Exhibit
10.31
CONFIDENTIAL TREATMENT
REQUESTED
EXCLUSIVE DISTRIBUTION
AGREEMENT
Agreement dated January, 1
st 2002 between Bruker BioSpin GmbH, having
its principal place of business at Rheinstetten, Germany (the
“Manufacturer”) and Bruker Optics Inc., a Delaware
corporation, having its principal place of business at Billerica,
Massachusetts (the “Distributor”).
WHEREAS, Manufacturer is engaged in
the business of manufacturing analytical instrumentation for
Quality Control based on the principle of TD (time domain)-NMR the
Product (as hereinafter defined);
WHEREAS, Distributor is engaged in
the business of selling and marketing goods manufactured. by
others in the Territory (as hereinafter defined); and
WHEREAS, Distributor is desirous of
being appointed an exclusive distributor of the Product in the
Territory.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements herein contained, Manufacturer
and Distributor hereby agree as follows:
1.
DEFINITIONS
1.1
Product . The term “Product” shall mean
Manufacturer’s product known as the TD-NMR Analyzer
“the-minispec.”
1.2
Territory . The term “Territory” shall
mean the all countries of the world.
2.
EXCLUSIVE DISTRIBUTORSHIP
Manufacturer hereby grants to
Distributor the exclusive right to sell the Product during the Term
(as hereinafter defined) to customers within the Territory for
delivery in the Territory, all in accordance with the terms and
conditions set forth herein.
3.
ORDERS AND PERFORMANCE
Distributor shall place orders for
the Product with Manufacturer setting forth the quantity of the
Product ordered and the desired delivery date. Manufacturer,
after its acknowledgment and acceptance of the order, shall sell
the Product to Distributor for resale in the Territory. No
order shall be binding unless acknowledged and accepted in writing
by Manufacturer. Manufacturer shall confirm its acceptance or
rejection of an order within fifteen (15) days after its actual
receipt of such order. The terms and conditions of sale shall
be those set forth in this Agreement and Exhibit A ,
and any terms set forth in Distributor’s order shall be of no
force or effect. The Product sold to Distributor by
Manufacturer shall be shipped F.O.B. Manufacturer’s plant to
the destination of the Distributor. Distributor shall pay all
freight insurance, duty and customs, and any other charge
associated with shipment or import of the Product.
CONFIDENTIAL TREATMENT
REQUESTED
4.
PRICE AND PAYMENT
4.1
Prices. The prices for the Product shall be as
established by Manufacturer from time to time. Prices shall
be subject to change by Manufacturer from time to time by thirty
(30) days’ prior written notice to Distributor; provided,
however, that no such price change shall affect orders accepted by
Manufacturer prior to notifying Distributor of such price
change. All prices are exclusive of all import duties and
governmental excise, sales, use, occupational or similar
taxes.
4.2 Terms of Payment. Payment shall be
made by Distributor separately for each order accepted by
Manufacturer by cash remittance to be made by Distributor to
Manufacturer payable no later than thirty (30) days after delivery
to the F.O.B. point.
5.
MARKETING AND ADVERTISING
5.1
Distributor’s Undertaking. Distributor shall
exert its best efforts to promote the sale of the Product in the
Territory and to develop a market demand for the same in the
Territory.
5.2
Right to Appoint Sub Dealers. Distributor shall have
the right, at its own discretion, to appoint a sub-dealer or
sub-dealers to exploit the Product in the Territory in accordance
with the grant of the distributorship pursuant to Section 2
above; provided that any sub-dealer shall only sell the Product to
end-user customers and not to any third party for the purpose of
resale by such third party.
5.3
Sales Materials. Manufacturer will provide
Distributor, at no cost to Distributor, such sales materials with
respect to the Product as Manufacturer generally makes available to
its distributors, including technical specifications, prices,
drawings, advertisements and samples, and Distributor may reproduce
such materials as reasonably required, provided that all copyright,
trademark and other property markings are reproduced. All
such materials remain the property of Manufacturer and, except as
they are distributed by Distributor in the course of its
performance of its duties under this Agreement, must be promptly
returned to Manufacturer upon the expiration or termination of this
Agreement.
5.4 Trade Fairs and Exhibitions.
Distributor will participate in trade fairs and exhibitions to
market the Product in the Territory.
6.
CONFIDENTIALITY
Distributor shall hold in strict
confidence and shall not disclose to others or use, either before
or after termination or expiration of this Agreement, any technical
or business information, manufacturing technique, process,
experimental work, trade secret or other confidential matter
relating to the Product, except to the extent disclosure is
reasonably required in connection with Distributor’s proper
marketing activities in the Territory. Distributor shall,
upon request (and upon termination or expiration of this Agreement
without request), deliver to Manufacturer any and all drawings,
notes, documents and materials received from
Manufacturer.
2
CONFIDENTIAL TREATMENT
REQUESTED
Distributor shall not, directly or
indirectly, attempt to reverse engineer, reverse assemble or
otherwise try to discover the formulation of the
Product.
7.
WARRANTY
Manufacturer grants to Distributor
the warranty with respect to the Product set forth in
paragraph 4 of Exhibit A . Distributor shall
have the right to resell the Product with such warranty.
Manufacturer will be responsible for satisfying such warranty so
long as the same has not been amended or extended by
Distributor. Manufacturer will not assume any other
responsibility for the Product after the Product has been received
by Distributor.
8.
LIMITATION OF LIABILITY
Except as provided in
paragraph 5 of Exhibit A , the liability of
Manufacturer for any claim arising out of or in connection with
this Agreement shall not exceed the amount paid to Manufacturer by
Distributor with respect to the sale of the specific Product cited
in such claim. In no event shall Manufacturer have any
liability for incidental, indirect, consequential, special or
punitive damages.
9.
RELATIONSHIP OF PARTIES
Nothing contained in this Agreement
shall be construed to constitute Distributor as a partner, employee
or agent of Manufacturer, nor shall Distributor hold itself out as
such. Distributor has no right or authority to incur, assume
or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or
on behalf of Manufacturer, it being intended by both Distributor
and Manufacturer that each shall remain an independent contractor
responsible for its own actions.
10.
ASSIGNMENT
Distributor shall not assign,
transfer or otherwise dispose of this Agreement in whole or in part
without the prior written consent of Manufacturer.
11.
TERM OF AGREEMENT
This Agreement shall remain in
effect for a period of five (5) years after the date hereof (the
“Term”), provided that this Agreement is not earlier
terminated under Section 12 hereof. At expiration of 5
years the contract extends one year at a time.
Upon any expiration or termination
of this Agreement, Sections 4.2, 6 and 8, and Paragraph 4
of Exhibit A shall remain in full force and effect.
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CONFIDENTIAL TREATMENT
REQUESTED
12.
TERMINATION.
12.1
Events of Termination.
(i)
Either party may gives the other party written notice of its
intension that this agreement shall not continue in force and
effect for the next year. Any such notice shall be given at
least 12 months prior to the expiration of the term in
effect.
(ii)
Bankruptcy, etc . Immediately upon written notice
to
