|
Amended and Restated
Distribution Agreement
by and among
Lisa Laser USA, Inc.,
LISA laser products OHG,
and
HealthTronics, Inc.
Exclusive
CONFIDENTIAL
|
Lisa Laser USA Inc. Address:
LISA laser products OHG,
HealthTronics Address:
Effective Date:
|
9232 Klemetson Drive
Pleasanton CA 94588
Max-Planck Str 1.
37191 Katlenburg,
Germany
1301 Capital of Texas Hwy.,
Ste 200B,
Austin, TX 78746
date signed by all parties
|
TABLE OF CONTENTS
|
Item
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
|
Preamble
Scope of the Agreement
Responsibilities of Distributor
Responsibilities of Lisa Laser USA and LL
Terms of Purchase of Products by Distributor
Compliance with Government Regulations
Defects and Warranty Period
Service
Term and Termination
Limited Liability to Distributor and Others
Property Rights and Confidentiality
Trademarks and Trade Names
Patent, Copyright, and Trademark Indemnity
LL and Owners Representations and Obligations
General Provisions
|
Page Number
3
3
4
4
6
6
7
7
7
8
9
10
10
11
12
|
Exhibits
|
A
B
C
D
E
F
G
H
|
Products Covered by This
Agreement/Territory/Market
Product Prices
Customer Reports
Exclusivity
Exclusions
Standard Terms and Conditions
Complaint Handling, Medical Device Reporting and Medical Device
Recalls
Copies of Insurance Certificates from all parties
|
14
15
17
18
19
20
25
28
|
2
PREAMBLE
This Agreement is hereby made and entered into by and between
Lisa Laser USA, Inc. a California corporation with its principal
offices located at 9232 Klemetson Drive., Pleasanton, CA 94588,
U.S.A. ("Lisa Laser USA"), Lisa laser products OHG, a company
registered in Germany with its principal executive offices located
at Max-Planck Str. 1, 37191 Katlenburg, Germany ("LL"), and
HealthTronics, Inc., a Georgia corporation, hereinafter called
"Distributor" whose principal offices are located at 1301 Capital
of Texas Hwy., Ste 200B, Austin, TX 78746.
WHEREAS, Lisa Laser USA and Distributor entered into that
certain Distribution Agreement, dated as of November 1, 2005
("Original Distribution Agreement"); and
WHEREAS, Lisa Laser USA and Distributor desire to amend and
restate the Original Distribution Agreement and desire to enter
into a distribution agreement along with LL on the terms and
conditions set forth herein.
The parties agree to amend and restate the Original Distribution
Agreement in its entirety as follows:
1) SCOPE OF THE AGREEMENT
Subject to the terms and conditions set forth in this Agreement,
and the Exclusions listed in Exhibit E hereto, Lisa Laser
USA hereby appoints the Distributor as the Exclusive reseller and
Sales Distributor for the products defined in Exhibit A
(hereinafter called "Products") in the market segment set forth in
Exhibit A (the "Market") within the territory set forth in Exhibit
A (the "Territory"). For so long as Distributor is complying with
the minimum Product purchase requirements to be agreed upon as set
forth in Exhibit B of this Agreement and is not in material breach
of this Agreement following any applicable cure period, Lisa Laser
USA shall not appoint any other Distributor or reseller with
responsibility for the sale of these Products in the Market within
the Territory or otherwise sell any of these Products in the Market
within the Territory to any other person, except as set forth in
Exhibit E.
The Distributor agrees that it will not supply or offer Products
to customers outside of the Market within the Territory or to
export-trading companies without prior approval from Lisa Laser USA
and LL.
The Distributor shall use its reasonable best efforts to pursue
sales policies and procedures to realize the maximum sales
potential for the Products in the Market within the Territory;
provided, that as long as Distributor meets the minimum purchase
requirements set forth in Exhibit B and is not in material breach
of this Agreement following any applicable cure period, the
requirements of this sentence shall be deemed to have been
satisfied.
The relationship of Lisa Laser USA, LL and Distributor
established by this Agreement is that of independent contractors,
and nothing contained herein shall be construed to (i) give any
party the power to direct and control the day-to-day activities of
another party, (ii) constitute the parties as partners, joint
ventures, co-owners or otherwise as participants in a joint or
common undertaking, or (iii) allow Distributor to create or assume
any obligation on behalf of Lisa Laser USA or LL for any purpose
whatsoever. All financial obligations associated with a
party’s business are the sole responsibility of such party.
All sales and other agreements between Distributor and its
customers are Distributor’s exclusive responsibility and
shall have no effect on Distributor’s obligations under this
Agreement. Distributor shall be responsible for, and shall
indemnify and hold Lisa Laser USA free and harmless from, any and
all claims, damages or lawsuits (including Lisa Laser USA’s
reasonable attorneys’ fees) arising out of the acts of
Distributor, its employees or its agents (except for actions of
Distributor to enforce its rights hereunder). Lisa Laser USA shall
be responsible for, and shall indemnify and hold Distributor free
and harmless from, any and all claims, damages or lawsuits
(including Distributor’s reasonable attorneys’ fees)
arising out of the acts of Lisa Laser USA, its employees or its
agents (except for actions of Lisa Laser USA to enforce its rights
hereunder).
2) RESPONSIBILITIES OF DISTRIBUTOR
Distributor shall use its good faith efforts to fully and
actively promote the sale and use of the Products. Distributor
shall have the following responsibilities:
3
|
(i)
|
Use good faith efforts to identify and maintain
active contacts with all potential and actual customers and users
of the Products in the Market within the Territory.
|
|
(ii)
|
Use good faith efforts to provide technical
liaison between Lisa Laser USA and the customer to aid in the
development of future products.
|
|
(iii)
|
Achieve a sufficient level of understanding of
the Products to enable Distributor to provide technical information
to the customer and effectively sell the Products.
|
|
(iv)
|
Use good faith efforts to obtain customer orders
for sale of Product and provide assistance to customers in
fulfilling these orders.
|
|
(v)
|
Distributor must provide a three month rolling
forecast on a monthly basis of predicted sales by product to assist
the manufacturing planning
|
|
(vi)
|
Distributor shall notify Lisa Laser USA in each
sale of the name and address of the end user. This is an FDA
requirement . Distributor shall report complaints and assist
in any product recalls per Exhibit G .
|
|
(vii)
|
Unless Lisa Laser USA refuses acceptance of an
order or fails to timely fill an order, Distributor must purchase
all fibers, spare parts and accessories for the Products from Lisa
Laser USA until the expiration of the exclusivity arrangement set
forth in Section 1 and thereafter during the period covered by
Section 3 ("Other") and ("Post-Exclusivity"). Lisa Laser USA must
purchase all fibers, spare parts and accessories for the Products
from LL.
|
3) RESPONSIBILITIES OF LISA LASER USA AND
LL
Materials
Lisa Laser USA shall promptly provide Distributor with marketing
and technical information concerning the Products as well as
reasonable quantities of brochures, instructional material,
advertising literature, and other Product data.
Response to Inquiries
Lisa Laser USA shall promptly respond to all inquiries from
Distributor concerning matters pertaining to this Agreement.
Delivery Time
Lisa Laser USA shall minimize delivery time as much as possible
and use its reasonable best efforts to fulfill delivery obligations
as set forth in Lisa Laser USA order acceptance notices .
Territorial Inquiries
Lisa Laser USA and LL shall submit to Distributor any inquiry
regarding the Products within the Market originating from the
Territory.
Quotations to Others
Lisa Laser USA, and LL shall refrain from giving quotations to
other persons for Products in the Market to be shipped to the
Territory unless Distributor and Lisa Laser USA agree
otherwise.
Developments
Lisa Laser USA and LL shall inform Distributor of new product
developments and Distributor shall treat this information
confidentially according to the terms hereof until the product is
officially released.
4
Other Notifications
Lisa Laser USA or LL, as the case may be, shall promptly notify
Distributor of any quality concerns or regulatory compliance
concerns related to any of the Products of which Lisa Laser USA or
LL becomes aware, whether or not such concerns arise within or
outside the Territory.
Training
Lisa Laser USA will provide sales and service training for
Distributor’s personnel from time to time as requested by
Distributor. It is required for Distributor’s personnel to
attend these seminars. Cost for transport and living expenses for
Distributor’s personnel to attend these seminars will be
borne by the Distributor. Cost for transport and living expenses
for Lisa Laser USA’ personnel to provide such training and
attend such seminars shall be borne by Lisa Laser USA. Two of such
seminars shall be at partnership locations selected by Distributor
per year.
Other
With respect to any Laser Products purchased by Distributor,
Distributor shall be the exclusive distributor or seller of Fiber
Products for use with such Laser Products, whether or not
Distributor’s exclusivity arrangement set forth in Section 1
continues in effect, for a ten year period after the termination of
Distributor’s exclusivity arrangement as set forth in Section
1. During this ten year period, Lisa Laser USA and LL shall (i)
promptly notify any future LISA distributor of Fiber Product(s)
(other than Distributor) that such distributor cannot sell Fiber
Products to a customer to which Distributor sold a Laser Product
and (ii) take reasonable measures to stop selling Fiber Products to
distributors (other than Distributor) that Distributor can
reasonably demonstrate has been selling Fiber Products to a
customer to which Distributor sold a Laser Product.
Post-Exclusivity
After the expiration of Distributor’s exclusivity
arrangement set forth in Section 1, Lisa Laser USA agrees:
|
(i)
|
|
to sell Products to Distributor based on
negotiated pricing of such Products;
|
|
(ii)
|
|
for the first five (5) years after the expiration
of Distributor’s exclusivity, to sell Fiber Products (and/or
any successor fibers) to Distributor at prices not to exceed those
to be agreed upon as set forth in Exhibit B and, for the sixth (6
th ) through the tenth (10 th ) years after
the expiration of Distributor’s exclusivity, to sell Fiber
Products (and/or any successor fibers) to Distributor at prices not
to exceed those to be agreed upon as set forth in Exhibit B as
adjusted annually for inflation and currency changes;
and
|
|
(iii)
|
|
in addition to the pricing obligations set forth
in Subsection (ii) above, for ten (10) years after the expiration
of Distributor’s exclusivity, to sell Fiber Products (and/or
any successor fibers), spare parts and accessories for the Products
to Distributor at prices that are not significantly higher than
prices for these items offered by Lisa Laser USA to other
distributors, provided that in no event shall prices for Fiber
Products (and/or any successor fibers) exceed the prices set forth
in (ii) above.
|
Lisa Laser USA’ obligations under the
headings "Other" and "Post-Exclusivity" and LL’s obligations
under the heading "Other" under this Section 3 shall survive any
termination of this Agreement.
Right of First Refusal
During the period of the exclusivity arrangement set forth in
Section 1, Distributor shall have a right of first refusal on the
distribution in the Market and within the Territory of any
urological product (other than the Products) ("New Products")
developed by LL and offered in the United States by Lisa Laser USA
or another person or entity. The terms of such distribution
arrangement shall be substantially similar to the terms set forth
herein with respect to the Products, including the term of the
exclusivity arrangement set forth in Section 1. LL or Lisa Laser
USA, as the case may be, shall give Distributor at least 180 days
prior written notice (the "Notice") before the introduction of a
New Product into the Market and shall promptly provide Distributor
any information reasonably requested by Distributor related to such
New Product. Distributor shall have 90 days from the receipt of the
Notice to elect whether Distributor desires to distribute such New
Product in the Market. If Distributor elects to so distribute such
New Product, this Agreement shall be amended to add such New
Product to Exhibit A hereto. If Distributor elects not to so
distribute such New Product, LL or Lisa Laser USA, as the case may
be, may enter into a distribution arrangement with another
distributor with respect to such New Product.
5
4) TERMS OF PURCHASE OF PRODUCTS BY
CUSTOMER
Terms and Conditions
All Products purchased by the Distributor from Lisa Laser USA
during the term of this Agreement shall be subject to the terms and
conditions of this Agreement and the terms and conditions contained
in Exhibit B and D attached hereto and herein incorporated
by this reference.
Prices
All prices are F.O.B. the destination identified by Distributor
(as defined in Section 2319 of the California Uniform Commercial
Code) The prices paid by Distributor for each of the Products shall
be as agreed upon as set forth in Exhibit B attached
hereto.
Taxes
See Section 2(c) of Exhibit F.
Order and Acceptance
All orders for Products submitted by the Distributor shall be
initiated by written purchase orders sent to Lisa Laser USA and
requesting a delivery date during the term of this Agreement;
provided, however, that an order may initially be placed orally or
electronically if a confirmational written purchase order is
received by Lisa Laser USA within five days after said oral or
electronic order but in any case before shipment. Lisa Laser USA
shall notify Distributor of the assigned delivery date for orders
within a reasonable time. Lisa Laser USA shall use its reasonable
best efforts to deliver Products at the times specified either in
its quotation or in its notice of acceptance of Distributor’s
purchase orders.
Terms of Purchase Orders
To the extent consistent with the terms set forth in this
Agreement, Lisa Laser USA’ standard terms and conditions, set
forth as Exhibit F hereto, shall be applicable to the
shipment of any Product to the Distributor. Distributor’s
purchase orders submitted to Lisa Laser USA from time to time with
respect to Products to be purchased hereunder shall be governed by
the terms of this Agreement, and nothing contained in any such
purchase order shall in any way modify such terms of purchase or
add any additional terms or conditions.
Payment
Full payment of the Distributor Purchase Price for the Products,
accessories and spare parts shall be made by Distributor to Lisa
Laser USA net (30)thirty days from tender of the Products and/or
parts to the Distributor. The purchase price to be agreed upon as
set forth in Exhibit B will include the cost of import fees,
freight for drop shipping to the destination as defined in the
purchase order and the Lisa Laser USA acceptance of purchase order,
insurance, and other applicable costs.
Shipping
All Products delivered pursuant to the terms of this Agreement
shall be suitably packed for freight shipment in Lisa Laser
USA’ standard shipping cartons.
Reservation of Title
See Section 3(c) of Exhibit F.
5) COMPLIANCE WITH GOVERNMENT REGULATIONS
Distributor shall not sell any Products to, or for the use of,
any ultimate purchaser with which, to Distributor’s actual
knowledge, Lisa Laser USA could not deal under the laws or
regulations of the United States, including, without limitation,
the regulations of the United States Departments of Commerce,
Defense, State and Treasury, and Distributor shall comply with all
other laws and regulations of the United States and any other
cognizant jurisdiction relating to the sale of Lisa Laser
USA’ Products. Willful violation of such regulations shall be
considered just cause for the immediate and unqualified
cancellation of this Agreement by Lisa Laser USA. Distributor
further agrees to promptly transmit to Lisa Laser USA any
information which may come to its attention concerning violation of
such regulations by Distributor’s customers.
6
Lisa Laser USA shall comply with all applicable
laws in fulfilling its obligations hereunder and obtain all
necessary government authorizations, certifications and permits to
carry out its obligations specified herein.
6) DEFECTS AND WARRANTY PERIOD
Lisa Laser USA warrants its Products to the Distributor under
the terms of Lisa Laser USA’ standard warranty set forth in
the Standard Terms and Conditions which shall accompany each
Product. Unless otherwise agreed in advance, all returned material,
whether in warranty or not, must be sent to Lisa Laser USA
transportation and insurance paid. Lisa Laser USA will be
responsible for any freight and insurance on materials returned by
Lisa Laser USA from an Lisa Laser USA facility to the
Distributor.
Lisa Laser USA will hold sufficient laser modules in stock to
prov
| 
