Exhibit 10.3
Execution Copy
Objet Geometries Ltd.
North American Distributor Agreement
Parties: Objet Geometries Ltd. ("Company")
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▇.▇. ▇▇▇ ▇▇▇▇,
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Stratasys, Inc. ("Distributor")
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Effective Date: August 28, 2003
WHEREAS Company develops, manufactures, markets and sells a rapid
prototype ("RP") system called Polyjet, based on Company's
proprietary UV Jetting Technology (as defined below) and
related products and services; and
WHEREAS Distributor develops, manufactures, markets and sells RP
Systems (as defined below), based on Distributor's proprietary
fused deposition modeling ("FDM") technology and related
products and services; and
WHEREAS Distributor has previously determined for its own business
reasons to [*];
WHEREAS Distributor has represented to Company that Distributor has
the facilities, personnel, technical expertise, and financial
ability necessary to sell, market, distribute, install and
support the Systems (as defined below) in the Territory (as
defined below);
WHEREAS Company has represented to Distributor that Company has or
will have the facilities and financial ability necessary to
manufacture the Products (as defined below) for sale in the
Territory; and
WHEREAS Distributor wishes to obtain, and Company is willing to grant
Distributor, an exclusive right to market, sell, distribute,
install and support the Products in the Territory, subject to
the terms and conditions set forth in this Agreement;
[*] Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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In consideration of the mutual covenants herein, the parties agree as follows:
1. Definitions.
A. Unless otherwise defined in the main body of this Agreement, the
following terms shall have the meanings identified in the attached
Appendices, each of which is incorporated by reference.
Products, Prices Appendix A
Purchase Terms Appendix B
Product Description & Specifications Appendix C
Limited Warranty Appendix D
Territory Appendix E
Minimum Annual Sales Quota Appendix F
Company Insurance Policies Appendix G
Service Appendix H
Proprietary Information to Distributor and Company Appendix I
Marketing Plan Appendix J
Transition-Out upon Termination Appendix K
Objet Trademarks Appendix L
B. Unless otherwise defined herein, when used in this Agreement, the
following terms shall have the meanings ascribed to them below:
"Agreement Quarter" means each three-month period commencing October 1,
January 1, April 1, and July 1 and ending December 31, March 31, June
30 and September 30, as applicable.
"best efforts" means, in the case of Distributor, [*]; and in the case
of the Company, [*].
"Distributor System" means any RP System (other than a System) that
Distributor sells in the Territory, whether as a manufacturer or
distributor of such RP System.
"Eden 333 System" means the System described on Annex C hereto as
modified or amended from time to time.
"Exclusivity Period" means each period of time where Distributor has
the right to act as Company's exclusive distributor of the Products in
the Territory.
"FDM Technology" means the fused deposition modeling technology used by
Distributor's RP Systems that is based on extrusion of materials onto a
surface, including all patents, trademarks, copyrights, knowhow and
other intellectual property rights owned by Distributor.
"Force Majeure" means any war, revolution, terrorism, acts of the
public enemy, strikes, fires, floods, storms, hurricanes, tornados,
other acts of God, transportation delays or shortages, labor disputes,
riots, insurrections, accidents, inability to obtain materials or
supplies as a result of a Force Majeure, governmental action or
exercise of eminent domain, and other cause not within the control of
the person in question, whether of the class of the causes hereinbefore
enumerated or not.
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"Polyjet Jetting Head" means the Single Head Unit Assembly used in the
Systems, which is described on Appendix A, and all upgrades,
improvements and substitutions thereof.
"Polyjet Resin" means the proprietary [*] resin of Company used in
Company RP Systems.
"Products" means all Systems and all such spare parts, resins and other
products, as such products are listed on Appendix A as modified or
amended from time to time, that are sold for use in or with the Systems
in the Territory.
"RP Systems" means rapid prototyping systems whereby the system builds
a three-dimensional solid representation from a computer assisted
design.
"Systems" means all of the Company's RP Systems using UV Jetting
Technology that are to be sold to third party end users with a list
price of US$ [*]or more, including, without limitation, the Eden 333
System described on Appendix C.
"UV Jetting Technology" means the technology used by Company's RP
Systems to transfer Polyjet Resin to a surface for the purpose of
building a three-dimensional representation from a computer assisted
design, and any similar technology used in RP Systems in which a resin
or similar material is transferred by expulsion through space in a
spray or jet stream, but excluding Distributor's FDM Technology.
C. The specifications on Appendix C above may be modified by Company from
time to time and with 90-day prior notice, by delivering a replacement
Appendix C to Distributor in the manner set forth in Section 19.
D. When a Distributor System is compared with a System to determine
whether such Distributor System competes or is competitive with a
System for purposes of this Agreement, the determination shall be based
on [*].
2. Appointment.
▇. ▇▇▇▇▇ of Exclusive Distribution Right. Subject to Distributor's
continued compliance with the terms of this Agreement, Company grants
and Distributor accepts the exclusive right to market and sell Products
solely for installation and use at end user customers' facilities
located within the Territory (as defined in Appendix E hereto) and to
obtain and submit Product orders to Company during the Term of this
Agreement as specified in Section 9 hereof. During the Exclusivity
Period and except as otherwise provided herein, Company will not
directly or indirectly market, sell or distribute Systems or any other
Products that are sold for use in or with the Systems in the Territory
and shall effect all such sales of Systems and other Products for
installation or use in the Territory by or through Distributor.
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B. Joint Marketing and Sales Efforts. If Company desires to market
Products to prospective customers located in the Territory for
installation or use of the Products outside of the Territory, where
such customer may also be a potential customer for Products in the
Territory, then prior to commencing any such marketing efforts with
respect to a prospective customer, Company shall notify Distributor's
Chief Executive Officer or Vice President of Sales of the metropolitan
area in which such prospective customer is located (but shall not be
required to name the prospective customer). However, [*] Company and
Distributor shall develop a coordinated sales effort with respect to
such prospective customer.
C. Restriction on Distributor's Sales. Except as otherwise expressly
permitted in this Agreement, during the Exclusivity Period, Distributor
will not sell for installation in the Territory any RP Systems that are
competitive with the Eden 333 System or any other Products being
marketed or sold in connection therewith pursuant to this Agreement,
nor will Distributor sell any maintenance services or resin that are
competitive with those, as the case may be, being marketed or sold
pursuant to this Agreement. Company acknowledges that none of the
Distributor Systems being manufactured, marketed and sold by
Distributor on the date of this Agreement are competitive with the Eden
333 System. If Distributor announces that it will begin to sell in the
Territory a Distributor System that is competitive with the Eden 333
System, Company shall have the right to terminate the exclusivity of
Distributor's distributorship under this Agreement by written notice to
Distributor given not later than 90 days after the date of
Distributor's announcement, in which case (i) all of the restrictions
on Company's right to market, sell and distribute Products in the
Territory under Section 2A and 2B or to appoint other distributors to
market, sell and distribute Products in the Territory and its
obligations under Sections 6B and 8B shall lapse, and (ii) Distributor
shall have the right to sell such Distributor System in the Territory
notwithstanding the other provisions of this Section 2C. If Company
does not give such a notice within such 90-day period, then the
Exclusivity Period will continue, and Distributor shall have the right
to sell such Distributor System without restriction.
D. Loss of Exclusivity.
(i) In the event that Distributor has not ordered [*] total Eden
333 Systems by the end of [*] months from the date hereof,
Distributor shall be required to pay the Company the sum of
$[*] as an advance payment for future orders of Systems in
order to maintain its exclusivity hereunder (the "Supplemental
Advance"). If the Distributor neither orders the [*] Eden 333
Systems by the end of said [*] months nor pays Company the
Supplemental Advance within 20 days thereafter, then (a)
Distributor shall be thereby deemed to have lost its
exclusivity hereunder and shall thereafter be a non-exclusive
distributor of the Products in the Territory and (b) the
restriction on Company's right to market, sell and distribute
Products in the Territory under Sections 2A and 2B and its
obligations under Sections 6B and 8B shall automatically
lapse. Distributor may regain exclusivity in the Territory
only if it has submitted by the first anniversary of the date
hereof binding purchase orders to the Company for a total of
[*] Eden 333 Systems, in which case all of the restrictions on
Company's right to market, sell and distribute Products in the
Territory under Section 2A and 2B or to appoint other
distributors to market, sell and distribute Products in the
Territory and its obligations under Sections 6B and 8B shall
be reinstated.
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(ii) If Distributor has not ordered the Minimum Annual Sales Quota
of Eden 333 Systems during each subsequent year of the Term
(whether as set forth on Appendix F or as agreed by the
parties in accordance with Section 9 hereof), then (a)
Distributor shall be thereby deemed to have lost its
exclusivity hereunder and shall thereafter be a non-exclusive
distributor of the Products in the Territory and (b) the
restrictions on Company's right to market, sell and distribute
Products in the Territory under Section 2A and 2B and its
obligations under Sections 6B and 8B shall automatically
lapse.
(iii) Anything in clause (ii) of this Section 2D to the contrary
notwithstanding, if at the end of the first, second or third
Agreement Quarter of the third year of the Term of this
Agreement, Distributor has not ordered an average of [*] Eden
333 Systems per Agreement Quarter during such third year of
the Term, then (a) Distributor shall be thereby deemed to have
lost its exclusivity hereunder and shall thereafter be a
non-exclusive distributor of the Products in the Territory and
(b) the restrictions on Company's right to market, sell and
distribute Products in the Territory under Section 2A and 2B
and its obligations under Sections 6B and 8B shall
automatically lapse.
E. Suspension of Minimum Annual Sales Quota. Anything in Section 2D to the
contrary notwithstanding, if (i) Company issues a stop ship order due
to a severe reliability problem within the first year of the Term, or
(ii) either party is unable to perform its obligations under this
Agreement due to a force majeure, then:
(1) Distributor's obligation to satisfy the Minimum Annual Sales
Quota shall be suspended beginning at the time when any of the
foregoing events stated in clauses (i) or (ii) begins and
ending at the time when any such event ends (the period of
such suspension being referred to as the "Suspension Period");
(2) the time during which Distributor shall be required to satisfy
the Minimum Annual Sales Quota or the quota for any Agreement
Quarter as provided in clause (iii) of Section 2D shall be
extended by the a period of time equal to the Suspension
Period; and
(3) the Term of this Agreement shall be extended by a period of
time equal to the Suspension Period and all other provisions
of this Agreement relating to the date of this Agreement or
the anniversary thereof, such as the definition of Agreement
Quarter, shall be modified mutatis mutandis.
F. Introduction of New Systems.
(i) If Company intends to sell any new System during the
Exclusivity Period, it shall give Distributor notice of the
proposed sale of such new System not less than one
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(1) month prior to installation of such new System at a Beta
site. Such notice shall set forth the specifications for such
new System, the proposed Net Transfer Price, the proposed list
price, and such other information as shall be appropriate to
permit Distributor to evaluate such new System and the market
for it in the Territory. Between the time of such notice and
the date on which Company launches such new System for
commercial sales anywhere in the world (the "New System Launch
Date"), Company and Distributor shall determine in good faith
whether Distributor is then selling or proposing to sell any
Distributor System that would be competitive with such new
System.
(ii) If the parties determine that such new System would be
competitive with any Distributor System or if they cannot
agree before the New System Launch Date, either party can, by
notice given to the other not later than ten (10) days after
the New System Launch Date (such notice being referred to
herein as an "Exclusion Notice"), exclude such new System from
this Agreement. In that case, Company shall have the right to
sell such new System and related Products directly or
indirectly in the Territory without violating Section 2A
hereof.
(iii) If the parties determine that such new System is not
competitive with any Distributor System, or if they determine
that it is competitive or cannot agree but neither party gives
a Notice of Exclusion within ten (10) days after the New
System Launch Date, then such new System shall be deemed to be
a System subject to this Agreement. In that case, Distributor
shall have the right to sell other Distributor Systems without
violating Section 2C. In addition, Company and Distributor
shall negotiate in good faith reasonable Minimum Annual Sales
Quotas, prices and other material terms of the sale of such
new System to Distributor hereunder that relate solely to such
new System rather than to Systems generally.
3. Distributor Responsibilities. During the Term of this
Agreement, Distributor will have the following
responsibilities in connection with its distribution of
Products within the Territory:
A. Product Distribution. Distributor shall use its best efforts during the
Exclusivity Period, and its commercially reasonable efforts during any
period of non-exclusivity, to market and distribute the Products
throughout the Territory. Distributor shall conduct business in a
manner that reflects favorably at all times on the Products consistent
with Company's published literature for the Products.
B. Marketing Plan and Reports. During the Exclusivity Period, Distributor
will diligently carry out the Marketing Plan, as appended hereto as
Appendix J. For each calendar quarter during the Term of this
Agreement, Distributor shall provide Company with a report, in the form
to be mutually agreed upon, generally setting forth details of and
describing Distributor's activities during the preceding calendar
quarter and activities planned for the coming calendar quarter to
implement the Marketing Plan. To ensure compliance with the terms of
the Marketing Plan and this Agreement, Company shall have the right,
upon a reasonably advance written notice, to inspect and audit, at its
own costs, the relevant sales and service records of Distributor as
they relate in general to implementation of the Marketing Plan and
performing Distributor's obligations hereunder. Company, however, shall
have no right to examine or audit Distributor's records with respect to
any particular customer nor shall Company be entitled to obtain the
names of Distributor's customers and related contact and other
customer-specific information or any information relating to the
manufacture, marketing, sale, or maintenance of Distributor Systems
(whether separately or jointly with the Systems) in connection with
Company's examination of Distributor's records.
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C. Order Forecasts. Distributor will provide monthly an updated,
non-binding Product forecast of the number of Systems that Distributor
expects to order in the succeeding 90-day period. During the two months
immediately preceding the first anniversary of the date hereof,
Distributor and Company will negotiate in good faith a reasonable
arrangement by which Company can rely on reasonably accurate
forecasting from Distributor in order to align Company's production
capacity with Distributor's actual requirements for Products, without
creating excessive overcapacity and thereby maintain reasonable
production efficiencies.
D. Adequate Facilities and Personnel. Distributor shall maintain adequate
facilities and an adequate, trained Distributor sales force for the
regular solicitation of customers and prospects located within the
Territory. Distributor will hire one Product Manager dedicated to the
Products and assign AE (Application Engineer) specialists and FSE's
(Field Service Engineers) trained to support the Products in the
Territory. The Product Manager will serve as a liaison and chief point
of contact between Distributor and Company for all Product marketing,
sales and technical issues and updates. Distributor's Product Manager
and senior sales management shall meet with Company on a quarterly
basis in the Territory to jointly discuss product positioning and to
share all customer feedback with respect to the performance of the
Products. Distributor shall have no obligation to provide R&D or
manufacturing to Company for the Systems or other Products.
E. Conducting Business for Own Account. Distributor shall conduct all
business hereunder in its own name as an independent party, and not as
an agent of, or partner or joint venturer with, Company, including the
payment of all wages, taxes, costs, expenses and other amounts incurred
in Distributor's business and specifically in its performance under
this Agreement.
F. Orders in Compliance with Specifications. Distributor shall solicit and
accept orders only for Products having the Product Specifications set
forth on Appendix C, as modified or amended.
G. Promotional Efforts. Distributor shall advertise the Products in
advertising media of Distributor's choice in a manner consistent with
advertising of Distributor Systems. Distributor shall make use of all
promotional material supplied by the Company, which shall be supplied
at Company's expense. In this regard, Distributor shall implement the
commitments specified for marketing and advertising as specified in the
Marketing Plan, which Company views as a fundamental part of the
implementation of this Agreement. Distributor shall comply with
Company's reasonable branding guidelines and advertising policies as
advised by Company from time to time, provided that such policies do
not require Company to engage in marketing or advertising efforts that
are inconsistent with those conducted for Distributor Systems. In
addition, Distributor shall have the right to modify product literature
provided by Company in accordance with Section 6E to conform it with
literature Distributor uses in connection with the marketing and sale
of Distributor Systems and related products, subject to Company's
consent to such modifications, which consent shall not be unreasonably
withheld.
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H. Representations to Customers. Distributor will not make any
representations or give any warranties concerning the Products or their
capabilities that are false or misleading in any way or go beyond those
warranties and representations made by Company in this Agreement and in
the documentation supplied by it.
I. Integration and Installation. Distributor shall be responsible for the
installation, integration and implementation of the Products at the
customers' sites and for training customer personnel in the use and
maintenance of the Products. Installation shall include, among others,
site analysis, network configurations and software installation.
J. Technical Support. Distributor shall ensure a reasonably competent
sales and technical support organization to provide sales and
first-line technical support for the Products to its customers,
responding to customers' inquiries by e-mail or phone within one
business day. Distributor and its staff shall develop and maintain
sufficient knowledge of the RP industry, the Products and competitive
offerings to be able to demonstrate and support the Products for
customers. Distributor will ensure that only Distributor's computer
programmers and engineers who have been specifically authorized by
Company will request technical assistance from Company's technical
support specialists. Distributor will use Products only as specified in
documentation supplied by Company.
K. Maintenance and Support Services. Distributor will offer support and
maintenance services for the Products to its customers. The scope and
quality of such support and maintenance services shall be subject to
Company's review and approval, which approval shall not be unreasonably
withheld or delayed. Distributor will be responsible for maintaining
the proper level of spare parts inventory for the Territory, which will
include initially purchasing $[*] of recommended spare parts and will
require additional purchases according to requirements in the
Territory. The recommended spare parts list and the Net Transfer Prices
thereof are set forth in Appendix A
L. Demonstration Systems. Distributor shall maintain demonstration Systems
capable of supporting the most technically advanced Products in order
to support its marketing obligations hereunder (each such System, a
"Demo System"). Distributor will identify the configuration and
location of all Demo Systems upon request of Company. Distributor will
purchase [*] Eden 333 Demo Systems at a Net Transfer Price of $[*]
each, as provided in Section 10D. Company acknowledges that Distributor
intends to [*]. If Distributor sells Systems other than the Eden 333
System, then Distributor may reduce the number of Eden 333 Systems used
as Demo Systems and add one or more such other Systems to be used as
Demo Systems.
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M. Initial Training. All of Distributor's sales and technical personnel
employed to sell and support the Products shall be trained either
directly by Company or by Distributor trainers trained by Company.
Distributor initially shall, at its sole cost and expense, cause an
adequate number of Distributor personnel to participate in all relevant
sales and technical training courses on existing Products for the
purpose of selling and supporting such Products after their
introduction.
N. Ongoing Training. When Company offers training courses for new Products
or major Product upgrades or enhancements, Distributor shall cause its
relevant personnel to attend such training courses. In any case,
however, Distributor personnel shall be required to attend such
training courses only if they are offered in the Territory or Europe or
by remote learning methods.
O. Information. Distributor shall keep Company informed as to problems
encountered and resolutions proposed with respect to the performance
and operation of the Products. Distributor shall also communicate to
Company, on an on-going basis and upon request, any and all customer
feedback regarding the Products, the positioning of the Products in the
RP market, customers' RP or detailed application needs, maintenance
service, resins and any changes, improvements, modifications or
enhancements thereof suggested by any customer, or any employee or
agent of Distributor, as well as any and all surveys regarding the
Products and the service, including any industry-by-industry analyses.
Distributor further agrees that Company shall be and remain the
exclusive owner of such information, but only as it relates to the
Products. Anything herein to the contrary notwithstanding, Distributor
shall have no obligation to identify any of its customers or to provide
Company with any customer-specific information nor shall Distributor
have any obligation to provide Company with any information regarding
Distributor Systems or the manufacture, marketing, sale, distribution,
service or maintenance thereof; provided, however, that Company shall
have the right to meet with and/or interview representative customers
from time to time as long as Distributor arranges such meeting and
Company's representative at such meeting is accompanied by a
representative of Distributor.
P. Marketing Campaigns. Distributor shall take an active part in any of
Company's marketing programs and campaigns. Distributor shall
participate in, at Distributor's expense, and prominently display and
promote the Products at relevant trade shows, road shows, seminars and
other similar marketing events in the Territory where reasonable.
Q. Return of Defective Materials. Distributor will return, [*] certain
defective parts, including in particular Polyjet Jetting Heads, in the
manner designated by the Company, noting the machine serial number from
which the defective part was taken and, in the case of a defective
Polyjet Jetting Head, the block location of said head.
R. Quality Checks. From time to time, upon Company's request, Distributor
shall provide Company with randomly selected samples of packages,
documentation, and promotional materials and other such materials
related to the Products that are prepared by Distributor. To the extent
that Company advises Distributor that such items are deficient or
inaccurate, Distributor will change them pursuant to Company's written
instructions.
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S. Modification of Parties' Responsibilities. If the Exclusivity Period
terminates, the parties will negotiate in good faith a modification of
Distributor's responsibilities under this Section 3 and Company's
responsibilities under Section 6 as appropriate to conform such
responsibilities to those customary for a non-exclusive distribution
agreement in like circumstances.
4. Distributor Representations. Distributor makes the following
representations to Company:
A. General. Distributor is a public company (as defined in the U.S.
Securities Exchange Act of 1934) and has been in the RP business,
including manufacture and global sales of RP Systems, for over 10 years
and plans to continue its growth in this business, including by way of
distributing the Products of the Company.
B. Other RP Development and Patents. Distributor holds patents in [*].
C. Development and Manufacture of Other [*] RP Products. [*]
D. Distributor Financial Condition. Distributor's financial statements as
set forth in its periodic filings with the U.S. Securities and Exchange
Commission (the "SEC") are true and correct in all material respects
and accurately reflect Distributor's financial condition and results of
operations as at the dates specified therein.
E. Corporate Power and Authority; Enforceability. Distributor has the
necessary corporate power and authority to execute, deliver and perform
this Agreement. This Agreement has been duly executed and delivered by
Distributor, and assuming due authorization, execution and delivery by
Company, constitutes the valid and binding obligation of Distributor,
enforceable in accordance with its terms.
5. Distributor's Additional Covenants. Distributor makes the following
covenants and agreements with Company in connection with Distributor's sale and
distribution of the Products hereunder:
A. Service Bureau for [*]. Distributor [*] on Systems [*] and installed
and used [*]. Distributor [*] in connection with Distributor's [*].
Company acknowledges that it [*], except from [*].
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B. Restrictions on Distributor's Development, Manufacture or Sale of RP
Systems. During [*], Distributor [*]. During [*], Distributor [*].
During [*] Distributor personnel (whether employee, consultant or
contractor) who have had direct access to Company's Confidential
Information (as defined in Section 12) used in connection with the
operation of the Systems [*]. Distributor acknowledges that if, during
[*], it desires [*], then Distributor [*]. This provision shall [*].
C. Distribution of Other RP Systems [*]. During [*], Distributor [*]. This
provision shall [*].
D. Non-Solicit. Distributor shall not solicit and/or hire Company's
employees without written approval from Company during the Term of this
Agreement and for two (2) years following the termination of this
Agreement.
E. Referrals Outside of Territory. Subject to Section 2B hereof,
Distributor shall refer to Company all customer leads for installations
of Company Systems outside the Territory so as to enable Company to
market to said customer outside of the Territory and will assist
Company in said marketing efforts during the Term of this Agreement.
F. Provision of Financial Statements. If Distributor ceases to be a public
company during the Term of this Agreement, Distributor shall, from time
to time, on reasonable notice by Company, furnish Company quarterly and
annual financial statements similar to those filed with the SEC and
such other financial information as shall be reasonably necessary for
Company to determine Distributor's financial condition.
G. Compliance with Laws. Distributor shall be responsible for complying
with the laws and regulations applicable to it in the Territory and, to
the extent that Distributor uses Products in the Territory, to the laws
and regulations applicable to such use, it being understood that
Distributor shall have no responsibility for compliance of the Products
themselves with any law or regulation in the Territory. Distributor
shall bear all expenses and costs related to its compliance with such
laws and regulations that apply to it. If Distributor determines that
any Product or its use in accordance with Company's instructions
violates any law or regulation applicable in the Territory, Distributor
will inform Company of such violation, will allow Company reasonable
time to modify such Product at Company's cost in order to comply with
the applicable laws or regulations, and, to the extent practicable,
will assist Company with such compliance at Company's cost. If such
Product fails to comply with such requirements after reasonable time
and support, Distributor shall have no further obligations under this
Agreement to distribute the said Product.
6. Company Responsibilities. During the Term of this Agreement, Company
will have the following responsibilities in connection with its manufacture of
the Products and their sale to Distributor under this Agreement:
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A. Sales Support. Company shall assist, at Company's expense, Distributor
with the preparation of sales proposals or other data for presentation
to prospective customers.
B. Manufacturing Capacity. Company shall use its best efforts to have the
manufacturing capacity to satisfy Distributor's quarterly sales orders
based on the Minimum Annual Sales Quota during the first year of the
Term. Thereafter throughout the Term, Company shall use its
commercially reasonable efforts to have the manufacturing capacity to
satisfy Distributor's monthly sales orders based on the forecasting
system to be implemented beginning with the second year of the Term, as
contemplated in Section 3C above, and the number and rate of orders
previously submitted during the Term.
C. Matters Concerning Reliability. [*] shall use its best efforts to cause
the Eden 333 System to have [*] within [*]. [*] shall monitor all
information [*] with respect to performance of the Systems and the
Systems' progress with respect to [*]. If (a) [*]; (b) [*]; and (c)
[*], then [*] will [*]. The [*] shall include (i) [*]; (ii) [*]; and
(iii) [*].
D. Testing Prior to Shipment. During the first 18 months of the Term of
this Agreement, Company will test all Eden 333 Systems for at least 40
hours prior to shipment. Beginning 18 months after the date of this
Agreement and ending 36 months after the date of this Agreement,
Company will test all Eden 333 Systems for at least 20 hours prior to
shipment. Thereafter, Company shall test all Eden 333 Systems in
accordance with its customary testing procedures for all Eden 333
Systems to be shipped to Company's customers.
E. Product Literature. Company shall provide Distributor at Company's
expense with reasonable quantities of any then-current Company Product
literature in digital format in the English language and other
available promotional materials relating to the Products. Company will
supply reasonable quantities of printed materials as required by
Distributor at the Company's expense.
F. New Products and Upgrades. Company will notify Distributor of all new
Products and major upgrades of existing Products relevant for the
Territory at least three (3) months prior to their planned official
release. For all new products and major upgrades that are not relevant
for the Territory, Company will notify Distributor at least one (1)
month prior to its planned official release. Company will promptly
provide periodic confidential communications and updates regarding
modifications to its Products and related matters.
G. Initial Training. Within four weeks after the date of this Agreement,
Company shall provide initial training to Distributor's personnel at
Distributor's facility in Eden Prairie, Minnesota, U.S.A., with respect
to sales, service and maintenance of the Products.
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H. Ongoing Training. Promptly after Company gives notice to Distributor of
any new Product or any upgrade or enhancement of an existing Product as
provided in Section 6F above, Company shall provide training for
Distributor's personnel in the Territory or in Europe or by remote
learning methods; in addition, Company shall provide training for
Distributor's personnel on an ongoing basis for product knowledge,
product and feature changes for user operation and for AE, service and
repair. Each party shall bear its own expenses in connection with all
training under this Agreement, including lodging, travel and meal
expenses.
I. Demo Systems. In order to keep the Demo Systems fresh, Company shall
sell Distributor up to [*] Eden 333 Demo Systems every 12 months at
$[*] each. Concurrently with the execution and delivery of this
Agreement, Company shall have delivered [*] Eden 333 Demo System to
Distributor. Company shall deliver [*] confidential operating Demo
Systems to Distributor pursuant to Distributor's purchase orders during
the month of September 2003.
J. Distributor Branding. Company hereby authorizes Distributor to add the
"Stratasys" logo to identify the Products as being distributed and
serviced by Distributor in the Territory, subject to the review and
approval of the actual logo label, size and location on the unit of the
Products, and provided that Company's logo and other marks remain
unadulterated and in prominent view on each said unit. Prior to using
any Stratasys logo or other trademarks or trade names in connection
with the Products, Distributor will first send Company the exact label
with logo and information, and Company has final approval on its use.
K. Material Safety Data Sheets. Concurrently with the execution and
delivery of this Agreement and from time to time during the Term of
this Agreement upon the request of Distributor, Company shall provide
Distributor with the Material Safety Data Sheets for the Polyjet Resin.
L. Non-Discrimination. [*].
M. Compliance with Laws. Company shall be responsible for assuring that
all Products, as manufactured, comply with all applicable laws and
regulations in the Territory. In particular, Company shall manufacture
all Systems with new parts to the extent required by laws in the
Territory requiring goods marketed as new be manufactured with new (and
not used or refurbished) parts.
13
7. Company Representations. Company makes the following representations
to Distributor:
A. Resin Formula and Source. The Polyjet Resin is manufactured in
accordance with a formula and know-how that is proprietary to Company,
and no person has the right to manufacture the Polyjet Resin without
Company's consent or approval. The Systems will not operate with any UV
polymer resin other than the Polyjet Resin. Company is the sole
supplier for its Polyjet Resin and has (or has sourced) a long-term
continuous manufacturing capability to supply the Polyjet Resin to
Distributor.
B. Company Financial Condition. Company has or will have the ability to
finance the manufacturing capacity to build the number of Systems as
specified under the Minimum Annual Sales Quota.
C. Safety. Company has taken adequate steps to insure that the Systems and
the Polyjet Resin, when used in an office in accordance with the
documentation supplied by Company and, in the case of the Polyjet
Resin, stored in Polyjet canisters provided by the Company and disposed
of in solid form, will not result in injury, illness or death to human
beings or animals nor result in damage to property or the environment.
D. Certain Design Issues. [*].
E. Insurance. Company currently maintains, in full force and effect,
insurance policies (the "Company Insurance Policies") in scope and
amount of coverage as described on Appendix G hereto. Company has
provided Distributor with true and complete copies of all Company
Insurance Policies or abstracts thereof. Company is not in default
under the provisions of any Company Insurance Policy, has not failed to
pay any premiums due thereunder, and has not failed to present any
notice or material claim thereunder in a due and timely fashion. There
are no claims by Company pending under any of the Company Insurance
Policies as to which coverage has been denied or disputed by the
underwriters of such policies.
F. Corporate Power and Authority; Enforceability. Company has the
necessary corporate power and authority to execute, deliver and perform
this Agreement. The execution and delivery hereof and the consummation
of the transactions contemplated hereby by Company have been duly and
validly authorized and approved by Company's Board of Directors and no
other corporate or stockholder proceedings on the part of Company or
its Board of Directors are necessary to authorize or approve this
Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Company, and assuming
due authorization, execution and delivery by Distributor, constitutes
the valid and binding obligation of Company, enforceable in accordance
with its terms.
14
8. Company's Additional Covenants. Company makes the following
covenants and agreements with Distributor in connection with Company's
manufacture and sale of the Products hereunder:
A. Non-Solicit. Company agrees not to solicit and/or hire Distributor's
employees without written approval from Distributor during the Term
hereof and for two (2) years following the termination of this
Agreement.
B. Referrals by Company in Territory. Subject to Section 2B hereof,
Company shall refer to Distributor all customer leads for installations
of Company Systems in the Territory so as to enable Distributor to
market to said customer in the Territory and will assist Distributor in
said marketing efforts during the Term of this Agreement.
C. Sharing of Certain Expenses. If a Distributor FSE is required to visit
a customer site to change Polyjet Jetting Heads on any Eden System,
then Company will reimburse Distributor in an amount equal to fifty
percent (50%) of Distributor's customer site travel expenses. Anything
herein or in Appendix B to the contrary notwithstanding, Distributor
shall have the right to set off such amounts against amounts payable to
Company hereunder.
9. Term and Renewal. Unless previously terminated in accordance with
Section 15 of this Agreement and subject to Section 2E, this Agreement will
remain in effect for an initial three-year term expiring on the third
anniversary date of this Agreement. Thereafter, this Agreement will be
automatically renewed on each anniversary date for an additional one-year
renewal term, unless the parties shall not have agreed, at least sixty (60) days
prior to expiration of the then-current term, on sales goals and the Minimum
Annual Sales Quota for the one-year renewal term. If the parties are unable to
agree on such sales goals and Minimum Annual Sales Quota, this Agreement shall
terminate at the end of the then-current term. In connection with establishing
the sales goals and Minimum Annual Sales Quota for any renewal term, the parties
shall negotiate in good faith. The period during which the Agreement is in
effect as provided in this Section 9 is referred to herein as the "Term".
10. Advances, Prices, Purchase Terms and Product Orders.
A. Initial Advance. Distributor will pay to the Company a [*] advance
payment (the "Initial Advance"). The first installment of the Initial
Advance shall be paid immediately upon execution of this Agreement by
cancellation of Company's indebtedness to Distributor in the amount of
[*]. The second installment shall be paid by wire transfer in
accordance with Company's written instructions of [*] upon the earlier
of (i) three days prior to the Distributor's internal launch meeting
for the Products with its employees or (ii) thirty (30) calendar days
from the date hereof (the earlier to occur of the actual date of such
launch meeting and thirty (30) calendar days from the date hereof shall
be referred to herein as the "Launch Date").
B. Crediting of Initial Advance; Accounting. Company shall credit the
Initial Advance against payment for the Net Transfer Price of [*]
ordered from Company until the total amount of the Initial Advance
shall have been applied to such payments. From time to time upon
request of Distributor, Company shall provide Distributor with a
monthly accounting and reconciliation compatible with accounting
principles generally accepted in the United States of the crediting of
the Initial Advance and, if applicable, the Supplemental Advance to
payment for Systems as herein provided in such format as Distributor
shall reasonably request.
15
C. Crediting of Supplemental Advance. If Distributor pays the Supplemental
Advance to Company as specified in Section 2D hereof, then Company
shall credit the Supplemental Advance against payment for the Net
Transfer Price of every System ordered from Company after the Initial
Advance shall have been fully credited against the sale of Systems as
contemplated in Section 10B above (i.e., drawn down to zero).
D. Purchase of Demo Systems. For the purposes of crediting the Initial
Advance and the Supplemental Advance, if any, Eden 333 Demo Systems
shall not be counted as Systems ordered, and Distributor shall pay for
such Eden 333 Demo Systems upon order by wire transfer of the US$[*]
Net Transfer Price in accordance with Company's written instructions.
E. Prices, Purchase Terms and Product Orders. Company will sell the
Products to Distributor pursuant hereto at the Net Transfer Price for
said Products as set forth on Appendix A, and Distributor shall pay for
the Products in accordance with the Purchase Terms specified in
Appendix B hereto, subject to the prior drawdown of any outstanding
amounts under the Initial Advance or the Supplemental Advance referred
to above. Distributor will be entitled to place Product orders in a
format provided by the Company. [*]. Except as provided in Section 8C,
each Product order will constitute a separate transaction, and must be
paid for regardless of the status of any other order or transaction
between the parties.
11. Trademarks and Trade Names.
A. Trademark License. During the Term of this Agreement, solely for the
purpose of the marketing, advertising for, and resale and support of
the Products in the Territory, Company hereby grants Distributor the
royalty-free right and license to use and display Company's trade
names, trademarks and domain names set forth on Appendix L, which
Appendix Company may, in its sole discretion, revise from time to time
(the "Trademarks"), provided that said license to the Company's domain
names shall be limited to the display of said domain names on
Distributor's literature and web site when referring to the Products
and solely for the purpose of linking to the Company's site. Such
license shall be exclusive except as to the Company during the
Exclusivity Period. Any such use shall inure to the benefit of Company
and shall be in accordance with Company's guidelines or other
instructions regarding the use of the Trademarks, which guidelines
Company may modify from time-to-time in its sole discretion.
Distributor will not make or permit alteration of the Products or
removal or modification of any tags, proprietary or copyright notices,
labels, or other identifying marks placed by Company or its agents on
the Products or associated literature, except with Company's prior
written authorization.
B. Trademark Ownership and Usage. Company represents, and Distributor
acknowledges and agrees, that Company is the exclusive owner of and,
except for Distributor's rights hereunder, has the exclusive right to
use the Trademarks in the Territory. Distributor may not contest the
16
Trademarks, or register or attempt to register in any jurisdiction any
Trademark or any confusingly similar trademark or trade name.
Distributor shall not do or suffer to be done any act or thing that
would impair Company's rights in its Trademarks or damage the
reputation for quality inherent in the Trademarks. Except as otherwise
permitted by this Agreement, Distributor shall market, distribute, and
support the Products only under the Trademarks, and not under any other
trademark or logo. Distributor agrees not to use the Trademarks with
respect to any products or materials not provided by Company.
Distributor agrees to provide Company in advance with samples of each
of Distributor's uses of the Trademarks. In connection therewith,
Distributor agrees that it shall modify to Company's satisfaction or
cease the use of any Trademark to which use Company, in its sole
discretion, may object. Distributor agrees to provide written
notification to Company if Distributor purchases, or is offered for
purchase, any products with a Trademark from a source other than
Company, its affiliates or another authorized Company distributor.
12. Mutual Protection of Proprietary Rights.
A. Confidentiality of Information. Each party (each, a "Receiving Party")
acknowledges that it may receive certain information, documents, or
other materials in connection with the Products, Distributor Systems,
and performance of the obligations of the other party (the "Disclosing
Party") hereunder, which may contain valuable confidential and/or
proprietary information of the Disclosing Party, including, without
limitation, information in the categories listed on Appendix I
("Confidential Information"). The Receiving Party agrees to preserve
and maintain the confidentiality of all such Confidential Information
of the Disclosing Party, which will not be disclosed to any third party
or used in any way or for any purpose outside the scope of the
performance of the Receiving Party's obligations under this Agreement,
except that Confidential Information shall not include such
information:
(i) as the Disclosing Party may pre-authorize in writing for
disclosure;
(ii) already in the Receiving Party's possession prior to receipt,
and where such possession is documented;
(iii) generally available to the public and/or available through no
fault or act of the Receiving Party from a third party source
free to disclose such information; or
(iv) required to be disclosed under a governmental order, provided
that Disclosing Party is provided with reasonable prior notice
of such order to allow it to seek pre-disclosure protective
measures.
B. Ownership of Company Intellectual Property. Title to all Company's
patents, trademarks, copyrights, confidential or proprietary
information or other intellectual property embodied in the Products
(including any modification, improvements and enhancements thereof) and
all patents, trademarks, copyrights, confidential or proprietary
information, and any other Company intellectual property rights are and
will remain Company's sole property, and nothing in this Agreement or
the parties' relationship will create or imply any ownership or license
rights in such property by Distributor. Anything in this Agreement to
the contrary notwithstanding, Company shall have the right to enforce
all of its patents, trademarks, copyrights, confidential or proprietary
information and other intellectual rights against any person, whether
in or outside the Territory.
17
C. Ownership of Distributor Intellectual Property. Title to all
Distributor's patents, trademarks, copyrights, confidential or
proprietary information, and any other Distributor intellectual
property rights, including, without limitation, any logo, trademark or
tradename of Distributor used in connection with the marketing and sale
of the Products, are and will remain Distributor's sole property, and
nothing in this Agreement or the parties' relationship will create or
imply any ownership or license rights in such property by Company.
Anything in this Agreement to the contrary notwithstanding, Distributor
shall have the right to enforce all of its patent, trademark,
copyright, confidential or proprietary information, and other
intellectual property rights against any person, whether in or outside
the Territory.
D. Challenges to Intellectual Property Rights. Neither party shall seek
directly or indirectly to challenge, invalidate, or render
unenforceable any patents, trademarks, copyrights, confidential or
proprietary information or other intellectual property rights of the
other party hereto in any manner whatsoever [*], and without limiting
the scope of the foregoing, in any event and at any time, neither party
shall use any Confidential Information of the other party for such
purpose.
E. Other Restrictions on Distributor. Distributor shall not directly or
indirectly: [*].
F. Infringement of Company Intellectual Property. During the Term of this
Agreement, Company and Distributor shall each notify the other of any
known or presumed counterfeits, imitations or infringements by third
parties of Company's patents, trademarks, copyrights, confidential or
proprietary information or other intellectual property rights in the
Territory. After Company learns of any such counterfeits, imitations or
infringements, whether from the Distributor or otherwise, it shall
promptly take such action, including legal action, as it determines in
its sole and absolute discretion is reasonably required to protect the
patents, trademarks, copyrights, confidential or proprietary
information or other intellectual property and recover damages.
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13. Indemnification; Insurance.
A. Company Indemnity. Company shall indemnify and defend Distributor and
each of its officers, directors, employees, shareholders, and agents
(collectively, the "Indemnified Parties"), and hold the Indemnified
Parties harmless from, any and all claims, actions or causes of action,
suits, demands, judgments, losses, liabilities, costs, and expenses,
including, without limitation, interest, penalties and reasonable
attorneys' fees and expenses (each, a "Claim") asserted against,
resulting to, imposed upon or incurred by any Indemnified Party,
directly or indirectly, by reason of or resulting from a claim that any
Product sold pursuant to this Agreement (a) [*] or (b) [*]
B. Indemnification Procedure. The respective rights and liabilities of the
Indemnified Parties and Company under Section 13 shall be subject to
the following terms and conditions:
(i) The Indemnified Party will give Company prompt written notice
of any Claim that such Indemnified Party believes is subject
to indemnification under Section 13A and Company may undertake
to pay such Claim or to defend such Claim by counsel chosen by
Company. Company shall have no liability under Section 13A
only if an Indemnified Party's failure or delay to give notice
of a Claim has materially prejudiced Company's ability to
defend such Claim. Upon assumption by Company of the defense
of any such Claim, the Indemnified Party will have the right
to participate in such defense and employ separate counsel,
but Company will not be responsible for any fees and expenses
of other counsel subsequently incurred by the Indemnified
Party in connection with the defense thereof, unless (a)
Company has agreed to pay such fees and expenses, (b) Company
has failed to employ counsel in a timely manner, or (c) the
Indemnified Party has been advised by its own counsel that
there exists actual or potential conflicting interests between
Company and the Indemnified Party, including the availability
of one or more legal defenses which are different from or in
addition to those available to Company. In any event, Company
will not, in connection with any such Claim or separate but
substantially similar or related Claim in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to local
counsel) for all the Indemnified Parties unless the defense of
one Indemnified Party is unique or separate from that of
another Indemnified Party subject to the same claim or action.
(ii) If Company, within a reasonable time after notice of such
Claim, fails to pay or defend such Claim, the Indemnified
Party will (upon notice to Company) have the right, but not
the obligation, to undertake the defense, compromise or
settlement of such Claim by counsel chosen by the Indemnified
Party, subject to the right of the Company to assume the
defense of such claim at any time prior to settlement,
compromise or final determination thereof.
19
(iii) Anything in this Section 13 to the contrary notwithstanding,
(a) if there is a reasonable probability that a Claim may
materially adversely affect an Indemnified Party other than as
a result of money damages or other monetary payments, the
Indemnified Party shall have the right, at its own cost and
expense, to defend, compromise or settle such Claim by counsel
chosen by the Indemnified Party, with the consent of the
Company, which shall not be unreasonably withheld or delayed,
and (b) the Company shall not, without the written consent of
the Indemnified Party, settle or compromise any Claim or
consent to the entry of any judgment that does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to the Indemnified Party a release from all
liability in respect of such Claim.
C. Modification or Replacement of Products. If Company determines that a
Product infringes or might be held to infringe upon a third party's
intellectual property rights, Company may, at its option and expense,
replace or modify such Product so as to avoid infringement or procure
the right for Distributor to continue to use, market and sell such
Product in accordance with this Agreement. If neither of such
alternatives is, in Company's opinion, reasonably possible, Distributor
and its customers shall return all infringing Products to Company at
Company's expense, and Company's sole liability, in addition Company's
obligation to indemnify Distributor as set forth above, shall be to
refund the Net Transfer Price paid for such Products by Distributor.
D. Exclusions. The foregoing indemnity shall not apply to any Claim based
upon or arising from (i) any distribution of the Products outside the
scope of the Agreement, (ii) use of the Products by Distributor in a
manner for which they were not designed or not in accordance with
applicable documentation approved by Company, (iii) modification or any
other tampering with the Products used by Distributor not made by
Company or its authorized employees or by employees or agents of
Distributor trained or authorized by Company, or (iv) use of the
Products by Distributor in connection or combination with any
equipment, devices or software not supplied or authorized by Company.
E. Exclusive Remedies. The remedies set forth in this Section 13 represent
the sole and exclusive remedies of Distributor and the entire liability
and obligation of Company with respect to Claims subject to
indemnification under Section 13A.
F. Certain [*] Claims.
(i) [*].
(ii) If [*], Company may terminate this Agreement as provided in
Section 15A at any time after the first year of the Term, if Company
determines in good faith that [*].
(iii) If Distributor determines that [*], then Distributor may
terminate this Agreement as provided in Section 15B.
(iv) Anything herein to the contrary notwithstanding, after termination
of this Agreement, Company shall continue to indemnify all Indemnified
Parties under this Section 13 against [*] and all other Claims arising
with respect to Products sold prior to termination of this Agreement as
provided in this Section 13F.
20
(v) Company acknowledges that as a condition to its right to terminate
this Agreement as provided in this Section 13F, it shall be required to
cease distribution of the Products in the Territory. If, after
terminating this Agreement as provided in this Section 13F, Company
desires to begin distributing Products in the Territory at any time
before the third anniversary of this Agreement, it shall offer to enter
into an agreement with Distributor for the distribution of Products in
the Territory on terms no less favorable to Distributor than the terms
of this Agreement. If Distributor rejects such offer or fails to
respond to such offer within thirty (30) days after Distributor's
receipt of such offer, then Company may distribute the Products in the
Territory through another distributor.
G. Company Insurance Policies. Company shall maintain in effect during the
Term of this Agreement the Company Insurance Policies or policies of
insurance having equal or greater coverage with comparably-rated
insurance companies and shall upon request by Distributor provide
copies or accurate abstracts of such Company Insurance Policies.
H. Distributor Indemnity. Distributor shall indemnify and defend Company
and each of its officers, directors, employees, shareholders, and
agents (collectively, the "Company Indemnified Parties"), and hold the
Company Indemnified Parties harmless from, any and all Claims of
persons other than the Company, its officers, directors, employees,
shareholders, agents and affiliates asserted against, resulting to,
imposed upon or incurred by any Company Indemnified Party, directly or
indirectly, by reason of or resulting from. [*] The procedure for
indemnification under this Section 13H shall be the same as the
procedure set forth in Section 13B, mutatis mutandis.
14. Limitation of Liability; Warranty.
A. Waiver of Punitive and Consequential Damages. NEITHER PARTY HERETO
SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY FOR ANY
PUNITIVE DAMAGES OR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES OF THE OTHER PARTY ARISING [*].
B. Warranty Coverage. The only Product warranties of any kind that Company
authorizes Distributor to make to its customers is the Limited
Warranty, as specified in Appendix D. Distributor agrees not to make
any other warranties or Product claims, or use any specifications other
than Product Specifications, as specified in Appendix C, unless
otherwise authorized by Company.
21
C. Company Warranty Policies and Training. Distributor agrees to abide by
all of the Company's then-current warranty/repair service policies and
procedures and will participate in any future Company warranty/repair
training classes provided by Company in accordance with Section 6G in
order to enable Distributor to install Products and parts, and/or to
make Limited Warranty and other repairs for customers located within
the Territory.
▇. ▇▇▇▇▇ of Limited Warranty. Company hereby grants the Limited Warranty
set forth in Appendix D to Distributor. COMPANY DISCLAIMS AND EXCLUDES
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. No
warranty coverage will be available for any Product which has been
subject to abuse, negligence, accident, unauthorized modification or
alteration or any failure to follow Company instructions, procedures or
policies.
E. Replacement of Defective Systems. [*], if any System installed by
Distributor in the Territory and used [*] continuously and regularly
malfunctions, breaks down or otherwise fails to operate in accordance
with its specifications for a period of [*] despite [*] to repair any
defects in such System as provided in Section 6C, [*].
15. Termination.
A. Termination by Company. Company has the absolute right to terminate the
Term of this Agreement, and thereby the distributorship and the
licenses created by this Agreement, from and after the occurrence of
any of the following events and so long as any such event shall be
continuing:
(i) if Distributor fails to keep, perform and observe in any
material respect any promise, covenant or condition set forth
in this Agreement and if such failure or default is
susceptible to cure but not cured within 90 days from and
after the date notice is received by Distributor (except when
satisfaction of such obligation requires activity over a
period of time and Distributor has commenced to perform
whatever may be required within such 90-day period and
diligently continues such performance, without interruption,
to cure such failure or default); or
(ii) if any representation or warranty of Distributor hereunder
shall prove to have been incorrect or untrue in any material
respect when made; or
(iii) if Distributor fails to pay, when due, any amount payable to
Company hereunder, and such failure is not cured within 30
days from the date Distributor receives notice thereof;
(iv) if, after the first thirty-six (36) months of the Term,
Distributor's exclusive rights as specified in Section 2A
hereof under this Agreement have been or shall be lost or
otherwise voided in accordance with Section 2C; or
22
(v) if Distributor abandons its business; is declared insolvent or
bankrupt or makes an assignment of a substantial portion of
its assets for the benefit of creditors; a trustee, receiver
or other similar representation is appointed with respect to a
substantial portion of its assets; and/or if bankruptcy,
liquidation or reorganization proceedings are instituted by or
against it which have not been dismissed, and such event is
not cancelled or otherwise rectified within sixty (60) days;
or
(vi) as provided in Section 13F.
B. Termination by Distributor. Distributor has the absolute right to
terminate the Term of this Agreement from and after the occurrence of
any of the following events and so long as any such event shall be
continuing:
(i) if Company fails to keep, perform and observe in any material
respect any promise, covenant or condition set forth in this
Agreement and if such failure or default is susceptible to
cure but not cured within 90 days from and after the date
notice is received by Company (except when satisfaction of
such obligation requires activity over a period of time and
Distributor has commenced to perform whatever may be required
within such 90-day period and diligently continues such
performance, without interruption, to cure such failure or
default); or
(ii) if any representation or warranty of Company hereunder shall
prove to have been incorrect or untrue in any material respect
when made; or
(iii) if Company abandons its business; is declared insolvent or
bankrupt or makes an assignment of a substantial portion of
its assets for the benefit of creditors; a trustee, receiver
or other similar representation is appointed with respect to a
substantial portion of its assets; and/or if bankruptcy,
liquidation or reorganization proceedings are instituted by or
against it which have not been dismissed, and such event is
not cancelled or otherwise rectified within 60 days; or
(iv) if, notwithstanding Company's satisfaction of its obligations
under Section 6C, Distributor determines that [*]; or
(v) as provided in Section 13F.
C. Termination Notice. Any termination of the Term pursuant to Sections
15A or 15B hereof shall be effective as at the date specified in a
notice of termination given by the party terminating the Term to the
other party (a "Termination Notice").
D. Transition-Out. Except as otherwise provided in this Agreement, upon
termination or expiration of the Term of this Agreement, the parties
shall have the ongoing rights, duties, responsibilities and obligations
set forth on Appendix K, Transition-Out, upon expiration or termination
of this Agreement.
23
E. Payments by Distributor. Upon termination or expiration of the Term,
all amounts then owed to Company by Distributor for all unpaid
pre-termination orders shipped and other payments due from Distributor
to Company hereunder will immediately become due, and Distributor will
immediately pay such amounts.
F. Material Breach by Company. If this Agreement is terminated by
Distributor pursuant to clauses (i) or (ii) of Section 15B, then the
Company shall, within 30 days of the termination date specified in the
Notice of Termination, return to Distributor any portion of the Initial
Advance or the Supplemental Advance (to the extent paid) that was not
theretofore credited against the Net Transfer Price of Systems shipped
prior to Company's receipt of such Notice of Termination. The return of
such payments shall not limit or restrict Distributor's remedies for
Company's breach.
16. Force Majeure.
A. Suspension of Performance. Neither party hereto shall be liable to the
other for any failure, delay or interruption in the performance of any
of the terms, covenants or conditions of this Agreement due to any
Force Majeure. If any such event, cause or delay occurs as a result of
a Force Majeure, the party hereto whose performance is affected by such
Force Majeure shall use all reasonable efforts to cure or overcome such
interruption, delay, event or cause with all possible speed and to
recommence such party's performance hereunder. The obligation of
performance of the parties hereunder shall recommence when such Force
Majeure delaying or preventing performance have ended.
B. Termination upon Force Majeure. Notwithstanding any other provision
hereof, if during any period of one hundred eighty (180) consecutive
days or more, a party hereto is unable to perform any material
obligation under this Agreement as a result of a Force Majeure, then
the other party shall have the right to terminate this Agreement, not
earlier than thirty (30) days from the date on which such notice shall
have been given.
17. Severability. If any provision or any portion of any provision of
this Agreement shall be construed to be illegal, invalid or unenforceable by a
court of competent jurisdiction, arbitrator or regulatory authority, such
provision shall be deemed stricken and deleted from this Agreement to the same
extent and effect as if never incorporated herein, but all other provisions of
this Agreement and the remaining portion of any provision which is legal, valid
and enforceable shall continue in full force and effect.
18. Assignment. Neither this Agreement nor any rights or obligations
hereunder can be assigned, sold or otherwise transferred by either party without
the other party's prior written consent, and any such attempted assignment will
be null and void and subject to termination under Section 15, except that that
the Company may assign this Agreement in connection with the transfer of all or
substantially all of its assets in connection with a sale of its business to one
buyer in one transaction. This Agreement shall be binding upon and shall inure
to the benefit of the successors and permitted assigns of the parties hereto.
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19. Notices. Any notice required or desired to be given hereunder shall
be in writing and in English and sent to the addresses first above-written,
attention Chief Executive Officer, or such other addresses as are notified in
writing as herein provided, by the parties by hand delivery, registered mail or
express courier service. Notices shall be deemed to have been given upon the
expiration of seven (7) days after mailing as aforesaid to the addressee (when
sent by registered mail), upon the date of receipt as recorded by the delivery
service (when sent by express courier), or upon receipt by the addressee (when
delivered by hand).
20. Governing Law and Trade Terms. This Agreement will be governed by
and construed in all respects in accordance with the laws of the State of
Delaware. The trade terms under this Agreement will not be governed by and
interpreted in accordance with the provisions of the International Commercial
Terms (INCOTERMS), as amended, which is expressly excluded and rejected by the
parties by reference.
21. Arbitration. The parties agree that all disputes between them shall
be settled by binding arbitration brought before a single arbitrator in the
State of Delaware in the English language, whose decision shall be final and
conclusive upon the parties. The arbitrator shall be appointed and the
arbitration conducted in accordance with the rules of the American Arbitration
Association, within fourteen days of a request of one of the parties, unless
otherwise agreed to by the parties. The losing party shall pay the reasonable
legal fees and expenses of the prevailing party. Notwithstanding the
aforementioned, each party may seek injunctive relief until an arbitrator is so
appointed. The parties agree that the arbitral award may be enforced against the
parties to the arbitration proceeding or their assets where they may be found
and that a judgment upon the arbitral award may be entered in any court having
jurisdiction thereof.
22. Jurisdiction; Service of Process. The parties hereto hereby consent
to the jurisdiction of the federal and state courts of the State of Delaware
with respect to any disputes, claims, controversies or other actions or
proceedings arising under this Agreement, subject to Section 21 hereof. Each
party irrevocably consents to the service of process in any action or proceeding
by the mailing thereof by the other party by registered or certified United
States mail, postage prepaid, to such party at its address for notices as
provided in Section 19.
23. Waiver. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provisions of this
Agreement. The failure of a party to insist upon strict adherence to any terms
of this Agreement on one or more occasions shall not be considered a waiver of,
or deprive that party of the right thereafter to insist upon strict adherence
to, that term or any other term of this Agreement. Any waiver must be in
writing.
25
24. Execution in Counterparts. This Agreement may be executed by one or
more of the parties hereto in any number of separate counterparts, and all such
counterparts taken together shall be deemed to constitute one and the same
instrument. This Agreement shall be deemed to have been executed upon delivery
by each party of an executed copy hereof to the other party by telecopier to
such telecopier numbers as the parties shall agree, and subsequent transmittal
on the same day of two executed copies hereof to the other party at its address
for notices as provided in Section 19.
25. Entire Agreement; Headings. This Agreement, including all
appendices or exhibits hereto, represents and incorporates the parties' entire
understanding and agreement, which supersedes any other oral or written
agreements. There are no other warranties, representations, covenants or other
understandings of any kind, except as may be set forth herein or in any
amendment to this Agreement made via a written instrument referring to this
Agreement which has been executed by the parties' duly authorized
representatives. The headings which have been used for convenience purposes
only, shall not be used in order to construe this Agreement.
(Signature Page Follows)
26
Objet Geometries Ltd.
North American Distributor Agreement
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate originals by their duly authorized officers as of the date hereof.
Objet Geometries Ltd.: Stratasys, Inc.:
By: By:
-------------------------- --------------------------
▇▇▇▇▇ ▇▇▇▇▇ S. ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer President
27
APPENDIX A
Products, Prices
Part No. Description Net Transfer Price
-------- ----------- ------------------
[*] Objet Eden 333 Rapid Prototyping System (See Appendix C for full specs) [*]
[*] Objet Modeling Resin Canister for Polyjet Products (2 kg each) [*]
[*] Objet Support Resin Canister for Polyjet Products (2 kg each) [*]
MISC. HARDWARE
[*] Single Head Unit Assy [*]
SERVICES
One year standard maintenance agreement for parts to be supplied by the
[*] company [*]
Distributor provides all Labor; Company provides all parts (except for
misuse)
A-1
[*]
[*]
▇-▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Products List
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
Cat. No. Name UOM Units Net Transfer Total Net
Price/kg US$ Transfer Price
US$
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] Eden 333 110V EA 1 [*]
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] Water Jet 110V EA 1 [*]
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] FullCure 705 - Support 4-pack of 2 kg cartridges 1 [*] [*]
Eden 333
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] FullCure 720 -Model Eden 4-pack of 2 kg cartridges 1 [*] [*]
333
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] FullCure 730-Model ▇▇▇▇ 4-pack of 2 kg cartridges 1 [*] [*]
Eden 333
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] EDEN 333 U/G KIT 110V OLD EA 1 [*]
CHASSIS
for old users of the
QuadraTempo
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
[*] EDEN 333 U/G KIT 110V EA 1 [*]
DUAL CHASSIS
for recent (from Jan 2003
installations only)
QuadraTempo users
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
Eden 333 - Spare parts - SEE LIST NO. 1 HEREWITH
All items
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
Eden 333 - Start up Kit SEE LIST NO. 2 HEREWITH 1 [*]
(Sent with every machine)
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
Eden 333 - Consumables SEE LIST NO.3 HEREWITH
------------------- --------------------------- -------------------------- -------- ----------------- -----------------
A-3
1. Recommended Spare parts -Eden 333 - All items - Price List
-----------------------------------------------------------------------------------------------------------------------------------
Item Part No. Units Qty Net Transfer Price Total Suggested warranty
per unit (US$) Extended per item
Net
Transfer
Price (US$)
-----------------------------------------------------------------------------------------------------------------------------------
SINGLE HEAD UNIT ASSY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
ACS BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
COMPUTER UNIT EMBEDDED [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
OCB/MAIN BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
MAIN POWER SUPPLY UNIT [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
WIPER ASSEMBLY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
DRIVE BELT (X BELT) [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
DRIVE BELT (Y BELT) [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Z SCREW BELT [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
MOTOR BELT Z MOTOR [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Z MOTOR [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Y LIMIT SENSOR BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
EDEN X ENCODER [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Z LIMIT SENSOR BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
MATERIAL PUMP ASSY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
WASTE PUMP ASSY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
DATA PCI [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
SVC BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
X MOTOR [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
X DRIVER [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Y/Z DRIVER (463 LB) BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
LAMP ASSY LEFT [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
LAMP ASSY RIGHT [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
ROLLER ASSY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
VACUUM UNIT ASSY E333 [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
OHDB BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
X CHAIN 333 ASSY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Y CHAIN 333 ASSY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
UV LAMPS POWER SUPPLY E333 [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
TRAY HEAT SENSOR BOARD [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
CARTRIDGE SCALE [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
MATERIAL PIPE [TYGON] 1/8 x1/4 BLACK [*] Meter 6 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
CLEAR TUBE 4 DIA MT. (VACUUM PIPE ) [*] Meter 6 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
NORPRENE BLACK TUBE (40CM) [*] EA 2 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
RESIN TUBE 5/16X3/16 [*] Meter 0.5 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
WIPER BLADE ASSEMBLY [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
WIPER RUBBER (BLADE) [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
EDEN ROLLER BATH [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
FILTER 50u NOMINAL [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
FILTER 5u ABSOLUTE [*] EA 2 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
EXTERNAL CONTAINER [*] EA 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
PEG 400 BOTTLED ASSY [*] EA 2 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
WIPING CLOTHS 9"-9" [*] Pack 1 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
TRANSPARENCY [*] EA 20 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
PINK PAPER A4 [*] EA 200 [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
A-4
2. Eden 333 - Start Up Kit ***ADD PRICES***
------------------------------------------------------------------------------------------------------------------
Item Cat. No. UOM Qty.
------------------------------------------------------------------------------------------------------------------
Wiper rubber (blade) [*] EA 1
------------------------------------------------------------------------------------------------------------------
Eden Roller bath [*] EA 1
------------------------------------------------------------------------------------------------------------------
Y Limit Sensor (w/ PCB) [*] EA 1
------------------------------------------------------------------------------------------------------------------
Material pipe [Tygon] [*] Meter 9.6
------------------------------------------------------------------------------------------------------------------
Material pipe [Tygon] [*] Meter 0.5
------------------------------------------------------------------------------------------------------------------
Vacuum pipe [*] Meter 12
------------------------------------------------------------------------------------------------------------------
50 micron filter [*] EA 1
------------------------------------------------------------------------------------------------------------------
5 micron filter [*] EA 1
------------------------------------------------------------------------------------------------------------------
Lamp ultra med OSRAM [*] EA 1
------------------------------------------------------------------------------------------------------------------
Cleaning wiping [*] Pack 1
------------------------------------------------------------------------------------------------------------------
External Waste Container [*] EA 1
------------------------------------------------------------------------------------------------------------------
Norprene black Tube [*] Meter 0.8
------------------------------------------------------------------------------------------------------------------
Pink paper [*] EA 200
------------------------------------------------------------------------------------------------------------------
Transparency paper [*] EA 20
------------------------------------------------------------------------------------------------------------------
Mouse Pad "Objet Polyjet" [*] EA 2
------------------------------------------------------------------------------------------------------------------
Eden333-User Manual [*] EA 1
------------------------------------------------------------------------------------------------------------------
PEG 400 Model bottle (2kg/bottle) [*] EA 1
------------------------------------------------------------------------------------------------------------------
PEG 400 Support bottle (2kg/bottle) [*] EA 1
------------------------------------------------------------------------------------------------------------------
A-5
3. Eden 333 - Customer Support Consumables
---------------------------------------------------------------------------------------------------------------------------------
Item Part No. Units Qty Net Transfer Price Total
per unit (US$) Extended Net
Transfer
Price (US$)
---------------------------------------------------------------------------------------------------------------------------------
WIPER BLADE ASSEMBLY [*] EA 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
WIPER RUBBER (BLADE) [*] EA 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
EDEN ROLLER BATH [*] EA 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
FILTER 50u NOMINAL [*] EA 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
FILTER 5u ABSOLUTE [*] EA 2 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
LAMP ULTRA MED 400W OSRAM [*] EA 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
EXTERNAL CONTAINER [*] EA 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
PEG 400 Model bottle (2kg/bottle) [*] EA 2 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
PEG 400 Support bottle (2kg/bottle) [*] EA 2 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
WIPING CLOTHS 9"-9" [*] Pack 1 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
TRANSPARENCY [*] EA 20 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
PINK PAPER A4 [*] EA 200 [*] [*]
---------------------------------------------------------------------------------------------------------------------------------
▇-▇
▇▇▇▇▇▇▇▇ ▇
Purchase Terms
The following terms and conditions are and will remain subject to the
North America Distributor Agreement and will govern and control all purchase
orders placed with and accepted by Objet Geometries Ltd. ("Company") on or after
the date of the North America Distributor Agreement. Any different or additional
terms in any purchase order, correspondence or other document or proposal are
hereby objected to and rejected by Company unless and only to the extent such
terms are modified in writing and signed by an authorized Company officer.
Unless otherwise defined in this Appendix B, capitalized terms used in this
Appendix B shall have the meanings ascribed to them in the North America
Distributor Agreement.
1. Order Acceptance. Company will review all Product orders and provide
Distributor with a timely acceptance within [*] days. Company will use its best
efforts to fill and ship all accepted Product orders. Orders placed at full Net
Transfer Price will be accepted. Each purchase order is a separate transaction
and may not be tied to any other order or obligation unless agreed to in writing
by Company. All orders for Products listed on Appendix A will be sold through
Distributor within the Territory.
2. General Payment Terms. The Net Transfer Price to Distributor is
ExWorks Company's factory shipping dock. Distributor is responsible for all
duties, taxes, levies, and shipping charges, customer-requested insurance, or
other applicable charges or fees of any kind, including collection costs,
penalties and interest, associated with therewith. All payments will be made in
U.S. dollars, in full, within [*] days of the invoice date, subject to
continuing credit approval. Payments not received by Company when due may be
subject to a late payment charge of [*] percent [*] per month or the highest
amount permitted by law, whichever is less.
3. Title and Risk of Loss. Title to and risk of loss on all products
will pass to Distributor upon tender to commercial carrier ExWorks Company's
factory, Rehovot, Israel. All costs and arrangements for shipping insurance or
any other special shipping requests will be solely the Distributor's obligation.
4. Shipping. Company shall ship Products within [*] days of
confirmation of an the order; provided, however, that if Distributor submits
orders for more than [*] Systems to be delivered after [*], as the case may be,
Company may ship Systems ordered in excess of [*] up to [*] days after
confirmation. Distributor is responsible for all shipping and handling costs.
Company shall ship replacement spare parts when requested (using Return Material
Authorization or RMA process) rather than wait for the returned RMA part.
Company is responsible for proper full crating of integrated Systems and other
Products. All products will be packaged at no additional charge to Distributor
in containers suitable for airfreight export shipment. Shipping and/or delivery
dates are estimates only and will not be binding on Company. Distributor may ask
for shipment by sea and Company will package the Products accordingly with no
additional charges to Distributor if Distributor gives such request prior to the
date on which Company begins to package such Products. Distributor will consider
shipping by sea after the first year after it has refined its unit forecasting
to enable the additional time required for shipment by sea.
B-1
5. Software License. All products include a non-transferable software
license.
6. Limited Warranty. A copy of Company's current Limited Warranty is
attached and incorporated by reference.
7. General. The purchase of any goods from Company and all other
related matters will be governed by and interpreted solely under the laws of the
State of Delaware. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS IS HEREBY EXCLUDED IN ALL RESPECTS.
B-2
APPENDIX C
Product Description and Specification
Eden 333 RP System
Product Description: Eden 333 RP System Price includes the full
electromechanical equipment, its firmware, [*].
* Modeling Envelope: 13.4" x 13" x 7.9"
* Achievable Accuracy: 0.008 inches. (Achieved on 10"x10"x7.9" build size)
0.014 inches. (Achieved on maximum modeling size).
* Layer Thickness: 0.0006 inches
* Head Temperature: 75(0)C (167(0) Fahrenheit)
* Modeling Materials Acrylic Photopolymer
* Dimensions: 52" x 39" x 47" (width x depth x height)
* Weight: 450 kg (1000 lbs)
* Power Requirements: 110 and 230 VAC 50/60 Hz, 3 KVA, single phase
* Regulatory Compliance: CE
[*].
▇-▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to Distributor
[*]
D-1
EXCEPT FOR THE LIMITED WARRANTY, COMPANY DOES NOT MAKE ANY OTHER
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW
LIMITATION OR EXCLUSIONS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT
APPLY TO DISTRIBUTOR IN CERTAIN STATES.
D-2
APPENDIX ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Mexico.
[*]
E-1
APPENDIX F
Minimum Annual Sales Quota
Eden 333 Systems
First Year
----------
[*]
Second Year
-----------
[*]
Third Year
----------
[*]
F-1
APPENDIX G
Company Insurance Policies
[* 4 pages]
G-1
APPENDIX H
Quadra Tempo Service
[*]
▇-▇
▇▇▇▇▇▇▇▇ ▇-▇
Items Considered Proprietary to Distributor
The following information is considered proprietary to Distributor in respect of
its FDM systems::
o Sales and Marketing:
A. Customer lists
B. Lead Generation & telemarketing process
C. Sales/Marketing/Service/Accounting database information including contact
information of customers, prospects, leads/qualified leads.
o Operations:
A. Material suppliers
B. Our manufacturing vendors names C. Spool, cassette & cartridge chip
encryption
D. Production rate of spools, cartridge or canisters produced E. Production
process & ATP F. Vendor/Supplier lists G. Employee lists H. Organization
chart
I. Employee phone / address list
o Financials:
A. Financials not already publicly released and available
B. Product mix
C. Maintenance revenues
D. Quarterly number of units by products
E. Productions schedule
F. Forecasts
o Unpublished patent applications and disclosures
o Strategic plans, marketing plans or distribution plans
o Any non-public activities relating to funding, distribution, acquisitions,
etc.
I-1
Appendix I-B
Items Considered Proprietary to Company
The following information is considered proprietary to Company in
respect of its Systems:
o Sales and Marketing:
A. Customer lists
B. Lead Generation & telemarketing process
C. Sales/Marketing/Service/Accounting database information including
contact information of customers, prospects, leads/qualified leads.
o Operations:
A. Material suppliers
B. Our manufacturing vendors names
C. Spool, cassette & cartridge chip encryption
D. Production rate of spools, cartridge or canisters produced
E. Production process & ATP
F. Vendor/Supplier lists
G. Employee lists
H. Organization chart
I. Employee phone / address list
o Financials:
A. Financials not already publicly released and available
B. Product mix
C. Maintenance revenues
D. Quarterly number of units by products
E. Productions schedule
F. Forecasts
o Unpublished patent application and disclosures
o Strategic plans, marketing plans or distribution plans
o Any non-public activities relating to funding, distribution,
acquisitions, etc.
I-2
APPENDIX J
Distributor's Marketing Plan
[* 1-1/2 pages]
J-1
APPENDIX K
Transition-Out upon Expiration or Termination
Upon expiration or termination of the Agreement for any reason whatsoever, the
following shall apply:
Service and spares
Upon termination Distributor will continue to support customers for up to twelve
(12) months in accordance with existing maintenance contracts, and Company will
supply spare parts for this term at prices, terms and conditions as before
termination. To the extent that Distributor has no continuing obligations under
a maintenance agreement with a customer, Distributor shall provide maintenance
service to such customer on behalf of Company at Distributor's standard monthly
rates for such maintenance. No provision in this paragraph, or in any other part
of this Agreement, shall relieve Distributor of Distributor's responsibility to
stock spares. Distributor is expected to maintain an adequate inventory of
spares to support the Systems purchased hereunder.
Material
Upon termination Company will become the only supplier of Polyjet Resin to the
customers, provided that such resin continues to be proprietary to the Company.
Orders in process
If this Agreement is terminated, upon request by Distributor, Company will
deliver Products for orders which it accepted prior to the effective date of
termination and Distributor shall pay for such orders all in accordance with the
provisions hereof; however, Company shall have no obligation to extend credit to
Distributor with respect to such orders.
Distributor stock
Except as otherwise provided in this Appendix K or in the Agreement, upon
termination Company shall have the option of buying back from Distributor any
new unsold Products purchased from Objet, at the prices charged to Distributor,
less Objet's applicable restocking charge, if any. Upon termination after the
first anniversary of the Agreement, Distributor has the right to sell its Demo
Systems and inventory of Products for a period of six months after the date of
termination or to return all Demo Systems and inventory of Products to Company
for a full refund at the Net Transfer Price.
Existing Obligations to Customers
Termination hereunder shall in no way affect Distributor's obligations to its
customers with respect to products previously sold hereunder or with respect to
any indebtedness Distributor then owes to Company.
Existing Obligations of Parties
Upon termination of this Agreement all further rights and obligations of the
parties shall cease, except that (A) Distributor shall not be relieved of (i)
its obligation to pay any monies due, or to become due, as of or after the date
of termination, and (ii) any other obligation set forth in this Agreement which
is to take effect after the date of termination, (B) Distributor's obligations
under Sections [*], 5D, and [*] shall survive termination, (C) Company's
obligations under Sections 8A, 12, 13 and 14 shall survive termination, and (D)
Company shall not be relieved of (i) its obligation to repay any amount of the
Initial Advance or Supplemental Advance to Distributor as required hereunder and
(ii) any other obligation set forth in this Agreement which is to take effect
after the date of termination.
K-1
Return of materials
Distributor will return all Company-owned materials within 30 days after the
date of termination. Within 30 days of a termination under Section 15,
Distributor will send Company a list of customer names with contacts, addresses,
phone numbers and the Products sold to such customer and related service
records.
Trademarks and Tradenames
Except to the extent that Distributor has rights or duties with respect to the
continued sale and maintenance of the Products in the Territory, upon
termination of this Agreement, Distributor will immediately cease using
Company's name and trademarks as an authorized Company distributor and
discontinue all representations that it is an authorized distributor of Company.
In connection herewith and without limiting the scope of the preceding sentence,
upon termination of this Agreement, Distributor shall remove all references to
Company from its letterheads, advertising literature and places of business, and
shall not thereafter use any similar or deceptive name or trademark intending to
give the impression that there is any relationship between the parties.
Confidential Information and other Surviving Provisions
The parties shall continue to be bound by the obligations of confidentiality and
other provisions of the Agreement which by their nature or by their terms
survive the expiration or termination of the Agreement, including without
limitation Sections 20, 21 and 22.
K-2
APPENDIX L
Objet Trademarks
Marketing & Technical
Objet
Objet Geometries Ltd.
PolyJet
PolyJet 2nd. Generation
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
(Eden260) not to show yet FullCure
FullCure500
FullCure700
Objet Studio
PolyLog
SHR
WaterJet
Domain Names
▇▇▇.▇▇▇▇▇▇.▇▇▇
▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇.▇▇
▇▇▇.▇▇▇▇▇.▇▇
▇▇▇.▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇▇▇.▇▇▇