Exhibit 10.160
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
DEFINITIONS (Capitalized terms used in the Agreement shall be
defined as
follows):
A.
"Agreement" shall mean this exclusive distributorship
agreement.
B.
"Confidential Information" shall mean all written information
and
data provided by the parties to each other hereunder and marked
as
confidential, except any portion thereof which:
A. is
known to the receiving party, as evidenced by the receiving
party's written record, before receipt hereof under this
Agreement;
B. is
disclosed to the receiving party by a third person who has
a right to make such disclosure; or
C. is or
becomes part of the public domain through no fault of
the receiving party.
C.
"Patents"
shall mean the patents and patent applications on file in
the countries/governmental jurisdictions of the Market Area.
D.
"Company
Products" shall mean those current products
manufactured/distributed by HiEnergy Technologies, Inc. such as
"stoichiometric technology or AtometryTM based products, and
related
support services, software and accessories.
E.
"Market
Area" shall mean any commercial nuclear power plant in North
America.
AGREEMENT:
This Agreement is made and effective this October 24, 2006, by and
between
HiEnergy Technologies, Inc., a Delaware Corporation ("Company") and
Bartlett
Nuclear, Inc., a Massachusetts Corporation ("Distributor"). Company
desires to
appoint Distributor, and Distributor desires to accept appointment,
as an
exclusive distributor of Company's Products within the defined
Market Area.
NOW,
THEREFORE, in consideration of the mutual agreements and promises
set
forth herein, the parties agree as follows:
1. RIGHTS GRANTED
Company hereby grants to Distributor the exclusive right, on the
terms and
conditions contained herein, to purchase, inventory, promote and
resell
"Company's Products" within the Market Area.
2. CONFIDENTIAL INFORMATION
It is contemplated that in the course of the performance of this
Agreement each
party may, from time to time, disclose Confidential Information to
the other.
Each party agrees to take all reasonable steps to prevent
disclosure of
Confidential Information; provided; however, no provision of this
Agreement
shall be construed so as to preclude such disclosure of
Confidential Information
as may be inherent in or reasonably necessary for marketing Company
Products
pursuant to this Agreement, or for securing from any governmental
agency any
necessary approval or license relating to the subject or
performance of this
Agreement.
<PAGE>
3. COMPANY PRODUCTS
During the term of this Agreement, Company grants the Distributor
the first
right and option to obtain exclusive rights to market, distribute
and sell any
new devices or systems (including related software) in the Market
Area, on the
terms and conditions of this Agreement.
4. TERMS OF SALE
All sales of Company's Products to Distributor shall be made
pursuant to this
Agreement at such list prices and on such standard terms as Company
shall
establish from time to time on at least thirty (30) days notice.
All list prices
are FOB Company's plant. Except as otherwise expressly agreed by
Company in
advance, this Agreement shall control all aspects of the dealings
between
Company and Distributor with respect to the Company's Products.
Company will
discount all items by, or pay a sales commission of, 15%.
Distributor agrees
that all Company Products sold by Distributor will be at prices or
in accordance
with Company pricing policies.
5. MARKETING POLICIES
Company will provide adequate access to Company's Products,
marketing brochures,
catalogs, manuals, advertising literature and others sales aids to
the
Distributor. Company and Distributor will effectively promote the
sale of
Company's Products in the Market Area, in conformity with Company's
established
marketing policies and programs. Distributor will use its best
efforts to sell
Company's Products to reputable and financially capable end users
throughout the
Market Area. Company will invite Distributor to national tradeshows
where the
Distributor's Market Area is expected to be represented.
Distributor will invite
Company to national tradeshows where the Company's Products will be
represented,
in order to support the Distributor's marketing effort.
6. DISTRIBUTOR'S GENERAL DUTIES
A.
Distributor shall maintain a business presence in the Market
Area,
including suitable facilities. Any service and support provided
by
Distributor on Company's Products sold in the Market Area shall
be
made using qualified personnel trained by Company and subject
to
service policies satisfactory to Company. Company will provide
technical support 24/7 to maintenance service technicians.
B.
Distributor shall utilize its current sales personnel and/or
appoint
representatives to introduce, promote, market and sell
Company's
Products in the Market Area. Such personnel and/or
representatives
shall be adequately trained by Company. Distributor shall
employ
sufficient numbers of sales personnel and/or representatives
properly trained to market Company's Products in the Market
Area.
C.
Distributor agrees not to engage in the distribution,
promotion,
marketing or sale of any goods or products that compete or
conflict
with Company's Products. Distributor agrees to supply to Company
a
list of items handled by Distributor following Company's request
to
ensure that no conflict exists.
7. ADVERTISING POLICIES
Company will cooperate with Distributor in providing for effective
promotion of
Company's Products throughout the Market Area, and Distributor
agrees to
participate in, actively promote and faithfully comply with the
terms and
conditions of such cooperative promotional programs as Company may
establish and
offer Distributor from time to time. Nothing herein shall prevent
Distributor
from independently advertising and marketing the Company's Products
within the
Market Area, provided the form and content of the advertising or
marketing
materials are approved by Company in advance.
<PAGE>
8. PRODUCT WARRANTY POLICIES
Company shall provide to Distributor information with respect to
Company's
limited warranties to be extended to the original purchaser of
Company's
Products. COMPANY MAKES NO WARRANTY TO DISTRIBUTOR WITH RESPECT TO
THE PRODUCTS,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. SOFTWARE LICENSE GRANT
During the term of this Agreement, Company grants to Distributor
a
non-exclusive, non-transferable license to distribute the
Company's
Interrogator(TM) software ("Software") to Distributor customers
("License"). The
Software shall be and remain the sole and exclusive products of
Company, and
Distributor shall have no rights whatsoever in or to the Software.
Distributor
agrees not to remove from any copies of the Software any statements
appearing
thereon regarding copyrights or proprietary rights of Company.
Distributor shall
not copy (in any form), distribute, sell, lease, assign, encumber,
license or
sub-license this Software or programs written using this Software,
including
derivative modifications or extensions of them, to any Distributor
Customer or
other party without prior written consent from Company. Distributor
hereby
acknowledges and agrees that the Software may be licensed by
Company to other
users outside the Market Area without limitation of any kind.
Distributor
acknowledges that the license granted hereby extends solely to
Distributor
Customer and that Software shall not be used by any other division,
subsidiary
or affiliated entity. Distributor acknowledges that the computer
program,
manuals and related data which comprise or are related to the
Software are
proprietary products of Company who retains all rights, title and
interest,
including copyright to these products. Distributor agrees that the
Software
source code of Interrogator(TM) constitutes protected information,
which is
equivalent to trade secret information of Company, whether or not
any portion
thereof is or may be the subject of a valid copyright or patent.
Distributor
agrees not to reverse assemble, reverse compile, reverse engineer
or otherwise
attempt to discover the source code of any of the Software, except
to the extent
Distributor may be expressly permitted by Company. The software is
provided
subject to Company's standard commercial software license
("Commercial
License"); provided, however, software acquired for use within or
for any United
States federal agency is provided with "LIMITED RIGHTS" and
"RESTRICTED RIGHTS"
as defined in DFARS 252.227-7015 and FAR 52.227-19.
<PAGE>
10. INDEMNIFICATION
A.
Company
agrees to protect Distributor and hold Distributor harmless
from any loss or claim arising out of defects in any of
Company's
Products during th
