1
Exhibit 10.14
MARKETING and DISTRIBUTION AGREEMENT
Nanophase Technologies Corporation of Xxxx Ridge, Illinois ("NTC")
and Xxxxxxxxx, Xxxxx & Xxxxxxx, Inc., of South Plainfield, New Jersey
("Xxxxxxxxx"), effective November 22, 1995, agree as follows:
1. NTC hereby appoints, and Xxxxxxxxx hereby accepts
appointment, as NTC's exclusive global distributor of the
Products (as defined below) for the Applications (as defined
below). The scope of this appointment and the nature of the
products and applications hereunder may be modified or
expanded by mutual agreement of the parties from time to
time.
2. The products covered by this agreement are NTC TiO(2)
and iron oxide in such form (including coated or dispersed) as
may be determined by NTC in its discretion, for use by
Xxxxxxxxx'x customers in the Applications defined below (the
Products).
3. The applications covered by this agreement are cosmetics and
skin care (the Applications).
4. The objective of this agreement is to achieve and
maintain a dominant market position for the Products based
upon superior performance of the Products within the
Applications defined above.
5. The parties agree that the primary role of NTC under this agreement shall
be to provide Products and related technology support for the
Applications defined above, and the primary role of Xxxxxxxxx shall be
to perform the marketing functions and to provide the related customer
support. Nonetheless, the parties agree to actively confer and
collaborate with each other concerning significant issues and
activities relating to achievement of the marketing
objectives.
6 To achieve the objectives of this agreement, NTC agrees to:
a. Supply the Products to Xxxxxxxxx on schedules and in quantities
adequate to support the marketing objectives.
b. Use its best efforts to achieve and maintain quality,
technological superiority, and competitive costs of the Products,
and actively provide technical and marketing assistance to
Xxxxxxxxx, in support of the marketing objectives.
c. Actively collaborate with Xxxxxxxxx in efforts to further develop
and enhance the Products in support of the marketing objectives.
d. Assist Xxxxxxxxx in the training of Xxxxxxxxx and
customer personnel.
e. Assist Xxxxxxxxx in the preparation of appropriate
technical literature.
f . Assist Xxxxxxxxx in technical presentations to
Xxxxxxxxx'x customers and prospects.
g. Assist Xxxxxxxxx in customer technical support.
h. Assist Xxxxxxxxx in efforts to obtain any regulatory
approvals that may be required.
7. To achieve the objectives of this agreement, Xxxxxxxxx agrees to:
a. Use its best efforts to diligently
market and promote the Products in support of the
marketing objectives.
b. Provide NTC with an initial and rolling schedule of confirmed or
planned presentations, samplings and evaluations.
c. On-going and on a current basis, provide NTC with empirical
feedback from presentations, samplings and evaluations that are
arranged or conducted by Xxxxxxxxx, and otherwise provide NTC with
all information available to Xxxxxxxxx concerning Product
performance, and concerning market requirements relating to
Product performance.
d. Purchase and maintain inventories of Products on schedules and in
quantities adequate to support the marketing objectives, including
sufficient beginning inventories to support initial sampling and
early customer orders, and sufficient on-going inventories to
serve as a buffer and to accommodate prompt shipment to customers
on a day-to-day basis.
2
e. As soon as practicable after the initial market launch
of the Products, place on-going orders with NTC at least six months
before expected delivery by NTC.
f. Provide NTC monthly with a rolling six-month forecast of
Xxxxxxxxx'x Product requirements.
g. Provide NTC every 6 months with Xxxxxxxxx'x estimates of the
current year's tonnage size and three-year forecast of the total
relevant markets.
8. For as long as this agreement remains in effect, or unless the
parties otherwise agree in writing, NTC will not directly or
Indirectly knowingly sell any of the Products to anyone other
than Xxxxxxxxx for use in the Applications defined above.
9. For as long as this agreement remains in effect, or unless the
parties otherwise agree in writing, Xxxxxxxxx will not directly
or indirectly knowingly sell any nanometric TiO(two) other than the
Products for use in the Applications defined above.
10. Pricing for the sale of Products by NTC to Xxxxxxxxx shall be
detemmined solely by NTC. Pricing for the sale of Products by
Xxxxxxxxx to Xxxxxxxxx'x customers shall be determined solely by
Xxxxxxxxx. Standard pricing of NTC is FOB the NTC facility.
11. NTC warrants that the Products comply with all applicable
federal, state and local laws, regulations and rulings.
Specifically, the Products are not adulterated or mislabeled
within the meaning of the Food, Drug and Cosmetic Act. NTC
further warrants that the Products meet the specifications stated
in any lot-specific certificate of analysis. NTC provides no
performance warranty and no implied warranty of merchantability
or fitness for a particular purpose. NTC is not responsible for
consequential damages, and assumes no risk or liability involved
in the use of the Products, including without limitation
liability with regard to third-party patent claims. All
warranties are to Xxxxxxxxx only, and are limited to the purchase
price paid to NTC.
12. The term of this agreement is one year, with automatic renewal
unless sooner terminated. Either party may terminate this
agreement without cause on six-month notice. In the event of any
material breach of this agreement, the non-defaulting party may
terminate this agreement if the breach is not
cured within 30 days following notice of breach.
13. All notices required or desired to be given hereunder shall be
given by hand delivery, or by registered or certified mail,
return receipt requested, to the addresses stated below, and
shall be effective upon receipt.
14. The parties agree to the terms of the confidentiality and non-use
agreement attached hereto. The sale of Products by NTC to Xxxxxxxxx
shall not constitute a license from NTC to Xxxxxxxxx.
15. Each party is an independent contractor. Neither party is the
agent of the other, and neither shall have authority to bind the
other.
AGREED:
Nanophase Technologies Corporation Xxxxxxxxx, Xxxxx & Xxxxxxx, Inc.
000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000 Xxxxx Xxxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------ -------------------------------
Xxxxxx X. Xxxxx, President Xxxxxxx X. Argylaen, President
3
CONFIDENTIALITY AND NON-USE AGREEMENT
Confidentiality and Non-Use Agreement dated as of November 1, 1995, by
and between Nanophase Technologies Corporation, an Illinois corporation
("Nanophase"), and Xxxxxxxxx, Xxxxx & Xxxxxxx, Inc., a corporation
located in the state of New Jersey ("Recipient").
Nanophase and Recipient may engage in discussions concerning the Purpose
(as defined below). As part of their discussions, Nanophase may disclose
Nanophase Proprietary Information (as defined below) to Recipient, and
Recipient may disclose Recipient Proprietary Information (as defined
below) to Nanophase.
Nanophase and Recipient therefore agree as follows:
1. Purpose. The purpose is to negotiate and operate a marketing
arrangement relating to applications for nanocrystalline materials ("the
Purpose").
2. Information Covered. This Agreement shall apply to all information of
a confidential or proprietary nature disclosed by Nanophase to Recipient
("Nanophase Proprietary Information") or disclosed by Recipient to
Nanophase ("Recipient Proprietary Information") regarding the Purpose,
whether such information is in tangible or intangible form, provided
that all information that is in written form or other tangible medium
shall prior to delivery be marked as "Confidential" or "Proprietary", and
all information disclosed orally or otherwise shall be identified as
being "Confidential" or "proprietary" by a memorandum delivered to the
recipient within sixty days after the date of disclosure. Nanophase
Proprietary Information and Recipient Proprietary Information are
sometimes collectively referred to in this Agreement as the "Proprietary
Information". Notwithstanding the foregoing, this Agreement shall not
apply to Proprietary Information which is:
(a) in the public domain at the time it is disclosed under this
Agreement;
(b) subsequently published or publicly disclosed by persons other than
Nanophase or Recipient;
(c) acquired by the recipient from a third person having no
obligation of confidentiality toward either Nanophase or Recipient;
(d) known to the recipient at the time of disclosure, provided that
the recipient shall have the burden of establishing such prior knowledge
by competent written proof;
(e) developed independently by or on behalf of the recipient, without
reliance on or use of any Proprietary Information of the disclosing party; or
(f) compelled by law to be disclosed, provided that the recipient
shall use its best efforts to give disclosing party ten days prior
written notice of compelled disclosure.
3. Non-Use of Proprietary Information. Nanophase agrees that during the
term of this Agreement it will not use any Recipient Proprietary
Information, and Recipient agrees that during the term of this Agreement
it will not use any Nanophase Proprietary Information, without the prior
written consent of the disclosing party, except for the Purpose.
4. Non-Disclosure of Proprietary, Information. Nanophase and Recipient
each agree to hold all Proprietary Information disclosed to it pursuant
to this Agreement in confidence and not to disclose such Proprietary
Information to any other person or entity. Notwithstanding the foregoing,
Nanophase and Recipient each agree that Proprietary Information disclosed
pursuant to this Agreement may be disclosed to its employees but only to
the extent that such disclosures are necessary to, and the employees to
whom such disclosures are made are engaged in, legitimate activities with
respect to the Purpose, and only if such employees have executed and
delivered prior to disclosure an agreement of such employees to hold such
information in confidence and nether to disclose nor to use such
information except as permitted by this Agreement. Nanophase and
Recipient each agree to take the same measures to preserve the secrecy
and confidentiality of all Proprietary Information disclosed hereunder as
in the case of the recipient's own most closely guarded trade secrets and
proprietary information.
4
5. Ownership: Not a License. All Nanophase Proprietary Information
shall remain the sole and exclusive property of Nanophase, and all Recipient
Proprietary Information shall remain the sole and exclusive property of
Recipient. This Agreement shall not be construed as a license, or an obligation
to negotiate a license, permitting the recipient to use the disclosing party's
Proprietary Information, except for the Purpose. Nanophase and Recipient each
acknowledge that the rights granted under this Agreement do not include any
rights under, interest in, or title to any patent applications that may be
filed or have been filed by or assigned to the disclosing party in connection
with the Proprietary Information, or patents that may issue therefrom.
Nanophase and Recipient each further acknowledge and agree that (a) this
Agreement shall not be construed as limiting in any way the right of the
disclosing party to enter into agreements from time to time which grant the
right under patents or patent applications to commercialize technology
developed by the disclosing party, and (b) the rights to commercial
applications of the Proprietary Information may have been, or may be, granted
to another party.
6. Return of Documents. All Nanophase Proprietary Information in the
possession of Recipient, and all Recipient Proprietary Information in
the possession of Nanophase, including without limitation written
materials and other information contained in a tangible medium of
expression (including without limitation magnetic or optical
recordings), any copies, extracts, summaries, compilations or
abridgments thereof, shall be returned to the disclosing party
immediately at the request of the disclosing party, and shall in any
case be returned immediately in the event that the purpose is no longer
being pursued. Notwithstanding the foregoing provision, Recipient's
legal counsel may retain one copy of Nanophase Proprietary Information,
and Nanophase's legal counsel may retain one copy of Recipient
Proprietary Information, in its respective confidential files for
archival purposes.
7. Successors and Assigns. This Agreement shall be binding on the
parties and their successors and assigns, provided that neither
Nanophase nor Recipient shall assign any of its rights under this
Agreement to any other party without the prior written consent of the
other party.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois applicable to
contracts made and to be performed entirely within the State of
Illinois.
9. Remedies. Because of the confidential and proprietary nature of the
Proprietary Information that is subject to this Agreement, the parties
agree that this Agreement may be enforced by injunction, specific
performance, or other equitable relief, without prejudice to any other
rights and remedies that the parties may have hereunder.
10. Notices. All notices required or desired to be given hereunder
shall be deemed delivered when given by hand delivery, or three days after
deposit for delivery by United States registered or certified mail, return ,
receipt requested, to the addresses listed below the parties' signatures, and
shall be effective upon delivery.
11. Severability. In the event that any court or any governmental
authority or agency declares all or any part of any section of this
Agreement to be unlawful or invalid, such unlawfulness or invalidity
shall not serve to invalidate any other section of this Agreement, and
in the event that only a portion of any section is so declared to be
unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate the balance of such section.
12. Term of Agreement. The obligations of the parties hereunder shall
terminate five years from the last disclosure of Proprietary Information
under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Nanophase Technologies Corporation Xxxxxxxxx, Xxxxx & Xxxxxxx, Inc.
000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000 Xxxxx Xxxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- ------------------------------
Xxxxxx X. Xxxxx, President Xxxxxxx X. Xxxxxxxx, President
