EXHIBIT 10.18
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, LLC
AND EDUDATA CORPORATION (D&M)
AND
MACANA, INC. D/B/A
FLORIDA DENTAL AND MEDICAL SUPPLY
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DISTRIBUTOR AGREEMENT
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THIS AGREEMENT is made this 19 day of September 1996
BETWEEN
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, L.L.C.
AND EDUDATA CORPORATION (D&M)
000 X.Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
X.X.X.
AND
MACANA, INC. D/B/A
FLORIDA DENTAL AND MEDICAL SUPPLY ("DISTRIBUTOR")
000 Xxxxxxxx Xxxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
INTRODUCTION
A. D&M manufactures and markets a range of hardware and associated software
having applications in dentistry and other areas.
B. D&M is desirous of (i) having Distributor as a distributor of its products
in the territory described herein, and (ii) authorizing Distributor to
contract with any sub-distributors and dealers that Distributor so desires
for the territories herein described and under the terms and conditions
herein described.
C. Distributor is desirous of marketing, selling, and supporting the sale of
D&M'S products in the territory and represents that it possesses the
ability to promote and sell the product.
1. Preliminary
1.1 DEFINITIONS
"D&M" means Dental/Medical Diagnostic Systems, L.L.C. and Edudata
Corporation.
"The Distributor" means Macana, Inc. d/b/a Florida Dental and Medical
Supply.
"Products" means the products listed by D&M in Appendix "A",
particularly the TeliCam Intraoral Camera and D&M's full range of
software.
"Territory" shall mean the countries and areas listed in Appendix "B".
1.2 COMMENCEMENT
This Agreement shall commence on the 19th day of September 1996.
1.3 TERM
(a) This Agreement shall continue for a term of five (5) years and
shall be automatically renewed for an unlimited number of
additional one (1) year terms unless either party provides
written notice ("Termination Notice") to the other, not less than
sixty (60) days prior to the expiration of any term, that such
party does not desire the automatic renewal thereof.
(b) If D&M fails to renew this Agreement at any time pursuant to
Section 1.3(a), for any reason other than Distributor's failure
to meet the minimum quota (as required by Section 3.2), D&M
shall: (i) purchase all of the Distributor's inventory of
Products then held by Distributor at a price equal to the
Distributor's cost thereof (including shipping and handling
costs); and (ii) pay Distributor, in consideration for the
goodwill developed by Distributor in the Territory for the
Products, an amount equal to: 30% of the annual gross sales of
Products by Distributor in the Territory during the one year
period ending on the date of D&M's Termination Notice, multiplied
by the number of years (or portions thereof) that Distributor has
served as a distributor hereunder. The aforesaid purchase and
payment shall be made at Distributor's offices on a date (the
"Closing") to be mutually selected by the parties, but which
shall in no event be more than sixty (60) days after the date of
D&M's Termination Notice. The sums due Distributor hereunder
shall be payable in U.S. Dollars, by cashier's checks or wire
transfer on the date of Closing. In the event D&M pays the
aforesaid sums to Distributor as provided herein, D&M shall be
free to produce, sell or distribute the Products in the Territory
after the Closing, or grant exclusive licenses to others to
conduct the foregoing, notwithstanding the restrictions contained
in this Agreement.
2. APPOINTMENT
2.1 D&M hereby appoints the Distributor as its exclusive distributor of
the Products in the Territory.
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2.2 In addition, Distributor shall have the non-exclusive right to
distribute the Products in all other areas in South and Central
America, and the Caribbean, where D&M has not awarded an exclusive
distributorship to others. As of the date hereof, D&M has awarded
exclusive distributorships, to persons other than the Distributor, in
the areas listed on Appendix "C" hereto. As and when other exclusive
distributorships are awarded after the date hereof, D&M shall provide
written notice thereof to Distributor and Distributor's non-exclusive
rights shall cease as to such areas.
2.3 Distributor may sell Products to persons or entities residing or based
in the Territory, or in any area where Distributor may sell Products
pursuant to Section 2.2, while such persons or entities, or their
representatives, are in the United States.
2.4 D&M hereby licenses and authorizes Distributor to use D&M'S
trademarks, trade names and other proprietary rights in connection
with the sale of the Products.
3. DISTRIBUTOR'S OBLIGATIONS
3.1 The Distributor shall promote and develop sales of the Products in the
Territory upon such terms and conditions as it shall determine from
time to time.
3.2 (a) The Distributor shall sell the number of TeliCam Intra0ral Cameras
(the "Cameras") in the Territory set forth in Appendix "D" hereto.
During any renewal term, the minimum quota shall remain fixed at
the minimum amount in effect during the fifth year of the original
term hereof. If Distributor exceeds the minimum quota in any
quarter or year, the excess can be carried forward to meet the
minimum quota in future periods.
(b) In the event that the Distributor fails to satisfy the minimum
quota set forth above for any year, and such failure is not caused
by any breach or default by D&M hereunder, D&M shall have the
right to terminate this Agreement, if after giving notice of its
intent in writing to the Distributor, the Distributor fails to
rectify any shortfall within ninety (90) days from the time that
such notice is given. If the minimum quota is met D&M cannot
terminate this Agreement.
(c) No minimum quotas are established under this Agreement for
software or any other items.
(d) If D&M introduces any updated, improved or enhanced version of the
Camera, or any equipment designed or intended to perform the same
function (the "New Camera"), Distributor shall be entitled to meet
the
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minimum quota through combined sales of the Cameras and any New
Cameras.
3.3 The Distributor shall maintain in the Territory, adequate facilities
and sales personnel to undertake its obligations under this Agreement,
as shall its sub-distributors. In addition, Distributor shall
maintain, in Brazil, a showroom, a customer service telephone number,
and the facilities and personnel necessary to perform minor repairs to
the Product, and install Products and train customers in the Product's
use. Such facilities shall, subject to reasonable prior notice, be
available for inspection by D&M.
4. D&M'S OBLIGATIONS
4.1 D&M shall sell to the Distributor during the term of this Agreement
the Products described in Appendix "A".
4.2 D&M shall make available, at its cost, to the Distributor such films,
video tapes, brochures, marketing, use and training material, samples,
etc., as it shall have available from time to time and which may
assist the Distributor in the promotion, sales, maintenance, service
and repair of the Products.
4.3 D&M shall fill and ship all the Distributor's purchase orders within
30 days after receipt of same. Promptly after receipt of any order,
D&M shall telecopy to Distributor a confirmation thereof together with
a delivery date for the Product (which delivery shall in all events be
within the 30 days required by this Section).
4.4 D&M shall defend and indemnify the Distributor against any patent,
copyright or trademark, trade secret, or similar violation or alleged
violation and hold the Distributor harmless and defend the Distributor
against any associated claims, liabilities and costs, including but
not limited to attorney's fees.
4.5 All products supplied by D&M must meet the standards and requirements
of the country into which the Products will be ultimately sold by the
Distributor.
4.6 D&M will repair or replace, at its expense, any Product or Covered
Component thereof (defined below) which is defective or which
malfunctions or fails to perform in accordance with product
specifications, under normal use and maintenance, at any time within
fifteen (15) months after delivery of the Product to Distributor's
customer (but in no event more than 18 months after D&M'S delivery of
the product to Distributor). This warranty extends to Distributor and
its customers. The "Covered Components" which are subject to the
warranty are: the hand piece and chip (CCD) and software (CCU)
contained therein, the light box, and the fiber optic cable.
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4.7 D&M will indemnify, defend and hold Distributor harmless from and
against any loss, liability or expense, including without limitation
attorney's fees, arising or resulting from any defect in or
malfunction of the Products. D&M shall cause Distributor to be added
as a co-insured party in D&M'S products liability insurance policy and
shall provide evidence of such coverage to Distributor upon reasonable
request therefor. D&M'S obligations under this Section 4.7, and
Sections 4.4 and 4.6, shall remain in effect after any termination of
this Agreement.
4.8 D&M will not, directly or indirectly, sell any Products to any person
or in any area when D&M has reason to believe that the Products are
being sold or resold, directly or indirectly, into the Territory. If
D&M learns of any sale into the Territory by a distributor or dealer
other than Distributor, D&M shall exercise all rights and remedies it
may have against such distributor or dealer, or its suppliers, under
applicable contracts or law, to prevent such sale and/or recover
damages therefor.
5. PRICE AND PAYMENT.
5.1 The Distributor shall pay to D&M the sum of two thousand and five
hundred dollars ($2,500 U.S.) per TeliCam. IntraOral Camera purchased
pursuant to this Agreement
5.2 D&M shall provide current price lists to the Distributor but may
change the prices for any of its Products upon sixty (60) days prior
written notice, provided that any change will not affect any orders
placed by the Distributor during such 60-day period.
5.3 The Distributor shall pay for Products (other than software) by letter
of credit, telegraphic transfer of the purchase money at the time of
the order, credit card or other method acceptable to D&M.
5.4 All prices quoted and payments made shall be in the currency of the
United States of America.
5.5 Should D&M or any associated companies develop new products not listed
in Appendix "A", or any enhanced or improved versions of such Product,
Distributor will have a right of first refusal to become the exclusive
Distributor of such products in the Territory, on substantially the
same terms as are set forth herein for the Products.
5.6 Prices offered to the Distributor shall be no greater than the price
offered by D&M and its related companies to others selling similar
volumes of Product.
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Without limiting the generality of the foregoing, D&M shall provide
Distributor discounts, rebates and other incentives which are no less
favorable to Distributor than those provided by D&M and its affiliated
companies to others selling similar volumes of Product.
6. MISCELLANEOUS
6.1 The Distributor shall be entitled to assign this Agreement and appoint
sub-distributors, and agents to assist with the promotion and sales of
the Products in the Territory, subject to D&M'S approval (such
approval not to be unreasonably withheld).
6.2 Any notice or communication required or permitted hereunder shall be
deemed to be properly given when forwarded by prepaid certified mail
(return receipt requested), or by overnight courier service, to the
other party at the address shown herein.
6.3 This Agreement does not constitute the Distributor as an agent or
legal representative of D&M.
6.4 This Agreement shall be binding upon and applicable to D&M and any and
all subsidiaries or related or controlled affiliates of D&M, and their
successors and assigns.
6.5 D&M shall not contact for the purpose of soliciting sales, and shall
not directly or indirectly utilize the services of, any
sub-distributors, dealers, employees or customers of Distributor. This
covenant shall remain in effect during the term of this Agreement and,
subject to Section 13(b) hereof, for one year after any termination.
6.6 This Agreement shall be governed by and subject to the laws of the
State of California. In the event of any litigation between the
parties to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to recover its reasonable
attorney's fees and costs from the other party.
6.7 If any covenant contained in this Agreement, or any part thereof, is
hereafter construed to be invalid or unenforceable, the same shall not
affect the remainder of the covenants, which shall be given full
effect, without regard to the invalid portions, and any court having
jurisdiction shall have the power to reduce the duration and/or area
of such covenant and, in its reduced form, said covenant shall then be
enforceable.
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6.8 The rights and obligations of the parties arising out of this
Agreement will be strictly observed by each of them except to the
extent that they or any of them is actually prevented from fulfilling
its obligations hereunder by events of force majeure (confirmed to the
parties' reasonable satisfaction) which, without limiting the
generality of that term, shall include acts of God, strikes, tempest,
flood, storm, or acts of war or terrorism which prevent sales,
delivery, transportation, shipment, or loading or unloading of the
Products or any consignment thereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day
and year first herein above written.
Attest: Dental/Medical Diagnostic Systems, LLC
and Edudata Corporation
------------------------------- ---------------------------------------
By Xxxxxx X. Xxxxxxxxx
Title:
---------------------------------
Attest: MACANA, INC.
????????????????? /s/ Xxxxx Xxxxx
------------------------------- ---------------------------------------
By Xxxxx Xxxxx
Title: Vice President
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APPENDIX "A"
"Products"
TeliCam IntraOral Camera System consisting of camera, handpiece,
illumination system and lens.
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XXXXXXXX "X"
"Territory"
Brazil
and
Paraguay
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APPENDIX "D"
Minimum Sales Volume
1st year 2nd year 3-5th year
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First Quarter 25 40 50
Second Quarter 25 45 50
Third Quarter 30 50 50
Fourth Quarter 35 50 50
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