Exhibit 10.8
EXCLUSIVE REPRESENTATIVE
AGREEMENT
This
Representative Agreement (“Agreement”) is made by and
between Therma-Wave, Inc., with its principle place of
business at 1250 Reliance Way, Sunnyvale California 94539 USA, a
Delaware corporation, (“Supplier”) and Hermes-Epitek
Corporation, with its principle place of business at
No. 18, Creation Road 1, Science Park Hsin-Chu, 300 Taiwan,
R.O.C. a corporation of the Republic of China
(“Representative“) with an effective date as of
April 19, 2005 (“Effective Date”).
RECITALS
WHEREAS, Supplier
manufactures and sells or licenses certain hardware and software
products primarily for use by the semiconductor industry;
and
WHEREAS,
Representative markets products to the semiconductor industry;
and
WHEREAS,
Representative now desires to have the exclusive right to market
and support as applicable the Products, as defined below, on the
terms and subject to the conditions set forth in this
Agreement;
NOW, THEREFORE, in
consideration of the mutual promises contained herein, the Parties
hereto agree as follows:
DEFINITIONS
“Customer” shall mean
a party solicited by Representative who places an order for, and is
a buyer of, the Products, other than Representative, physically
located within the Territory as hereinafter defined.
“Order Acknowledgement
Form” shall mean a document provided and signed by Supplier
evidencing a binding order for the goods or services described
therein.
“Net Invoice Amount”
shall mean the amount paid by Customer to Supplier for Products,
net of any freight, sales tax, value added tax, duties or like
charges and any discounts, rebates, allowances, adjustments, or
cancellations,
“Products” shall mean
the subset of Supplier’s product line in respect of which
Representative is authorized to serve as a marketing
representative. A current list of Products is attached hereto as
Attachment 1 . The list is subject to revision in the sole
discretion of Supplier.
“SLA” shall mean
Supplier’s then current applicable software license
agreement. A copy of Representative’s current SLA is attached
hereto as Attachment 2 .
“Territory” shall
mean the country or region as set forth in Attachment 3
.
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TERMS AND CONDITIONS
1. APPOINTMENT OF EXCLUSIVE
REPRESENTATIVE; TERRITORY
Subject to the terms of this
Agreement, Supplier hereby appoints and Representative hereby
accepts appointment as an exclusive Representative of the Products
and, where applicable, related support services within the
Territory to the Customers.
2. RESPONSIBILITIES OF
REPRESENTATIVE
RESPONSIBILITIES APPLY TO ALL
ACTIVITIES: The responsibilities in this Section 2 shall apply
to all of Representative’s activities with respect to the
Products .
DEGREE OF CARE - Representative
shall represent Supplier’s interests with the same degree of
care with which it handles its own interests and use its best
efforts to market and support the Products within the
Territory.
PROMOTION - Representative shall
promote the Products within the Territory to the best of its
abilities, making suitable use of sales literature, catalogues and
related materials as provided by Supplier. Notwithstanding the
above, Representative shall not issue any press releases without
the written prior authorization of Supplier.
EXPENSES - All expenses and costs
incurred by Representative in connection with the marketing or
support of the Products including local public relations,
advertising and similar costs, shall be borne by
Representative.
ADEQUATE FACILITIES -
Representative shall maintain properly equipped, professional
office space in the Territory to market and support the Products.
Representative shall employ, qualified personnel in order to ensure
an effective sales effort and the ability to fulfill
Representative’s obligations under this Agreement.
TRAINING/DEMONSTRATION UNITS - At
Supplier’s discretion, Representative will be provided
demonstration Product(s) for no additional fee and Supplier shall
retain title and ownership of such Products. Representative may use
such demonstration Products solely for Representative’s
employee Product support training and for Customer demonstrations.
Furthermore, Representative agrees to maintain such systems in the
Representative’s clean room environment (exceeding the
requirements of Clean 100) and shall add Supplier as an additional
named insured only to the extent of liability for loss or damage to
demonstration Product(s).
NO REPRESENTATIONS -
Representative will not make any promises, warranties or guarantees
concerning the Products but rather will at all times refer
Customers to the product documentation, specifications and
marketing materials provided by Supplier.
ORDERS - Supplier shall have no
obligation to enter into a contract with any Customer that does not
agree to terms and conditions acceptable to Supplier.
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INTERNET ACCESS - Representative
will maintain a high-speed internet connection at its own expense
to facilitate communication with Customers and Supplier.
ACTIVITIES OUTSIDE TERRITORY -
Representative agrees that it will not directly or indirectly
advertise or market or otherwise actively solicit orders for
Products from prospective customers located outside the Territory.
No commissions will be paid on sales to customers located outside
the Territory.
REPORTS - Representative shall
use its best efforts to provide Supplier with regular reports of
its marketing and promotion activities with respect to the
Products. Such reports shall be submitted to Supplier at least
quarterly and shall address, among other issues: a) current status
of market and competition; b) business standing of major Customers
including point of sales information by Product type; c) sales
forecasts; d) effectiveness and results of promotional activities
and attendance at trade fairs and exhibitions; and e) accounts
update, (including sales objectives, strategic plan and tactical
implementation).
PROVISION OF SUPPORT SERVICES -
Representative hereby agrees to provide Customers with technical
support services as necessary for efficient initial installation
and for First Line Support of the Products as more fully set out in
Attachment 4 .
NO CONFLICTING OBLIGATIONS
– Representative represents and warrants to Supplier that
Representative is free to enter into this Agreement and is not
under any contractual or other obligation, whether written or
otherwise, to any other Party that would be breached by or
otherwise prevent Representative’s performance of its
obligations under, or compliance with, any or all of the terms and
conditions of this Agreement.
BUSINESS STANDARDS - As a
representative of Supplier, Representative shall conduct its
business to the highest ethical and business standards and shall
not, by word or deed, imply or express any false, misleading or
disparaging statements about Supplier or its Products. It is
understood that any such actions shall be cause for immediate
termination of this Agreement.
CUSTOMER CREDIT - When requested,
Representative shall use all reasonable efforts to secure for
Supplier information pertaining to the financial or credit
responsibility of a Customer, and shall aid in the collection of
accounts and in the adjustment of any claims that may arise for
damages or defects in connection with Products sold in the
Territory.
3. RESPONSIBILITIES OF
SUPPLIER
MARKETING MATERIALS - Supplier
shall provide Representative with a reasonable amount of literature
required for the conduct of its business (sales literature, price
lists, business terms, etc.) Translations of marketing materials
will be made by Supplier on terms to be agreed, taking into account
the effort required for translation and the likely benefits to be
gained thereby.
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SPECIFICATIONS - Supplier shall
provide Representative with specifications, price lists and similar
information concerning the Products to assist Representative in
fulfilling its obligations under this Agreement. Supplier may
change such specifications at any time.
TRAINING – Supplier shall
provide Representative with opportunities to attend training and
qualification sessions held by Supplier. Representative shall be
responsible for the cost of any travel and lodging. The cost of the
training itself shall be borne by Supplier in those instances where
Representative attends regularly scheduled courses, but shall
otherwise be borne by Representative. Such training must be
completed prior to the providing of any Support Services by
Representative to Customers.
4. SALES BETWEEN SUPPLIER AND
CUSTOMER
CUSTOMER SALES - Supplier will
pay Representative a commission on the sale of Products to
Customers in the Territory made pursuant to this Agreement. Such
commission shall be payable on the Net Invoice Amount of a sale to
the Customer provided that: (i) the Products are to be
installed in the Territory; and (ii) the sales process or
purchase decision was directly influenced by Representative and
evidenced by the Customer executing an Acceptance Certificate (
Attachment 6 ). Representative shall be paid commissions in
accordance with the commission schedule in effect at the time of
shipment of Products. A table of the current commission schedule is
set forth in Attachment 1 .
PRICE AND CUSTOMER PAYMENT TERMS
– The Customer shall issue a purchase order The purchase
order shall be issued directly to Supplier at Supplier’s then
applicable list price, or at some negotiated price as determined by
Supplier. Supplier will determine final price and method of
payment.
PAYMENT OF COMMISSIONS: Supplier
will pay commissions owed to Representative in two installments: 1)
upon shipment to the Customer; and 2) upon receipt of a fully
executed Final Acceptance Certificate (Attachment 6). Such
installments will be proportional to the percentage of payment
received by Suppler from the Customer. In any event, payment shall
be made to Representative no later than [***] after [***] from a
Customer. The commissions defined herein shall be
Representative’s total and complete compensation in
connection with a Customer purchase. Commissions shall not be paid
on any taxes, packing, shipping, interest or other invoice charges
other than the Net Invoice Amount for Products as established by
Supplier. No Commission will be earned on orders for Product
rejected or returned by Customers, or for delivery outside of the
Territory. All payments shall be in U.S. Dollars. In the event the
negotiated Customer price is below the Supplier’s target list
price for the Territory, the commission will be adjusted as set
forth in Attachment 1 .
TERMS AND CONDITIONS - All
Customer purchases shall be subject to the terms and conditions
stated herein, in Supplier’s then current Sales Order
Acknowledgement form and in Supplier’s then current SLA.
Shipping terms are Ex-Works, Fremont, California (IncoTerms 2001),
Supplier’s manufacturing facility. Customer shall have the
right to select the carrier of its choice and will be the principle
party in interest.
[***] Confidential
treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
Page 4
5. TERM AND TERMINATION OF
CONTRACT
TERM -This contract becomes
effective as of the Effective Date and shall remain in force for an
initial term of twenty-four (24) months. Unless otherwise
terminated in accordance with this Section 5 with [***] notice
by either Party at the end of the initial or any subsequent term,
this agreement shall automatically renew on the second anniversary
of the Effective Date and annually thereafter for successive [***]
terms. This contract may also be cancelled: (i) by either
Party if the other Party materially or repeatedly breaches its
obligations, provided that the breaching Party is given written
notice detailing the nature of such breach and such breach is not
cured within thirty (30) days following such notice;
(ii) by either Party, if the other Party is insolvent or is
the subject of bankruptcy or similar proceedings.
COMMISSIONS AFTER
TERMINATION - Commissions
due on sales generated by Representative and evidenced by the
Customer executed Acceptance Certificate ( Attachment 5 )
prior to the effective termination date, or within [***] after
notice of termination or non-renewal, shall be paid in accordance
with Section 4 of this Agreement (PAYMENT OF COMMISSIONS)
provided that termination is not for Representative’s breach.
The final commission statement and payment to Representative shall
be withheld for a period of [***] from the effective date of
termination to offset commissions already paid on returned goods
and credit memoranda. Any unused balance shall be paid to
Representative at the end of the [***] period. Following the above
stated [***] period, no commission shall be due and payable to
Representative.
RETURN OF MATERIALS - Upon
termination of this Agreement, Representative shall return to
Supplier all material such as sales literature documents,
pricelists, catalogues, etc. as well as any technical and service
documentation provided to it by Supplier. Representative shall
cease to use the name and trade marks of Supplier and discontinue
any promotion of the Products upon termination of this
contract.
NO LIABILITY FOR TERMINATION -
Except as expressly provided above under the paragraph entitled
“Commissions After Termination,” termination of this
Agreement in accordance with its terms shall provide no legal basis
for any claim to compensation. To the greatest extent possible,
Representative waives any right to damages or to severance,
termination or similar benefits that may be provided by local law
in connection with the termination of this agreement. To the extent
local law invalidates such waiver, Representative agrees that the
amount of [***] paid by Supplier to Representative shall serve as
complete and adequate compensation in connection with the
termination of this agreement for any reason.
6. COMPETITIVE PRODUCTS –
Representative represents that, as of the Effective Date,
Representative does not market, distribute, sell or act as a sales
or marketing representative for any products within the Territory
that compete with any Product, and Representative agrees that
during the Term of this Agreement, including any extension or
renewal thereof, Representative shall not market, distribute, sell
or act as a sales or marketing representative for any
products
[***] Confidential
treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
Page 5
within the Territory that compete
with any Product without the express prior written consent of
Supplier.
7. LIMITATION OF
LIABILITY
IN NO EVENT SHALL SUPPLIER BE
LIABLE TO REPRESENTATIVE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS
AGREEMENT.
THE TOTAL LIABILITY OF EITHER
SUPPLIER OR REPRESENTATIVE ARISING OUT OF, OR IN CONNECTION WITH,
THIS AGREEMENT WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR
OTHERWISE, SHALL NOT EXCEED [***].
8. INDEMNITY
Subject to the Limitations in
Section 7, Supplier and Representative (either a
“Party”) each agrees to protect, defend, indemnify and
hold the other harmless from and against any and all third party
claims, liabilities, demands, penalties, forfeitures, suits,
judgments and any associated costs and expenses (including
reasonable attorney’s fees), which the indemnified Party may
hereafter incur, become responsible for or pay out as a result of
the other Party’s breach of any term or provision of this
Agreement, or any negligent or willful acts, and any errors or
omissions by its employees, officers, agents, representatives or
sub-contractors.
9. ADDITIONAL
RESPONSIBILITIES
COOPERATION WITH SUPPLIER’S
SALES PERSONNEL: Representative will work in cooperation with
Supplier’s Sales personnel responsible for the Territory
and/or a specific Customer. Representative will regularly update
the appropriate Supplier Sales Manager concerning its Customer
visits, general status of the Customers, and any other issues
related to the sale of Products.
USE OF TRADEMARKS: In connection
with the marketing and advertising of the Products, Representative
may use or make reference to trademarks, trade names and service
marks owned by Supplier (the “Marks”) only as directed
by Supplier. Representative shall be permitted to use its own
trademarks, trade names and services marks (the
“Representative Marks”); provided that Representative
Marks shall not appear larger or more prominently on advertisements
or promotions for the Products than the Marks. Representative shall
not alter or remove the Marks from the Products.
Representative’s use of the Marks hereunder shall be subject
to such additional requirements as Supplier believes are
appropriate to protect the Marks and Supplier’s’
ownership rights therein. Representative agrees that the use of the
Marks on packages, literature, advertising and other marketing
materials will be of high quality and that Supplier shall have the
right to monitor and control such use. Representative will furnish
Supplier with all materials on which Representative plans to use
the Marks prior to such use, and Supplier will have the right to
refuse any use of the Marks by Representative. Representative shall
take all steps reasonably requested by Supplier to secure for
Supplier any proprietary rights in connection with the Products or
the Marks, and to cooperate with Supplier to protect and defend
Supplier’ rights therein. Representative hereby does and
shall at all times acknowledge Supplier’s exclusive right,
title and interest in and to the Marks and
[***] Confidential
treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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shall not in any manner represent
that it has any ownership interest therein nor will it adopt or use
any trademarks, trade names or service marks confusingly similar
thereto. Representative shall not at any time do or permit any act
to be done which may in any way impair the rights of Supplier in
the Marks. Representative shall not use any of the Marks on or in
connection with any goods or services other than the
Products
INTERNET: Representative shall
follow Supplier’s instructions with respect to each of the
following: (i) use of any information about Supplier or the
Products available on the Internet; (ii) linking of any site
on the Internet to any site on the Internet established, operated
or sponsored by Supplier; and (iii) use of any of the Marks on
any site on the Internet. Representative acknowledges that it shall
cease the activities described in (i), (ii) and/or (iii)
above, if so instructed by Supplier. In no event shall
Representative establish, operate, sponsor or contribute content to
any site on the Internet that incorporates the word “
Therma-Wave”, or any word confusingly similar thereto, as its
URL address or any part of such address.
10. PROPRIETARY INFORMATION;
NON-DISCLOSURE
Representative and Supplier will
execute a Non Disclosure Agreement (NDA) in the form attached
hereto as Attachment 5, the terms of which NDA shall be deemed
incorporated herein by this reference.
11. GENERAL CLAUSES
ASSIGNMENT: Neither this
Agreement nor any rights or obligations may be assigned or
transferred by Representative without the express prior written
consent of Supplier. This Agreement and any of Supplier’s
rights and obligations hereunder may be assigned by Supplier, upon
written notice to Representative.
NO POACHING CLAUSE: Supplier and
Representative agree with each other that they will not at any time
during the course of this Agreement or in the [***] following the
termination of the Agreement whether for cause or otherwise,
employ, directly or indirectly, any person who is a director or
employee of the other Party without the prior written approval of
said other Party. This provision shall not restrict the right of
either party to solicit or recruit generally in the media, and
shall not prohibit either party from hiring an employee of the
other who answers any advertisement or who otherwise voluntarily
applies for hire without having been initially personally solicited
or recruited by the hiring party.
RELATIONSHIP OF PARTIES: Supplier
and Representative agree that Representative shall operate as an
independent contractor and is not an agent, employee or franchisee
of Supplier. Representative has no express or implied authorization
to incur any obligation, or in any manner otherwise make any
commitments, on behalf of Supplier. Representative shall employ its
own personnel and shall be responsible for them and for their acts
and in no way shall Supplier be liable to Representative, its
employees or third parties for any losses, injuries, damages or the
like occasioned by reason of Representative’s activities in
connection with this Agreement, except as expressly provided
herein.
[***] Confidential
treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
Page 7
GOVERNING LAW: This Agreement
shall be governed in accordance with the laws of the State of
California; excluding: (i) its conflicts of laws principles;
(ii) the United Nations Convention on Contracts for the
International Sale of Goods; (iii) the 1974 Convention on the
Limitation Period in the International Sale of Goods (the
“1974 Convention”); and (iv) the Protocol amending
the 1974 Convention, done at Vienna April 11, 1980.
Representative undertakes to comply with all applicable US laws and
regulations, including without limiting the generality of the
foregoing, the Foreign Corrupt Practices Act, as
amended.
GOVERNMENT APPROVALS: It is the
responsibility of the Representative to obtain, at its own expense,
any government consents, authorizations, approvals, filings,
permits or licenses required for it or Supplier to exercise its
rights and to discharge its obligations under this
Agreement.
EXPORT CONTROLS: Representative
hereby acknowledges that the Products and the technology applicable
thereto or direct products thereof (“Products and
Technology”), supplied by Supplier under this Agreement are
subject to
