Exhibit 10.1
DISTRIBUTORSHIP AGREEMENT
This Distributorship Agreement ("Agreement") is made as of the 6th day of
February, 2004 (Effective Date) between Rubicon Medical Inc, a U.S. corporation
with its principal offices at 0000 X. 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx, 00000,
XXX ("Rubicon Medical"), and NGC Medical Spa, an Italian corporation with its
principal offices at Novedrate (CO), xxx Xxxxxxxxxxx 00, XXXXX ("Distributor").
WHEREAS, Rubicon Medical manufactures and sells the medical devices and products
listed on Annex 1 to this Agreement (the "Products"); and
WHEREAS, Distributor wishes to distribute the Products in the countries and/or
geographic regions described on Annex 2 to this Agreement (the "Territory"), and
Rubicon Medical is willing to authorize Distributor to do so, all on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, Rubicon Medical and Distributor agree as follows:
1. Appointment. Rubicon Medical hereby appoints and authorizes Distributor as an
exclusive distributor for the Products in the Territory, and Distributor accepts
such appointment, all subject to the terms and conditions of this Agreement. In
acting as a Distributor of Products pursuant to this Agreement, Distributor
shall be an independent contractor and not an agent, employee or legal
representative of Rubicon Medical, and all persons engaged by Distributor shall
be Distributor's employees, legal representatives or agents but not those of
Rubicon Medical. Distributor is not authorized to do business in Rubicon
Medical's name or to otherwise obligate Rubicon Medical in any way.
2. Term. This Agreement will come into effect on the Effective Date mentioned in
the preamble hereto and will be binding for a period of 2 (two) years following
the last to occur of the date of receipt of CE Xxxx by Rubicon Medical or the
date of official market launch in the Territory as directed by Rubicon Medical.
3. Distributor's Responsibilities. During the term of this Agreement,
Distributor shall have the following duties and responsibilities and shall be
subject to the following restrictions:
3.1 Distributor shall not: (a) offer, promote, sell or distribute goods
which are of the same kind, similar to or compete directly or
indirectly with the Products, apart from Global Management accounts;
(b) obtain Products for resale from any person or entity other than
Rubicon Medical; and (c) actively advertise, promote or solicit
customers for the Products outside the Territory, except as may
otherwise be expressly authorized by Rubicon Medical in writing.
3.2 Distributor shall use its best efforts to promote, sell and service
the Products in the Territory.
3.3 Rubicon Medical shall provide Distributor with all documents and
information necessary for governmental approval of the Products.
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3.4 Upon request of Rubicon Medical, Distributor shall return to
Rubicon Medical or make such other disposition (including, but not
limited to recalling Products) as Rubicon Medical shall direct of any
portion of the Products determined by Rubicon Medical to be outdated or
to otherwise require such disposition. In the event of any such return
or disposition, Rubicon Medical shall either replace the Products or
reimburse Distributor in an amount equal to the original sales price
paid by Distributor for the Products, but only for Products that have
not become outdated based on their labeled expiration date. Distributor
hereby waives any other claim against Rubicon Medical for any special,
consequential or other similar damages related to such return or
disposition. Distributor hereby agrees to cooperate in any recall
effort conducted by Rubicon Medical. Rubicon Medical shall retain the
right to direct any recall of Products in the Territory.
3.5 Distributor will provide and maintain at its own expense facilities
and qualified personnel sufficient to provide a high standard of
service to the customers purchasing Products in the Territory.
3.6 At Distributor's expense and after Rubicon Medical's written
approval, Distributor may advertise the Products to inform
Distributor's customers and potential customers of the application,
kind, quality and manufacturer of the Products.
3.7 Distributor shall maintain records of its sales of Products, and
permit Rubicon Medical to have access to those records upon Rubicon
Medical's request.
3.8 Distributor will avoid activities or practices that may injure the
reputation of Rubicon Medical or the Products.
3.9 Distributor will comply with all applicable laws and regulations
during the course of performance of this Agreement and in related
activities. Without limiting the foregoing, Distributor will not sell
any Products in any country in the Territory unless and until it has
obtained all governmental approvals necessary to do so.
3.10 Distributor shall assist promptly in executing Products recalls as
directed by Rubicon Medical. Rubicon Medical will reimburse
Distributor's documented expenses directly in connection with
repurchasing Products subject to recall.
3.11 Distributor will maintain an adequate stock of Products to satisfy
promptly needs of current and potential customers in the Territory.
Distributor will defend, indemnify and hold harmless Rubicon Medical
from any and all claims, demands, suits or liability arising out of any
acts or omissions of Distributor, its employees, appointees, legal
representatives and agents, whether based upon negligence, strict
liability or otherwise. Rubicon Medical agrees to indemnify, defend and
hold Distributor harmless from and against any and all claims,
judgments, costs, awards, arising from any injury of a medical nature
to any patient which results from Rubicon Medical design, manufacture
or sale of products.
3.12 Distributor shall be responsible, at its expense, for promotion
during local and national events such as meetings and conventions that
relate to Rubicon Medical's Products and that take place in the
Territory and Rubicon Medical, at its own expense, shall be responsible
for promotion during international events such as meeting and
conventions that relate to Rubicon Medical's Products and that take
place in the Territory.
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4. Exclusivity.
4.1 In the event that Rubicon Medical receives any inquiry for Products
from a purchaser or customer in the Territory, Rubicon Medical will
promptly inform Distributor of such inquiry, and transfer, upon
Distributor's instructions, such inquiry to Distributor. It is the
intention of Rubicon Medical and Distributor that all inquiries,
negotiations and sales of Products in the Territory shall be channeled
through Distributor.
4.2 During the term of this Agreement, Distributor shall purchase from
Rubicon Medical its entire requirements for customers in the Territory
of any and all medical devices falling within the range represented by
the Products. Furthermore, Distributor shall not during the term hereof
sell, promote or market to customers any Products outside the
Territory. In the event that the Distributor receives any inquiry for
Products from a customer located in any area other than the Territory,
and such area is not covered by a separate arrangement between
Distributor and Rubicon Medical, Distributor shall promptly inform
Rubicon Medical of such inquiry and transfer, upon Rubicon Medical's
instruction, such inquiry to Rubicon Medical.
5. Responsibilities of Rubicon Medical. During the term of this Agreement,
Rubicon Medical covenants and agrees to do each of the following:
5.1 Rubicon Medical shall use commercially reasonable best efforts to
continuously research and develop Products suitable for the reasonable
needs of the end-users in the Territory.
5.2 Rubicon Medical shall not appoint any other distributor or importer
of the Products to market the Products in the Territory during the term
of this Agreement or make sales of any of the Products to any end-user
in the Territory or to any customer outside the Territory who is known
to Rubicon Medical to be intending to introduce the Products into the
Territory. Rubicon Medical shall inform Distributor of all outside
inquiries for sales of the Products within the Territory designated to
the Distributor as exclusive, by other distribution companies.
5.3 Rubicon Medical shall assist Distributor with materials necessary
to obtain and maintain import licenses and health registrations
required to import and sell Products within the Territory by furnishing
to Distributor, at Rubicon Medical's cost, such technical descriptions,
specifications, data, drawings, information, service manuals and so
forth regarding the Products, in the English language, as Rubicon
Medical can make available without unreasonable expense.
5.4 Rubicon Medical shall promptly notify Distributor of any actions
taken with respect to Rubicon Medical or the Products by regulators in
any jurisdiction, including (i) any facility inspection resulting in
any notice of infraction, warning or other action, (ii) voluntary or
mandatory recalls or withdrawal of Products, (iii) administrative or
court proceedings regarding the Products, (iv) any changes of factory
installation and the way of sterilization, packaging, materials, design
or other specifications of Products, and (v) similar matters. Rubicon
Medical will promptly provide Distributor with copies of any
correspondence with regulators regarding any of the foregoing.
5.5 Rubicon Medical shall inform Distributor, from time to time, of the
technical and other developments regarding the Products as these may
occur.
6. Price and Payment Terms.
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6.1 The Products shall be sold to the Distributor by Rubicon Medical at
an international distributor's price list as is communicated by Rubicon
Medical from time to time. Any change of the price of the Products
shall not affect orders by the Distributor that were accepted by
Rubicon Medical before the price change was communicated. The current
international distributor's price list scheduled to be charged to the
Distributor for the Products is set forth in Annex 3. If requested by
Distributor, Rubicon Medical will make drop shipments to Distributor's
customers in the Territory, in which case Rubicon Medical will prepay
freight (and insurance) to destinations in the Territory, and add the
freight (and insurance) to its invoices. In the event that Rubicon
Medical makes such drop shipments, receipt at customs will constitute
delivery per the terms of this agreement.
6.2 Rubicon Medical may revise its prices for Products upon sixty (60)
days prior written notice to Distributor.
6.3 Distributor will open an account and pay in U.S. currency by net
ninety (90) days after Rubicon Medical's invoice date. All payment
hereunder shall be made in the United States and in United States
dollars. Distributor will furnish Rubicon Medical with its most recent
financial statements on request.
6.4 Distributor shall pay any applicable sales tax, export tax, import
tax, value added tax, duties and any similar taxes and charges relating
to Products, and shall be responsible for shipment of Products and all
expenses thereof after they are delivered to Distributor F.O.B. Rubicon
Medical's United States factory or warehouse, but Rubicon Medical may,
upon request, arrange for shipment and prepay freight (and insurance)
as in section 6.1.
6.5 Distributor shall submit per request by Rubicon Medical at the
beginning of each calendar quarter a forecast of its requirements for
Products for the next six month period.
7. Orders.
7.1 All orders for Products by Distributor shall be initiated by
Distributor's issuance of a written purchase order sent via facsimile
or air mail. Such orders shall state unit quantities, unit
descriptions, requested delivery dates and shipping instructions.
Acceptance by Rubicon Medical of an order shall be indicated by written
acknowledgment thereof by Rubicon Medical within five (5) business days
following receipt of each order. All different or additional terms or
conditions in Distributor's purchase order, acknowledgment or other
similar document shall not add to or modify terms of this Agreement.
Rubicon Medical shall have the right to cancel any order placed by
Distributor or to refuse or delay shipment thereof if Distributor fails
to make any payments as provided herein or otherwise agreed to by
Rubicon Medical. Distributor may cancel an order for standard Products
normally kept in Rubicon Medical's inventory which Rubicon Medical has
accepted only by providing written notice to Rubicon Medical prior to
the shipment or any part thereof and by paying such reasonable
cancellation charge requested by Rubicon Medical. Distributor may not
cancel an order for non-inventory Products or custom-made Products
which Rubicon Medical has accepted unless confirmed in writing by
Rubicon Medical and by paying such reasonable cancellation charge,
including but not limited to tooling and works-in-progress expenses
requested by Rubicon Medical.
7.2 Orders will be binding upon Rubicon Medical only when accepted and
approved in writing by an authorized representative of Rubicon Medical.
All such orders will be for delivery F.O.B. Rubicon Medical's factory
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or warehouse in the U.S.A. and will be subject to Rubicon Medical's
standard terms and conditions in effect as of the shipment date, to the
extent that such terms and conditions do not conflict with this
Agreement, in which case this Agreement shall govern.
8. Product Warranty.
8.1 Rubicon Medical shall extend to Distributor its published limited
warranties for Products as the same may be modified by Rubicon Medical
from time to time, and Rubicon Medical warrants to Distributor that
Products sold to Distributor will at all times comply with the
requirements of, and regulations adopted pursuant to, the U.S. Federal
Food, Drug and Cosmetic Act specifically related to the Products.
Rubicon Medical makes no other warranty, express or implied. RUBICON
MEDICAL'S SOLE OBLIGATION UNDER THE FOREGOING WARRANTY SHALL BE, AT
RUBICON MEDICAL'S SOLE ELECTION, TO EITHER REPLACE THE RELEVANT PRODUCT
OR REFUND DISTRIBUTOR'S PURCHASE PRICE FOR SUCH PRODUCT AND TO PAY FOR
DISTRIBUTOR'S INCIDENTAL DAMAGES WHICH, FOR THE PURPOSE OF THIS
AGREEMENT, SHALL BE LIMITED TO THE NECESSARY EXPENSES OF DISTRIBUTOR
INCURRED IN THE INSPECTION, RECEIPT, TRANSPORTATION, RECALL FROM
CUSTOMER, CARE AND CUSTODY OF GOODS.
8.2 Rubicon Medical will provide, when requested by Distributor,
certification that, to the best of its knowledge, it is in compliance
with all statutes, rules and regulations and relevant orders of the
United States relating to the manufacture, use, distribution and sale
of Products.
8.3 THE WARRANTIES SET FORTH OR REFERRED TO IN THIS ARTICLE 8 ARE
INTENDED SOLELY FOR THE BENEFIT OF DISTRIBUTOR AND MAY NOT BE MADE TO
DISTRIBUTOR'S CUSTOMERS. THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED
AND EXCLUDED BY RUBICON MEDICAL, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
8.4 Distributor will make no representations or warranties with respect
to the Products.
9. Confidentiality.
9.1 Each party agrees not to divulge to any third party and not to use,
except for the purposes contemplated by this Agreement, any information
of a confidential nature disclosed to that party by the other party to
this Agreement. Such information shall be deemed to include, but not to
be limited to, technical information and data, commercial information
and know-how, price structure, costs, administration and operations
information, any business or technical information potentially useful
to a competitor either in the Territory or in any other market, whether
or not such information relates to Products or the business operations
of the disclosing party. These confidentiality and use limitation
provisions shall not apply to the extent that (a) the disclosed
information is in the possession of the receiving party prior to the
time of the disclosure; or (b) the information is at the time of
disclosure or thereafter becomes public knowledge through no fault or
omission of the receiving party hereunder; or (c) the information is
lawfully obtained by the receiving party from a third party under no
obligation of confidentiality to the disclosing party hereunder.
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9.2 All technology, technical and commercial information, data,
processes, know-how, and trade secrets furnished by Rubicon Medical to
Distributor shall remain the property of Rubicon Medical, and
Distributor shall not acquire any proprietary rights or other interests
therein.
10. Intellectual Property Rights.
10.1 Distributor agrees to submit to Rubicon Medical for prior written
approval examples of promotional literature, advertising, and technical
narrative in which any Rubicon Medical trademark, trade name, slogan,
or logo is used. Distributor shall not register or use any of Rubicon
Medical's trademarks, trade names, slogans, logos or packaging designs
(or any similar trademarks, trade names, slogans, logos or packaging
designs) except as specifically authorized in writing in advance. Sale
by Distributor of Products in the packages in which they were shipped
shall not be considered use for this purpose.
10.2 Should Distributor become aware of the fact that a third party has
infringed upon the patent rights, trademarks or trade names of Rubicon
Medical or that such rights, trademarks or trade names are likely to be
infringed, Distributor shall inform Rubicon Medical of the facts and at
the same time shall make reasonable efforts to assist Rubicon Medical
in prevention and/or remedy of such infringement. Rubicon Medical shall
have no obligation to Distributor under this Agreement to prevent or
remedy any such infringement.
10.3 In the event that it becomes necessary or desirable for Rubicon
Medical to prove use of any of its trademarks, trade names, slogans, or
logos which appear on the Products, Distributor will cooperate with
Rubicon Medical in obtaining such proof, and upon request will provide
Rubicon Medical with such evidence of use as the authorities in the
Territory may require. Distributor shall assign to Rubicon Medical,
without compensation, all rights of record or otherwise that
Distributor has obtained or may obtain with respect to any Rubicon
Medical trademark, trade name, slogan, logo or packaging design and
shall take such other action as Rubicon Medical may require in order to
confirm Rubicon Medical's ownership thereof.
10.4 Upon cancellation or termination of this Agreement, Distributor
shall immediately stop using any of Rubicon Medical's trademarks, trade
names, slogans, logos or packaging designs and any language stating or
suggesting that Distributor is a distributor for the Products.
10.5 Rubicon Medical reserves the right to suspend performance or to
cancel this Agreement if it believes that the manufacture, sale or use
of any Products sold hereunder may infringe any United States or
foreign patent, or other industrial property right.
11. Force Majeure. No liability shall result from the delay in performance or
nonperformance (other than the obligation to pay for Products shipped) caused by
force majeure or circumstances beyond the reasonable control of the party
affected, including, but not limited to, Acts of God, fire, flood, war, embargo,
any United States or foreign government regulation, direction or request,
accident, labor trouble, or shortage of, or inability to obtain material,
equipment, or transport.
12. Termination. This Agreement shall be terminable or shall terminate, as the
case may be, prior to the expiration of the Term or any renewals thereafter, if
and when any of the following events occur:
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12.1 Rubicon Medical may terminate this Agreement immediately upon
written notice to the Distributor if the Distributor fails to cure a
breach of its obligation hereunder within thirty (30) days of
Distributor's receipt of written notice from Rubicon Medical. Failure
to cure such breach within the thirty (30) day period, shall entitle
Rubicon Medical to terminate this Agreement by giving written notice to
the Distributor, effective upon the receipt of said written notice by
the Distributor.
12.2 Rubicon Medical may terminate this Agreement immediately by
written notice to Distributor and reject, or revoke acceptance of, any
orders for Products not then in the custody and control of the
Distributor if Distributor engages in any act, practice or omission
that threatens the health or safety of users of the Products or their
patients, or that impairs or imminently threatens to impair the
goodwill associated with the trademarks.
12.3 This Agreement shall be terminated automatically upon the
Distributor's cessation of business, election to dissolve, dissolution,
insolvency, failure in business, commission of an act of bankruptcy,
general assignment for the benefit of creditors, or filing of any
petition and bankruptcy or for relief under the provisions of the
bankruptcy laws of any country.
12.4 This Agreement may be terminated immediately, at the sole option
of Rubicon Medical, in the event that the Distributor without the prior
written approval of Rubicon Medical assigns this agreement or merges,
consolidates or sells all or substantially all of its assets or if
there is a change in more than fifty percent (50%) of the stock
ownership of the Distributor.
12.5 Rubicon Medical may terminate this Agreement in the event that a
law, decree or regulation is enacted or adopted by any governmental
authority which would impair or restrict in any manner whatsoever the
right of Rubicon Medical to terminate or elect not to renew this
Agreement; provided, however, that such termination shall not take
effect until the day prior to the effective date of the aforementioned
law, decree or regulation.
12.6 Rubicon Medical may terminate this Agreement upon Distributor's
receipt of written notice if Distributor offers for sale, sells,
advertise or promotes any Products or services in competition with
those offered by Rubicon Medical.
12.7 Rubicon Medical may terminate this Agreement upon Distributor's
receipt of written notice if Distributor does not take orders for at
least 75% of quota established pursuant to Annex 3 during the period
set forth on Annex 3.
12.8 In case of termination all sterile, undamaged inventory will be
returned and a credit issued for landed cost (including shipping and
customs) against any outstanding invoices or funds reimbursed if no
outstanding invoices exist.
13. Applicable Law and Dispute Resolution.
13.1 This Agreement shall be subject to and governed by the laws of the
State of Utah, USA. The United States Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
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13.2 In the event a dispute arises between the parties as to the
performance or interpretation of any of the provisions of this
Agreement, or as to matters related to but not covered by this
Agreement, the parties shall first attempt to find a mutually agreeable
solution by consultation in good faith. If the matter has not been
resolved by the parties within thirty (30) days of their first meeting
to resolve a dispute, then such dispute shall be determined finally by
arbitration in accordance with the International Arbitration Rules of
the American Arbitration Association. The place of arbitration shall be
Salt Lake City, Utah, USA, and the language of the arbitration shall be
English. The arbitration tribunal shall consist of a single arbitrator,
unless either party requests a tribunal of three arbitrators. If three
arbitrators are requested, each party shall appoint an arbitrator, and
the arbitrators appointed by the parties shall designate a third
arbitrator (and if they fail to agree on a third arbitrator within
fifteen (15) days after they are both appointed, the third arbitrator
shall be appointed by the Administrator of the American Arbitration
Association). The arbitrator(s) shall apply the substantive law of the
jurisdiction specified in section 13.1. The costs and expenses of any
such arbitration, including reasonable attorneys' fees, shall be borne
as determined by the arbitrators. Judgment upon the award of the
arbitrator may be entered in any court having jurisdiction thereof. The
parties acknowledge that this Agreement and any award rendered pursuant
to it shall be governed by the 1958 United Nations Convention on the
Recognition and Enforcement of Foreign Arbitrage Awards. Pending the
submission to arbitrators and thereafter until the arbitrator(s)
renders the award, the parties shall, except in the event of
termination, continue to perform all their obligations under this
Agreement without prejudice to final adjustment in accordance with the
award. Nothing herein shall prevent any party from seeking injunctive
relief from any court of competent jurisdiction, in order to preserve
assets, prevent irreparable harm or as otherwise appropriate.
14. Claims; Indemnity.
14.1 Given the fact that Distributor is not liable for any incidental
or consequential damages arising from the use of the Products, if any
claim is made or any suit or action is instituted against Distributor
arising out of or otherwise in connection with any defect or alleged
defect of Products sold by Rubicon Medical to Distributor under this
Agreement, Rubicon Medical shall, at its own expense and upon request
by Distributor: (i) investigate or research the causes of accidents,
occurrences, injuries or losses affecting any person or property as a
result of the manner in which the Products are designed, manufactured,
treated, packaged, labeled, delivered, sold or used, and use its best
efforts to correct or eliminate such causes within a reasonable period;
and (ii) provide Distributor any and all assistance (including, without
limitation, technical and other information, legal assistance,
documents, data, materials and witness) which are, in the opinion of
Distributor, necessary or useful for Distributor's defense to such
claim, suit or action in relation to the Products sold by Rubicon
Medical to Distributor hereunder.
14.2 Each party agrees to indemnify, defend and hold the other party
and its officers, directors, employees, agents, successors, and assigns
harmless from and against any and all claims made by any third party
(and all attorneys' fees incurred or threatened to be incurred by the
party entitled to indemnity) arising out of the manufacture,
processing, marketing, distribution and sale of the Products, where and
to the extent such damages are alleged to have been caused by the fault
of such indemnifying party or its officers, directors, employees,
agents, successors and assigns. The indemnifying party under this
section 14.2 shall be relieved of its obligation unless the indemnified
party: (i) gives the indemnifying party written notice of such claim as
soon as reasonably practicable; and (ii) cooperates in the defense of
such claim at the expense of the indemnifying party.
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15. Notice. Any notice required or permitted herein may be hand delivered, sent
by facsimile transmission, or sent by postage prepaid registered airmail -
return receipt requested, properly addressed to the party to be notified at the
address set forth in the first paragraph of this Agreement or at the last known
address given by such party to the other party, and shall be deemed delivered
when hand delivered or transmitted by facsimile, or when sent by registered
airmail, on the earlier of the date received or ten (10) days after the date
mailed.
16. General Conditions.
16.1 This Agreement shall be executed in duplicate but shall not be
binding upon Rubicon Medical until a copy, signed by the Distributor,
is executed by Rubicon Medical.
16.2 If registration of this Agreement with governmental authorities is
required by the laws of the Territory, Distributor shall timely comply
with such registration requirements and provide proof of such
compliance to Rubicon Medical.
16.3 This Agreement supersedes all existing Agreements or arrangements
by and between Rubicon Medical and Distributor relating to the subject
matter hereof, whether written or oral, and all such prior Agreements
or arrangements are hereby deemed terminated by mutual consent of the
parties.
16.4 In the event any provision of this Agreement is deemed to be
unenforceable by the arbitrator or arbitrators appointed pursuant to
Section 13.1 hereof, or if, notwithstanding such arbitration provision,
a party seeks and is successful in obtaining the valid jurisdiction of
a court which rules that any provision of this Agreement is legally
invalid, then the same shall not affect the enforceability of any other
provision of this Agreement.
Rubicon Medical, Incorporated NGC Medical Spa
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxx Xxxxxxxxxx
-------------------------------- ---------------------------
Name Xxxxxxx X. Xxxxxx Name Xxxxx Xxxxxxxxxx
Title V. P., Marketing & Sales Title CEO
Date: February 9, 2004 Date: 9 February 2004
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