
notice of any rescheduling.
7.4.2 Rescheduling (Earlier Delivery)
Firfax may request early delivery without cost at any
time, and August Technology agrees to use its best
efforts to comply with this request.
7.4.3 Cancellation
All cancellation notices are considered official once
August Technology receives written notification from
Firfax. Firfax has the right to cancel any purchase
order, subject to the following:
(a) No cancellation is possible with fifteen(15)
days of the shipment date on the purchase
order.
(b) The following charges will apply to Firfax
for order cancellation:
- If cancellation occurs during the
last 1/3 of the quoted delivery
schedule, the charge will be 25% of
the total purchase order amount -
except as stated in note "(a)"
above, which states that no
cancellation is possible within
fifteen (15) days of the shipment
date.
- If cancellation occurs during the
middle 1/3 of the quoted delivery
schedule, the charge will be 17.5%
of the total purchase order amount.
- If cancellation occurs during the
first 1/3 of the quoted delivery
schedule, no charge will apply.
[GRAPHIC OMITTED]
NOTE: All cancellation charges are payable by Firfax
within thirty (30) days from the date of receipt of
August Technology's invoice.
7.5 August Technology agrees to use its best efforts to meet
scheduled shipment dates. However, August Technology will not
be liable for delay in meeting a scheduled shipment date. If
Products are in shortly, August Technology will allocate them
equitably, at August Technology's discretion, among Firfax and
all other resale channels. August Technology will only ship an
entire order unless otherwise agreed to in writing by Firfax.
7.6 August Technology may refuse to ship, or delay the shipment,
of any Products on order, if Firfax becomes delinquent in
performance of its obligations or fails to
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meet other credit or financial requirements established by
August Technology. No such cancellation, refusal, or delay
will be deemed a termination of this Agreement by August
Technology, unless August Technology advises Firfax.
7.7 All Products will be considered delivered to Firfax Ex-works
(in accordance with Incoterms 1990) upon transfer to a common
carrier by August Technology at the point of shipment (Edina,
Minnesota, USA).
8. RELATIONSHIP
8.1 Firfax's relationship to August Technology will be that of an
independent contractor engaged in purchasing and licensing
Products for resale to Firfax customers. Nothing in this
Agreement will be understood to give either party any power to
direct or control the day-to-day activities of the other. All
financial obligations associated with Firfax's business are
the sole responsibility of Firfax. Firfax will be solely
responsible for and agrees to indemnify and hold August
Technology harmless from any claims, damages or lawsuits
arising out of acts of Firfax, its employees, and agents.
Firfax, its employees and agents, are not agents or legal
representatives of August Technology for any purpose, and have
no authority to act for, bind, or commit August Technology.
Firfax and August Technology agree that this Agreement does
not establish a franchise, joint venture, or partnership.
8.2 Any commitment made by Firfax to its customers with respect to
quality, delivery, modifications, interfacing, capability,
suitability of software, or suitability in specific
applications, will be Firfax's sole responsibility, unless
prior written approval is obtained from August Technology.
Firfax has no authority to modify the Products warranty.
8.3 Firfax has the right to determine its own resale prices, and
no August Technology representative will require that any
particular price be charged by Firfax.
8.4 Firfax agrees that August Technology may market and sell
Products, other than those listed in Exhibit-A, without making
them available to Firfax.
9. PRODUCT ACCEPTANCE
Firfax agrees to inspect all Products immediately upon receipt at their
facility, and may reject any Products that fail to meet the August
Technology published specifications. Any Products not rejected within
thirty (30) days after receipt by Firfax will be considered accepted.
Firfax agrees to provide a detailed written notification to August
Technology of any and all reasons for rejection. Upon receipt of
rejection notification, August Technology will promptly determine an
appropriate course of action to be taken regarding the rejected
Products. All returns of rejected Products to August Technology will
require prior written approval by August Technology.
10. OBLIGATIONS
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During the term of this Agreement August Technology agrees to perform
the following:
10.1 August Technology agrees to offer for sale to Firfax Products
required by Firfax to perform its duties as described in this
Agreement.
10.2 August Technology agrees to keep Firfax informed of its
progress in the conduct of its marketing, sales, and service
activities in the USA, as well as international markets
(including new applications discovered, major customers,
competitor activities, and other trends). August Technology
agrees to identify Firfax as its active, exclusive distributor
in the Territory for Products in appropriate advertising and
other promotions.
10.3 August Technology agrees to provide training for Firfax
personnel for Products. Training will be available (at a
minimum) as follows:
(a) August Technology will provide factory training at a
minimum of one (1) time per year. August Technology
will pay for all training material, personnel, local
transportation, and meals. All other expenses,
including air travel and hotel accommodations, will
be paid for by Firfax.
(b) In addition to factory training, August Technology
may provide training at Firfax's facility on a
mutually agreed upon bases (for example, during a
trade show in Firfax's Territory). This additional
training is in no way intended to be a substitute for
factory training,
10.4 August Technology agrees to provide reasonable technical
advice to Firfax.
10.5 August Technology agrees to provide a reasonable amount of
technical literature that may be necessary to promote Products
(such as brochures, video tapes, technical reports, and other
data subject to the confidentiality provisions of this
Agreement). All technical material and promotional material
will be provided in English.
10.6 August Technology agrees to actively support the marketing,
sales, and service efforts of Products by Firfax, give
priority responses to Firfax's requests, and keep Firfax
informed of lead times and any related changes to Products.
During the term of this Agreement Firfax agrees to perform the
following:
10.7 Firfax agrees to use its best efforts in good faith to
promote, demonstrate, and sell Products on a face-to face
basis and in an end-user environment within the Territory.
Firfax agrees to ensure the highest quality of pre-sale and
post-sale support to the customers, and to promote the
goodwill, name and interest of August Technology and its
Products.
10.8 Firfax agrees to purchase demonstration Products if the demo
purchase price is less than $75,000; within sixty (60) days of
this Agreement, to be used to actively promote, demonstrate,
and sell Products to the customers. Demonstration
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Products with a demo purchase price greater than $75,000 can
be purchased at Firfax's option, so long as Firfax can
adequately support the market need for demonstration Products
via other means (e.g., trade shows, factory borrowed
equipment, etc.). If demonstration Products are borrowed from
the factory, the duration will be negotiated on a case-by-case
basis between Firfax and August Technology. Demonstration
Products with a demo purchase price greater than $75,000 will
be provided on a temporary basis at the discretion of August
Technology and generally with no equipment charge to Firfax
(Firfax agrees to pay for all charges relating to freight,
taxes, duties, and related charges that result from borrowing
the demonstration Products). A demonstration unit may be
purchased for each Product at a special discount of 25% off
published list pricing. This demonstration discount is
available one-time per year, beginning from the date of first
demonstration equipment purchase. Firfax has the right to
re-sell the demonstration equipment at any time, provided that
it is immediately replaced (physically) with another similar
or functionally enhanced unit (replacement of the
demonstration equipment will be at the standard Firfax
Products discount price if the replacement occurs before the
onetime per year special discount period expires).
10.9 Firfax agrees to maintain adequate facilities and to actively
train and maintain an adequate number of employees to properly
promote, demonstrate, sell, and service the Products. Firfax
will ensure that its employees complete appropriate training
courses (at a minimum of one time per year at August
Technology's facility). August Technology will pay for all
training material, personnel, local transportation, and meals.
All other expenses, including air travel and hotel
accommodations, will be paid for by Firfax.
10.10 Firfax agrees to promptly handle customer complaints,
inquiries and orders, and will provide Territory based related
services such as applications assistance, operation and
maintenance training, start-up and proof-of-performance
acceptance testing, warranty labor services, post-warranty
spares and service support, systems retrofits, up-grade kit
installation, and the like. Firfax agrees to stock adequate
spare parts for Products to meet the requirements of this
Agreement.
10.11 Firfax agrees to handle all warranty claims of customers and
comply with August Technology policy for in-warranty repairs
and post-warranty support of Products.
10.12 Firfax agrees to conduct its marketing, sales, and service
activities in compliance with local customs, traditions, laws,
regulations, and customer expectations at the high quality
level consistent with that established by August Technology in
the USA. Firfax agrees to clearly identify August Technology
as the original source of the Products and as the beneficial
owner of all Products rights in all advertising, literature,
marking, or labeling, including the use of August Technology's
official trademarks and logo.
10.13 Firfax agrees to bear all of its operating expenses during the
term of this Agreement. Firfax will maintain sufficient net
worth and working capital, and
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devote sufficient financial resources to allow Firfax to
perform its obligation as outlined in this Agreement.
10.14 If, during the term of this Agreement, Firfax receives any
inquiry or order regarding Products from any person or
business entity outside the Territory, Firfax agrees to
immediately refer the inquiry or order to August Technology,
and agrees not to receive compensation for this referral.
10.15 Firfax agrees to, at its expense, arrange for the translation
of any documentation for the use and operation of the Products
in the Territory (as required or determined to be necessary by
Firfax). Firfax will make every reasonable effort to make any
translation accurate so that they completely represent August
Technology's English version.
11. WARRANTY
11.1 Hardware Products - August Technology warrants that it will
repair or replace, at its option, hardware Products which are
found to be defective in material or workmanship. August
Technology must receive written notification of any defect
within thirteen (13) months from date of shipment. All
transportation charges associated with hardware Products
warranty will be arranged and paid for by August Technology.
11.2 Software Products - August Technology warrants that it will
repair or replace, at its option, software Products which fail
in a manner which significantly and adversely affects
operating performance as specified in August Technology's
published Products description. August Technology must receive
written notification of any failure to conform within thirteen
(1 3) months from date of shipment. August Technology does not
warrant that the software Products are free from errors. All
transportation charges associated with software Products
warranty will be arranged and paid for by August Technology.
11.3 The foregoing warranties will not apply to any deficiency or
defect resulting from:
(a) Normal wear and tear, or items subject to
deterioration, breakage, or burnout through use.
(b) Installation or maintenance by customer or any third
party (other than Firfax).
(c) Modifications or alterations made by customer or any
third party without August Technology's written
consent.
(d) Misuse or abuse.
(e) Failure of customer to maintain the equipment, site,
and environmental conditions as required for the
normal operation of the Products.
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(f) Causes beyond August Technology's reasonable control.
11.4 August Technology makes no other warranty, either expressed or
implied, including, but not limited to, any implied warranty
of merchantability or fitness for a particular purpose, or
arising from course of dealing or usage of trade. The
foregoing constitutes August Technology's sole obligation and
the exclusive remedies of the customer for any breach by
August Technology of the warranties contained in this
Agreement. August Technology's total liability will be limited
to the repair or replacement of Products, and will in no case
exceed the value of the purchase order.
11.5 All returned Products found to be free of defects will be
subject to an inspection charge of ten (10) percent of the
purchase order amount plus shipping charges. Repairs and
replacements due to reasons not covered by the warranty will
be invoiced at August Technology's then current prices and
will be payable under the terms of this Agreement.
12. POST-WARRANTY SPARE PARTS SUPPORT
Due to the rapid pace of the technologies included in the Products,
August Technology agrees to use its best efforts to maintain the
ability to provide spare parts and documentation for any Products
shipped to the Territory for as long as technologically and
economically feasible.
13. WARRANTY PROCEDURES
Firfax agrees to request approval from August Technology before
returning any defective Products. Once approval is granted, August Technology
will provide Firfax with a Return Material Authorization (RMA) number to be
displayed on the shipping container of the defective Products. Once August
Technology approves the return of any defective Product, Firfax agrees to ship
the Products to August Technology's factory using an August Technology approved
shipping method. August Technology will make all necessary repairs or
replacements, and will ship the Products back to Firfax or its customer, freight
prepaid. To expedite warranty service, Firfax and August Technology agree to
make every effort to supply the customer with immediate replacement Product (or
parts) while the defective Product (or part) is being tested and repaired at
August Technology's factory. After repair or replacement is completed, August
Technology will determine if warranty applies and will invoice Firfax for
Product (or parts) if warranty does not apply (see Section 1 1.3 for list of
nonwarranty conditions).
14. LIMITATION OF LIABILITY
14.1 Except as stated in this Agreement, August Technology will not
be liable for any loss or damages claimed to have resulted
from the use, operation, or performance of the Products.
14.2 August Technology will in no way be liable to Firfax for any
special, indirect, incidental, or consequential damages, or
for any damages from loss of use or profits.
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15. TRADE
From time to time, August Technology may designate one or more August
Technology trademarks or trade names as available for Firfax's use, and
will provide standards for that use in August Technology material.
August Technology authorizes Firfax to use these designated trademarks
only as follows:
(a) Firfax agrees to use the designated trademarks and
trade names in accordance with August Technology's
standards solely in advertising and promoting
Products, in good taste, and in a manner that
preserves their value and August Technology's rights
in them.
(b) Firfax agrees not to use any August Technology
trademark or trade name on its letterhead or in a way
that implies Firfax is an agency or branch of August
Technology. Firfax will immediately change or
discontinue any trademark or trade name use when
requested in writing by August Technology.
16. PROPRIETARY RIGHTS INDEMNITY
16.1 August Technology will, except as otherwise provided below,
defend or settle any claim made, or suit, or proceeding
brought against Firfax so far as it is based on a claim that
the use or sale of Products sold under this Agreement
infringes a U.S. patent or trademark. August Technology must
be immediately notified in writing and given information,
assistance, and sole authority to defend or settle claims, at
August Technology's expense. Also, August Technology will pay
all damages and costs formally awarded against Firfax. If any
such Product is determined to infringe, and its use is
enjoined, or in case of a settlement, August Technology will
have the option, at August Technology's expense, to replace
Products with a non-infringing Products, or modify Products so
it becomes non-infringing, or repurchase Products from Firfax
at the original purchase price. August Technology will have no
liability to Firfax for any infringement, or claim thereof,
based upon use of any Products in combination with any
equipment, device, software, or data not supplied by August
Technology.
16.2 This Section states August Technology's entire liability for
proprietary. rights infringement by Products furnished under
this Agreement.
17. TERMINATION
17.1 Either Firfax or August Technology may terminate this
Agreement, to be effective upon receipt of written notice,
based on the occurrence of any of the following events:
(a) If the other party corm-nits a breach of any
obligation in this Agreement.
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(b) The commencement by either party of a voluntary
action under the federal bankruptcy laws, or any
other applicable federal, state, or foreign
bankruptcy, insolvency, or other similar laws.
(c) The consent of either party to the appointment of a
receiver, assignee, or trustee (or other similar
official).
(d) The admission by either party of its inability to pay
its debts as they become due.
(e) If Firfax is acquired, or its ownership changes
substantially.
(f) The nationalization of either party's assets or
business.
(g) The passage of any legislation by a country, or
subdivision of a country, granting Firfax extra
contractual compensation upon termination or
non-renewal of this Agreement.
(h) By mutual consent at any time and with a written
notice of termination signed by both parties.
17.2 August Technology or Firfax may terminate this Agreement, to
be effective upon receipt of written notice, m the event that
either party fails to meet its obligations as described in
this Agreement.
17.3 Each party acknowledges that the other has made no commitments
regarding the term or renewal of this Agreement. Neither
August Technology or Firfax will be liable to the other for
damages of any kind, including incidental or consequential
damages, or for any losses or claims whatsoever on account of
or arising out of the termination of this Agreement. Firfax
waives any and all benefit of any law or regulation providing
compensation arising from the termination or non-renewal of
this Agreement.
17.4 Upon termination of this Agreement for any reason, Firfax
agrees to immediately cease to be an authorized August
Technology distributor and will immediately stop representing
itself as an August Technology distributor, and from using any
August Technology trademark or trade name. Firfax also agrees
to return any and all sales and marketing material (and
equipment) at the written request of August Technology,
shipment pre-paid.
17.5 Upon termination of this Agreement for any reason, Firfax
agrees to continue to provide service support to existing
customers in the Territory in return for the compensation
already received by Firfax for this service (compensation in
the form of discounted Products pricing). Firfax agrees to
continue to provide existing customers with professional
service support for ninety (90) days following the effective
termination date.
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17.6 Upon termination of this Agreement by August Technology,
August Technology agrees to repurchase any demonstration
Products that were purchased by Firfax within one-hundred
twenty (120) days from date of official termination notice.
The repurchase price for demonstration Products will be the
original purchase price for Products returned to August
Technology in "as new" condition (demonstration Products not
returned in "as new" condition will be discounted based on
negotiations between Firfax and August Technology). Firfax
agrees to pay for all charges relating to freight, taxes,
duties, and related charges that result from the return of
demonstration Products.
18. POST TERMINATION COOPERATION
Both Firfax and August Technology agree to fully cooperate to carry out
an orderly transition in the marketing, sales, and service of Products
in the Territory. Upon receiving a written notice of termination by
either party, until the effective date of the termination, both parties
agree to fully cooperate in supporting existing customers in the
Territory (see Section 17.5 for further agreement on service support
following termination).
19. CONFIDENTIALITY & PROPRIETARY RIGHTS
19.1 Firfax recognizes that certain information to be provided by
August Technology during the term of this Agreement,
including, designs, specifications, drawings, engineering
details, software, and information concerning August
Technology's customers, business, procedures, methods, and
Products, are proprietary to August Technology. Firfax agrees
not to attempt to reverse compile or engineer the Products or
software associated with them.
19.2 Firfax agrees to keep confidential, and to utilize its best
efforts to prevent and protect from unauthorized use or
disclosure, any information provided to Firfax by August
Technology during the term of this Agreement (which is
designated by August Technology as confidential or
proprietary).
19.3 Firfax agrees that unauthorized disclosure or use of any
proprietary information is a material breach of this
Agreement.
19.4 Firfax agrees not to make, or have made, additional copies of
documents containing confidential or proprietary information
unless they are necessary for Firfax to perform its
obligations of this Agreement. Firfax agrees to include on any
copies of confidential or proprietary information a
"Confidential Notice" the same manner as the original August
Technology document.
19.5 Upon termination of this Agreement, Firfax will return to
August Technology, or will destroy and certify in writing to
August Technology that it has destroyed, all copies of
documentation and other forms of confidential or proprietary
information.
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19.6 Firfax's obligations under this Section will continue
following termination of this Agreement.
20. DISTRIBUTOR'S REPRESENTATIONS
Firfax represents and warrants that in performing under this Agreement
it will in no way compromise any rights or trust relationships between
any other party and itself, or create a conflict of interest for Firfax
or August Technology. Firfax agrees to conduct business in a manner
that will enhance the image an reputation of August Technology and the
Products. Firfax hereby represents and warrants that it will comply
with all applicable laws and regulations, and avoid deceptive,
misleading, unethical, and illegal practices.
Firfax acknowledges that it may be necessary for August Technology to
disclose the fact of Firfax's appointment, the duties performed by
Firfax, and the compensation paid should there be a proper inquiry from
an authorized U.S government agency.
21. FORCE MAJEURE
Neither party will be liable, or deemed to be in breach of this
Agreement, by reason of any act, delay or omission caused by strikes,
lockouts, or other labor disputes, regulations, ordinances, or order of
a court of competent jurisdiction, act of government, act of God, war,
riot, epidemic, flood, earthquake or like natural disaster, embargo or
quarantine, or any other cause beyond the reasonable control of the
party claiming force majeure. The party whose performance will have
been prevented or delayed must provide immediate written notice to the
other party explaining the nature of the act, delay or omission, and
the date such condition commenced. The party also agrees to provide
further written notice when the condition has ended.
22. MODIFICATIONS & IMPROVEMENTS OF PRODUCTS
If any modifications or improvements to the Products are developed by
Firfax or August Technology, such modifications or improvements will be
the exclusive property of August Technology, which will have the full
right to patent or copyright such modifications or improvements at its
sole cost and expense.
23. GOVERNMENT EXPORT RESTRICTIONS
Firfax agrees that the Products purchased will not be exported directly
or indirectly, separately or as part of a system, without complete and
full compliance with the export and re-export restrictions imposed by
U.S. export laws and regulations. Firfax also agrees to take reasonable
action to assure that no customer contravenes the U.S. laws and
regulations.
24. NOTICES
Unless otherwise agreed to by both parties, all notices required under
this Agreement will be made by fax, and all notices will be addressed
to the attention of the party executing the Agreement, or his or her
successor.
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25. GENERAL PROVISIONS
25.1 Neither party may assign or transfer this Agreement. Any
attempted assignment or transfer will be void. Both parties
agree to advise each other of any change in ownership,
control, or operating arrangements.
25.2 Either party's failure to enforce any provisions of this
Agreement will not be deemed a waiver of that provision or of
the right to enforce it in the future.
25.3 This Agreement, including the attached Exhibits, contains the
entire and only understanding between the parties, and
supersedes all prior agreements either written or-oral
relating to the subject matter of this Agreement. No
modifications of this Agreement will be binding on either
party, unless made in writing and signed by persons authorized
to sign agreements on behalf of Firfax and August Technology.
25.4 If any provision of this Agreement will be determined by any
court of competent jurisdiction to be illegal, invalid, or
unenforceable, that provision will be understood and enforced
as if it had been more narrowly drawn so as not to be illegal,
invalid or unenforceable. Any determination will have no
effect upon the enforceability of any other provision of this
Agreement.
25.5 If during the term of this Agreement, or at any time after its
termination, either August Technology or Firfax commences a
suit, action, or other legal proceedings against the other
arising out of or in connection with this Agreement, such
action will be brought in the state or federal courts located
in the State of Minnesota, USA.
25.6 This Agreement will be governed by the laws of the State of
Minnesota, USA and specifically excludes the United States
Convention on Contracts of International Sales of Goods. Any
disputes or claims arising out of this Agreement or its
interpretation, creation, termination, or performance will be
settled by binding arbitration in Minnesota, under the Rules
of Arbitration of the International Chamber of Commerce.
25.7 This Agreement will be effective only upon its execution by
August Technology at its Corporate Headquarters. This
Agreement will be binding upon, and will insure the benefit of
the parties, and their respective heirs, executors,
representatives, and successors in interest.
25.8 The prevailing party in any arbitration, or other legal action
brought by one party against the other arising out of this
Agreement, will be entitled, in addition to any other rights
and remedies it may have, to reimbursement for its expenses,
including court costs and attorneys' fees.
26. AUTHORITY
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If Firfax is a partner or corporation, the person executing this
Agreement represents that he or she is either a general partner or a
duly authorized corporate officer, and that he or she has full
authority to enter into this Agreement on behalf of Firfax.
DISTRIBUTOR: ACCEPTED BY:
Firfax Systems Ltd. August Technology Corporation
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Authorized Signature Authorized Signature
Title: Title:
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