EXHIBIT 10.10
DISTRIBUTOR AGREEMENT
BETWEEN:
XXXXXX,
a French corporation, having its principal address at
Z.1. Les Vignes - 00, xxx Xxxxxx Xxxxxxx
00000 XXXXXXX - XXXXXX
(hereinafter referred to as "XXXXXX")
- and - OF THE FIRST PART,
VISTA MEDICAL TECHNOLOGIES
a California corporation, having its principal address at
0000 Xxxxxxx Xxxxxxx - Xxxxx X
XXXXXXXX, XX 00000 - U.S.A.
(hereinafter referred to as the "Distributor"),
OF THE SECOND PART.
WE, (XXXXXX) AGREE WITH YOU (THE "DISTRIBUTOR") AS FOLLOWS :
1. APPOINTMENT
XXXXXX appoints VISTA MEDICAL TECHNOLOGIES an exclusive distributor for the
territory of North America for their cardiovascular sutures (the "Product,"
description in Annexe I) on the Distributor Price List (Annexe II) attached
to and forming part of this Agreement (the "Price List").
2. DISTRIBUTOR RESPONSIBILITIES
As an exclusive distributor of the products in the territory of North
America, Distributor will:
i) purchase the Products from XXXXXX at the prices set forth on the
Distributor price list ;
ii) shall not seek nor sell the Product to anyone outside the territory
unless specifically authorized to do so in writing by XXXXXX;
Distributor shall, however, transmit all inquiries it might receive
concerning the Products from outside the territory to XXXXXX ;
iii) be an independant contractor and not XXXXXX'x agent ;
iv) not give any warranties or make any claims about the Products beyond
XXXXXX'x standard warranties ;
v) pay all own expenses, including advertising and attendance at national
meetings ;
vi) do best to advertise and promote the Product ;
vii) provide customer service to defined customers ;
viii) * * *
3. MANUFACTURER RESPONSIBILITIES
XXXXXX will :
i) honor all orders in a timely fashion and provide distributor information
service re: product availability or backorder ;
ii) forward to Distributor, all customer orders received directly by XXXXXX
from USA customers ;
iii) assist in sales training ;
iv) provide assistance for importance physician customers as approved by
XXXXXX ;
v) provide product literature and competitive testing data ;
vi) upon the request of Distributor, XXXXXX will assist in selling, training
and company representation at three national meetings (congresses) in
the USA per year ;
* * * Confidential Treatment Requested
vii) provide product for physician samples at * * * below Distributor price
and samples for demonstration at three national meetings at no charge in
quantities to be decided in accordance with both parties ;
viii) manufacture all Products sold hereunder in full compliance with FDA
regulations and be responsible for all defects in the products, as
manufacturer, and shall obtain product liability insurance. If XXXXXX
is unable to obtain this insurance, Distributor's rights and obligations
to distribution will terminate."
ix) in mutual accordance with Distributor, will have inventory on hand in
France for shipment to USA.
x) not appoint any other distributor of Products in Annex I to sell in the
USA.
4. TERM
The term of this agreement shall be for a period of three years,
commencing on July 15, 1996 except if conditions from paragraph 16(c)
are realized. Thereafter, the term shall be automatically extended for
successive one year terms, unless either party elects not to extend the
term or any additional term, it shall give the other party a written
notice thereof at least three months prior to the end of the term or the
then-current additional term.
5. PLACING ORDERS
(a) How Distributor places an order. Distributor may order Products under
this Agreement as follows :
i) in writing, by Purchase Order ;
ii) verbally, including telephone, provide Distributor later confirms
it in writing ; or
iii) electronically, including facsimile (fax).
(b) XXXXXX'x acceptance of Distributor Order. A Product is covered under
this Agreement when we accept Distributor's order by :
i) providing Distributor with an invoice which confirms the details
of Distributor's order ; or
ii) shipping the Product ;
iii) Any order will not be executed without written confirmation.
* * * Confidential Treatment Requested
(c) Business Forms. For the sake of consistency, XXXXXX'x standard business
forms will govern all aspects of all transactions under this Agreement.
6. DELIVERY OF PRODUCTS
a) XXXXXX will try to meet Distributor's delivery requirements for Products
that Distributor orders and will keep Distributor informed of XXXXXX'x
progress.
b) All orders of Products will be shipped C.I.F. Santa Xxx - CALIFORNIA
c) If Distributor believes any shipment contains shortages or damaged
Products, Distributor must notify XXXXXX and transporter in writing
within eight (8) days of the date of delivery to Distributor (VISTA
MEDICAL TECHNOLOGIES).
7. TURNOVER
XXXXXX and the Distributor will decide by mutual agreement, at the end
of each year, the turnover for the next year. Each year (except for
1996), an annex III will be done to this contract mentioning the decided
turnover which will be signed by XXXXXX and the Distributor.
8. RETURNED GOODS
If Distributor wishes to return any item for credit or exchange,
Distributor must have XXXXXX'x prior authorization.
9. PRICES
Until changed, prices for the Products will be those described on the
price List (Annex II).
10. PAYMENT TERMS AND BILLING
Payment is due 90 days from shipping date to permit collection from
customers. Payment will be made in U.S. Dollars to XXXXXX. Payment
will be made by irrevocable and confirmed letter of credit until
approval can be attained from COFACE. Late payment will incur * * * per
month penalty charge.
* * * Confidential Treatment Requested
11. PRICE CHANGES
If XXXXXX needs to change Distributor's prices, XXXXXX will negotiate by
mutual agreement, a new price with Distributor, and must agree on the
new prices at least * * * before they go into effect.
12. DISCONTINUANCE OF PRODUCTS
From time to time, XXXXXX may discontinue particular Products, limit
their production or alter their design but will inform Distributor at
least * * * before change. New cardiovascular products developed
will be offered to Distributor by mutual agreement with first right of
refusal.
13. PROHIBITION ON MODIFICATION
Distributor may not alter or modify any Product or accessory of any
Product.
14. LIMITED WARRANTY
Except for the standard warranty XXXXXX provides directly to the end-
users of the Products,
XXXXXX MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION,WARRANTIES OR REPRESENTATIONS AS TO DESCRIPTION,
QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
This Limited Warranty is XXXXXX'x sole obligation as to the Products
sold under this Agreement except as covered in Section 19 ; XXXXXX shall
not be liable to you or any end-user for direct, consequential or
incidental damages, or damages arising from personal injury, loss of
life or lost profits.
15. TRADE MARKS
Distributor will have the non-exclusive right during this Agreement to
use our trade marks in promoting the sale of Products ; however,
Distributor must :
i) comply with all our instructions relating to the form and manner
of use of our trade marks ;
* * * Confidential Treatment Requested
ii) refrain from using our trade marks in your corporate name ;
iii) refrain from removing or permitting the removal or alteration of
any trade marks, patent numbers, notices, nameplates or serial
numbers attached to any of the Products.
XXXXXX represents and warrants to Distributor that XXXXXX' trademarks
relating to the Products do not infringe the rights of any third parties
and XXXXXX agrees to indemnify, defend, and hold harmless Distributor
with respect to any claims of trademark or patent infringements or any
other violation on the infringement or rights of third parties.
16. TERMINATION
(a) XXXXXX may, in its sole discretion, terminate this Agreement, without
notice or delay if Distributor :
i) breaches of any of the terms or conditions of this Agreement ;
ii) becomes insolvent or is unable to pay its debts as they generally
become due ;
iii) contracts with a competitive suture company ;
iv) sells 30%, or more, of it's company share to a competitor of
XXXXXX.
(b) XXXXXX may terminate this Agreement if Distributor does not meet the
mutually agreed forecasted annual sales (see annex III).
(c) In the event of break of this Agreement, XXXXXX will notify Distributor
in writing of the termination of this Agreement three months in advance
of the termination date.
17. OBLIGATIONS FOLLOWING TERMINATION
Upon termination of this Agreement for any reason whatsoever,
Distributor will :
i) return to XXXXXX all advertising, informational or technical
material we have given to you ;
ii) stop using our trade names and trade marks ;
iii) if XXXXXX requests, sell back to xxxxxx, at the original net
price Distributor paid, plus actual freight charges for delivery
to XXXXXX, all Products on hand in your place of business or in
your possession or control at the time of termination and deliver
them to XXXXXX right away, provided however, that XXXXXX may
reject any of the Products so delivered, which are not in first
class condition ; and
iv) immediately pay all amounts Distributor owes to XXXXXX.
v) if XXXXXX declines to buy back all Products held by Distributor,
Distributor shall be entitled to dispose of the Products in its
ordinary course of business after the effective date of
termination of this Agreement.
This Section shall survice the termination of this Agreement.
18. NO DAMAGES ON TERMINATION
XXXXXX shall not, by reason of the termination of this Agreement, be
liable to Distributor for compensation, reimbursement or damages on
account of the loss of prospective profits on anticipated sales or on
account of expenditures, investments, leases or commitments in
connection with Distributor's business or goodwill.
19. MUTUAL INDEMNITY
XXXXXX will indemnify Distributor and save it harmless from any claim or
action made against the Distributor as a result of defects in any
Products that XXXXXX is responsible for. Likewise, Distributor will
indemnify XXXXXX and save it harmless against all losses, damages, costs
or expenses that XXXXXX incurs as a result of any claim or action made
against him because of any of the distributor's act or omissions such as
giving unauthorized representations or performing unauthorized repairs
or modifications.
20. SECURITY
a) As security for your payments and obligations under this agreement,
Distributor grants XXXXXX a security interest in all Products delivered
to Distributor from time to time and in their proceeds.
21. GOVERNING LAW
This Agreement shall be governed by the law of FRANCE. In case of
litigation, arbitration will be conducted by the Xxxxxxxx xx Xxxxxxxx xx
XXXXX.
00. AGREEMENT AS COMPLETE EXPRESSION OF TERMS
THIS AGREEMENT IS THE FINAL AND COMPLETE AND EXCLUSIVE WRITTEN
EXPRESSION OF ALL TERMS GOVERNING YOUR APPOINTMENT. XXXXXX WILL NOT BE
BOUND BY ANY OTHER REPRESENTATIONS OR PROMISES MADE BY ANYONE ACTING ON
OUR BEHALF THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
BOBIGNY, July 15, 1996
XXXXXX VISTA MEDICAL TECHNOLOGIES
/s/ X.X. Xxxxxx /s/ Xxxx Xxxx
X.X. XXXXXX XXXX XXXX
PRESIDENT PRESIDENT
/s/ B. Cailleton /s/ Xxxxx Brief
B. CAILLETON XXXXX BRIEF
DIRECTOR BUSINESS GENERAL MANAGER
DEVELOPMENT CARDIO
VASCULAR SURGERY
ANNEX I
CARDIO VASCULAR PRODUCTS
- CORONYL
- CARDIONYL
POLYAMIDE MONOFILAMENT
- CARDIOFLON
POLYESTER BRAID IMPREGNATED WITH TEFLON
- TEFLENE (TEFLEX IN FRANCE)
P.V.D.F. MONOFILAMENT
- STERNOPLAQUE
- STAINLESS STEEL
ANNEX II
ANNEX III
NOT PART OF ORIGINAL DOCUMENT
