Exhibit 10.26
SALES REPRESENTATION, PRODUCT DISTRIBUTION AND SERVICE AGREEMENT
This AGREEMENT is made and entered into this 7th day of January, 1999, by and
between P.K LTD., a Korean corporation organized and existing under the laws of
the Republic of South Korea with its principal place of business located at
000-0 Xxxx Xxxx-Xxxx, Xxxxx-Xx, Xxxxxx-Xxx, Xxxxx (hereinafter referred to as
"Agent") and CFM TECHNOLOGIES, INC., a Pennsylvania corporation, with its
principal place of business located at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx, 00000 (hereinafter referred to as "Company").
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. APPOINTMENT OF AGENT. Company hereby appoints Agent as its exclusive agent
for the sale of certain items fully described in Exhibit "A" attached
hereto (hereinafter referred to as "Products") in the countries and
locations listed in Exhibit "B" attached hereto (hereinafter referred to as
"Territory").
Agent is authorized by the above appointment to sell the Products only to
manufacturers located in Territory for use in manufacturing facilities
located in Territory, and Agent shall refer to Company all inquiries made
from prospective customers which do not fall under the scope of this
Agreement. All inquiries or orders received by Company for Products from
any party in the Territory shall be referred to Agent.
Exhibit A may be changed in writing by CFM following thirty (30) days of
notice for the addition of items and ninety (90) days of notice for the
withdrawal of items.
It is understood by the parties that Agent shall be acting as an
independent sales agent for Company's products, and Agent shall be solely
responsible for all expenses connected with the operation of its business.
Agent shall have no authority to contract in the name of or bind Company in
any manner whatsoever. Agent shall defend and hold Company harmless from
all claims arising out of Agent's conduct. All transactions or activities
in connection with this Agreement will comply with the letter and the
spirit of all applicable laws as well as ethical business standards. Care
must be taken to avoid disseminating inaccurate or misleading technical or
business information.
2. TERM OF AGREEMENT. This Agreement shall continue in effect for a period of
one (1) year from the date of its execution and shall automatically renew
year after year, unless terminated Pursuant to Paragraph 11 hereof.
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3. RESPONSIBILITIES
3.1 COMPANY'S RESPONSIBILITIES.
a) Company shall make every reasonable effort to manufacture
quantities of Products sufficient to meet the requirements of
end-user customers represented or sold to by Agent.
b) All inquiries or orders received by the Company for spare parts
from any party in the Territory shall be forwarded to Agent.
c) Company shall forward the price list for spare parts described in
Exhibit "C" to Agent annually.
d) Within thirty (30) days of the date of this agreement, PKL and
the Company will determine a target initial list of spare parts
to be stocked in Korea and purchased by PKL. The Company agrees
to sell such parts to PKL on a one-time basis at the Company's
purchase cost in order to assist PKL to establish tjis initial
target stock. Thereafter, the Company will sell spare parts to
PKL at prices as specified in Exhibit C herein. Any parts
presently held on consignment by PKL which are not on the initial
list will be returned to the Company within sixty (60) days of
the date of this agreement. Both parties agree that the Company
will not maintain any consignment spare parts stock in Korea in
the future.
3.2 AGENT'S RESPONSIBILITIES. Agent agrees to:
a) Use its best efforts to promote the sale and use of the Products
and to solicit and secure orders for the Products within
Territory and further to serve the best interests of Company in
any and all matters in accordance with this Agreement, and;
b) Maintain an inventory of spare parts (the "Base Spares
Inventory"), as described in Exhibit "C" attached, needed to
operate and maintain Products installed at its customers sites.
The Base Spares Inventory will change from time to time as the
installed-base of Products within the Territory changes and shall
be determined from reasonable recommendations made by Company as
to specific items and quantifies, and;
c) Purchase from Company spare parts as necessary to maintain the
Base Spares Inventory and such other spare parts as Agent may
require to maintain Products no longer under warranty. Such spare
parts shall be purchased from Company at 85% of the then current
U.S. list prices (freight, customs, VAT and other taxes to be
paid by Agent) for such spare parts. Agent further agrees to sell
such spare parts to customers/end users in Territory for an
amount not to exceed 130% of such U.S. list prices, and;
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d) Provide and maintain reports of spare parts usage and on-hand
balances and provide the same to Company on request, at
reasonable intervals and;
e) Refrain from the manufacture of sale of any product which shall
directly or indirectly compete with Products during the duration
of this Agreement and for a period of three (3) years following
the termination of this Agreement for any reason, and;
f) Prepare a sales forecast each quarter providing projections of
end-user sales of Products by item, by end-user customer name, by
quarter, for six (6) fiscal quarters of the Company, including
the quarter in which the forecast is prepared. These forecasts
shall be received by the Company before the 15th day of the
second month of each fiscal quarter (Example: a forecast for the
fourth quarter of 1999 shall be received by CFM by September
15,1999 covering the fourth quarter of fiscal 1999, all four
quarters of fiscal 2000 and the first quarter of fiscal 2001,
ending January 31, 2001).
4. CONFIDENTIALITY. Agent acknowledges that this Agreement creates a
relationship of trust and confidence between Agent and Company. Agent
acknowledges that propriety data and propriety information are embodied in
the Products, and in data, information, and material supplied by Company to
Agent or acquired by Agent in the course of performance of this Agreement.
Agent acknowledges that all such propriety data and propriety information,
including such data and information as is contained in the Products and
their constituent parts, constitute the sole and exclusive property of the
Company, and Agent will carefully protect such information and use it only
in furtherance of the Company's business.
Agent hereby agrees to hold in confidence during the term of this Agreement
and thereafter for a period of three (3) years, any and all information of
a confidential nature regarding Company's business or affairs, including
without limitation, data provided by Company regarding the design and/or
methods of the Products, and not to disclose the same to any person, firm,
or corporation.
On all the above information of a confidential or propriety nature, Company
shall stamp "CONFIDENTIAL" or so indicate in other appropriate ways in the
case of software or other intangible materials.
The following information shall not be considered confidential:
a) Information which is already generally available to the public;
b) Information which hereafter becomes generally available to the
public, except as a result of a fault of the party to whom the
information was disclosed;
c) Information which Company agrees to disclose in writing;
d) Information which can be shown to have been properly known to
Agent prior to the transmittal thereof from Company or,
e) Information which is obtained by Agent from a third party which
had the right to possess and to disclose the information.
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5. QUOTATIONS AND PRICING
Agent agrees to communicate the description, pricing and terms of sale for
the Products through written quotations prepared by the Company and
delivered to the customer by the Agent. Such quotations shall be valid for
thirty (30) days and shall include a statement of the customer application
to be addressed, a listing of specific hardware and software Products to be
delivered, the commercial terms and the price for such Products. Agent
agrees that changes to any such quotations shall be made only upon written
advice from the Company. Company shall provide agent with general pricing
information as provided to other company sales personnel and sales agents
and shall provide not less than thirty (30) days notice of any changes to
such information.
6. SALES COMMISSIONS
(A) Company agrees to pay Agent commission for the Products purchased by
the customer/end user according to the price paid by the customer/end
user. Commission will be a rate of 8% of the net sales price of the
Products. This commission rate may be changed upon written agreement
of both parties.
(B) Company to pay Agent commission within 10 days following receipt of
payment by Company from customer/end user.
7. TERMS OF PAYMENT FOR CUSTOMER/END USER
The terms of payment shall be 90%, net 30 days after shipment of equipment
and 10%, net 30 days after final acceptance by the customer/end user.
8. DELIVERY. The Company shall use its best efforts to fill all orders
promptly upon acceptance thereof. However, if conditions beyond the control
of Company arise which prevent compliance with normal delivery schedules.
Company shall not be liable for damages, general, special, or otherwise.
Deliveries shall be made Ex-Works, packing prepaid, West Chester,
Pennsylvania. Agent or customer shall have the right to select the carrier
of its choice.
The Company shall retain title and bear the risk of loss until such time as
a shipment has been placed on board a common carrier for the purpose of
transportation to the packer, at which time title shall pass to the
customer, and the risk of loss shall be borne by customer. Customer shall
arrange and pay for insurance against loss or damage to the equipment
during packing and transit.
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9. INSTALLATION, WARRANTY AND CUSTOMER SUPPORT. Physical installation and
process validation of Products sold under this agreement are included in
the purchase price paid by the customer/end user. The warranty shall be as
agreed upon between the Company and each customer in the specific purchase
specification negotiated at the time of sale. Company and Agent each have
certain responsibilities and obligations in providing installation,
subsequent warranty services and general customer support.
9.1 COMPANY RESPONSIBILITIES. Company agrees to:
(a) Provide, during the period of installation, process validation and
warranty, documentation and procedures for installation of Products,
technical support by telephone on a 24 hour per day basis, replacement
of parts proven defective, and;
(b) Make available, at Agent's expense, factory customer service engineers
to assist in installation and/or warranty service on the customer/end
user site upon request by Agent, and;
(c) Make available, at Agent's expense, factory process engineers to
assist in process validation and/or process development activities on
the customer/end user site upon request by Agent, and;
(d) Make available, at Company expense, factory customer service engineers
and/or factory process engineers needed to install or process validate
"first of a kind" tools or to install/perform major engineering or
software upgrades, and;
(e) Train Agent's personnel in the installation, operation, maintenance
and repair of Products at Company's factory through formal training
courses and independent study appropriate for Agent's service
personnel, and;
(f) Communicate, via regular reports, the status, priority level and
anticipated date of resolution of any problems or requests made to
Company by Agent, and;
(g) Supply any replacement parts to Agent necessary for the performance of
warranty repairs. Such parts shall be supplied by Company free of
charge to Agent for replacements identified during the installation
and/or warranty period. Agent shall return defective parts to Company,
as requested, promptly after they have removed from Company's
equipment. If Agent replaces a part that later proves not to be
defective, then Agent shall bear the cost of the replacement part less
any salvage value attributable to the replaced part.
(h) The Company will supply, at no additional cost to Agent, factory
personnel for facilities survey and design and during the power-up and
process qualification of each initial system installation. The number
and duration will vary depending on the specific circumstance and will
be determined by mutual agreement between Agent and the Company at the
time of the system sale. The Agent will endeavor to minimize the
amount of Company personnel needed to support these activities.
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(i) The Company will make available factory personnel to correct any
problem that cannot be corrected in a timely and effective manner by
Agent. If Agent's personnel should have been reasonably expected to
correct a failure, then Agent shall bear all costs for any support as
described in Section 9.3(b) of this Agreement. If Agent could not have
been reasonably expected to correct the failure or if the failure is a
result, in the sole opinion of the Company, of defects in the software
code as written and originally installed, then the Company shall
provide such support, as necessary, without cost to Agent.
9.2 AGENT RESPONSIBILITIES. Agent agrees to:
(a) Be responsible for providing competent service personnel, experienced
in the installation and maintenance of semiconductor process
equipment, to perform installation, process validation and any
necessary warranty work required within Territory. Such personnel
shall be provided at Agent's expense, and Agent shall bare the
responsibility for seeing that all work is performed correctly; and;
(b) Plan for each installation, working with the customer/end user to
develop a plan for utility connection and physical equipment
placement, and;
(c) Conduct each installation in conformance with then current Company
practices, and;
(d) Undertake and complete process validation of each installed system,
and;
(e) Maintain the Products during the warranty period, and;
(f) Make maintenance and support services available to customer/end users
for Products no longer covered by warranty.
9.3 PAYMENT FOR SERVICES
(a) Company agrees to pay Agent 8% of the net sales price of Products for
the activities in Section 9.2(b) through 9.2(e), above. Such amounts
shall be payable according to the following schedule and terms:
(1) 3% upon the completion of the physical installation of Products
and invoice to Company by Agent, and;
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(2) 5% upon the completion of process validation and final, written
customer acceptance, receipt of final payment from customer by
Company and invoice to Company by Agent, and;
(3) All invoices shall be payable net 10 days and may be offset
against amounts owed by Agent to Company.
(b) Agent agrees to pay Company for services and related out-of-pocket
costs as requested by Agent, according to the following terms:
(1) US$75.00 per hour or portion thereof for each hour for which
Company pays Company employees or others in the delivery of
services (and associated travel) requested by Agent, and;
(2) Actual travel and living costs as reimbursed by Company with no
xxxx-up or administrative fees, and;
(3) All invoices shall be payable net 10 days and may be offset
against amounts owed by Company to Agent.
10. ADVERTISING. Company shall supply Agent with reasonable quantities of sales
materials such as catalogs, brochures or new Products, and reprints of its
advertising material at no charge to Agent. Agent shall have the right to
conduct advertising campaigns with respect to the Products at its expense.
Agent shall refrain from making any claims or representations concerning
the Products in excess of those made by Company. Agent will translate the
above materials into Korean or other languages as may be needed from time
to time. Upon termination of this Agreement, Agent shall return all unused
sales materials to Company and shall refrain from further use of all such
materials in its activities.
11. TERMINATION: This Agreement may be terminated:
a) By an agreement in writing duly signed by the parties hereto, or;
b) By either party at will, with or without cause, upon not less than
sixty (60) days notice in writing, given by registered or certified
mail to the other party.
The acceptance of any order from or the sale of any Product to Agent after
the termination of this Agreement shall not be construed as a renewal or
extension hereof nor as a waiver of termination. Neither Company nor Agent
shall, by reason of the termination or non-renewal of this Agreement, be
liable to the other for compensation, reimbursement or damages on account of
the loss of prospective profits on anticipated sales, or on account of
expenditures, investments, leases or commitments in connection with the
business or goodwill of Company or Agent, or otherwise.
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12. MISCELLANEOUS
12.1 ASSIGNMENT. This Agreement is not assignable or transferable by either
party in whole or in part, except with written consent of the other
party.
12.2 GOVERNING, LAW AND LANGUAGE. This Agreement shall be governed in all
respects by the laws of the Commonwealth of Pennsylvania. This
Agreement has been negotiated and executed in the English language,
and the rules of construction and definition of the English language
shall be applied in interpreting this Agreement.
12.3 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties.
12.4 SEVERABILITY. If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
12.5 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefits of the parties hereto and their respective successors and
assigns.
12.6 TITLES AND SUBTITLES. The titles of file paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to
be considered in construing this Agreement.
12.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day
and year first above set forth.
THE COMPANY CFM TECHNOLOGIES, INC.
BY: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
President
THE AGENT P.K LTD.
BY: /S/ X.X XXXXX
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