DISTRIBUTOR AGREEMENT DANISH DERMATOLOGIC DEVELOPMENTDistribution Agreement |
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Exhibit 10.1
NOTE: CONFIDENTIAL TREATMENT HAS BEEN OBTAINED OR REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. WHENEVER CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED BY AN ASTERISK), SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
1/28/05
DISTRIBUTOR AGREEMENT
DANISH DERMATOLOGIC DEVELOPMENT
Territory: USA
TABLE OF CONTENTS
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INTERNATIONAL DISTRIBUTOR AGREEMENT FOR PRODUCTS OF DDD
APPOINTMENT, TERRITORY, TERM AND SCOPE
DDD, Danish Dermatologic Development A/S, a corporation organized and existing under the laws of Denmark (hereinafter called “Principal”), having a principal place of business at Agern Alle 11, DK-2970 Hoersholm, Denmark, hereby appoints Candela Corporation, having its principal office and place of business and situated at 530 Boston Post Road, Wayland, MA 01778-1886, USA , (hereinafter called the “Distributor”) an authorized exclusive Distributor for the Principal’s Products (hereinafter called the “Products”) described in Appendix A. All other products of Principal not described in Appendix A are not a part of this Agreement and may be distributed by Principal in Territory by whatever means or manner Principal, in its sole discretion, considers in its best interest.
The geographical area (hereinafter called the “Territory”) in which the Distributor is authorized to resell on an exclusive basis is the USA.
This Agreement is effective from 28 January 2005 to 31 January 2008, unless sooner terminated as hereafter provided. This Agreement consists of this document and attached Appendices and constitutes the agreement in its entirety.
This agreement replaces all previous agreements and contracts between Distributor and Principal regarding the above mentioned Territory.
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DISTRIBUTOR RESPONSIBILITIES
The Distributor hereby agrees to:
1. Use commercially reasonable efforts to promote and sell Principal’s Products (“Products”) in the Territory and to achieve the sales goal mutually agreed to in Appendix D.
2. Not manufacture nor deal in any IPL products in the territory which Principal may reasonably consider to be competitive with the Products during the term of this Agreement.
3. Establish an organizational structure and method of operation which Principal will accept as being adequate for the maintenance and further expansion of its market position.
4. Establish or sub-contract a service organization adequate and competent to furnish technical advice, service and service contracts
5. Principal will place a consignment stock of spare parts at Distributor and the Distributor FSE’s trunk stock to adequately service Products. Parts used for repair of out-of-warranty products will be invoiced by Principal. Distributor will ship back all defective in-warranty parts to Principal unless otherwise agreed on a case by case basis. Principal agrees to waive the requirement for returns for re-curring problems on non-refurb warranty parts. Distributor may return to Principal parts that have been purchased and replaced out of warranty. Distributor may purchase such repaired parts at reduced prices. Appendix F to this agreement lists the critical parts to be returned to Prinicipal for repair. The timing and minimum quantities of these parts that must be returned must be agreed to minimize shipping costs.
6. Exhibit at and provide personnel for trade shows in the Territory that relate to the Products. Trade shows exclusive to Territory are Distributor responsibility.
7. Use commercially reasonable efforts to:
a. Maintain and repair, at competitive service rates charged to end users, Products in the Territory (whether or not sold by Distributor), as requested by such end users, and
b. Generally provide adequate customer service to keep users of Products in the Territory satisfied.
8. At Principal’s request, provide Principal a complete list of IPL products distributed by Distributor.
9. Notify Principal promptly, if unable to perform maintenance or repair service on any of Principal’s Products in the Territory. Principal shall have have the right to carry out service if prior agreement is reached with Distributor and documented in
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writing. The services must be completed while in the company of Distributor’s service rep.
10. Advise Principal of the end user on each order placed.
11. Submit names of competitors’ customers as discovered.
12. Maintain adequate technical level of personnel by attending, at Distributor’s cost, product training sessions conducted by Principal. Minimum technical personnel requirements are specified in Appendix C. Distributor shall complete and return to Principal every 90 days, a system generated summary installation report from the Candela ISR system that lists every new system installed by Distributor.
13. Distributor will submit to Principal changes in original advertising and promotional material for review by Principal. Principal will furnish the operators manual in English language.
14. Distributor will not, without the prior written consent of Principal, appoint a sub-distributor or service contractor.
15. The Distributor shall not seek customers for the Products, nor establish any branch or maintain any distribution depot in relation to the Products, outside the Territory. Furthermore, the Distributor is not allowed to offer, sell or install products outside the Territory.
16. Distributor will, at Principal´s request, provide sales forecasts. (See Appendix D.)
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PRINCIPAL’S RESPONSIBILITY
The Principal hereby agrees to:
1. Use reasonable efforts to furnish to Distributor, on terms to be agreed upon by both parties, sales promotion materials such as catalogs, specification sheets, suggested price lists and demonstration software which shall be used by Distributor only for purposes of this Agreement. All such materials shall remain Principal’s property, unless otherwise agreed.
2. Provide replacement spare parts for Principal’s Products at no charge to Distributor in connection with any repair or maintenance service performed by Distributor during the manufacturer’s warranty period.
3. Not appoint any other Distributor in the Territory.
4. For twelve (12) months from its date of installation by Distributor, Principal warrants each respective product and all other parts (for example service spare parts) delivered by Principal to be free from defects. The installation date of record will be the quarterly ISR report from the distributor to the Principal.
During the warranty period specified above, in-warranty defective product(s) listed in Appendix F will be returned to Principal´s facility with transportation charges paid by Distributor. Items under warranty will be repaired or replaced at no cost to Distributor. Transportation charges for repaired or replacement items that are returned to Distributor will be paid by Principal.
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TERMS AND CONDITIONS OF SALE AND PRODUCT WARRANTIES
A. All orders placed by Distributor hereunder shall be in writing, and shall be subject to approval and acceptance in writing by Principal within 24 hours of receipt.
B. All sales by Principal to Distributor hereunder shall be subject to the provisions of this Agreement and to the provisions of the applicable “Product Warranties” attached (Appendix E) hereto and made a part hereof, and any subsequent modification of said Product Warranties provided, however, that such modifications shall not be inconsistent with the other provisions of this Agreement, and shall be effective only upon thirty (30) days’ notice to Distributor; and any provisions of any purchase order placed by the Distributor which is inconsistent hereafter shall be null and void unless accepted by the Principal in writing.
C. Delivery terms from Principal to Distributor are Ex Works (FOB Plant).
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PRODUCT, PRICES AND PAYMENTS
A. Except as otherwise agreed to by the parties in writing, the price to Distributor for all Principal’s Products, spare parts and installation equipment sold by Principal to Distributor hereunder shall be as described in Appendices A and B attached hereto and made part hereof. Principal shall provide Distributor six (6) months advance notice of any change in list prices and shall honor old prices for orders already placed up to sixty (60) days from such notice.
For any Products, spare parts or installation equipment ordered by Distributor, Distributor shall make payment to Principal in EURO by means of wire transfer 68 days from the invoice date.
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GENERAL CONDITIONS AND DISTRIBUTION
A. Principal Trade Names and Trademarks
The Distributor acknowledges that the words Ellipse and DDD are the dominant features of the trade names of the Principal and that the marks Ellipse and DDD (“the Trademarks”) are the Principal trademarks for the Products manufactured and/or sold by the Principal. The Distributor acknowledges that the Trademarks are owned exclusively by Principal. Distributor agrees that it will not, in any manner, use the word DDD, or any imitation or variant thereof, as a part of the Distributor’s trade name, company or firm name, nor will it grant such use to any subsidiary or affiliate or to dealers, if any, appointed by the Distributor. The Distributor shall use the Trademarks on or in relation to the Products, but shall ensure that each reference to, and use of any of, the Trademarks by it is in the manner from time to time approved in writing by the Principal and, where required by the Principal, is accompanied by an acknowledgement in a form approved by the Principal that the Trademarks are trademarks of the Principal.
The Distributor shall not:
1. Alter, remove, tamper with or obscure any trademarks, numbers, or any other means of identification used on or in relation to the Products.
2. Use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of the Principal in them.
3. Use any trademark other than the Trademarks in relation to the Products or spare parts for the products without obtaining the Principal’s prior written consent, or
4. Use any marks in the Territory which so resemble any of the Trademarks as to be likely to cause confusion in the marketplace.
5. Market the Ellipse systems under any other Principal name than Danish Dermatologic Development A/S (DDD).
Except for the right to use the Trademarks expressly granted under this clause, the Distributor acknowledges that it shall not acquire any rights in respect to the Trademarks and that all and any rights and goodwill which accrue in the Territory arising out of the use of the Trademarks shall vest in the Principal.
The Distributor shall, at the request of the Principal:
1. Execute such registered user agreements or licenses in respect of the use of the Trademark in the Territory as the Principal may reasonably require.
2. At principal’s expense, take such steps as the Principal may reasonably require to assist in maintaining the validity and enforceability of the Trademarks in the territory. The Distributor shall promptly and fully notify the Principal of any actual
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infringement in the Territory or any intellectual property of the Principal which comes to the Distributor’s notice, and of any claim by any third party that the sale of Products in the Territory may infringe the rights of any other person; and the Distributor shall, at the request and expense of the Principal, do all such things as may be reasonably required to assist the Principal in taking or resisting any proceedings in relation to such an infringement or claim.
The Principal reserves the right from time to time in its absolute discretion, without thereby incurring any liability to the Distributor with respect to any purchase order theretofore transmitted or placed by the Distributor or otherwise, to discontinue or to limit its production of any Product(s) of model(s) thereof, to terminate or to limit deliveries of any such Product(s) or model(s), the production of which is so discontinued or limited, to alter the design or construction of any such Product(s) or model(s).
The Distributor shall keep confidential, during the term of this Agreement and for three years thereafter, all trade secrets and proprietary, and confidential information pertaining to Product(s) furnished to it by the Principal and shall return all copies of all documents containing this information to the Principal on expiration or termination of this Agreement. The provisions of this clause shall not apply to any information which was or becomes known to the public or which is contained in any printed publications made available to customers.
The Principal’s obligation hereunder shall be at all times subject to the export administration and control laws and regulations | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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