Exhibit 10.10
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AGENCY AGREEMENT
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Nucletron B.V.
The "Agent"
BSD Medical Corporation
The "Principal"
AGENCY AGREEMENT
The Undersigned:
1. BSD Medical Corporation, a company incorporated in the State of
Delaware, USA, and doing business from Utah at its operating facilities
located at 0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, (the
"Principal");
and
2. Nucletron B.V., a company organized under the laws of the Netherlands,
having its registered office at Xxxxxxxxxxx 0, 0000 XX Xxxxxxxxxx, Xxx
Xxxxxxxxxxx (the "Agent");
Whereas:
A. the Principal develops, manufactures and sells Medical Systems for
Hyperthermia Treatment of cancer, Systems as described and specified in
Exhibit "A" hereto, (hereinafter referred to as the "Products");
B. the Principal is desirous to appoint the Agent as its commercial agent
for soliciting orders and performing mediation activities in respect of
the Products within the countries set out in Exhibit "B" hereto,
(hereinafter referred to as the "Territory"), under the terms and
conditions set forth in this Agreement, and the Agent is willing to
accept such appointment.
Definitions
As used in this Agreement, the following terms shall have the definitions
respectively assigned to them hereunder unless the subject matter or context
otherwise requires:
(a) "Agreement" means this Agreement and the Exhibits annexed hereto, which
shall be read with and form part hereof;
(b) "Authorized Customer" means a customer who purchases the Products for
the Market Segments within Territory;
(c) "Territory" means the geographical area described in Exhibit "B"
hereto;
(d) "Market Segments" means the markets/applications set forth in Exhibit
"C" hereto;
(e) "Parties" means Principal and the Agent;
(f) "Person" means an individual, partnership, corporation or other entity;
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(g) "Products" means those products listed in Exhibit "A" attached hereto;
(h) "Restricted Information" means any information of the Principal of a
confidential nature which has been marked as follows: "Confidential -
Information";
(i) "herein", "hereto", "hereunder", "hereof" and similar expressions, when
used in any Section, shall be understood to relate to this Agreement as
a whole and not merely to the section in which they appear.
(j) "Price-List" means Principal Price-List listed in Exhibit "D".
(k) Sub-Agents, means Nucletron's branch offices and Distributors
HAVE AGREED AS FOLLOWS:
Article 1 - Appointment
1.1 Subject to the terms and conditions of this Agreement the Principal
hereby appoints the Agent as its exclusive agent, for the performance
of activities set forth in Article 1.2 with respect to the Products in
the Territory and the Agent hereby accepts such appointment.
1.2 The Agent shall have the responsibility to perform mediation activities
and to solicit orders for the Principal with respect to the sale and
distribution of the Products in the Territory and the Market Segments.
Without any obligation thereto, the Agent shall have the authority to
promote the Products, to advertise and participate in exhibitions and
fairs, etc. The Agent shall perform its activities as an independent
agent without being subordinated to the Principal.
1.3 The Agent shall have the authority to negotiate and/or to conclude
agreements in the name of the Principal with respect to the sale and
the distribution of the Products, subject to confirmation of the
agreement by the Principal. The Agent shall have also the authority to
lower (or raise) the prices of the price-list as shown in Exhibit "F".
If special competition situations demand a lowering below the range of
Exhibit "F", the Principal must be contacted and final decision about
the customer price will be taken by the Principal.
1.4 The Agent shall not negotiate and/or conclude agreements in its own
name with respect to the sale and the distribution of the Products.
1.5 The Agent shall have the authority under its own responsibility to use
third parties for the performance of its obligations under this
Agreement.
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1.6 This Agreement shall not be construed as, nor be deemed to create a
firm partnership or any other of association between the parties
hereto.
Article 2 - Obligations of the Agent
During the term of this Agreement the Agent shall:
2.1 undertake to have the Products sold in the Territory and sell the
Product
2.2 comply with reasonable instructions given by the Principal;
2.3 solicit orders and act as an intermediary for the Principal with
respect to the Products;
2.4 convey to the Principal all orders and bids with respect to the
Products;
2.5 perform its activities in accordance with the Principal's current
Standard Terms and Conditions of Sale;
2.6 keep the Principal informed monthly concerning expected sale
developments of the Products and the activities of competitors in the
Territory
(i) by reporting sales activity and projections for upcoming
sales;
(ii) by reporting infringements of the Intellectual Property
Rights, as defined in Article 8, or other rights of the
Principal in the Territory of which he is aware;
(iii) by reporting the solvency of any third party of which he is
aware in current transactions or transactions which are in the
process of being prepared on request of the Principal;
(iv) by conveying to the Principal any complaints, enquiries or
tenders from customers or potential customers;
2.7 pay its own taxes and social security contributions;
2.8 The Agent shall not be obliged to maintain a separate sales
organisation and servicing facilities, nor a stock of the Products.
Article 3 - Obligations of the Principal
Without prejudice to the provisions referred to in Article 4, the Principal
shall during the term of this Agreement:
3.1 inform the Agent about prospective clients who make inquiries to the
sale and/or distribution of the Products;
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3.2 provide the Agent with price lists and publicity material;
3.3 properly and in its ordinary course of business carry out orders
conveyed to him by the Agent;
3.4 maintain servicing facilities for the Products;
3.5 inform the Agent forthwith of any changes in the Principal's General
Conditions of Sale (Exhibit "E");
3.6 if the Principal should enlarge or change its assortment of products
for superficial and/or interstitial hyperthermia in the market segment
described in Exhibit "C", entrust the Agent with the representation as
referred to in Article 1 for these new products in the Territory;
3.7 organise in his one responsibility the customer complaint handling;
3.8 organise installation, training, service and repair of the Product;
3.9 prepare and deliver the user manual for the system;
3.10 provide all the regulatory approvals for the Product in the Territories
as listed in the Exhibit "B" except as noted in this exhibit;
3.11 assure access to the reference sites in the Territories where Products
have been installed by the Principal and hand over to the Agent all
existing contacts and market information excluding existing quoted
deals.
Article 4 - Commission
4.1 The Principal shall pay to the Agent a commission over all purchase
agreements for the Products concluded between the Principal and
customers by the mediation of the Agent. The commission due will be 30%
of the list price, or according to the sliding scale as applicable
according to Exhibit "F".
4.2 The commission will be due as soon as payment is received by the
Principal. Payment will be in U.S. dollars. No commissions shall be due
for cancelled orders.
4.3 The Agent shall pay its sub-agents, representatives and distributors
responsible for sale of Products an acceptable part of commission paid
to the Agent by the Principal to assure that sub-agents,
representatives or distributors retained by the Agent receive adequate
incentive to sell the Product.
Article 5 - Collecting Debts
The Principal shall be responsible to collect payment from customers at the time
of orders and product delivery according to the Standard Terms and Conditions of
Sale attached as Exhibit "E". The Agent will affirm that these standard terms
and conditions are accepted by customers. If the Standard Terms and Conditions
of Sale in some Territories are not accepted by customers, the Principal shall
work to establish acceptable terms of sale with the Agent. Notwithstanding, if
proposed exceptions to the Standard Terms and Conditions of Sale cannot be made
acceptable to the Principal, the Principal's decision shall prevail.
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If in special cases the customer prefers to make one purchase order for multiple
items through the Agent, including the Product, the Agent shall be responsible
to collect payment from customers according to the Standard Terms and Conditions
of Sale attached as Exhibit "E".
Article 6 - Liability
The Principal shall indemnify the Agent against claims by third parties for
compensation for damage suffered because a defect in the Product causes death or
physical death or physical injury.
Article 7 - Duration and Termination
7.1 This Agreement has been entered into by the parties for a period of 1
(one) year starting May 1, 2002 and, therefore ending on May 1,2003.
7.2 Three (3) months prior to the termination of this Agreement the parties
shall negotiate the conditions of the extension of the Agreement or the
conversion of this Agreement in a full distribution agreement. The
Principal grants the Agent the first right of refusal for an exclusive
distribution Agreement in the Territory for the Products if the Agent
has performed an adequately.
7.3 Either party may at any time terminate this Agreement forthwith by
written notice sent by registered mail to the other party in any of the
following urgent events:
(a) after a 30 (thirty) days' notice by registered mail in case the
other party is in default under the terms and conditions of this
Agreement and fails to remedy such default within that (thirty)
days' period;
(b) the other party is guilty of fraud or misconduct;
(c) the other party is declared bankrupt or is involved in any
insolvency proceedings or other proceedings preventing such party
to duly fulfilling its obligations under this Agreement;
7.4 Events not within the control of any party ("force majeure") shall
excuse such party from performing any obligations arising under this
Agreement; upon any such event of force majeure having lasted for a
consecutive period of three months, either party shall be entitled to
unilaterally terminate this Agreement with immediate effect by means of
notification to the other party by registered mail.
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Article 8 - Intellectual Property Rights
8.1 The Agent shall for the duration of this Agreement use the trade
xxxx/trade name/logos ("the Intellectual Property Rights") as used by
the Principal for the Products. The Agent is not entitled to any other
use of the Intellectual Property Rights without the prior written
consent form the Principal.
8.2 If under the laws of the Territory any registration is required for any
Intellectual Property Rights of the Principal then such registration
will be made in the name of the Principal.
8.3 The Principal shall indemnify and hold Agent harmless against all
damages, costs and expenses (including legal fees) that may be directed
against agent on (alleged) grounds of the Products infringing upon
intellectual property rights of third parties.
Article 9 - Non-competition
9.1 The Agent shall not solicit any sales outside the Territory. If, for
whatever reason, the Agent receives orders from outside the Territory,
the Agent will convey these orders to the Principal.
9.2 The Agent warrants vis-a-vis the Principal that, save as provided
herein, neither he nor any of this officers or employees, are bound by
any non-competition obligation which would adversely affect his
obligations under this Agreement.
9.3 The Agent agrees not to compete with Principal with similar or
identical products in this market segment and the Territory for the
period of two (2) years after the termination of this Agreement.
Article 10 - Confidentiality
10.1 Each Party shall during the term of this Agreement and at any time
hereafter keep confidential any information relating to the other Party
and its business and customers (e.g. trade secrets, technical
information, operations, lists of customers' addresses).
10.2 The Agent agrees that any document, formula, information or technical
disclosure relating to the Products will remain the property of the
Principal, and shall not be used by the Agent for any purposes other
than the promotion and sale of Products.
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10.3 Each Party warrants that the provisions under Article 10.1 and 10.2
shall be duly observed by its employees and the persons retained by it
for the performance of the Party's activities.
Article 11 - Consequences of termination of the Agreement
The termination of this Agreement will have the following consequences:
11.1 as from the date of termination the Agent shall refrain from using the
Intellectual Property Right of the Principal;
11.2 the Agent shall return to the Principal the stocks of the Products, if
any, which are in its possession and which have not yet been sold as
well as the documentation which is in the Agent's possession;
11.3 the Agent will be entitled to the commission in relation to all sales
of the Products effected. Prior to termination of this Agreement, and
for six months thereafter the Agent shall receive commission on
customer payments made at installation of Products sold by the Agent
before this Agreement was terminated;
11.4 the agent will not compete with Principal according to the obligations
outlined in Article 9.3 herein.
Article 12 - Miscellaneous
12.1 Notwithstanding all provisions in the Agreement the Agent shall regard
reasonable instructions that the Principal may give it.
12.2 The Parties are not entitled to assign any of their rights hereunder.
12.3 The Exhibits referred to herein form an integral part of this Agreement
and reference to this Agreement shall be deemed to include the said
Exhibits.
12.4 This Agreement supersedes any previous agreements (written or verbal)
and working arrangements between the parties hereto. Amendments to this
Agreement shall only be effective when made in writing.
12.5 This Agreement shall be governed by and construed in accordance with
the laws of the State of Utah, USA. Any disputes arising in connection
with this Agreement or further agreements resulting therefrom shall be
handled accordingly.
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On Behalf of the Agent:
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Name Date
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Title
On Behalf of the Principal:
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Name Date
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Title
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EXHIBIT "A"
PRODUCTS
o BSD-500i-4 and BSD-500i-8 Hyperthermia Systems
SUPPORTIVE ACCESSORIES (NON-EXCLUSIVE)
Supportive accessories not included in the Products but supplied to the Agent on
a non-exclusive basis include:
o Superficial Applicators
o Interstitial Antennae
o Temperature Probes (temperature sensors)
Using supportive items the Agent shall be able to configure BSD-500c-4 and
BSD-500c-8 Hyperthermia Systems for sale when customers want to add superficial
hyperthermia capabilities to their systems.
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EXHIBIT "B"
GEOGRAPHICAL AREA
o North and South America
o Europe (with the exception of Germany, Switzerland, Austria and Italy)
o Asia (with the exception of China)
o Africa
o Australia and New Zealand
Excluded are countries where in the Principal's view it would be illegal or too
hazardous for a U.S. company to operate, or where regulatory restrictions
prohibit sales.
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EXHIBIT "C"
MARKETS/APPLICATIONS
Agent shall promote and sell Products only to the following markets:
o Radiation Oncologists
o Free-standing Radiation Oncology Clinics
o Hospital Radiation Oncology Outpatient Clinics.
Agent is prohibited from selling Hyperthermia Systems for the following
applications:
o Heat alone therapy
o Treatment not involving ionising radiation therapy
o Treatment for non-human patients
o Any treatment not approved by government regulations
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