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EXHIBIT 10.09
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT is made and entered into by and between
ANSYS, INC. (hereinafter referred to as the "Company"), a corporation organized
and existing under the laws of the State of California and having its principal
place of business at 00000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx
00000-0000, Xxxxxx Xxxxxx of America, and XXXXXXXXXXXXX (hereinafter referred to
as the "Distributor"), a company organized and existing under the laws of
XXXXXXX and having its principal place of business at XXXXXXXXXXXXXXXXXX.
W I T N E S S E T H:
WHEREAS, the Company desires to promote the distribution, sale and use of
the Products (defined in Section 1.2 hereof) in the Territory (defined in
Section 1.3 hereof) and is willing to appoint the Distributor as its exclusive
distributor of the Products in the Territory, on the terms and conditions set
forth hereinafter;
WHEREAS, the Distributor desires to be appointed as such exclusive
distributor, on the terms and conditions set forth hereinafter; and
WHEREAS, the Company and the Distributor have engaged in extensive
negotiations over the terms and conditions set forth hereinafter and each of
them, after careful consideration in conjunction with legal counsel, is willing
and able to enter into an exclusive distributorship arrangement, on such terms
and conditions;
NOW, THEREFORE, in consideration of the premises set forth above and the
mutual promises hereinafter contained, the parties hereto agree as follows:
ARTICLE 1. APPOINTMENT
SECTION 1.1 APPOINTMENT AND ACCEPTANCE OF APPOINTMENT. The Company appoints
the Distributor, and the Distributor accepts appointment, as the Company's
exclusive distributor to promote, distribute and sell the Products (defined in
Section 1.2 hereof) in the Territory (defined in Section 1.3 hereof; provided,
however, that if, at any time during the term hereof, Section 1.6 hereof should
be deemed to be invalid or unenforceable in the Territory, then the Distributor
shall thereafter cease to be an exclusive distributor of the Products and the
Company shall be entitled to make sales itself or to appoint other distributors
of the Products in the Territory.
SECTION 1.2 PRODUCTS. The Distributor is authorized to promote, distribute
and sell in the Territory only those products specified in Schedule A attached
hereto and incorporated herein, as such Schedule A may be amended in writing by
the parties hereto from time to time during the term hereof (all of such
products hereinafter collectively referred to as the "Products"). The Company
reserves the right to make sales itself or to appoint other distributors of any
other of the Company's products in the Territory.
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SECTION 1.3 TERRITORY. The territory in which the Distributor is authorized
to actively solicit customers of the Products is limited to the geographic
area(s) specified in Schedule B attached hereto and incorporated herein, as such
Schedule B may be amended in writing by the parties hereto from time to time
during the term hereof, and does not include any other place in the world
(hereinafter referred to as the "Territory"). The Distributor shall not actively
solicit sales of the Products outside the Territory and shall not establish any
branch or maintain any distribution depot or warehouse outside the Territory for
the Products, except with the prior written consent of the Company.
SECTION 1.4 RESTRICTIONS ON AUTHORITY. For all purposes under this
Agreement, the Distributor is an independent contractor and shall not be deemed
to be an employee, agent, partner or legal representative of the Company. This
Agreement does not grant, and the distributor shall not have, any authority,
express or implied, to create or assume any obligation, enter into any
agreement, make any representation or warranty, file any document with any
governmental body or serve or accept legal process on behalf of the Company, to
settle any claim by or against the Company, or to bind or otherwise render the
Company liable in any way in the Territory or anywhere else in the world,
without the prior express written consent of the Company. The Distributor shall
purchase the Products for its own account from the Company and shall re-sell the
Products for its own account in the Territory.
SECTION 1.5 EMPLOYEES OF DISTRIBUTOR. The Distributor shall be responsible
for the selection, training and supervision of, and the payment of remuneration
and benefits to, its employees who assist it in the performance of its
obligations hereunder and in no event shall the Company have any obligation to,
or authority over, such employees of the Distributor.
SECTION 1.6 NON-COMPETITION.
1.6.1 The Distributor shall use its best efforts to attain and sustain
maximum sales of the Products in the Territory and shall refrain from
diminishing or otherwise weakening the Company's rights by engaging in any
activities whatsoever in the Territory that might reasonably be deemed as
injurious to the sales potential of the Products in the Territory.
1.6.2 The Distributor represents and warrants to the Company that, as
of the Effective Date of this Agreement (as defined in Section 17.1 hereof), the
Distributor is not, directly or indirectly, acting as an agent, representative
or distributor in the Territory for, and is not, directly or indirectly, selling
or distributing in the Territory, any products that are similar to or
competitive with the Products. Products are defined to include not only thin
layer chromatographic products, but also other toxicology products used in
extraction, separation, or detection of drugs, including immunoassays.
Furthermore, during the term of this Agreement, the Distributor shall not,
directly or indirectly, act as an agent, representative or distributor in the
Territory for, and shall not, directly or indirectly, design, develop,
manufacture, license, promote, sell or distribute in the Territory, any products
that are similar to or competitive with the Products.
1.6.3 The Distributor agrees that any breach by it of its obligations
under this Section 1.6 shall be just cause for termination under Section 18.3
hereof.
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ARTICLE 2. TERMS OF SALE
SECTION 2.1 PURCHASE ORDERS. In making its purchases of the Products from
the Company, the Distributor shall submit written purchase orders to the Company
at the address set forth in Article 15 below, which the Company may, in its sole
discretion, accept or reject, in whole or in part, for any one of the following
reasons: the Company is unable to fill a purchase order due to the needs of its
other customers or other commercial reasons; the Company has experienced an
event of force majeure as defined in Article 14, the Company has decided to
cease manufacturing the Products or to cease selling the Products in the
Territory; and the order(s) contain terms or conditions inconsistent with the
terms of this Agreement or the course of dealing between the parties hereto or
violative of applicable U.S. or California or New Jersey law. If the Company
rejects a purchase order for any of such reasons, the Company shall provide the
Distributor with a written statement thereof. The Company reserves the right to
distribute any unusually large orders over an extended period of time. The
Company may, in its sole discretion, determine whether an order is unusually
large and what extended shipment period is acceptable. The Company may, in its
sole discretion, accept and act on telecopy or telephone purchase orders issued
by the Distributor; provided, however, that, upon the request of the Company,
the Distributor shall promptly confirm telephone purchase orders in writing or
by telecopy. No purchase orders accepted by the Company may be cancelled by
either the Distributor or the Company, unless the parties hereto agree otherwise
in writing.
SECTION 2.2 PRICES TO DISTRIBUTOR.
2.2.1 The purchase prices for the Products shall be the prices
specified in Schedule C attached hereto and incorporated herein, as such
Schedule C may be amended from time to time during the term hereof by the
Company on each January 1, in its sole discretion, on sixty (60) days calendar
days' prior written Notice to the Distributor; provided, however, that, within
the ten (10) calendar days following the date of such Notice by the Company, the
Distributor may order, at the previously prevailing prices, such quantities of
the Products as are reasonably needed by the Distributor during the thirty (30)
calendar day period immediately following the date of such Notice to fill
contracts and outstanding quotations existing on the date of the Company's
Notice of such price changes.
SECTION 2.3 PAYMENT TERMS.
2.3.1 Each purchase order hereunder shall specify the amount, manner
and timing of payment thereunder; provided, however, that, in all cases, the
Company shall be paid in the same currency reflected on the Company's invoices
to the Distributor, and payment shall be made, at the option of the Company, by
one of the following three methods: a bank draft, a wire transfer of immediately
available funds or by an irrevocable letter of credit drawn in favor of the
Company, confirmed by a U.S. banking institution acceptable to the Company and
on terms and conditions acceptable to the Company. In all cases, the following
payment terms shall prevail: 2% discount on those prices specified in Schedule C
attached hereto if paid within thirty (30) calendar days of the date of the
company's invoice, and the full amount of those prices specified in Schedule C
attached hereto if paid within sixty (60) days of the date of the Company's
invoice; provided, however, that the Company may, in its sole discretion, upon
Notice to the Distributor, alter such payment terms at any time during the term
hereof and any such alteration shall be effective with respect to any and all
purchase orders
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not theretofore accepted by the Company.
2.3.2 Acceptance and endorsement by the Company of any instrument for
less than the full amount that the Company claims to be due and payable to it
under a purchase order or hereunder shall not be deemed to be an admission of
payment in full, and any conditions to the contrary that are noted on such
instrument shall not be binding on the Company.
SECTION 2.4 DELIVERY.
2.4.1 Delivery schedules stated by the Company are estimates only and
are not guaranteed by the Company, but the Company shall, subject to Article 14
hereof, attempt to make delivery within a reasonable time, taking into account
the Distributor's need to obtain the Products, the availability of
transportation, the needs of other customers of the Company, the existence of
special orders and other commercial matters. The Company shall not be obligated
to deliver any Products without timely receipt of shipping instructions from the
Distributor, and the Company shall not be obligated to ship Products that have
been discontinued or that are temporarily out of stock.
2.4.2 Unless the parties hereto otherwise agree in writing or by
telecopy with respect to a given purchase order, the Distributor shall be
responsible for all shipping, freight, duty and customs charges related to the
Products ordered.
SECTION 2.5 PRICING POLICIES OF DISTRIBUTOR. The Distributor and the
Company shall develop and adopt an annual budget for each year during the term
hereof. Any increases in the prices for the Products other than in accordance
with the budget adopted by the parties must be approved in writing by the
Company, which approval shall not be unreasonably withheld. It is the intent of
the parties that the Distributor achieve a fair profit on the sale of the
Products, considering the Distributor's direct and indirect costs of marketing
and advertising the Products, of the product manager assigned to the Products,
and other technical support, all as provided herein. The Distributor shall
determine the other financial terms and conditions under which it will re-sell
the Products in the Territory.
SECTION 2.6 RETURN OF PRODUCTS. Distributor agrees to abide by the terms of
the Company's returned goods policy, and no Product may be returned after
shipment to the Distributor, except as permitted in the Company returned goods
policy as such may be amended from time to time by the Company.
SECTION 2.7 TAXES. Any and all customs, tariffs and duties or excise,
sales, use, value-added or other taxes or levies imposed by any governmental
body in the Territory on the Distributor or the Company in connection with the
sale of the Products to or by the Distributor shall be paid by the Distributor.
The Distributor shall fully reimburse and indemnify the Company for any amount
actually paid by the Company or withheld by the Distributor for any such taxes
or levies within thirty (30) calendar days after the date on which the Company
gives notice thereof to the Distributor or after the date of withholding by the
Distributor, as the case may be.
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ARTICLE 3. INTELLECTUAL PROPERTY AND TRADEMARKS
SECTION 3.1 CERTAIN DEFINITIONS.
3.1.1 "Company's Property" shall mean any and all confidential
inventions, trade secrets, manufacturing processes, know-how, product designs,
machine designs, technical information, technical designs, engineering data,
specifications, blueprints, drawings, formulae, manuals, customer lists, vendor
and supplier lists and agreements, distributor and sales representative lists
and agreements, marketing and other business strategies, forms, sales aids, and
other confidential information and materials, whether or not in documentary form
and whether or not patented by the Company or its parent, subsidiaries or other
affiliates in the Territory or elsewhere, that are heretofore and hereafter
owned or controlled by the Company or its parent, subsidiaries or other
affiliates and that relate to the design, production, operations, marketing,
sale, distribution and use of the Products or that otherwise relate to the
business, products and services of the Company or its parent, subsidiaries or
other affiliates.
3.1.2 "Company's Trademarks" shall mean any and all of the trademarks,
service marks or trade names, whether or not registered by the Company or its
parent, subsidiaries or other affiliates in the Territory or elsewhere, and all
good will related thereto, that are heretofore and hereafter owned or controlled
by the Company or its parent, subsidiaries or other affiliates and that are
associated with the Products.
SECTION 3.2 OWNERSHIP AND LIMITED LICENSE TO REPRODUCE COMPANY'S
TRADEMARKS. Any and all of Company's Property and Company's Trademarks are and
shall remain the exclusive property of the company or its parent, subsidiaries
or other affiliates. This Agreement gives the Distributor no rights therein; the
Distributor shall have no rights therein; and the Distributor shall never assert
any rights therein; provided, however, that the Company grants the Distributor a
limited, non-exclusive, fully paid-up license to reproduce Company's Trademarks
in advertisements and other promotional materials during the term of this
Agreement. Such license is granted for the sole purpose of assisting the
Distributor in promoting the sale and use of the Products in the Territory under
this Agreement. Subject to Section 18.7 hereof, such license shall expire
immediately upon the expiration of this Agreement or the termination of this
Agreement, with or without cause.
SECTION 3.3 CERTAIN ADDITIONAL RESTRICTIONS.
3.3.1 The Products to be sold to the Distributor hereunder shall bear
Company's Trademarks. The Distributor shall not remove, conceal or alter any of
Company's Trademarks on the Products. The Distributor shall promote and sell all
Products in their original packages and under the original labels provided by
the Company; provided, however, that the Distributor shall fully and timely
advise the Company of all laws and regulations of the Territory governing the
packaging and labelling of the Products and provided further that, upon receipt
of such information, the Company shall ensure that the packaging and labelling
of the Products fully complies with all such laws and regulations. The
Distributor shall make no modifications, alterations, changes, enhancements or
additions in or to the Products or the Company's Trademarks, except for the
addition of the name and address of the Distributor to the Products, displaying
the name and address of the Distributor and the Company in the same-size print
on the Products.
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3.3.2 The Distributor shall include an appropriate trademark or trade
name notice on its advertisements, sales literature, press releases and all
other marketing materials that use Company's Trademarks.
3.3.3 The Distributor shall not use Company's Trademarks on its
letterhead or in its Company name; provided, however, that the Distributor may
include the following statement on its letterhead and promotional literature:
"Authorized Distributor of Toxi-Lab Products".
3.3.4 The Distributor represents and warrants that it has not sought
or obtained, and agrees that it shall not seek or obtain, in the Territory or
elsewhere, any trademark or tradename registration embodying Company's
Trademarks or any patent or other intellectual property protection for any of
the Company's Property, unless authorized to do so in advance in writing by the
Company.
SECTION 3.5 CONFIDENTIALITY.
3.5.1 During the term of this Agreement at all times after the
expiration of this Agreement or the termination of this Agreement, with or
without cause, the Distributor shall treat all Company's Property disclosed or
supplied to it by the Company as confidential and shall cause, instruct and
oblige its directors, officers, employees and agents and any other person acting
in concert with it or on its behalf and having access to such Company's Property
to keep the same in confidence. The Distributor shall not, at any time, in any
way, directly or indirectly, (i) communicate, disclose, disseminate, lecture
upon or publish articles concerning Company's Property nor (ii) aid anyone else
in such communication, disclosure, dissemination, lecturing or publishing, nor
(iii) use, nor aid anyone else in using, Company's Property, without the prior
express written consent of the Company; provided, however, that the
Distributor's obligation of secrecy and non-use under this Agreement shall not
apply to (a) information that the Distributor is using strictly in accordance
with the terms of this Agreement for the limited purpose of promoting the sale
and use of the Products in the Territory; (b) information that at the time of
the disclosure by the company to the Distributor is in the public domain; (c)
information that, after disclosure by the Company to the Distributor, becomes
part of the public domain by publication or otherwise, through an authorized
source other than the Distributor and without the fault of the Distributor; and
(d) information that the Distributor can show by written records was in the
Distributor's possession prior to the disclosure by the Company to the
Distributor and was not acquired, directly or indirectly, from the Company.
3.5.2 The Distributor shall bear the burden of proving by clear and
convincing evidence the existence of any of the exceptions (a) through (d) in
Section 3.5.1 hereof to the Distributor's obligation of secrecy and non-use
under this Agreement, and shall provide Notice to the Company of the reliance on
any such exception no less than fifteen (15) days prior to the communication,
etc. of any Company's Property.
3.5.3 During the term of this Agreement, the Distributor shall not,
under any circumstances, copy, replicate, imitate, or reverse engineer any
products of the Company, including, but not limited to, the Products.
3.5.4 Upon the expiration of this Agreement or the termination of this
Agreement, with or without cause, the Distributor shall, subject to Section 18.7
hereof, immediately return to the
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Company any and all Company's Property, including, but not limited to, any
documentary embodiment thereof.
SECTION 3.6 INFRINGEMENT. The Distributor shall give immediate Notice to
the Company of any and all infringements of Company's Property Trademarks that
come to the Distributor's attention during the term of this Agreement and shall
assist the Company in taking such action against such infringement as the
Company may, in its sole discretion, decide to take; provided, however, that all
costs and expenses incurred in connection with any such infringement action
shall be borne by the Company. The Company shall hold the Distributor harmless
from, and shall indemnify the Distributor against, any and all claims, losses,
liabilities, damages and costs and expenses (including, but not limited to,
costs of investigation, court costs, arbitrators' fees and attorneys' fees) that
the Distributor may incur by reason of any infringement by the Company of any
trademark or patent or other proprietary right of any third party.
SECTION 3.7 INJUNCTIVE RELIEF. The parties hereto understand and agree that
remedies at law may be inadequate to protect against any breach of any of the
provisions of this Article 3 by the Distributor or any of its employees, agents,
officers or directors or any other person acting in concert with it or on its
behalf. Accordingly, the Company shall be entitled to the granting of injunctive
relief by a court of competent jurisdiction against any action that constitutes
any such breach of this Article 3. It is understood that such injunctive relief
is intended solely as provisional relief pending arbitration in accordance with
Article 10 hereof.
SECTION 3.8 INDEMNIFICATION. Each party shall hold the other harmless from,
and shall indemnify the other against, any and all claims, losses, liabilities,
damages and costs and expenses (including, but not limited to, costs of
investigation, court costs, arbitrators' fees and attorneys' fees) that the
indemnified party may incur by reason of any breach of any of the provision of
this Article 3 by the indemnifying party or any of its employees, agents,
officers, or directors or any other person acting in concert with it or on its
behalf.
ARTICLE 4. PROMOTIONAL ACTIVITIES
SECTION 4.1 PROMOTIONAL ACTIVITIES OF THE DISTRIBUTOR. During the term
hereof, the Distributor, at its sole cost and expense, covenants and agrees to:
4.1.1 Use its best efforts to establish and maintain favorable
relations with officials of applicable health ministries;
4.1.2 Monitor closely the activities of sub-distributors;
4.1.3 Participate actively and engage in sufficient advertising and
publicity campaigns, scientific meetings and exhibitions, trade fairs and shows,
and other marketing activities, to promote vigorously and consistently the sale
of the Products throughout the Territory;
4.1.4 Promote vigorously new Toxi-Lab products introduced by Ansys,
provided such products become Products hereunder, all in accordance with
strategies and schedules determined by the Distributor and the Company on a
Product by Product and market by market basis.
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SECTION 4.2 PROMOTIONAL ACTIVITIES OF THE COMPANY. During the term hereof,
the Company, at its sole cost and expense, covenants and agrees to:
4.2.1 Provide at least one (1) technical support specialist on site in
the Territory a minimum of one (1) time per year to (a) conduct appropriate
training sessions and workshops for all employees of the Distributor engaged in
promoting the Products, and (b) conduct in-service support for the Products at
the offices of key purchasers and users of the Product;
4.2.2 Make such contributions to the Distributor's marketing budget as
the Company may determine in its discretion; and
4.2.3 Make such contributions to the Distributor's new product launch
budget as the Company my determine in its discretion, including product
literature, samples and other informational materials.
ARTICLE 5. MINIMUM SALES
SECTION 5.1 MINIMUM SALES. In addition to all of its other obligations
under this Agreement, the Distributor shall achieve the annual minimum sales of
the Products specified on Schedule D attached hereto and incorporated herein, as
such Schedule D may be amended in writing by the parties hereto from time to
time during the term hereof. The Distributor understands and acknowledges that
its strict fulfillment of such minimum sales is an essential condition to this
Agreement and that its failure to make any of such sales shall be just cause for
termination of this Agreement pursuant to Section 18.3 hereof.
SECTION 5.2 REPORTING OBLIGATIONS.
5.2.1 During the term hereof, the Distributor shall provide, monthly
in arrears, a sales report (in U.S. dollars), on a country by country basis.
5.2.2 To underscore that the arrangement contemplated by this
Agreement is an exclusive distributorship and not a sales agency, the parties
hereto agree that under no circumstances shall the Distributor be required to
provide the Company at any time during the term of this Agreement or upon its
expiration or termination, the names and addresses of any of the Distributor's
customers of the Products in the Territory.
ARTICLE 6. WARRANTY COVERAGE
SECTION 6.1 WARRANTY LIMITATION. The sole warranties that the Company
grants with respect to the Products are set forth on the Products or their
packaging. EXCEPT AS STATED IN THE FOREGOING SENTENCE, THE COMPANY DISCLAIMS ANY
AND ALL WARRANTIES ON THE PRODUCTS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, ANY WARRANTIES OF THEIR MERCHANTABILITY OR THEIR FITNESS FOR A
PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF
TRADE. TO THE EXTENT THAT ANY IMPLIED WARRANTIES MAY NOT BE DISCLAIMED, SUCH
WARRANTIES ARE EXPRESSLY
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LIMITED TO THE DURATION OF THE EXPRESS WARRANTY STATED BY THE COMPANY ON THE
PRODUCTS OR THEIR PACKAGING. The Distributor will have product liability
coverage under the Company's Product Liability Insurance.
SECTION 6.2 WARRANTY CLAIMS.
6.2.1 All of the Products shall be received by the Distributor subject
to the Distributor's visual inspection and may be rejected on the grounds that
the warranties that the Company states on the Products or their packaging have
been breached. The Distributor shall assert all such warranty claims in writing
to the Company as soon as possible but in any event during the warranty period
stated in the warranty on the Products or their packaging. At the Company's
request, the Distributor shall promptly supply such evidence of warranty breach
as the Company may reasonably request.
6.2.2 THE DISTRIBUTOR'S EXCLUSIVE REMEDY AND THE COMPANY'S LIMIT OF
LIABILITY FOR ANY AND ALL WARRANTY CLAIMS HEREUNDER, SHALL BE FOR THE
REPLACEMENT OF THE PARTICULAR PRODUCTS WITH RESPECT TO WHICH SUCH CLAIMS ARE
ASSERTED. THE COMPANY SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM THE USE OF THE PRODUCTS OR
ARISING OUT OF ANY BREACH OF ANY OF THE WARRANTIES THAT THE COMPANY STATES ON
THE PRODUCTS OR THEIR PACKAGING OR ANY BREACH BY THE COMPANY OF ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR APPLICABLE LAW.
SECTION 6.3 INDEMNIFICATION FOR UNAUTHORIZED WARRANTIES. The Company
shall not be responsible for any warranty that the Distributor or any of its
sub-distributors makes concerning the Products other than those warranties made
by the Company as set forth in Section 6.1 hereof. The Distributor shall hold
the Company harmless from and indemnify it against any and all claims, losses,
liabilities, damages, and costs and expenses (including, but not limited to,
costs of investigation, court costs, arbitrators' fees and attorneys' fees) that
the Company may incur arising out of or relating to (i) any such additional
warranty made by the Distributor or any of its agents, employees or
sub-distributors, (ii) the act or omission of the Distributor or any of its
agents, employees or sub-distributors in connection with the transporting,
receiving, handling, storing, advertising, promoting, selling and distributing
any of the Products, and (iii) any breach by the Distributor of any of its
obligations under this Agreement or any purchase order issued by the Distributor
and accepted by the Company hereunder or under applicable law.
SECTION 6.4 PRODUCT LIABILITY INSURANCE. The Distributor shall
maintain adequate product liability insurance with respect to its sale of the
Products and such insurance shall provide that the Distributor's product
liability insurers waive any rights to assert any claims against the Company,
whether by subrogation or otherwise.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES BY THE DISTRIBUTOR
Section 7.1 The Distributor represents and warrants to the Company as
follows:
7.1.1 It is a Trading Corporation duly organized and validly existing
and in
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good standing under the laws of New Jersey and is duly qualified to
conduct its business as presently conducted in all those jurisdictions in which
it presently conducts business.
7.1.2 It has full power and authority to execute and deliver this
Agreement and to perform the terms and conditions hereof.
7.1.3 It has taken all necessary legal action to authorize the
execution and delivery of this Agreement. The representative who has executed
and delivered this Agreement on behalf of the Distributor has been duly and
validly authorized and will bind the Distributor by his action.
7.1.4 This Agreement constitutes the legal, valid and binding
obligation of the Distributor enforceable against the Distributor in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
except as the availability of equitable remedies may be limited under applicable
law.
7.1.5 The execution, delivery and performance of this Agreement will
not violate any provision of the Articles of Incorporation or Bylaws of the
Distributor or the New Jersey equivalent of such organizational documents or any
order or decree of any court or arbitrator that is or may be binding upon the
Distributor or any of its assets. The execution, delivery and performance of
this Agreement will not result in the breach of any provision of or any default
under any agreement to which the Distributor is a party or which is or may be
binding upon the Distributor or any of its assets.
7.1.6 There are not pending or, to the knowledge of the Distributor,
threatened legal actions, arbitrations or other proceedings against the
Distributor or any of its assets that, if adversely determined, might have a
material adverse effect on the validity or enforceability of this Agreement or
on the financial condition or the capability of the Distributor to perform its
obligations hereunder.
7.1.7 None of the following is a shareholder of the Distributor: The
Government of New Jersey or the Territory or any political subdivision thereof
or any agency, department or instrumentality of the Government of New Jersey or
the Territory or any political subdivision thereof. No official or
representative of the Government of New Jersey or the Territory or any agency,
department or instrumentality of the Government of New Jersey or the Territory
of political subdivision thereof, or any official of a political party or
candidate for public office in New Jersey, is a shareholder, officer, director,
employee, agent or representative of the Distributor, and no such official is,
directly or indirectly, party to any agreement or understanding, oral or
written, with the Distributor pursuant to which such official could receive
compensation of any type from the Distributor in connection with the sale of the
Products in the Territory.
7.1.8 The Distributor has never been and is not now the subject of any
bankruptcy or insolvency proceeding or other proceeding, voluntary or
involuntary, for the benefit of creditors.
7.1.9 Neither this Agreement nor the appointment of the Distributor
hereunder must be notified to, approved by, or registered with, any governmental
body, agency or instrumentality in the Territory, except as set forth in
Schedule E.
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7.1.10 The Distributor has the capacity under the law of New Jersey to
agree to the choice of law and the choice of forum set forth in Articles X and
XI, respectively, and such choices are enforceable against the Distributor under
the law of New Jersey and the Territory.
7.1.11 Nothing in this Agreement violates the fundamental public
policy of New Jersey or the Territory.
7.2 Each of the representations and warranties set forth in this
Article 7 and in Sections 1.6.2 and 3.3.2 hereof shall be deemed to be confirmed
by the Distributor on each date on which it submits a purchase order to the
Company hereunder.
7.3 The Distributor shall immediately give Notice to the Company if
any of the representations and warranties made by it in this Article 7 or in
Section 1.6.2 or 3.3.2 hereof should prove to have been incorrect, incomplete or
misleading on the date of this Agreement or should become incorrect, incomplete
or misleading during the term of this Agreement.
ARTICLE 8. REPRESENTATIONS AND WARRANTIES BY THE COMPANY
Section 8.1 The Company represents and warrants to the Distributor as
follows:
8.1.1 It is a corporation duly organized and validly existing and in
good standing under the laws of the State of California and is duly qualified to
conduct its business as presently conducted in all those jurisdictions in which
it presently conducts business.
8.1.2 It has full power and authority to execute and deliver this
Agreement and to perform the terms and conditions hereof.
8.1.3 It has taken all necessary legal action to authorize the
execution and delivery of this Agreement. The representative who has executed
and delivered this Agreement on behalf of the Company has been duly and validly
authorized and will bind the Company by his action.
8.1.4 This Agreement constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally and except as the
availability of equitable remedies may be limited under applicable law.
8.1.5 The execution, delivery and performance of this Agreement will
not violate any provision of this Articles of Incorporation or Bylaws of the
Company or any order or decree of any court or arbitrator that is or may be
binding upon the Company or any of its assets. The execution, deliver and
performance of this Agreement will not result in the breach of any provision of
or any default under any agreement to which the Company is a party or which is
or may be binding upon the Company or any of its assets.
8.1.6 Each of the representations and warranties set forth in this
Article 8 shall be deemed to be confirmed by the Company on each date on which
it accepts a purchase order from the Distributor hereunder.
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8.1.7 The Company shall immediately give Notice to the Distributor if
any of the representations and warranties made by it in this Article 8 should
prove to have been incorrect, income or misleading on the date of this Agreement
or should become incorrect, incomplete or misleading during the term of this
Agreement.
ARTICLE 9. GOVERNING LAW
This Agreement and each purchase order issued by the Distributor and
accepted by the Company hereunder shall be exclusively governed by and construed
in accordance with the laws of the State of California, United States of
America, without giving effect to the choice-of-law principles thereof;
provided, however, that the United Nations Convention on contracts for the
International Sale of Goods shall in no way apply to the interpretation of this
Agreement or any such purchase order.
ARTICLE 10. DISPUTE SETTLEMENT
SECTION 10.1 ARBITRATION.
10.1.1 Any dispute, controversy or claim arising out of or relating to
this Agreement or any purchase order issued by the Distributor and accepted by
the Company hereunder or a breach hereof or thereof shall be finally resolved by
arbitration in accordance with the Commercial Arbitration Rules and
International Arbitration Procedures of the American Arbitration Association.
10.1.2 Unless otherwise agreed by the parties hereto, the arbitration
panel shall consist of three (3) arbitrators, one to be appointed by each party
hereto and the third to be appointed by the two arbitrators appointed by the
parties hereto. In the event that a party fails to appoint an arbitrator within
fifteen (15) calendar days after any such dispute, controversy or claim has been
referred to arbitration hereunder, then, in such event, the other party may
request the American Arbitration Association to appoint an arbitrator for the
party failing to make such appointment. In the event that the third arbitrator
has not been appointed within thirty (30) calendar days after any such dispute,
controversy or claim has been referred to arbitration hereunder, then, in such
event, either party hereto may request the America Arbitration Association to
appoint such third arbitrator.
10.1.3 The arbitration proceedings, all documents submitted therein
and the award of the arbitral panel shall be in the English language, and all
members of the arbitral penal shall be fluent in the English language. The
arbitral proceedings shall be held in Los Angeles, California. The arbitral
panel shall apply such rules of procedure as it thinks appropriate in the
circumstances; provided, however, that both parties hereto shall be entitled to
representation by counsel, to appear and present written and oral evidence and
argument and to cross-examine witnesses presented by the other party. The
arbitral panel shall not have or exercise the powers of an amiable compositor.
The arbitral award shall be in writing and the arbitral panel shall provide
written reasons for its award. The award of the arbitral panel shall be final
and binding upon the parties hereto.
10.1.4 The provisions of this Article 10 shall survive and bind the
parties hereto, notwithstanding any expiration or termination of this Agreement
or any purchase order, whether by way of the exercise of rights of termination
hereunder or thereunder, passage of time or otherwise. The provisions of this
Article 10 shall be severable and binding on the parties hereto,
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notwithstanding that any other provisions of this Agreement or any purchase
order may be held or declared to be invalid, illegal or unenforceable.
SECTION 10.2 SERVICE OF PROCESS.
10.2.1 The Distributor irrevocably and unconditionally consents to
service of process upon it in any proceeding brought pursuant to Section 3.6 or
10.1 hereof by mailing copies of any Notice or pleading thereof by U.S.
registered mail, postage prepaid, return receipt requested, to it at its address
specified in Article 15 hereof. The foregoing shall not limited the right of the
Company to serve process in any other manner permitted by applicable law and
shall not limited the ability of the Company to bring any such proceeding or to
obtain execution fox any judgment rendered in any such proceeding any other
jurisdiction in which the Distributor or any of its property or assets may be
found.
10.2.2 The Distributor specifically hereby waives any claim or right
it may have by statute, treaty or law to contest the jurisdiction or venue of
any United States state or federal court in any action or proceeding instituted
by the Company pursuant to this Agreement, including, but not limited to, any
claim that the Distributor might assert under the Foreign Sovereign Immunities
Act of the United States, the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters and the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
10.2.3 The Distributor specifically waives any claim of forum non
conviens and specifically consents to venue in the United States District Court
for the Central District of California.
SECTION 10.2 ENFORCEMENT OF JUDGMENT.
The Distributor agrees that final judgment on an arbitral award rendered
against it in any action or proceeding relating in any way to this Agreement or
any purchase order issued by the Distributor and accepted the Company hereunder
shall be conclusive and may be enforced, to the extent permitted by applicable
law, in any other jurisdiction within or outside the United States of America by
suit on the judgment, a certified copy of which judgment shall be conclusive
evidence thereof, or by such other means provided by applicable law.
ARTICLE 11. SEVERABILITY AND SURVIVAL
SECTION 11.1 SEVERABILITY. In the event that any provision or part of any
provision of this Agreement or any purchase order issued by the Distributor and
accepted by the Company hereunder is held to be invalid or unenforceable in any
respect, then, unless such provision or part of a provision is material to the
performance of this Agreement or such purchase order, as the case may be, as
determined by the Company or the Distributor or both of them, this Agreement or
such purchase order, as the case may be, shall continue in effect and such
provision or part of the provision shall be excised herefrom or therefrom. In
the event that either party hereto, in its sole discretion, determines that such
provision or part of a provision to the operation or performance of this
Agreement or such purchase order, as the case may be, then either such party
may, in its sole discretion, elect to terminate this Agreement or such purchase
order, as the case may be, or both, upon thirty (30) calendar days'
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prior to notice to the other party.
SECTION 11.2 SURVIVAL. The obligations of the Distributor under Sections
1.4, 1.5, 1.6 and Articles 3, 6, 10, 15 and 16 hereof shall survive the
expiration of this Agreement or the termination of this Agreement, with or
without cause.
ARTICLE 12. ASSIGNMENT
Neither party hereto may assign its rights or obligations under this
Agreement or any purchase order issued by the Distributor and accepted by the
Company hereunder except upon the prior written approval of the other party
hereto; provided, however, that a party may assign its rights and obligations
hereunder or thereunder to its parent or any of its subsidiaries or other
affiliates or the surviving entity in any corporate merger or reorganization,
but shall give prompt Notice thereof to the other party.
ARTICLE 13. WAIVER
The failure or delay of either party hereto to require performance by the
other party hereto or to enforce its rights under any provision of this
Agreement or any purchase order issued by the Distributor and accepted by the
Company hereunder shall not affect the rights of such party to require
performance and to enforce its rights with respect to such provision unless and
until such performance has been waived in writing by such party. No waiver of
any failure or delay in performance hereunder or thereunder shall constitute
waiver of a continuance or reoccurrence of such failure or delay or of any other
failure or delay, except as provided in such waiver. The rights granted to each
party hereunder and under any purchase order issued by the Distributor and
accepted by the Company hereunder and any rights available to it at law or in
equity shall be cumulative and may be exercised in whole or in part from time to
time.
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ARTICLE 14. FORCE MAJEURE
Neither party hereto shall be liable or responsible to the other party
hereto for delay or failure to perform any of its obligations, other than an
obligation to pay money arising under this Agreement or any purchase order
issued by the Distributor and accepted by the Company hereunder, due to events
of force majeure, including, but not limited to, acts of God or of the public
enemy, fire, flood, storm, explosion, earthquake, riots, wars, hostilities,
civil commotion, strikes and labor disputes, interruption of supply, inability
to obtain fuel, power, raw materials or freight or transportation services, any
law or regulation, any decision by any judicial or arbitral tribunal or any
other acts of any government or any agency or instrumentality thereof or persons
purporting to act with governmental authority, or any other cause beyond the
reasonable control of such party or which such party is not able to overcome by
the use of reasonable measures or which such party is able to overcome only at
substantial expense. This Article 14 shall not be interpreted to relieve the
Distributor from its obligation to pay as and when due in the applicable
currency all payments required to be made by the Distributor under this
Agreement or any purchase order issued by the Distributor and accepted by the
Company hereunder. If any such event of force majeure should occur, the affected
party shall promptly give Notice thereof to the other party hereto. If any such
even of force majeure continues, in whole or in substantial part, whether
continuously or intermittently, for a period of sixty (60) calendar days or
more, the other party may terminate this Agreement or any relevant purchase
order or both on thirty (30) calendar days' prior Notice to the affected party.
ARTICLE 15. NOTICES AND OTHER COMMUNICATIONS
All notices ("Notices"), purchase orders, acceptances of purchase orders,
and other communications between the parties hereunder shall be in the English
language and in writing (by mail, telecopy or telegraph), postage or
transmission costs prepaid, and shall be addressed to the parties hereto at
their respective addresses set forth below:
IF TO THE COMPANY: IF TO THE DISTRIBUTOR:
Ansys, Inc.
2 Goodyear
Xxxxxx, Xxxxxxxxxx 00000-0000
Xxxxxx Xxxxxx of America
Attention: President
Telecopy: 714/770-0863
All such Notices and communications shall be deemed effective on (i) the date of
transmission, if sent by telecopy, or (ii) the date that is five (5) calendar
days after the date on which deposited or sent, if sent by mail or telegraph.
Each party hereto may change its address for purposes hereof by Notice given to
the other party in the manner prescribed herein.
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ARTICLE 16. COMPLIANCE WITH LAW
SECTION 16.1 COMPLIANCE WITH U.S. LAW. The parties hereto understand and
acknowledge that the export of the Products to the Distributor is subject to the
law of the United States of America and may require, amount other things, prior
approval of the U.S. Government. The Distributor shall use its best efforts to
assist the Company in obtaining, retaining and complying with any export license
that may be granted to the Company with respect to the export of the Products to
the Distributor hereunder. In addition, the Distributor shall comply fully and
timely with all laws of the United States of America that may be applicable to
it in performing its obligations under this Agreement, and the Distributor shall
refrain from taking any action that might cause the Company to be deemed to be
in violation of any law of the Territory or any law of the State of California
or of the United States of America, including, but not limited to, the U.S.
Foreign Corrupt Practices Act, the U.S. expert control laws, and the U.S.
anti-boycott laws.
SECTION 16.2 COMPLIANCE WITH LOCAL LAW
16.2.1 The Distributor shall comply fully and timely with all laws and
regulations of the Territory, including, but not limited to, all laws and
regulations relating to the review or approval of this Agreement and the
registration, approval, promotion, distribution and sale of the Products in the
Territory.
16.2.2 The Distributor shall use its best efforts to obtain and
maintain all approvals of governmental bodies in the Territory necessary or
advisable to render this Agreement valid, binding and enforceable in the
Territory; provided, however, no disclosures, filings and other submissions
cornering this Agreement or the Products may be mae to any such governmental
body without the prior approval of the company. If for any reason, including,
but not limited to, an event of force majeure, the Distributor does not obtain
all such necessary and advisable government registrations and/or approvals of
the Products within six (6) months after the Effective Date (as defined in
Section 17 hereof) or such other time as may be permitted under applicable law,
then this Agreement shall, without any notice or other act by the Company,
terminate, unless the parties hereto agree in writing to extend the deadline by
which the Distributor must obtain all such government registrations and/or
approvals of the Products. Throughout the term of this Agreement, the
Distributor shall immediately give the Company Notice of any revocation of, or
any other action or decision with respect to, any review or approval of this
Agreement or any registration and/or approval of the Products by governmental
bodies in the Territory.
SECTION 16.3 INFORMATION ON LOCAL LAW. The Distributor shall use its best
efforts to promptly and regularly give Notice to the Company of any and all of
the following of which the Distributor has knowledge: laws, ordinances, rules,
regulations or judicial or arbitral decisions in the Territory that might affect
the sale or distribution of the Products in the Territory, the use of the
Company's Trademarks in the Territory, or the protection of the Company's
Property and the Company's Trademarks in the Territory, including, but not
limited to, laws, regulations, or judicial or arbitral decisions relating to
custos duties, import procedures, foreign exchange transactions, tax laws,
product certifications, protection of proprietary information, or the rights and
duties of distributors and foreign manufacturers.
ARTICLE 17. TERM; EFFECTIVE DATE
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This Agreement shall become effective on January 1, 1995 (the "Effective
Date") and shall expire on the fifth anniversary of the Effective Date, unless
terminated earlier in accordance with the terms and conditions hereof. The
parties hereto expressly understand and agree that this Agreement is a fixed
term agreement and shall, unless terminated earlier in accordance herewith,
expire at the end of its term without Notice or any other act by either party
hereto. Subject to Section 18.7 hereof, neither party hereto shall continue with
its performance hereunder after the expiration or termination hereof, unless the
parties agree otherwise in writing.
ARTICLE 18. TERMINATION
SECTION 18.1 TERMINATION DUE TO BANKRUPTCY AND OTHER EVENTS.
This Agreement shall terminate immediately, without Notice or other act by
the Company in the event that:
18.1.1 a voluntary or involuntary case or other proceeding is
initiated seeking liquidation, reorganization or other relief to Distributor
under any bankruptcy, insolvency or similar law now or hereafter in effect, or
seeking appointment of a trustee, receiver, liquidator or other similar official
of it or any of its property, or Distributor shall consent to have any such
relief, or shall make a general appointment for the benefit of its creditors, or
Distributor shall fail generally to pay its debts as they become due, or
Distributor shall take any corporate action in furtherance of any of the
foregoing; or
18.1.2 the Distributor shall be dissolved or its assets liquidated.
SECTION 18.2 TERMINATION FOR BREACH OF CONFIDENTIALITY. If the Distributor
breaches any of its obligations under Article 3 hereof or if any of its
directors, officers, employees, agents or others acting in concert with it or on
its behalf breach any of their obligations under the separate confidentiality
agreements referred to in Section 3.5 hereof, this Agreement shall terminate
immediately, without any Notice or other act by the Company and without
prejudice to any other remedy available to the Company.
SECTION 18.3 TERMINATION BY THE COMPANY FOR CERTAIN OTHER CAUSES. The
Company may, at its option and without prejudice to any other remedy available
to it, terminate this agreement upon the occurrence of any of the following
events:
18.3.1 The Distributor fails to pay any amount that is obligated to
pay under this Agreement or under any purchase order or under any other written
agreement between the Company and the Distributor within thirty (30) calendar
days of the date on which such amount became due and payable:
18.3.2 The Distributor fails to make any of the minimum sales
specified in Schedule D attached hereto; provided, however, that, if such
failure by the Distributor is caused by any decision of the Company under
Section 1.2 hereof, or any rejection of a purchase order by the Company for a
reason other than any of the reasons specified in Section 2.3 hereof, then, in
any such event, such
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failure by the Distributor shall not be deemed to constitute just cause for
termination under this Section 18.3;
18.3.3 A substantial change shall occur in the ownership, control,
organization, personnel or operations of the Distributor, including, but not
limited to, a sale or transfer of all or substantially all of its assets or a
merger between the Distributor and another entity, which in the reasonable
judgment of the Company impairs the Distributor's ability to service this
Agreement, and the Distributor fails to correct such impairment within thirty
(30) calendar days after its receipt of Notice thereof from the Company;
18.3.4 The Distributor breaches any of its other obligations hereunder
(other than its obligations under Article 3 hereof, breach of which is cause for
immediate termination pursuant to Section 19.2 hereof), under any purchase order
issued by the Distributor and accepted by the Company hereunder or any other
written agreement between the Company and the Distributor, and fails to remedy
such breach within thirty (30) calendar days after its receipt of Notice thereof
from the Company;
18.3.5 Any representation or warranty made by the Distributor in this
Agreement or in any other written agreement between the Company and the
Distributor shall prove to have been incorrect, incomplete or misleading in any
material respect at the time it was made or deemed made; or
18.3.6 It becomes unlawful under the law of New Jersey for the
Distributor to perform its obligations hereunder or under any purchase order
issued by the Distributor and accepted by the Company hereunder; or an
enactment, modification or change in the interpretation of the law of New Jersey
subsequent to the date first above written interferes with or prohibits the full
and faithful performance by the Distributor of its obligations hereunder or
under any such purchase order or interferes with or prohibits the full and
complete enforcement of the Company's rights under this Agreement or any such
purchase order.
SECTION 18.4 TERMINATION BY THE DISTRIBUTOR FOR CERTAIN OTHER CAUSES. The
Distributor may, at its option, terminate this agreement upon the occurrence of
any of the following events:
18.4.1 The Company breaches any of its obligations hereunder, and
fails to remedy such breach within thirty (30) calendar days after its receipt
of written notice thereof from the Distributor; or
18.4.2 Any representation or warranty made by the Company in this
Agreement shall prove to have been incorrect, incomplete or misleading in any
material respect at the time it was made or deemed made.
SECTION 18.5 TERMINATION FOR OTHER CAUSES BY EITHER PARTY. Either party
hereto may terminate this Agreement in accordance with Article 14 hereof. This
Agreement shall terminate automatically in accordance with Section 16.2.2
hereof.
SECTION 18.6 NO COMPENSATION. Upon expiration of this Agreement and upon
termination of this Agreement by either party hereto, with or without cause, the
Company shall not be liable or obligated to the Distributor with respect to
future profits, exemplary, special or consequential damages,
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indemnification or other compensation regarding such expiration or termination,
irrespective of whether such obligations or liabilities may be provided for in
the law of the Territory or elsewhere, and the Distributor waives and
relinquishes any rights, pursuant to law or otherwise, to any such
indemnification or compensation; provided, however, that in the event that this
Agreement is terminated, for a reason other than a default by Distributor, prior
to the end of the stated term, then for a period of up to two (2) years
following the date of such termination, the Company shall pay to Distributor a
royalty equal to five percent (5%) of Net Sales of Products in the Territory. In
such event, Distributor shall continue to be bound by all of its
representations, covenants and agreements herein contained.
SECTION 18.7 DUTIES OF THE DISTRIBUTOR UPON TERMINATION. Upon the
expiration of this Agreement or upon the termination of this Agreement by either
party hereto, with or without cause, the Distributor shall (i) cease immediately
all of its efforts to promote the sale of the Products; (ii) cease immediately
use of Company's Trademarks; (iii) discontinue immediately making any statements
or taking any actions ghat might cause third parties to infer that any business
relationship continues to exist between the parties hereto and, where necessary
or advisable, inform third parties that the Distributor no longer has a business
relationship with the Company and is no longer authorized to sell the Products
in the Territory; and (iv) within ten (10) calendar days after the date of
expiration of this Agreement or the termination of this Agreement, with or
without cause, return to the Company, at the Company's expense, any and all
Company's Property, including, but not limited to, promotional material, that
has been furnished to the Distributor by the Company; provided, however, that if
the Distributor has an inventory of the Products on hand on the date of
expiration or termination, the Distributor may sell such Products, and may use
Company's Trademarks and Company's Property in connection therewith, for a
period of ninety (90) calendar days thereafter, so long as the Distributor shall
not sell the Products in a commercially unreasonable manner or in a manner that
could harm the future sales potential of the Products or the good will of the
Company or Company's Trademarks in the Territory.
SECTION 18.8 UNFILLED PURCHASE ORDERS. Unless otherwise agreed to in
writing by the parties hereto, Notice of termination of this Agreement by either
party hereto automatically cancels all unfilled purchase orders. The Company's
acceptance of a purchase order from the Distributor after the Company has given
Notice of termination hereunder shall not be deemed a waiver or a rescission of
such Notice.
SECTION 18.9 REPURCHASE OF PRODUCTS BY THE COMPANY. During the ninety (90)
calendar-day period after the date of or expiration of this Agreement, the
Company may, at its option, repurchase from the Distributor, at the net price
paid by the Distributor to the Company any and all of the Products on hand in
the Distributor's place of business or otherwise in the Company's Returned Goods
Policy. Upon demand and tender by the Company of such repurchase price, the
Distributor shall deliver such Products and all rights, title and interest
therein, free and clear of all liens and encumbrances, to the Company and the
Company shall pay all freight costs associated with shipping such Products back
to the Company. The Company, however, reserves the right to reject any such
repurchased Products not in first class or acceptable condition, as reasonably
determined by the Company.
SECTION 18.10 RIGHT TO SELL. Upon the expiration of this agreement or the
termination of this Agreement by either party hereto, with or without cause, the
Company shall have the right to sell the
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Products in the Territory itself and to appoint one or more other distributors
of the Products in the Territory to replace the Distributor. The Distributor
waives and relinquishes any rights that it may have, under the law of the
Territory or elsewhere, to seek to enjoin the Company from making such sales or
appointing such other distributors and the Distributor shall not attempt to
exercise any such rights.
ARTICLE 19. ENTIRE AGREEMENT AND AMENDMENT
SECTION 19.1 ENTIRE AGREEMENT; REVOCATION OF ALL PRIOR AGREEMENTS. This
agreement constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes any prior expression of intent or
understanding, oral or written, with respect to the subject matter hereof.
SECTION 19.2 AMENDMENT. Neither this Agreement nor any purchase order
issued by the Distributor and accepted by the Company hereunder may be amended
except by a writing executed by duly authorized representatives of the parties
hereto.
ARTICLE 20. HEADINGS
Headings are inserted in this Agreement for reference and convenience only
and shall not form part of this Agreement for the purpose of interpretation.
ARTICLE 21. COUNTERPARTS
This Agreement may be executed in two (2) counterparts, each of which is in
the English language and each of which is an original, true and correct version
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized representatives on
the date first above written.
ANSYS, INC. XXXXXXXXXXXXXXXXXXXXXX
BY: BY:
----------------------------------- -------------------------------------
NAME: XXXXXXX X. XXXXXXXXXX NAME:
-------------------------------- ----------------------------------
TITLE: PRESIDENT & CEO TITLE:
------------------------------- ---------------------------------
DATE: DATE:
-------------------------------- ----------------------------------
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SCHEDULE A
TO
DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX EFFECTIVE JUNE 1, 1997
PRODUCTS
SPEC* Solid Phase Extraction Columns, Discs and Accessories
X-0
00
XXXXXXXX X
TO
DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX EFFECTIVE JUNE 1, 1997
TERRITORY
GERMANY, AUSTRIA, SWITZERLAND, CZECH REPUBLIC
B-1
24
SCHEDULE C
TO
DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX, EFFECTIVE JUNE 1, 1997
COMPANY'S PRICES
33% DISCOUNT FROM INTERNATIONAL PUBLISHED PRICE LISTS.
(SEE ATTACHED PRICE LIST FOR PRICES EFFECTIVE
AT THE DATE OF THIS AGREEMENT.)
C-1
25
SCHEDULE D
TO
DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX, EFFECTIVE JUNE 1, 1997
MINIMUM SALES OF PRODUCTS
YEAR 1 $ 50,000
YEAR 2 $ 100,000
D-1
26
SCHEDULE E
TO
DISTRIBUTORSHIP AGREEMENT BETWEEN ANSYS, INC.
AND XXXXXXXXXXXXXXXXXXXXXX, EFFECTIVE JUNE 1, 1997
GOVERNMENTAL APPROVALS REQUIRED IN XXX XXXXXXXXX
XXXX
X-0
