Exhibit 10.12
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into on this 6th day of July, 1995,
by and between FLUOROWARE, INC., a corporation organized and existing under the
laws of Minnesota, U.S.A., with its principal place of business at Chaska,
Minnesota, (U.S.A.) (hereafter "Supplier") and Metron Semiconductors Europa
B.V., a limited liability company organized and existing under the laws of The
Netherlands, with its principal place of business at Almere, The Netherlands
(hereafter "Distributor").
WHEREAS, Supplier designs, manufactures and sells products for use, in
the semiconductor industry, which Products are more particularly described in
Exhibit A attached hereto (the "Products"), and wishes to expand its market for
the Products in the geographical areas set forth in Exhibit B attached hereto
(the "Territories");
WHEREAS, Distributor has served as Supplier's distributor under various
distribution agreements dating back to 1975;
WHEREAS, Distributor wishes to assign this Agreement to those of its
subsidiaries and affiliates in the respective Territories as more particularly
described in Exhibit B;
WHEREAS, Supplier wishes to appoint Distributor and Distributor wishes
to accept such appointment, as the independent, exclusive distributor of the
Products in the Territories on the terms and conditions set forth herein; and
NOW, THEREFORE, Supplier and Distributor agree as follows:
1. APPOINTMENT OF DISTRIBUTOR, TERMS OF PRODUCT SALES.
1.1 Subject to all of the terms and conditions of this Agreement,
Supplier hereby appoints Distributor, and Distributor hereby accepts such
appointment, as the exclusive, independent distributor of the Products in the
Territories. Supplier may, however, sell Products to third parties for use in
the Territories on a representative basis, provided that Supplier shall pay
Distributor a commission with respect to such sales equal to ten percent
(10%) of the applicable sales list price of the Products. In certain
representative sales of Products, Supplier may allocate the commission
between Distributor and a third party, such allocation determined by Supplier
on an equitable basis and based on services performed by Distributor with
respect to such Products, consistent with past practice between Supplier and
Distributor. Moreover, Supplier shall not be prohibited from establishing
technical or support offices or organizations in the Territories, provided
that such offices or organizations may not engage in sales of the Products.
1.2 With the exception of Supplier's Critical Fluid Management
products, or such other products as agreed to by Supplier and Distributor,
Supplier shall sell the Products to Distributor at Supplier's current U.S.
domestic sales list prices, less Distributor's discount, as provided in
Exhibit A. Supplier's Critical Fluid Management products shall be sold
through Fluoroware GmbH to Distributor at Supplier's current GmbH sales list
price less Distributor's discount, as provided in Exhibit A. Supplier may
change its sales list prices upon sixty (60) days' advance written notice to
Distributor.
1.
1.3 Distributor shall have the right of first refusal to act as
distributor in the Territories and under the terms of this Agreement for any
modified, revised, up-dated or replacement products sold by Supplier and
related to the Products. Supplier shall notify Distributor immediately of any
such products.
1.4 Sales to the Distributor will be invoiced on an open account
basis. Sales invoices will be due for payment sixty (60) days after shipment
of the Products. A late payment penalty may be applied to late payments for
Products accepted by Distributor or Distributor's customers, without prior
written approval by Supplier. Such penalty shall be equal to the lesser of
the following interest rates in effect on the date the payment was due: (i)
two points plus the prime interest rate as announced by Xxxxxx Trust and
Savings Bank, and (ii) three points plus the statutory default late payment
interest rate under the laws of the Netherlands applicable to distribution
agreements.
1.5 Supplier shall retain title to the Products and bear the risk of
loss until delivery to the carrier, F.O.B. Supplier's factory or distribution
center, at which time title shall pass and the risk of loss shall be borne by
Distributor (or Distributor's customers). Provided, however, that beginning
September 1, 1996, Supplier and Distributor shall implement procedures to
provide for Supplier to retain title to the Products and bear the risk of
loss until delivery F.O.B. at Distributor's warehouse (or the place of
acceptance by Distributor's customer). In any event, Distributor (or
Distributor's customers) shall, directly or indirectly, bear the cost of any
customs duties, taxes, shipping and handling costs, and insurance with
respect to the shipment of the Products.
1.6 Notwithstanding the general rule provided in Section 1.5 above,
Supplier and Distributor may negotiate and arrange for certain sales of
Products pursuant to terms under which either: (i) Supplier shall retain
title to the Products and bear the risk of loss until delivery, F.O.B.
Distributor's warehouse (or the place of acceptance by Distributor's
customer), or (ii) Supplier shall retain title to the Products and bear the
risk of loss until delivery to the carrier, F.O.B. Supplier's factory or
distribution center.
2. OBLIGATIONS AND COVENANTS OF SUPPLIER.
2.1 Supplier will use its best efforts to comply with Distributor's
request for the means of shipping the Products as specified in Distributor's
orders and shall use its best efforts to notify Distributor in the event that
Supplier is unable to comply with such request. Supplier shall not send
partial shipments of Distributor's orders unless Distributor agrees in
advance.
2.2 Absent extraordinary circumstances and subject to written
agreement by Supplier and Distributor (such agreement which shall not be
unreasonably withheld), Supplier shall not sell the Products directly to
customers in the Territories and shall refer to Distributor in a timely
manner all orders and inquiries relating to the Products originating from
within or outside the Territories to the extent such orders or inquiries
relate to Products destined for use within the Territories.
2.3 In negotiation or renegotiation of any agreement with any of its
other distributors, agents or employees subsequent to the date of this
Agreement, Supplier will insist upon a
2.
covenant that such other distributor, agent or employee will not seek
customers or establish a branch or maintain any distribution outlet in the
Territories.
2.4 Supplier will, from time to time, supply Distributor, at
Supplier's cost, with a reasonable quantity of promotional materials in the
English language, such as literature, catalogs and other advertising
materials relating to the Products. Such promotional materials shall also be
translated in the native language of the country to which the Products are
shipped if required by applicable law.
2.5 Supplier will provide Distributor with reasonable numbers of the
Products for Distributor to use as samples and demonstration models. The
supply of the Products under this provision shall be on a consignment basis
only.
2.6 Supplier will conduct technical seminars and provide training
for sales or services related to the Products for the benefit of
Distributor's employees. Each party shall be responsible for the expenses
(including the cost of transportation, meals and lodging) incurred by its own
employees attending such seminars or training.
2.7 Supplier will, from time to time, and at its own cost (including
the cost of salaries and lodging for Supplier's employees), participate in
international trade shows for promoting the Products in the Territories
pursuant to agreement by Supplier and Distributor.
2.8 Supplier will use its best efforts to assist Distributor to
facilitate any import processing by providing Distributor with all required
documents and information.
2.9 Supplier agrees to comply with all applicable export control
laws and regulations relating to the Products. Supplier will also use its
best efforts to provide information necessary for Distributor to comply with
all applicable export control laws and regulations relating to the Products.
2.10 Supplier's warranties with respect to the Products are set
forth in the Exhibits C-1, C-2, C-3 and C-4 which are attached hereto and
incorporated herein by reference. Such warranties may be amended,
supplemented or replaced by Supplier, provided that Supplier provides
Distributor with sixty (60) days' prior written notice of such amended,
supplemented or replacement warranties.
2.11 Without Distributor's prior written consent, Supplier will not
use, reproduce, disclose or otherwise make available to any person, other
than Supplier's employees or agents who have a need to know such information,
any and all information, written or oral, which is disclosed by Distributor
to Supplier, identified as confidential information and not generally
available to the public. The term "confidential information" shall not
include information provided by Distributor to Supplier exclusively for the
purpose of soliciting potential and actual sales of the Products. In
addition, the term "confidential information" shall not include any
information that is or becomes known to the public through no fault of
Supplier.
2.12 Supplier shall accept for credit any inventory of spares or
equipment which is obsolete, provided that Distributor shall review its
inventory on an annual basis for the purpose of determining obsolescence, and
Supplier may refuse any Products held by Distributor for more
3.
than twelve (12) months. Supplier shall accept such obsolete equipment or
spares within six (6) months after written notice of obsolescence by
Distributor. Moreover, Supplier shall accept for credit or refund any
consumable Products that are in the original packaging and in good, saleable
condition as determined by Supplier. Supplier's credit or refund shall be
pursuant to agreement between Supplier and Distributor. Distributor shall pay
all costs of custom duties, insurance, shipping and handling costs for
returned Products.
2.13 During the term of any warranty made by Supplier with respect
to any Product sold by Distributor, Supplier shall maintain an adequate
inventory of spare parts for such Product.
2.14 Upon delivery of each Product by Supplier to Distributor,
Supplier shall supply Distributor or its customers with adequate
documentation for purposes of servicing and trouble-shooting such Product.
Such documentation shall comply with any applicable law. The cost of any such
manuals and documentation shall be included in the price of the Product under
Section 1.2 of this Agreement.
3. OBLIGATIONS AND COVENANTS OF DISTRIBUTOR.
3.1 Distributor will use its best efforts to market and sell the
Products in the Territories.
3.2 Except as otherwise required by law, Distributor will market and
sell the Products without removing or altering any labels, trade names,
trademarks, notices, labels, serial numbers or other identifying marks,
symbols or legends affixed to any of the Products or their containers or
packages.
3.3 Supplier shall not be liable under any warranties made by
Distributor with respect to any of the Products which exceed the warranties
made by Supplier. Supplier may modify any warranties upon reasonable notice
to Distributor, provided, however, that such amended warranties will not
apply to Products sold or Products which Distributor has entered into a
contract to sell but which have not yet delivered.
3.4 Without Supplier's prior written consent, Distributor shall not
use, produce or disclose or otherwise make available to any person, other
than Distributor's employees or agents who have a need to know such
information for the performance of its obligations hereunder, any and all
information written or oral, which is disclosed by Supplier to Distributor,
identified as confidential information and not generally available to the
public. The term "confidential information" shall not include information
provided by Supplier to Distributor exclusively for the purpose of soliciting
potential and actual sales of the Products. In addition, the term
"confidential information" shall not include any information that is or
becomes known to the public through no fault of Distributor.
3.5 Distributor shall furnish to Supplier, upon Supplier's
reasonable requests from time to time, reports including, but not limited to,
actual and forecast sales, market conditions and competitive activity.
4.
3.6 Distributor will, from time to time, and at its own cost
(including the cost of salaries and lodging for Distributor's employees),
participate in international trade shows for promoting the Products in the
Territories pursuant to agreement by Supplier and Distributor.
3.7 Distributor shall use its best efforts to install and service
any Products during any applicable warranty period. Distributor may contract
with other individuals or business entities to assist Distributor in
installing and servicing the Products, provided that such individuals or
business entities: (i) have adequate training to install and service the
Products, and (ii) agree in writing that they will not compete with Supplier
by selling any products or equipment in the Territories during the term of
this Agreement, to the extent that such products or equipment are similar in
function to any Products sold by Supplier.
4. TERM AND TERMINATION.
4.1 Unless and until sooner terminated as provided for herein, this
Agreement shall continue for a term of three (3) years commencing on July 1,
1995 and will be deemed automatically renewed thereafter for one or more
additional terms of two (2) years and on the same conditions.
4.2 This Agreement may be terminated by either party upon providing
the other party with written notice of termination more than twelve (12)
months prior to expiration of the applicable term, i.e., more than twelve
(12) months prior to expiration of the initial three-year term or more than
twelve (12) months prior to expiration of an ensuing two-year extension.
4.3 In the event of a breach of any material provision of this
Agreement, this Agreement may be terminated upon ninety (90) days' written
notice given by the nonbreaching party to the other party, which notice shall
specify the breach on which the termination is based, provided, however, that
in such event this Agreement shall continue in full force and effect without
regard to such notice if the other party cures the breach specified in the
notice within the said 90-day period.
4.4 This Agreement will terminate immediately upon the occurrence of
any of the following events:
(a) All or any substantial part of the property of either party
shall be condemned, seized or otherwise appropriated, or the custody or
control of such property shall be assumed by any person or agency acting or
purporting to act under authority of any government (de jure or de facto) or
either party shall have been prevented from exercising normal managerial
control over all or any substantial part of its property by any such person
or agency; or
(b) Either party shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator for its business or of all
or any substantial part of its assets, or (ii) be unable, or admit in writing
its inability, to pay its debts as they mature, (iii) make a general
assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or
insolvent, or (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking reorganization or an arrangement with creditors or seeking to
take advantage of any insolvency law, or file an answer admitting the
material allegations of a petition filed against either party in any
bankruptcy, reorganization or
5.
insolvency proceeding, or take corporate action for the purpose of effecting
any of the foregoing; or
(c) An order, judgment or decree shall be entered without the
application, approval or consent of the subject party by any court of
competent jurisdiction, approving a petition seeking reorganization of the
party or appointing a receiver, trustee or liquidator of its business or of
all or any substantial part of its assets; or
(d) An order or notice shall be published by any government or
inter-government authority requiring the cessation of trading activities with
the subject party as a result of the violation of export controls, safety or
other regulatory laws.
4.5 Upon termination of this Agreement, Distributor shall no longer
have the right to serve as a distributor of the Products in the Territories
and shall not be entitled to any additional consideration as a result of such
termination. However, Distributor shall have the right to continue selling in
the Territories the Products which are in Distributor's inventory at the time
of termination of this Agreement; such right, however, shall terminate six
(6) months after termination of this Agreement. Supplier shall accept all
Products returned by Distributor for full refund if Distributor so requests
in writing within twelve (12) months after termination of this Agreement,
such refund to be made at the prices for which the Products were originally
purchased by Distributor from Supplier, provided that the returned Products
are in good condition as approved by Supplier, such approval by Supplier
shall not unreasonably be withheld or delayed.
4.6 Upon termination of this Agreement, Distributor shall cease to
represent itself as being a distributor of Supplier. Within sixty (60) days
after termination, Distributor will return to Supplier all promotional
materials for and samples and demonstration models of the Products.
4.7 Notwithstanding termination of this Agreement upon notice as
provided in Section 4.2 of this Agreement, Supplier shall continue to provide
Products in conformity with and pursuant to the terms of this Agreement
during the remaining term of this Agreement. Further, in the event of a
termination notice, Distributor shall notify Supplier by the termination
date, of a list of all prospective customers interested in the Products. If,
within six (6) months after the termination date, Supplier receives a
purchase order from any of the identified prospects, Supplier (i) shall
promptly notify Distributor of such purchase order and (ii) shall pay to
Distributor a commission equal to the Distributor's discount with respect to
the Products under such purchase order.
4.8 Notwithstanding termination of this Agreement, Distributor shall
continue to perform all warranty service during the term of any applicable
warranty period, whether such warranty expires before or after the
termination of this Agreement, with respect to any Products sold by, on
behalf of, or in cooperation with Distributor.
4.9 Upon the termination, expiration or non-renewal of this
Agreement, Supplier shall not be liable to Distributor for any compensation,
reimbursement or damages on account of the loss of prospective profits from
anticipated sales, or on account of any expenditures, investments, losses or
commitments in connection with the business or goodwill of Supplier,
Distributor, or
6.
otherwise, provided that Supplier has not breached any material provision of
this Agreement, except as expressly provided in Section 4.7 of this Agreement.
5. INDEMNIFICATION.
5.1 Distributor hereby agrees to indemnify and hold Supplier
harmless from and against any and all damages, liabilities, fines or expenses
incurred by Supplier as a result of Distributor's breach of any provision
hereof.
5.2 Supplier hereby agrees to indemnify and hold Distributor
harmless from and against any and all damages, liabilities, fines or expenses
incurred by Distributor as a result of Supplier's breach of any provision
hereof.
5.3 Supplier agrees to defend and hold Distributor harmless from and
against any and all damages, liabilities, fines or expenses incurred by
Distributor in connection with any claim or lawsuit arising out of the
design, manufacture, use, Supplier's warranty, or any defect ("gebrek") of
any of the Products, provided that Distributor has complied with its
obligations hereunder and has given prompt notice of the claim or lawsuit to
Supplier together with all information and documents relating to such a claim
or lawsuit. Distributor hereby agrees to assist Supplier in defending such
claim or lawsuit.
5.4 Supplier agrees to defend and hold Distributor harmless from and
against any and all damages, liabilities, fines or expenses incurred by
Distributor in connection with any claim or lawsuit arising out of any
infringement or alleged infringement of any patent or other intellectual
property rights of any person, firm or company in the Territories, provided
that Distributor has given prompt notice of the claim or lawsuit to Supplier
together with all information and documents relating to such a claim or
lawsuit. Distributor hereby agrees to assist Supplier in defending such claim
or lawsuit.
5.5 The indemnification agreements as provided in this Section 5
shall continue in full force and effect despite the expiration, recision, or
termination of this Agreement.
6. RELATIONSHIP OF THE PARTIES.
6.1 The relationship between Supplier and Distributor is an
independent contractor relationship between a seller and buyer. Neither
Distributor, nor any employee of Distributor, shall be considered an employee
or agent of Supplier for any purpose. Unless otherwise expressly authorized
in writing by the other party hereto, neither party shall have the right or
authority to assume or create any responsibility, express or implied, on
behalf of or in the name of the other party hereto, or to bind the other
party in any manner whatsoever, or to accept payment from any person on
behalf of the other party.
6.2 Supplier hereby grants a license to Distributor permitting
Distributor to use Supplier's trademarks and trade names only in connection
with the sale of Products. Distributor agrees to use Supplier's trademarks
and trade names in connection with the sale of any Products. This license
shall terminate upon the termination of this Agreement, at which time
Distributor shall cease to and shall not thereafter use, and shall not permit
any of its agents, employees or subsidiaries thereafter to use, for any
purpose whatsoever, any of Supplier's trademarks or trade
7.
names other than for the purpose of selling Products in Distributor's
inventory as specifically provided in Section 4.5 of this Agreement, or
pursuant to any other written agreement between the parties. Nothing in this
Agreement shall be deemed to transfer to or confer upon Distributor any
right, title or interest in any trademark or trade name owned by or used by
Supplier.
6.3 During the term of this Agreement and for a period of six (6)
months after termination of this Agreement, (i) Supplier shall not, without
Distributor's prior written consent, solicit employees of Distributor or any
of its subsidiaries for employment with Supplier or otherwise interfere with
Distributor's relationship with its employees, and (ii) Distributor shall
not, without Supplier's prior written consent, solicit employees of Supplier
or any of its subsidiaries for employment with Distributor or otherwise
interfere with Supplier's relationship with its employees. This Section shall
not restrict or prohibit (i) Supplier from hiring an employee of Distributor
or any of its subsidiaries, if such employee applies for employment with
Supplier by responding to an announcement of an available employment
position, and (ii) Distributor from hiring an employee of Supplier or any of
its subsidiaries, if such employee applies for employment with Distributor by
responding to an announcement of an available employment position.
7. ASSIGNMENT.
7.1 Neither this Agreement nor any right, title, interest or
obligation hereunder may be assigned or otherwise transferred by either party
or their assignees, transferees or successors in interest without the prior
written consent of the other party. This Agreement shall inure to the benefit
of such assignees, transferees and other successors in interest of the
parties in the event of an assignment or other transfer made consistent with
the provisions of this Agreement.
7.2 By its signature to the Agreement, Supplier consents to the
assignment of this Agreement to Distributor's affiliated companies in the
respective geographical areas set forth in Exhibit B attached hereto.
8. FORCE MAJEURE.
Neither party shall be liable for any breach of this Agreement
occasioned by an act of God, labor disputes, unavailability of transportation,
goods or services, governmental restrictions or actions, change in the law, war
(declared or undeclared) or other hostilities, or by any other event, the
condition or cause of which is beyond the control of such party. In the event of
nonperformance or delay attributable to any such causes, the period for
performance of the applicable obligation hereunder will be extended for a period
equal to the period of delay. However, the party so delayed shall use its best
efforts, without obligation to expend substantial amounts not otherwise required
under this Agreement, to circumvent or overcome the cause of the delay. In the
event that any such delay exceeds sixty (60) days, either party may at its
option terminate this Agreement effective immediately by giving written notice
thereof to the other party.
9. NOTICES.
Any notice required to be given hereunder shall be deemed to have been
effectively given only when delivered personally to an officer of the applicable
party, or when first sent by telefax
8.
and confirmed by registered mail, addressed to the applicable party at its
address set forth below, or at such other address as such party my hereafter
designate as the appropriate address for the receipt of such notice:
To Supplier at: Fluoroware, Inc.
Attention: Xxxx Xxxxx
000 Xxxxxxxx Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
X.X.X.
To Distributor at: Metron Semiconductors Europa B.V.
c/o Metron Technology Corporation
Attention: Xxxxxx Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
X.X.X.
With a copy to: Metron Semiconductors Europa B.V.
Attention: Xxx Xxxxxxx
Saturnstra(beta)e 48
D-85609 Aschheim
Germany
10. WAIVER.
No waiver by either party of strict compliance with all terms and
conditions of this Agreement shall constitute a waiver of any subsequent failure
of the other party to comply strictly with each and every term and condition
hereof.
11. COMPLETE AGREEMENT.
This Agreement constitutes the entire agreement between the parties
relating to the subject matter contained herein and it supersedes and terminates
any and all prior agreements between them, including the Distribution Agreement
between Supplier and Distributor dated September 1, 1988, and the Conditions of
Sales Representative Term Agreement between Supplier and Metron Semiconductors
(Hong Kong) Ltd., dated June 4, 1985, as amended on October 22, 1985, June 4,
1986, and June 19, 1986. If any provision, or application hereof, of this
Agreement is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications that can be
given effect and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had not been contained herein. This
Agreement may be amended or otherwise modified only by a written document signed
by authorized representatives of the parties.
12. COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which shall
be deemed an original, but both of which shall constitute but one instrument.
9.
13. ARBITRATION AND APPLICABLE LAW.
13.1 Any dispute between the parties arising out of or in connection
with this Agreement that cannot be settled amicably between the parties shall
be finally resolved by arbitration. Arbitration proceedings shall be
conducted in Minneapolis, Minnesota pursuant to the International Arbitration
Rules of the American Arbitration Association. In the event that either party
makes a demand for arbitration, the arbitrator shall be selected by mutual
agreement between the parties, or if the parties are unable to agree on an
arbitrator within twenty (20) days after a demand for arbitration is made,
the arbitrator shall be selected by the American Arbitration Association.
Disputes subject to arbitration hereunder for claims in the aggregate amount
of One Million (U.S.) Dollars ($1,000,000.00) shall be resolved by a panel of
three independent impartial arbitrators, one arbitrator selected by Supplier,
one by Distributor and the third by the other two arbitrators. Failure to
select an arbitrator within twenty (20) days of a demand for arbitration
shall be deemed a waiver of a right to select an arbitrator and one will be
selected by the American Arbitration Association. All arbitrators shall be
persons with skill and experience in the industry. The costs of arbitration,
but not the costs and expenses of the parties, shall be shared equally by
Supplier and Distributor.
13.2 Either party shall have the right to review, prior to the
submission of its case to the arbitration panel, any and all documents in the
possession of the other party which relate to such other party's performance
under, or the conduct of its activities in connection with, this Agreement.
13.3 The governing language of this Agreement shall be English. This
Agreement shall be interpreted and enforced in accordance with the laws of
the United States and the State of Minnesota, without giving effect to choice
of law principles. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
13.4 The agreement to arbitrate as provided in this Section 13 shall
continue in full force and effect despite the expiration, recision, or
termination of this Agreement. The parties knowingly and voluntarily waive
their rights to have their dispute tried and adjudicated by a judge or jury.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
10.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DISTRIBUTOR: SUPPLIER:
METRON SEMICONDUCTORS EUROPA B.V. FLUOROWARE, INC.
By: \s\ Xxx Xxxxxxx By: \s\ Xxxxx Xxxxxxxxx
------------------------------- -------------------------------
Title: Executive Vice President Title: Executive Vice President
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11.
