Exhibit 10.1
[Confidential price and
quantity information has been redacted]
DISTRIBUTION AGREEMENT
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This DISTRIBUTION AGREEMENT ("Agreement"),
effective as of February 24, 2009
("Effective Date"), is entered into by and
between Competitive Technologies,
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Inc. ("CTT"), a Delaware corporation
having a place of business at:
---
Competitive Technologies, Inc.
777 Commerce Drive, Suite 100
Fairfield, CT 06825
And Dr. Domenico Pecorini of Life Episteme srl ("Distributor"), an
Italian
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corporation with its principal place of business at:
Dr. Domenico Pecorini
Life Episteme srl
Via Bondeno 35
00127 Rome RM ,Italy
CTT and Distributor may each be referred to as a "Party" and
collectively as the
-----
"Parties".
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Witnesseth
WHEREAS, CTT wishes to appoint Distributor as the exclusive sales
agent for
certain identified products, and Distributor desires to provide
such services to
CTT, in each case, on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the mutual promises and
covenants set forth
herein, the Parties agree as follows:
1.0 RIGHT TO DISTRIBUTE
OR SUB DISTRIBUTE
1.1 CTT hereby grants
Distributor the right to purchase from CTT,
and
the
exclusive right to distribute or sub-distribute solely within
the
Territory (as defined hereinafter),
the products identified on
Schedule 1 hereto (the "Product(s)").
"Territory" shall mean the
countries identified on Schedule 3.
1.2 Distributor shall
purchase the Product(s) for resale from CTT
at
the
price set forth on Schedule 1 hereto, as
such Schedule may be
amended
after two (2) years of the effective date of this Agreement in
accordance with the terms hereof.
1.3 All orders for
Product(s) by Distributor shall be
Ex Works
Manufacturer. GEOMC Co. Ltd. of
Korea (formerly Daeyang E&C)
("Manufacturer") in Seoul, South
Korea is the Manufacturer.
<PAGE>
1.4 CTT's and
Manufacturer's replacement warranty for
normal use with
no
physical damage to the unit will be for a
period of 12 months.
EXCEPT
FOR THE FOREGOING, CTT MAKES NO REPRESENTATIONS OR
WARRANTIES
WITH RESPECT
TO ANY PRODUCTS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
NON-INFRINGMENT OR
FITNESS FOR A PARTICULAR PURPOSE. All purchases of the
Product(s) by
Distributor from CTT shall be
paid in US Dollars (USD) by wire
transfer of
immediately available funds due to CTT at Bank of America,
with
the purchase price due at the time of
order by Distributor.
1.5 All sales to
Distributor are final. Any damaged
Product(s) with
the
Manufacturer's defects must be returned to the Manufacturer,
with
any
such return being subject to the terms of the applicable one
year
product warranty.
1.6 Distributor agrees
to (i) actively and continually
market and
promote the Product(s) to appropriate potential
customers; (ii) use
best
efforts to promote the sale of the maximum amount of
Product(s);
and
(iii) accurately advise potential customers of the selection,
use
and
functionality of the Product(s).
Distributor will keep CTT
informed as
to conditions that might affect the sale of the Product(s)
in
the marketplace.
1.7 Distributor will
refrain from taking actions that may
tarnish or
cause people
to hold in poor regard CTT or the Product(s). Distributor
shall
establish and maintain a marketing program and a sales
force,
customer training and technical
service representatives, who are
properly trained in all aspects of the distributed Product.
CTT shall
have
the right to review and discuss with Distributor at
reasonable
times
and with reasonable frequency all aspects of the marketing
and
service program. Distributor shall be
solely responsible for
establishing the terms of sale (subject to any
limitations set forth
herein) including, without limitation,
the sale price of the
Product(s), consummating the sale of any
Product(s), collecting the
sale
price, and for providing any
post-sale service that may be
necessary with the exception of manufacturer
warranty claims, which
shall
be handled by the Manufacturer.
1.8 To assist
Distributor in marketing the
Product(s), CTT shall
provide the
Distributor with all the technical, medical and economical
information regarding the MC-5A and
assist the Distributor in the
drafting of a comprehensive business
model. CTT warrants that any
scientific, medical and clinical information
provided by CTT to the
Distributor regarding the pain management device is accurate.
CTT may
provide Distributor with such
marketing materials as CTT may deem
appropriate. CTT shall have the
right to revise such marketing
materials in its sole discretion
at any time and to provide such
revised marketing materials to
Distributor for all future use.
Distributor
shall have no obligation to use such materials and any use
of
such materials is at Distributor's
own risk.
<PAGE>
1.9 Distributor shall
provide a written sales summary of
actual and
forecasted sales quarterly to CTT (each a
"Quarterly Report"). Each
Quarterly Report shall be provided to CTT on or before
the fifteenth
(15th)
calendar day of the next quarter.
1.10 The authority granted
to Distributor is to distribute
or
sub-distribute those Product(s) it
has purchased from CTT solely
within
the Territory. Moreover, Distributor shall not sell Product(s)
to
purchasers outside the Territory or to purchasers inside or
outside
the
Territory that Distributor believes or has reason to believe
are
primarily intended for use or
distribution outside the Territory
without written permission from CTT. Distributor shall
not have, nor
shall
it hold itself out as having,
either express or implied
authority to accept orders for the Product(s) on behalf
of CTT or to
make
contracts in the name of CTT
or any other party.
1.11 Distributor is not
an employee of CTT or any subsidiary of
CTT,
and
shall not represent himself to
be, nor permit himself to be
represented as, anything other than a Distributor of
the Product(s).
Distributor does not and shall not have any
power to, nor shall it
represent that it has any power to, bind CTT or create
or assume any
obligation on behalf of CTT.
1.12 Distributor shall
not make any representations or warranties
with
respect to the Product(s) beyond the product warranties
given by the
Manufacturer
of the Product(s). Distributor will comply, at all times,
with
all foreign, federal, state and
local laws and regulations
applicable to it, including without limitation,
all applicable laws
relating to the marketing, sale and distribution
of medical devices
within
the Territory. At no time shall
Distributor engage in any
high-pressure or unethical sales
techniques.
2.0 TERM OF AGREEMENT
2.1 Subject to the
other provisions of this Agreement,
the term of
this
Agreement shall be for an initial period of three (3) years
from
the
Effective Date (the "Initial Term"); provided, that the term
shall
be
automatically extended for additional twelve month periods (each
a
"Renewal Term," and, collectively with the Initial
Term, the "Term")
so
long as Distributor has purchased
from CTT (and not returned)
Product(s) equal to or in excess of the applicable
Product Minimums,
as
set forth in Schedule 2 hereto, during each Contract Year for
the
just
ended Contract Year (i.e., the Initial Term or Renewal Term,
as
applicable). Once given, a
continuation notice shall become an
irrevocable obligation of Distributor. Each of
the Initial Term and
each
Renewal Term may be referred to
as a "Contract Year." For
clarity, each Contract Year will correspond with an
identical period
referred to as either the
Initial Term or a Renewal Term.
Notwithstanding the foregoing, Distributor
may prevent any
auto-renewal of the Term by providing CTT with written
notice of its
intent
to terminate this Agreement at least ninety (90) days prior to
the
end of the then-current Term.
<PAGE>
2.2 Either Distributor
or CTT may terminate this
Agreement at any
time
if the other Party shall breach
its obligations hereunder;
provided, however, that the
non-breaching Party shall give the
breaching
Party written notice of such breach, and the breaching Party
shall
have thirty (30) calendar days after receipt of such notice
to
cure
such breach. If such breach is
cured to the reasonable
satisfaction of the non-breaching party during such period,
then this
Agreement shall continue in full force and effect. If
such breach is
not
cured to the reasonable satisfaction of the
non-breaching party
during such
period, then this Agreement shall terminate effective upon
the
close of business on the last
day of such period.
2.3 In the event
CTT ceases to have the right
to sell any of the
Product(s), either in whole or in part,
Distributor's right to sell
such
Product(s) shall immediately cease,
and CTT shall have no
liability whatsoever to Distributor arising
from such cessation of
sales.
To the extent such cessation is
to less than all of the
Product(s), this Agreement shall
continue with respect to the
remaining Product(s) in accordance
with its terms.
3.0 MINIMUM SALES OBLIGATIONS
3.1 Distributor shall
be obligated to purchase from CTT
that number
of
Product(s) during each Contract Year as is set forth in Schedule
2
hereto
(for each such Contract Year, the "Product
Minimums"). The
Product Minimums for each of the first three (3)
Contract Years are
set forth in
Schedule 2 hereto. The Product Minimums for Contract Year
