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EXHIBIT 10.15
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS, MARKED BY AN **, HAVE BEEN
SUBMITTED TO THE COMMISSION WITH THE CONFIDENTIAL TREATMENT REQUEST
NON-EXCLUSIVE DISTRIBUTOR AGREEMENT
AGREEMENT effective the 1st day of May 1994
BETWEEN:
VASCO Data Security, Inc.
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxx, Xxxxxxxx 00000 U.S.A.
Phone 000-000-0000
Fax 000-000-0000
(hereinafter called "Producer")
AND:
Concord-Eracom Nederland BV
Xxxxxxxxxx 0
XX-0000 XX Xxxxxxxxx
Phone 00-00-0000000
Fax 00-00-0000000
EURO VAT No. NL-9238657B01
(hereinafter called "Distributor")
NOW THEREFORE IT IS AGREED AS FOLLOWS:
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Article 1. - Definition
The following words shall have the indicated meaning when used herein:
i) "Product" - those Products which the Producer has manufactured for
re-sale or purchased for re-sale, which are in Schedule 1 of this
Agreement and which are designated therein by the Producer's trade xxxx or
trade name to be used under this Agreement and by the use which the Product
shall be sold under this Agreement.
ii) "Territory" - the Territory outline or defined in Schedule 2 of this
Agreement.
iii) "Annual Period" - successive one (1) year periods the first of which
commences on the effective date of this Agreement.
iv) "Price" - that amount of money designated as set out in Schedule 3 of this
Agreement or as may be otherwise designated by the Producer from time to
time which is to be paid to the Producer for the Product, not including
any charges for taxes, duties or other Government fees. The price as at
the date of commencement of this Agreement shall be as designated in
Schedule 1.
Article 2. - Agency & Distributorship
The Producer grants to the Distributor the non-exclusive right to distribute
and sell the Product in the named Territory.
Article 3. - Future Changes
The Producer reserves the right to modify Schedule 1 of this Agreement by
adding thereto or deleting therefrom any items at any time upon thirty (30)
days advance written notice to the Distributor.
Article 4. - New Products
The Producer shall inform the Distributor of improvements in the Product or new
goods acquired or produced by the Producer for resale. Such goods or improved
Products may be added to Schedule 1 in accordance with Article 3.
Article 5. - Price and Delivery
a. The price for the Product shall be denominated in U.S. Dollars and as
designated in Schedule 3 hereof or otherwise as the Producer shall
designate in writing. The
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Producer reserves the right to modify such price at its sole discretion.
However the Producer must give the Distributor three months' notice before
any such price modification becomes effective. During any such three month
period prior to modification of price, the Distributor may not order the
Product from the Producer at a greater volume than that being ordered
during the previous three month period, unless the Producer should consent
to orders in excess of such volumes.
b. Payments shall be made as follows:
a)
i) by Letter of Credit or Telegraphic Transfer (terms net 30 days) of
cleared funds to Producer where product is to be delivered outside the
United States.
c. The Distributor shall accept delivery of the Product when the carrying
vessel reaches the Territory and shall then be responsible for
transporting the Product at the Distributor's risk and peril. The
Distributor shall assume responsibility for all customs clearance charges.
All freight and shipping insurance shall be "F.O.B.".
d. The Producer undertakes to execute orders from the Distributor with
reasonable care but is not responsible to the Distributor for any delay in
delivery, whatever the reason for such delay shall be, except as agreed by
way of a separate letter of understanding.
Article 6. - Obligation of the Distributor
Throughout the duration of this Agreement, the Distributor shall:
a. Sell: Use its maximum efforts to sell, use and promote the use of the
Product through Territory.
b. Sales Network: Develop a sales network for the Product.
c. Not sell outside Territory: Not sell the Product directly or indirectly
outside the Territory or for use outside the Territory without having
previously obtained in each case the written authorization of the
Producer. To this end, the Distributor undertakes to ensure that its
buyers do not sell outside the Territory nor export the Product either
directly or indirectly.
d. Maintain Office: Maintain and operate at the Distributor's expense an
Office in the Territory in a business like matter.
e. Maintain Stocks: Maintain stocks of a sufficient quantity for supplying
so as not to delay customer ordering the product in the ordinary course
of business.
f. Inform of Competitors: Inform the Producer of any goods and the sellers
thereof, which compete with the Producer.
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g. Not Compete: Not sell materials or goods which compete or are likely to
compete with the Product unless the written Agreement of the Producer is
obtained prior to each such sale. Distributor shall be required to provide
specifications and pricing of competitive products to Producer; Producer
shall have the Right of First Refusal to provide Producer's similar
product(s) at competitive prices.
h. Not Tamper with Labels: Not change, modify, obliterate or remove the
Producer's labels, marks or trademarks on the Product and on its
packaging; if it is necessary to repack the Product, the Distributor shall
ensure that the original trademarks appear on the packaging. The
Distributor may attach a label recording that the Product is supplied by
the Distributor, the exception being if Distributor advises the Producer
to produce under brand name and/or private label.
i. Fully informed Producer: Fully inform the Producer at all times and in
any case upon request from the Producer of the Price charged by the
Distributor for the Product, who the customers are, to whom the
Distributor sells the Product and the quantity of the Product sold to each
customer.
j. Export Licensing and Security: Fully comply with Producer's reasonable
instructions concerning export licensing and security from time to time
for products.
k. Maintain Repair Personnel: The Distributor will provide and maintain
competent personnel and reasonable and necessary test demonstration
equipment and repair facilities to repair and maintain the Product in good
working order and condition, the cost of which shall be borne by the
customer after the expiration of the warranty period.
l. Advertising and Technical Documentation: Communicate to the Producer
for approval by the Producer before printing, distribution or use, the
advertising and technical documentation the Distributor shall supply and
use concerning the Product including all labeling used with the Product;
and once such approval has been obtained, not to change such documents and
labeling without the prior written consent of the Producer.
m. Not Legal Representative: Be in no way the legal representative of
the Producer and have no right or authority to assume any obligations or
make any representation of any kind which are or might be binding upon
the Producer, except in the express terms of this Agreement and this
Agreement shall not permit or empower the Distributor to undertake
financial or other responsibility or to contract or incur liabilities of
any kind in the name of or as representative for or on behalf of the
Producer or to pledge the credit of the Producer in any way.
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n. Not Assign: Not to assign, to transfer or in any manner make over this
Agreement or any right or obligation hereunder to any person or persons
or organization whatsoever without the consent in writing of the Producer.
o. Sale/Market Plan: To furnish to the Producer within one (1) month of the
date of the expiration of each year of the term of this Agreement the
following:
i. A sale/market plan or strategy for the subsequent yearly period.
ii. A report on the success or failure of the preceding twelve
(12) month period sale/market plan or strategy with comments
reasonably to the best of the Distributor's ability on the
reasons for such success of failure.
Article 7. - Promotions and Advertising Materials
The Producer in its discretion may elect to provide the Distributor with
promotion and advertising materials including trade literature free on the
effective date hereof. The Producer may agree to be responsible for the cost of
the lodgement of advertisements as may be mutually agreed upon in an
international computer publication circulating in the Territory and may
schedule access as may be mutually agreed upon in advance to demonstrate
equipment. The Producer may contribute part of all of the expenses as may be
from time to time mutually agreed upon incurred in trade exhibitions and
advertisements in trade journals during the currency of this Agreement.
Article 8. - Software Tools
The Producer may from time to time to provide software tools to aid Distributor
in integrating Producer's products into Distributor's products. These software
tools will be consigned on the following basis:
i. Ownership of a copyright thereto shall be retained in all times by the
Producer.
ii. The Distributor may not sell, lease or part with possession of the
software tools.
iii. The Distributor shall maintain the software tools in good order and
condition.
iv. The Distributor shall return the software tools to the Producer upon
termination of this Agreement.
Article 9. - Trade Xxxx
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If at some time in order to sell the Product it should be necessary to register
a Trade Xxxx in the Distributor's name, the Distributor shall undertake to
co-operate in the transfer of this Trade Xxxx to the Producer or any persons or
companies designated by the Producer immediately upon termination of this
Agreement for one or more of these items in Schedule 1. Producer and
Distributor undertake to take immediate steps under the direction of the
Producer to effectively oppose any infringements of Trade Marks. The
Distributor hereby renounces forever any claim to any right, title, or interest
to any Trade Xxxx registered in the Producer's name or transferred to the
Producer now or in the future.
Article 10. - Arbitration
Any dispute about the interpretation or the execution of this Agreement,
whatever its nature or importance, shall be submitted to three arbitrators and
resolved finally by them in accordance with the rules for cancellation and
arbitration of the International Chamber of Commerce. The place of arbitration
shall be nominated by the Producer.
Article 11. - Termination
a. Either party may terminate this Agreement upon the expiration of any
Annual Period with at least thirty (30) days prior written notice. Such
termination shall impose no obligation or liability on either party except
as provided in this Article 9.
b. The Producer may terminate this Agreement at any time upon the
occurrence of any of the following, each of which shall constitute an
event of default:
i. Failure to Observe Agreement - the Distributor's failure to
observe any of the terms or conditions of this Agreement,
ii. Distributors Insolvent - the Distributor becomes insolvent,
bankrupt, or upon any proceedings being commenced by or against
the Distributor under any laws having to do with the relief of
debtors,
iii. Change of Ownership - change in ownership or control of the
Distributor's business, whether voluntary or by operation of
law,
iv. Transfer - transfer or assignment or attempted transfer or any or
all the rights herein granted the Distributor. The waiver of any default
in any instance shall be deemed a waiver for said instance only,
v. Failure to Maintain Security & Licenses - the Distributor's
failure to maintain the level of security reasonably required by
the Producer from time to time concerning products the subject of
security/export license controls.
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c. If this Agreement should be terminated by the Distributor:
i. Undertakes to resell and return to the Producer the Product and
its inventories which are still in good condition, at the Price at which
it bought it from the Producer. The Product which has deteriorated or is
more than three months old shall be resold at a reduces price reflecting
fair market value. No custom product may be returned to Producer.
ii. Shall pay the Producer, within a period of thirty (30) days, all
sums due. If any goods are returned pursuant to Clause 11 c. above, the
Producer will pay the Distributor as provided in Clause 11 c. within
thirty (30) days after the Producer's receipt of such return Product.
iii. Upon demand of the Producer shall make available to the Producer a
list of his customers in the six months preceding the termination and
shall deliver to the Producer copies of all unfilled orders (whether or
not such orders have been partly filled or remain totally unfilled). In
the event that the proceeds received by the Producer from completing such
orders (should the Producer elect without any legal obligation so to do
to complete such orders) then in so far as any damages accruing to the
Producer for breach by the Distributor of this Contract do not exceed the
profits so made such excess profits shall be returned to the Distributor.
iv. Undertakes to transmit any orders it receives thereafter to the
Producer who shall wherever practicable, but without obligation to do so,
honor such orders.
Article 12. - Support and Service Training by Producer
Customer engineering and service training will be supplied by the Producer as
mutually agreed upon. All travel and living expenses of customers or their
employees or distributors undergoing such training will be the responsibility
of the customer or distributor. If training by the Producer is given away from
the Producer's premises, the Producer will be reimbursed for the actual and
reasonable travel and living expenses its employees incur in getting to,
remaining at and returning from the training site.
Article 13. - Representations and Warranties
In soliciting orders for the Producer, the Distributor shall not make
representations or offer warranties other than those contained in sale
literature supplied by the Producer to the Distributor. Contracts prepared by
the Distributor for signature by customers shall contain a similar disclaimer
respecting representations or warranties binding upon the Producer. The
Distributor agrees to indemnify and hold harmless the Producer from any
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representations or warranties binding upon the Producer made by the Distributor
in excess of those contained in the Producer's sales literature. In all cases,
the Distributor will make it clear to customers that the Producer's warranty in
respect of deficiencies in materials and workmanship shall not exceed 3 months
from the delivery of the Product to the customer.
Article 14. - Assignment
This Agreement shall ensure to and be binding upon the parties hereto, their
successors and assigns providing that the Producer's consent shall be required
to an Assignment of the Distributor's interest in the Agreement.
Article 15. - Trade Secrets
The Distributor understands that all trade secrets and confidential information
which are divulged to the Distributor by the Producer are the property of the
Producer. The Distributor agrees to keep all such information confidential and
shall not make disclosures to anyone of such information except as authorized
by the Producer.
DISTRIBUTOR: PRODUCER:
By /s/ Xxxx X. Xxxxx By: /s/ T. Xxxxxxx Xxxx
-------------------------- ------------------------------
Name: Name:
----------------------- ------------------------
Position: Managing Director Position: President
------------------- --------------------
Witness: Witness:
-------------------- ---------------------
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SCHEDULE I
PRODUCTS
The Distributor is authorized to sell the following Products:
1. ACCESS KEY I
1. ACCESS KEY II
1. ACCESS KEY III (In development)
1. KEYPAD (Discontinued, phaseout anticipated June 1, 1994)
1. KEYCUTTER SYSTEM
1. RELATED ACCESSORIES
1. INTERNATIONAL SMART CARD READER
NOTE:
Unite pricing for the above products will be negotiated based on,
combined, firm Open Purchase Order commitments by both Concord-Eracom
and Eracom Pty.
-9-
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SCHEDULE II
TERRITORY
The Distributor agrees to represent, on a non-exclusive basis, Products listed
in Schedule I primarily in Europe, the Middle East, and South America.
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SCHEDULE III
PRICING
Description Open P.O. Quantity # Months From Price Per Unit
----------- ------------------ ------------- --------------
Order
-----
1. Access Key II 1 or > 12 **
- Standard Keys 20,000 or > 12 **
and/or 40,000 or > 12 **
- ABN-AMRO Keys 50,000 or > 12 **
2. International Smart Card Reader 1 or > 18 **
Model #301 10,000 or > 18 **
- 200,000 - 500,000 insertions 20,000 or > 18 **
- Landed contacts design 30,000 or > 18 **
20,000 - 40,000 insertions 40,000 or > 18 **
per card 50,000 or > 18 **
NOTE:
Concord-Eracom will place firm Open Purchase Orders for Access Key II and for
the International Smart Card Reader at quantity levels it can sell over the
time periods above. The quantity levels can be combined with orders from both
Eracom Pty. and Concord-Eracom. Each order shall specify the total unit
commitment and shall be accompanied by a shipping schedule over the term of the
Open Purchase Order.
