Exhibit 10.o
AGREEMENT dated as of December 10, 1998 between VOLUMATIC LTD. Xxxxxx
Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx XX0 0XX, Xxxxxxx (hereinafter "Volumatic") and
ATS MONEY SYSTEMS INC., 00 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter "ATS").
WHEREAS, ATS and Volumatic entered into a Distributor Agreement dated
as of October 29, 1996, pursuant to which ATS was appointed the exclusive
distributor in the U.S. of Omal Products (as defined in Section 3 below); and
WHEREAS, ATS and Volumatic desire to continue the relationship in
accordance with the terms and conditions set forth in this Agreement.
In consideration of the foregoing, the mutual covenants and obligations
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties hereto agree as follows:
1. PURPOSE. The purpose of this Agreement is to set forth the
respective obligations and responsibilities of ATS and Volumatic in continuing
their sales and marketing arrangement.
2. TERM. This Agreement, unless sooner terminated as provided for
herein, shall be for a term of five (5) years, commencing as of January 1, 1998.
The Agreement shall automatically renew for successive periods of one (1) year
each, unless either party gives notice of termination to the other at least six
(6) months prior to the expiration of the then current term. Upon termination of
this Agreement, as provided for herein, the Six-Month Restrictive Period
referred to in Section 7.2.F. below shall apply.
3. PRODUCTS. The Volumatic products covered by this Agreement are
as follows ("OMAL Products"):
3.1 All Volumatic electronic scales equipped with a computer
interface that can be utilized for counting coin and currency including, but not
limited to, the OMAL MONEYTRONIC 2600;
3.2 Omal Load Cell with standard PC analog to Digital
conversion card; and
3.3 Any other Volumatic products agreed to in writing between
the parties.
4. APPOINTMENT.
4.1 APPOINTMENT OF ATS. Subject to the provisions of this
Agreement, Volumatic hereby re-appoints ATS, and ATS accepts re-appointment, as
the exclusive U.S. distributor for the OMAL Products.
4.2 END USER AND DEALER SALES. The re-appointment of ATS as a
distributor shall be inclusive of direct sales to end users and sales to dealers
and/or VARs selected by ATS.
5. PRICING, SHIPMENT, DELIVERY AND RISK OF LOSS. The selling
price to ATS for OMAL Products, as set forth on Schedule A, shall be valid
through December 31, 1998. Thereafter, for calendar years subsequent to 1998,
Volumatic shall be entitled to increase the selling price each year by a
percentage equal to the average of (i) the percentage increase in the published
retail inflation in the UK for the prior year; and (ii) the percentage increase
in the Consumer Price Index (U.S. City Average) - All Items for the prior year,
but in no event shall the increase for any year be more than 2% over the selling
price for the prior year. If an index is not available or becomes obsolete, a
comparable index or its generally recognized successor index shall be used. In
no event shall the selling prices of OMAL Products to ATS be higher than the
most favorable selling prices extended to any other Volumatic distributor. In
addition, for larger sales or if special circumstances exist, Volumatic will
consider granting ATS a discount.
6. ATS SALE OF OMAL PRODUCTS AND PAYMENT TERMS.
6.1 ATS SALE OF OMAL PRODUCTS. ATS will use its best efforts
to actively promote the sale of Omal Products pursuant to the
provisions of this Agreement. For purposes of construing Section
8.1.C., ATS' obligation to use its best efforts to actively promote the
sale of Omal Products shall be considered a material provision of this
Agreement.
6.2 PAYMENT TERMS. Payment terms for OMAL Products shall be
thirty (30) days net from receipt of equipment by ATS or its nominated
freight clearance agent at U.S. port of entry.
7. RESPONSIBILITIES, AUTHORITY AND LIMITATIONS OF THE PARTIES
7.1 ATS RESPONSIBILITIES, AUTHORITY AND LIMITATIONS.
A. ATS shall make reasonable efforts to promote,
market and sell the Omal Products.
B. ATS will cause the appropriate members of its
technical force and sales force to attend product training and
other informational seminars as Volumatic may make available
from time to time to familiarize the ATS technical force and
sales force with the OMAL Products.
7.2 VOLUMATIC RESPONSIBILITIES. AUTHORITY AND
LIMITATIONS.
A. Volumatic shall not sell or ship OMAL Products to
or for the use of other distributors, dealers or end users in
the U.S. without ATS' prior written consent.
B. In the event Volumatic makes changes in the
programming of OMAL Products at the request of ATS, such
changes will be not be incorporated in the OMAL Products
shipped to other distributors, dealers in the U.S.
C. Volumatic will provide product training and
informational materials to familiarize the ATS technical force
and sales force with OMAL Products at no cost to ATS.
D. With the exception of products sold to ATS for the
use of ATS' customers listed in Schedule A annexed hereto,
which products are warranted for sixty (60) months, Volumatic
warrants products sold to ATS for a period of thirty-six (36)
months. During the warranty period, Volumatic will repair or
replace defective parts or components at no cost to ATS.
E. For a period of five (5) years from the
termination of this Agreement or the expiration of the
warranty, whichever occurs last, Volumatic agrees to provide
service for the OMAL Products sold to ATS and ATS' customers
at Volumatic's then prevailing price for said service.
Notwithstanding the foregoing, the price charged to ATS for
said service shall not be higher than the most favorable
service charges extended to any Volumatic distributor.
F. During the term of this Agreement and for a period
of six (6) months after the termination of this Agreement
("Six Month Restrictive Period") neither party shall directly
or indirectly compete with the other. Nothing contained in
this provision shall prevent ATS from doing business with a
customer that elects to purchase a product from a source other
than ATS that is competitive with Omal Products. If this
Agreement is terminated by either party for cause, as defined
in Section 8.1 below, the Six Month Restrictive Period shall
not prevent the party that terminated the Agreement for cause
from selling scales in competition with the party that was
terminated for cause.
8. TERMINATION.
8.1 TERMINATION. Either party may terminate this
Agreement upon notice at any time for cause. Cause shall exist where:
A. A party attempts to assign this Agreement or any
right hereunder without the other party's written consent,
except that either party may assign this Agreement to any
successor in interest of all or substantially all of its
business without the prior consent of the other party; or
B. The other party ceases to function as a going
concern or conduct its operations in the normal course of
business, or a receiver for it is appointed or applied for, or
if it becomes insolvent or if; under the applicable laws of
any state or subdivision thereof, the other party is deemed
insolvent or bankrupt or to be legally obligated to wind-up
its affairs and go into liquidation or it makes an assignment
for the benefit of creditors; or
C. The other party is in default of a material
provision of this Agreement and said default has not been
cured within ten (10) days after notice of a monetary default
or thirty (30) days after notice of a non-monetary default; or
D. Should sales of OMAL Products pursuant to this
Agreement fall below (pound)250,000 in 1998, (pound)300,000 in
1999, (pound)360,000 in 2000, (pound)500,000 in 2002,
Volumatic may terminate this Agreement, on ninety (90) days
notice to ATS, provided said notice is sent within thirty (30)
days after the close of a calendar year in which the sale of
OMAL Products fall below the prescribed level.
8.2 EFFECT OF TERMINATION AND LIMITATION OF LIABILITY.
Any termination of this Agreement in accordance with the terms hereof,
whether by expiration or otherwise, shall not constitute an unfair or
abusive termination or create any liability on the part of the party
seeking termination to the other party which is not set forth in this
Agreement. Upon the effectiveness of any termination of this Agreement,
whether by expiration or otherwise, each party will return to the other
all Proprietary Information (hereinafter defined) of the other party in
its possession.
9. CONFIDENTIALITY.
9.1 PROPRIETARY INFORMATION. The parties acknowledge that
in order to accomplish the purpose of this Agreement they will have to
make available to one another certain information, which they view, as
proprietary and/or confidential. As used in this Agreement the term
"Proprietary Information" shall mean (1) information of a confidential
or proprietary nature including, but is not limited to, present and
future products, plans and technology, market and customer information,
strategies, financial documents, organizational information and any
information or material marked or noticed "confidential" or
"proprietary, whether constituting a trade secret or not, and whether
proprietary or not which is of value to the party making said
information available or (ii) information in tangible form which is
disclosed orally under the condition that it remain confidential and,
within thirty (30) days following such disclosure, is summarized in a
writing delivered from the disclosing party to the recipient.
Proprietary Information shall not include information which:
A. is or has become generally available to the public other
than through breach of this Agreement;
B. which can be demonstrated to have been known to the
recipient party prior to disclosure by the disclosing party;
C. which is lawfully obtained by the recipient from a source
independent of the disclosing party, or
D. which is disclosed under order of any court or in order to
comply with any applicable law, regulation, rule or ordinance.
Proprietary information, which, as between the parties hereto, is first
known to ATS, shall be referred to as "ATS Proprietary Information",
and "Volumatic Proprietary Information" shall refer to that Proprietary
Information which, as between the parties hereto, is first known to
Volumatic.
9.2. NONDISCLOSURE BY ATS. ATS agrees to keep confidential
and not to use or disclose any Volumatic Proprietary Information to any
person or entity other than the officers and directors of ATS and its
employees and agents requiring such information to either perform the
obligations of ATS pursuant to this Agreement or to exercise any rights
afforded ATS under this Agreement.
9.3. NONDISCLOSURE BY VOLUMATIC. Volumatic agrees to keep
confidential and not to use or disclose any ATS Proprietary Information
to any person or entity other than the officers and directors
Volumatic, and its employees or agents who require such information to
perform Volumatic obligations under this Agreement or to exercise its
rights under this Agreement.
9.4. RETURN OF PROPRIETARY INFORMATION. Upon the
effectiveness of any termination of this Agreement, whether by
expiration or otherwise, each party will return to the other all
Proprietary Information of the other party in its possession.
10. INDEMNITY. Volumatic agrees to defend, hold harmless and
indemnify ATS of, from and against any charge of infringement
of any patent, copyright or other proprietary, right
("Charge") in connection with OMAL Products including any
liability, damages, expenses and costs (including reasonable
counsel fees). ATS will immediately make Volumatic aware of
any such Charge and will allow Volumatic at its option to take
over the defense of that Charge at Volumatic's expense. ATS
will not make any prejudicial statements in relation to any
such Charge and will at all times respect Volumatic's
intellectual property rights related to the Omal Products.
11. MISCELLANEOUS.
11.1 INDEPENDENT CONTRACTOR. Neither this Agreement nor the
performance contemplated hereby shall serve to create any joint venture
or partnership between the parties and neither party shall make any
representation to the contrary to any third party. Each party shall be
considered an independent contractor to the other.
11.2 INTERPRETATION. The parties are equally responsible for
the preparation of this Agreement and in any judicial proceeding the
terms hereof shall not be more strictly construed against one party
than the other.
11.3 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement and
all amendments, modifications, alterations or supplements hereto, and
the rights of the parties hereunder, shall be construed under and
governed by the law5 of the State of Ohio. Any dispute or controversy
related to this Agreement shall be submitted to JAMS/Endispute ("JAMS")
for binding arbitration by the complaining party providing written
notice to JAMS and the other party. The arbitration shall take place in
a location mutually agreed upon by the parties and, if they cannot
agree upon a location, the arbitration shall take place in Cincinnati,
Ohio. The parties may agree on a retired judge from the JAMS panel for
the binding arbitration. If they are unable to agree, JAMS will provide
a list of three available judges in close proximity to the location
where the arbitration will take place and each party may strike one.
The remaining judge will serve as the arbitrator. Judgment on the
decision of the arbitrator may be entered in the highest court of any
forum, federal or state, having jurisdiction. The arbitrator shall set
the guidelines for discovery. The cost for JAMS shall initially be
shared equally by the parties, with the prevailing party being entitled
to recover its share of said cost from the other party. The prevailing
party shall also be entitled to recover its costs and reasonable
attorneys' fees. The parties specifically exclude the provisions of the
United Nations Convention on Contracts For the International Sale of
Goods (the "Convention"). Without limiting the generality of the
foregoing, the parties acknowledge that the provisions of the
Convention shall not apply to this Agreement or to the interpretation
or enforcement of this Agreement.
11.4 ASSIGNMENT AND INUREMENT. Except as otherwise permitted
herein, neither ATS nor Volumatic shall transfer, convey, sub license
or otherwise assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of
the other party. This Agreement may be assigned by either party to the
successor, whether by sale, merger or other business combination, to
substantially all of the assets and business operations. No assignment
or delegation of obligations under this Agreement by either xxxxx shall
relieve the assigning or delegating party of any of its obligations.
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto.
11.5 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and shall not be modified, amended or terminated except as
herein provided or except by another agreement in writing executed by
the parties hereto. Without limiting the generality of the foregoing,
this Agreement is intended to supersede and replace the prior Agreement
between the parties dated as of October 29, 1996.
11.6 SEVERABILITY. All rights and restrictions contained
herein may be exercised and shall be applicable and binding only to the
extent that they do not violate any applicable laws and are intended to
be limited to the extent necessary so that they will not render this
Agreement illegal, invalid or unenforceable. If any provision or
portion of any provision of this Agreement not essential to the
commercial purpose of this Agreement shall be held to be illegal,
invalid or unenforceable by the binding arbitration, as provided for
herein, or a court of competent jurisdiction, it is the intention of
the parties that the remaining provisions or portions thereof shall
constitute their agreement with respect to the subject matter hereof,
and all such remaining provisions or portions thereof shall remain in
full force and effect. To the extent legally permissible, any illegal,
invalid or unenforceable provision of this Agreement shall be replaced
by valid provision, which will implement the commercial purpose of the
illegal, invalid or unenforceable provision. In the event that any
provision essential to the commercial purpose of this Agreement is held
to be illegal, invalid or unenforceable and cannot be replaced by a
valid provision which will implement the commercial purpose of this
Agreement, this Agreement and the rights granted herein shall
terminate.
11.7 FORCE MAJEURE. Any delays in, or failure of performance
of any party to this Agreement shall not constitute default hereunder,
or give rise to any claim for damages, if and to the extent caused by
occurrences beyond the control of the party affected, including, but
not limited to, acts of God, strikes or other concerted acts of
workmen, civil disturbances, fires, floods, explosions, riots, war,
rebellion, sabotage, acts of governmental authority or failure of
governmental authority to issue licenses or approvals which maybe
required. If a Force Majeure event occurs and said event prevents
Volumatic from supplying ATS with required products for more than sixty
(60) days, ATS shall, at its election, be entitled to terminate this
Agreement. If a Force Majeure event occurs that prevents a party from
performing any material obligation under this Agreement and said
inability to perform continues for a period of sixty (60) days, the
other party, at its election, shall be entitled to terminate this
Agreement upon ten (10) days notice.
11.8 NOTICES. All notices, statements, payments and reports
required or contemplated herein by one party to the other shall be in
writing and delivered in person (obtaining a signed receipt) or sent by
registered or certified mail return receipt requested, postage prepaid,
or by commercial overnight courier service, and addressed as follows:
If to ATS:
ATS Money Systems, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 07 631
Attention: Xxxxxx X. Xxxxxx, President
Telecopier Number: 000-000-0000
If to Volumatic:
Volumatic Ltd.
Xxxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxxxxxx XX0 0XX
Xxxxxxx
Attention: Xxxxxxx Xxxxxxxx, Managing Director
Telecopier Number: 00 0000-000000
Either party hereto may change the address to which notices to
such party are to be sent by giving notice to the other party at the
address and in the manner provided above. Any notice herein required or
permitted to be given may he given, in addition to the manner set forth
above, by telex, facsimile or cable, provided that the party giving
such notice obtains acknowledgment by telex, facsimile or cable that
such notice has been received by the party to be notified. Notice made
in this manner shall be deemed to have been given when such
acknowledgment has been transmitted.
11.9 MULTIPLE COUNTERPARTS. This Agreement may be executed in
several counterparts, all of which taken together shall constitute one
single Agreement between the parties.
11.10 SECTION HEADINGS: EXHIBITS. The section and subsection
headings used herein are for reference and convenience only, and shall
not enter into the interpretation hereof. The schedules/exhibits
referred to herein and attached are incorporated herein.
11.11 REQUIRED APPROVALS. Where agreement, approval,
acceptance, or consent by either party is required by any provision of
this Agreement, such action shall not be unreasonably delayed,
conditioned or withheld.
11.12 NO WAIVER. No delay or omission by either party hereto
to exercise any right or power occurring upon any noncompliance or
default by the other party with respect to any of the terms of this
Agreement shall impair any such right or power or be construed to be a
waiver thereof. A waiver by either of the parties hereto of any of the
covenants, conditions, or agreements to be performed by the other shall
not he construed to be a waiver of any succeeding breach thereof or of
any covenant, condition, or agreement herein contained. Unless stated
otherwise, all remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies
available to either party at law, in equity, or otherwise, including
the right to seek injunctive relief to prevent any breach or threatened
breach of the provisions of this Agreement.
11.13 SURVIVAL. Any termination, cancellation or expiration of
this Agreement notwithstanding, provisions of this Agreement and
obligations of the parties hereunder which are intended to survive and
continue shall so survive and continue.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives, under seal, as of the day and
year first above written.
VOLUMATIC LTD.
Attest: ______________________ By: ___________________________
Name: ________________________ Name: _________________________
Title: _______________________ Title: ________________________
ATS MONEY SYSTEMS, INC.
Attest: ______________________ By: ___________________________
Name: ________________________ Name: _________________________
Title: _______________________ Title: ________________________
The undersigned acknowledges that he has read the provisions of this
Agreement and agrees that: (a) he will comply with Volumatic's obligations with
respect to ATS Proprietary Information; and (b) during the term of this
Agreement and for a period of six (6) months after the termination of this
Agreement, he will not, directly or indirectly, compete with ATS.
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Xxxxxxx Xxxxx Xxxxxxx
SCHEDULE A
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SIXTY ( 60 ) MONTH WARRANTY PER 7.2D
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WENDY'S INTERNATIONAL INC (CORPORATE & FRANCHISEE)
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CONSOLIDATED STORES, COLUMBUS, OHIO
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US BEEF (ARBY'S FRANCHISEE)
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