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EXHIBIT 10.27
DISTRIBUTION AGREEMENT
BETWEEN
FSI INTERNATIONAL, INC'S. SURFACE CONDITIONING DIVISION
AND
METRON TECHNOLOGY B.V.
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TABLE OF CONTENTS
PAGE
ARTICLE 1: GENERAL CONDITIONS
SECTION 1.1 APPOINTMENTS AND ACCEPTANCE 4
SECTION 1.2 DISTRIBUTOR NOT AGENT 4
SECTION 1.3 PRODUCT REGISTRATION 4
SECTION 1.4 TERM 5
SECTION 1.5 CUSTOMER SALES 5
SECTION 1.6 COMPANY DISCOUNTS 5
ARTICLE 2: RESPONSIBILITIES AND OBLIGATIONS OF DISTRIBUTOR
SECTION 2.1 BEST EFFORTS 5
SECTION 2.2 TERMS OF SALE 5
SECTION 2.3 SPARE PARTS INVENTORY 5
SECTION 2.4 NO SUB-DISTRIBUTION 6
SECTION 2.5 DISTRIBUTION FUNCTIONS 6
SECTION 2.6 GLOBALIZATION 7
SECTION 2.7 APPLICATIONS/PROCESS SUPPORT 7
SECTION 2.8 SALES AND MARKETING PERSONNEL 7
SECTION 2.9 SERVICE PERSONNEL 8
SECTION 2.10 CONSIDERATION 8
SECTION 2.11 BUSINESS PLAN 8
SECTION 2.12 PERIODIC PERFORMANCE REVIEWS 9
SECTION 2.13 FINANCIAL DATA 9
SECTION 2.14 BOOKS AND RECORDS 9
SECTION 2.15 EXPORT SALES 9
SECTION 2.16 COMPETITION 9
SECTION 2.17 INDEMNIFICATION 10
SECTION 2.18 LIMITATION OF PRODUCT WARRANTY: WARRANTY 10
SECTION 2.19 INSURANCE 10
SECTION 2.20 INSTALLATION OBLIGATIONS 10
SECTION 2.21 NEW PRODUCT INTRODUCTION INSTALLATION OBLIGATIONS 11
SECTION 2.22 METRICS 11
ARTICLE 3: OBLIGATION TO MAINTAIN INTEGRITY OF COMPANY TRADEMARKS, SERVICE MARKS AND BRAND NAMES
SECTION 3.1 OWNERSHIP OF TRADEMARKS, PATENTS, AND COPYRIGHTS 11
SECTION 3.2 PROMINENCE OF TRADEMARKS 11
SECTION 3.3 COMPLIANCE WITH LAWS 12
SECTION 3.4 NOTIFICATION OF VIOLATIONS 12
SECTION 3.5 ASSISTANCE IN THE PROTECTION OF THE TRADEMARKS, PATENTS, AND 12
COPYRIGHTS
SECTION 3.6 LIMITATION ON DISTRIBUTOR RIGHTS 12
SECTION 3.7 LICENSE AGREEMENTS 12
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PAGE
ARTICLE 4: RESPONSIBILITIES AND OBLIGATIONS OF COMPANY
SECTION 4.1 CONSIDERATION OF ORDERS 12
SECTION 4.2 SALE BY COMPANY 13
SECTION 4.3 SHIPMENT OF PRODUCTS AND RETURNED MATERIALS 13
SECTION 4.4 TECHNICAL AND SALES ASSISTANCE 13
SECTION 4.5 STOCK OBSOLESCENCE 14
SECTION 4.6 NEW PRODUCT INTRODUCTION 14
SECTION 4.7 NEWLY ACQUIRED PRODUCTS 15
SECTION 4.8 NEW PRODUCT INSTALLATION 15
SECTION 4.9 PRODUCT PERFORMANCE 15
ARTICLE 5: TERMS AND TERMINATION
SECTION 5.1 TERMINATION: RENEWAL 15
SECTION 5.2 ORDERS 15
SECTION 5.3 DEFAULT: FAILURE TO CURE 15
SECTION 5.4 DEFAULT: INSOLVENCY 16
SECTION 5.5 WAIVER: REPURCHASE OF INVENTORY 16
SECTION 5.6 TERMS APPLYING AFTER TERMINATION 16
ARTICLE 6: MISCELLANEOUS
SECTION 6.1 CONFIDENTIAL DATA AND INFORMATION 16
SECTION 6.2 FINANCIAL CONDITION 17
SECTION 6.3 AFFILIATES OF COMPANY 17
SECTION 6.4 MAINTENANCE OF RECORDS 17
SECTION 6.5 IRREPARABLE HARM 17
SECTION 6.6 COMPLIANCE WITH GOVERNMENTAL REGULATIONS 17
SECTION 6.7 FORCE MAJEURE 18
SECTION 6.8 NON-ASSIGNABILITY BY DISTRIBUTOR 18
SECTION 6.9 NOTICE 18
SECTION 6.10 CONSTRUCTION OF AGREEMENT 18
SECTION 6.11 COMPLIANCE WITH LAWS AND REGULATIONS 19
SECTION 6.12 EXECUTION 19
SECTION 6.13 ALTERNATIVE DISPUTE RESOLUTION 19
SECTION 6.14 GOVERNING LAW 20
SECTION 6.15 WAIVER OF BREACH 20
SECTION 6.16 BENEFIT 20
SECTION 6.17 NO OTHER AGREEMENTS 20
SECTION 6.18 AMENDMENTS 20
SECTION 6.19 SEVERABILITY 20
SECTION 6.20 SOLICITATION OF EMPLOYEES 20
SECTION 6.21 COMPETING PRINCIPAL 20
SECTION 6.22 RESALE OF EQUIPMENT 20
SECTION 6.23 SIGNATURES 20
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PAGE
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EXHIBITS:
EXHIBIT A PRODUCTS, PRICING, DISCOUNTS AND COMMISSION
PART I PRODUCTS, PRICING, DISCOUNTS AND 22
COMMISSIONS
PART II TERMS OF SALE 28
EXHIBIT B TERRITORY, EXCLUDED CUSTOMERS AND BRANCHES
PART I GEOGRAPHIC TERRITORY 36
PART II EXCLUDED TERRITORIES OR CUSTOMERS 37
EXHIBIT C DISTRIBUTOR AND COMPANY RESPONSIBILITIES
PART I DISTRIBUTOR'S RESPONSIBILITIES 38
PART II COMPANY'S RESPONSIBILITIES 39
EXHIBIT D SPARE PARTS POLICY 40
EXHIBIT E FORM OF CONFIDENTIALITY AGREEMENT 42
EXHIBIT F SURFACE CONDITIONING DIVISION GLOBAL WARRANTY 44
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FSI SURFACE CONDITIONING DIVISION/METRON DISTRIBUTION AGREEMENT
THIS AGREEMENT is amended and restated effective July 10, 2000 (the
"Effective Date"), by and between FSI INTERNATIONAL, INC.'s ("FSI") Surface
Conditioning Division ("Company") organized and existing under the laws of the
State of Minnesota, United States of America, and METRON TECHNOLOGY B.V.,
organized and existing under the laws of The Netherlands ("Distributor").
WHEREAS, Company designs, manufactures and sells surface conditioning
and cleaning products for use in the microelectronics industry and wishes to
expand its market for the Products (as defined below) in the Territory (as
defined below);
WHEREAS, Distributor distributes and sells products in the
microelectronics industry and desires to serve as Company's distributor of the
Products in the Territory upon the terms and conditions set forth herein; and
WHEREAS, Distributor and FSI entered into a Distribution Agreement
effective as of March 31, 1998;
WHEREAS, the March 31, 1998 Distribution Agreement covered all three of
FSI's Divisions and since that time FSI has sold one of its three Divisions;
WHEREAS, FSI and Distributor wish to enter into a separate distribution
agreement with respect to FSI's Surface Conditioning Division; and
WHEREAS, FSI and Distributor also wish to modify the Distribution
Agreement to include the products of FSI's subsidiary SCD Mountain View, Inc.
NOW, THEREFORE, FSI and Distributor hereby agree as follows:
1. GENERAL CONDITIONS
1.1 APPOINTMENT AND ACCEPTANCE. Subject to terms and conditions
contained in this Agreement, Company hereby hires and appoints, and Distributor
hereby undertakes and accepts, an appointment as the Distributor of those of the
FSI's Surface Conditioning Division products described in Exhibit A ("Products")
and spare parts related thereto (described below) ("Spare Parts") (collectively
"Equipment") for the geographic territory described or defined in Exhibit B,
Part I ("Territory") for the period commencing on the date set forth above (the
"Effective Date") for the term set forth in Section 1.4 hereof. Distributor
agrees to sell Equipment to all customers within the Territory ("Customers"),
except for those customers, Equipment or geographic areas specifically excluded
in Exhibit B, Part II.
1.2 DISTRIBUTOR IS NOT THE COMPANY'S AGENT. Distributor is not an
agent, servant, employee, co-partner, or joint venture of or for Company for any
purpose whatsoever. Distributor shall not have any right or authority to assume
or create any obligation or responsibility, expressed or implied, on behalf of
or in the name of Company, or to bind Company in any manner or way whatsoever.
Distributor shall perform its duties and obligations under this Agreement as an
independent contractor.
1.3 PRODUCT REGISTRATION. If required by local law, registration of
Products shall be in the name of the Company whenever possible. Within thirty
(30) days of the date of this
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Agreement, any registration documents required under local law shall be provided
to Company by Distributor. A copy of registration documents are to be provided
to the Company within ten (10) days of receiving registration by Distributor if
the registration is granted after the effective date of this Agreement. If this
Agreement is terminated, then said registrations belong solely to Company and
Distributor shall execute any assignments, modifications or changes necessary to
immediately transfer such registration(s) to Company.
1.4 TERM AND SCOPE. This Agreement shall take effect as of the
Effective Date and shall continue until November 19, 2001 (the "Initial Term"),
unless sooner terminated as provided in Article 5. With respect to the Products
listed in Exhibit A, this Agreement shall as of the Effective Date replace the
terms of the Distribution Agreement of March 31, 1998 as to those same Products.
1.5 CUSTOMER SALES. Except to the extent prohibited by applicable law,
Distributor shall not discount prices to global customers (i.e., those with
multi-geographic locations or influence including existing or future joint
ventures) below Company's U.S. list (exclusive of any applicable Company
discounts to such customers) without Company's prior knowledge and consent.
Company shall consult with Distributor on any discount in excess of five percent
(5%) off of U.S. list in Distributor's territory. Distributor shall consult with
Company with respect to additional discounts it provides to its customers or
offers to potential customers. Sales proposals to potential customers will be
consistent with the format approved by the Company.
1.6 CUSTOMER DISCOUNTS. Customer discounts on equipment shall be shared
between Company and Distributor as described in Exhibit A, unless agreed
otherwise in writing by authorized representatives of Company and Distributor.
Discounts on spares are as provided in Exhibit D.
2. RESPONSIBILITIES AND OBLIGATIONS OF DISTRIBUTOR
2.1 BEST EFFORTS. Distributor shall exercise its best efforts to sell
Equipment in the Territory to the reasonable satisfaction of Company, and in
connection therewith, Distributor shall carry out all of its responsibilities
and obligations set forth in Article 2.
2.2 TERMS OF SALE. Distributor shall purchase Products and Spare Parts
in accordance with Company's current prices, terms, and conditions of sale as
established by Company as of the date of sale and as set forth in Exhibit A. No
terms proposed by Distributor in a Purchase Order or otherwise that are
different from or in addition to the terms of this Agreement shall apply to any
purchase hereunder unless expressly agreed to in writing by an authorized
representative of the Company. Company may, in its absolute discretion, change
the prices, terms and conditions of sale, other than Distributor discounts or
commissions, upon sixty (60) days prior written notice to Distributor; provided,
however, that Company will hold prices on firm quotes for Products (but not
Spare Parts) issued in writing by Distributor to a Customer prior to the notice
of the price increase where the delivery date is within one hundred-eighty (180)
days of the effective date of such price increase and so long as said Customer
accepts that delivery date and issues an order consistent with the Company's
Product lead times. Notwithstanding anything else contained in this Section,
prices for Products or Spare Parts are subject to change immediately and without
notice for correction of errors or Product structure changes. Distributor shall
make payment in full within sixty (60) days of shipment.
2.3 SPARE PARTS INVENTORY. Distributor shall maintain a level of Spare
Parts inventory in each of Europe and Asia (as such terms are defined in Exhibit
B) as necessary to enable Distributor to carry out its distribution
responsibilities and obligations under this
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Agreement within those respective areas. Distributor is expected to manage
inventory on a replenishment basis based upon the installed base of Products
within each of Asia or Europe. Within forty-five (45) days of signing this
Agreement, Distributor shall provide Company with a list (transmitted
electronically via e-mail) of its inventory of Spare Parts for the Company's
current product offerings in each of Europe and Asia (a separate list for each
area)1. Within forty-five (45) days of receiving the report, Company shall
provide Distributor with the Spare Parts which in Company's reasonable
determination are necessary to maintain a replenishment level of Spare Parts
inventory in each of Asia and Europe. This procedure shall not alter the method
by which obsoleted parts are to be handled pursuant to the Company's Spare Parts
policy. Thereafter, within five (5) business days after the end of each month,
Distributor shall provide Company with a list (transmitted electronically via
e-mail) of its inventory usage for the prior month (for each of Europe and Asia)
and its inventory levels as of the end of the month. Company shall promptly
provide those Spare Parts it deems necessary to replenish Distributor's
inventory in each of Asia and Europe. Following the end of each calendar quarter
commencing with the quarter ended August 31, 2000, Distributor agrees to adjust
its inventory level in each area per recommendations of Company. In addition,
Company will provide Distributor with Quarterly Obsolescence Reports. Any Spare
Parts within Distributor's inventory on or after July 1, 2000 which are
obsoleted on or after April 1, 2000 pursuant to such report may be returned for
credit within thirty (30) days of the date of the applicable report, such credit
to be applied to the cost of replacement parts or offset Distributor's liability
to Company at ninety-five percent (95%) of their then current cost. Thereafter
such items may not be returned or used in any FSI Product. In addition, any
Spare Parts categorized as "use to deplete" items may not be returned for credit
or replacement. Distributor acknowledges that it is expected to draw its
inventory needs for each of Europe or Asia from the inventory maintained within
each area. Upon reasonable advance notice, Distributor shall permit Company's
representatives to enter its premises during normal business hours and at
regular intervals to verify the inventory level of Products and to examine parts
from which a credit or warranty claim is or had been made. Company's Spare Parts
Policy is attached as Exhibit D.
2.4 NO SUB-DISTRIBUTION. Distributor shall not appoint sub-distributors
in the Territory or use third parties to carry out any of its responsibilities
or obligations under this Agreement without FSI's prior written consent.
2.5 DISTRIBUTION FUNCTIONS. Except for those Products, Territories, or
Customers listed in Exhibit B, Part II and notwithstanding any other provisions
contained herein, Distributor shall perform directly all ordering, handling,
stocking, selling, shipping, installation, and all warranty, application, and
engineering support necessary to distribute Products effectively throughout the
Territory, shall adequately maintain agreed upon levels of Spare Parts inventory
in good and marketable condition and promptly provide replacement parts to
customers. Unless otherwise agreed in writing by Company, Distributor will not
manufacture or distribute directly or indirectly in the Territory any equipment,
products, control systems or systems which are similar to or competitive with
the Products or their applications; provided, however, that Distributor may,
with the written permission of Company, manufacture items integral to Company's
equipment, products, control systems, or systems. In addition to those
enumerated in this Agreement, Exhibit C, Part I sets forth Distributor's general
responsibilities with respect to Product sales and service hereunder, which
responsibilities may be revised in writing by Company from time to time to
include new products.
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1 Inventory levels at Distributor for discontinued products of the Company shall
be Distributor's sole responsibility.
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2.6 GLOBALIZATION. Although Distributor's sales responsibility is
limited to the Territory, Distributor and Company recognize that customers
within the Territory may have facilities or business relationships outside the
Territory. Distributor agrees to actively support the Company's global sales and
marketing efforts including sales to Distributor's customers outside of the
Territory. Distributor acknowledges that support of this globalization effort is
part of its obligations under this Agreement.
2.7 APPLICATIONS/PROCESS SUPPORT. In addition to its responsibilities
above, Distributor shall provide applications/process support in the Territory
by:
Providing trained field applications personnel in Asia and Europe
to troubleshoot and define customer processes and supply reports and data to the
Company with respect to such endeavors;
Participating and facilitating user conferences with Customers and
Company;
Providing ongoing support directly or in cooperation with Company
to Customers in the areas of applications development, system acceptance and
qualification, troubleshooting, data collection and process refinement.
To promote more effective communications, a more efficient sales
process, and interaction between Company and Distributor, certain
applications/process personnel within Distributor's organizational structure, in
addition to their reporting relationship within Distributor, for human resources
and logistics purposes among others, will also have reporting responsibilities
to the individual or position designated by the President of SCD. Such
Distributor positions include, but are not limited to among others, the Product
Manager for Surface Conditioning products in Europe and the Asia Technical
Director for FSI's Surface Conditioning Division, who are in each case to be
devoted one hundred percent (100%) to supporting Surface Conditioning products.
It is anticipated that the designated individual at the Company will have no
less than quarterly performance review meetings with such individuals to discuss
(i) Equipment performance data; (ii) personnel training and certification; (iii)
customer concerns or issues; and (iv) service improvement initiatives and
Distributor shall assist him in scheduling and conducting such meetings. The
designated individual at Company will also be provided the opportunity to
review, comment, and edit any performance reviews and incentive programs of the
individuals at Distributor reporting to both the Product Manager and the Asia
Technical Director. In addition, such individual shall be provided the
opportunity to assess the Product Manager and Asia Technical Director's
performance and compensation and incentive packages.
2.8 SALES AND MARKETING PERSONNEL. Distributor shall engage and
maintain, at its sole expense, fully qualified and technically knowledgeable
sales and marketing personnel to promote the sale and service of Equipment in
the Territory as set forth in Distributor's Key Account Plan. Distributor's
sales and marketing personnel shall participate with Company in developing
product and marketing plans, in user groups and in Company programs relating to
the marketing, sale and promotion of the Products. Distributor shall also
participate in trade shows and exhibitions within and outside of the Territory
to promote the sale of Equipment in the Territory, in some cases as part of
Company's tradeshow booth. Distributor shall organize, at its expense, Product
training seminars as may be reasonably necessary to promote effectively the sale
of Products in the Territory. Distributor's use of non-qualified personnel to
sell, market, or represent the Company in any way is prohibited.
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2.9 SERVICE PERSONNEL. Distributor's Service Personnel must have
relevant technical background or experience. They must also meet any minimum
standards set by Company prior to training for certification on Company's
Products. The Distributor also will train its Service Personnel with respect to
Company's Products and supply them with the proper tools and Distributor shall
only permit level 3 certified service personnel to service and maintain
Products. Distributor also agrees to maintain adequate service levels and to
provide retraining and recertification of its personnel and the Company will
provide assistance in establishing such levels. The Company will from time to
time provide Distributor with guidelines as to the qualifications,
certifications, and abilities of Distributor's service personnel and Distributor
is expected to follow such guidelines. In the event that Company is required to
provide installation support to Distributor due to the non-certification of
Distributor's personnel, Distributor shall reimburse Company at Company's then
current hourly labor rate for each hour of service (plus travel expenses) for
such services.
Distributor's field service directors responsible for Products in
each of Europe and Asia (i.e., the European Service Manager for Surface
Conditioning and the Director of Asia Customer Support (collectively the "Europe
and Asia SCD Service Directors)), in addition to the reporting relationship
within Distributor's organization for human resources and logistics purposes
among others, shall report to Company's Service Operations Manager for the
Surface Conditioning Division or such other individual designated by the
President of SCD ("Service Operations Manager"). As such, the Service Operations
Manager shall have input into the review and evaluation of the performance of
the Europe and Asia SCD Service Directors. In addition, the Europe and Asia
Service Directors shall participate in no less than quarterly performance review
meetings with the Company's Service Operations Manager to discuss the following:
(i) Equipment performance data; (ii) personnel training and certification; (iii)
customer concerns or issues; and (iv) service improvement initiatives. In
addition, Company's Service Operations Manager shall cooperate with
Distributor's senior management to do joint assessments of each of the Europe
and Asia SCD Service Directors and discuss and agree upon such individuals
strategic and tactical objectives and incentive programs. In addition, Company's
Service Operations Manager shall have the opportunity to provide input to and
participate in performance reviews of all of Distributor's service personnel for
the Products.
2.10 CONSIDERATION. The grant of distribution rights is the sole
consideration provided by Company to Distributor for activities undertaken by
Distributor pursuant to this Agreement. Distributor is not entitled to any
compensation from Company for such activities, unless Company so agrees in
writing. All travel and selling expenses associated with the sale and service of
Products shall be the sole responsibility of Distributor.
2.11 BUSINESS PLAN. On an annual basis commencing on or about July 31,
2000, Distributor shall submit to Company a list of its Key Accounts for the
Products and the Tactical Plans associated with those Key Accounts for the
Company's review and comment. Distributor and Company shall review and mutually
agree to the Tactical Plan and list of Key Accounts. In addition, they shall,
upon the written request of Company, meet on no less than a semi-annual basis to
review and discuss the status of the Tactical Plans and any appropriate changes
to be made to them.
In addition, if requested to do so by Company, Distributor shall
provide or cause to be provided:
- Distributor's current price lists for the sale of Products to
its customers in the Territory.
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- Distributor's merchandising plans and programs developed and
utilized with copies of any promotional written materials that
contain the Company name or logo.
- Distributor's actual and planned sales volumes, itemized by
Product and customer.
- Any other information reasonably related to the selling and
marketing of Products in the Territory.
2.12 PERIODIC PERFORMANCE REVIEWS. During the term of this Agreement,
Distributor shall provide Company with a self-assessment of Distributor's
performance at a mutually agreed upon frequency (e.g., quarterly, four (4) month
intervals) but no less than every six (6) months. Such written performance
reviews shall include, but not be limited to, the identification of Products
sold by the quantities and the selling prices or costs thereof, the names and
locations of customers to whom such Products were sold in the Territory, the
current and near term goals of Distributor, quarterly metric reports including
inventory metrics, warranty claims, pricing leads, customer surveys, Product
performance, cycle-time/problem resolution, installations, post-installation
status reports, and any other information that Company may from time to time
reasonably deem appropriate. If Distributor is not meeting its performance
objectives, Company and Distributor will mutually develop and document a
performance improvement plan.
2.13 FINANCIAL DATA. Distributor shall promptly provide quarterly
financial information reflecting Distributor's current financial condition and
operating results to Company's Chief Financial Officer. Company shall keep such
information confidential to the extent it is not in the public domain subject,
however, to the Company's obligation to report its financial results.
2.14 BOOKS AND RECORDS. Distributor shall keep accurate records and
accounts of all transactions covered by this Agreement, such as sales by
account, purchase orders, correspondence, and Product sales, and shall permit
examination by Company or its representatives, at any time during normal
business hours, of such accounts and transactions with customers. Company's
right to examine such accounts and transactions shall cease one (1) year after
the termination of this Agreement. Any requests for review made after
termination will be limited to a specific issue which Company is investigating.
Distributor shall keep, by Product and customer location, records of all systems
installed including records relating to meantime between failure, service
records, revision levels installed, maintenance records, spare parts records,
warranty service, installation drawings, hookups, and acceptance criteria and
shall provide copies of same to Company upon its request. In addition,
Distributor shall keep records regarding the training and qualification of its
Service Personnel.
2.15 EXPORT SALES. Without the Company's prior written consent,
Distributor shall not sell Products to customers within the Territory if
Distributor knows or reasonably could determine that such Products are intended
for sale or use outside the Territory. If Distributor acquires knowledge of the
opportunity for such a sale, Distributor shall inform Company of such
opportunity, including the identity of the prospective customer, and provide
support consistent with the Company's globalization strategy.
2.16 COMPETITION. Distributor shall promptly report unfair competitive
acts by others and shall take such steps as are reasonably necessary to protect
the Company's goodwill and reputation throughout the Territory; provided,
however, that Distributor shall not have any authority to bring or defend any
legal action in the name of the Company or its affiliates without the Company's
prior written consent. In addition, if a Product covered by this Agreement
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includes OEM modules (e.g., an MHS System) Distributor shall not purchase such
modules other than from Company without Company's express written consent.
2.17 INDEMNIFICATION. Distributor shall indemnify, defend, and hold
harmless the Company and its officers, directors, agents, employees,
shareholders, legal representatives, successors and assigns, and each of them,
from loss, liability, costs, damages, or expenses from any and all claims,
actions and suits, whether groundless or otherwise, and from and against any and
all liabilities, judgments, losses, damages, costs, charges, attorney's fees,
and other expenses of every nature and character by reason of Distributor's
actions, inactions, performance, or business hereunder or that of its agents,
employees, subcontractors or others acting on its behalf. Distributor further
agrees that the provisions contained in this Section shall survive the
termination or expiration of this Agreement and shall be liberally construed in
favor of Company.
2.18 LIMITATION OF PRODUCT WARRANTY: WARRANTY. COMPANY MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED (INCLUDING THE IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE) EXCEPT THOSE SET FORTH IN COMPANY'S THEN CURRENT PUBLISHED WARRANTY
POLICIES AND PROCEDURES APPLICABLE TO A PARTICULAR PRODUCT OR SPARE PART.
Distributor hereby accepts Company's then current published warranty with
respect to Equipment and with respect to applications of a Product, and agrees
that such warranty shall be extended and supported by the Distributor to
Customers in the Territory. Distributor is responsible for any modifications to
Company's standard warranty which are agreed to by Distributor with a customer
and shall also provide written notice of any such modifications to Company.
Distributor also agrees to provide support for and to promptly implement all of
the Company's upgrade and corrective actions programs. Company reserves the
right to change the terms and conditions of the referenced warranty at its sole
option upon thirty (30) days written notice to Distributor and any and all such
changes in and to the referenced warranty shall become effective upon expiration
of the notice period. The parties hereto acknowledge and agree that Company's
liability with respect to Equipment shall be limited to Company's referenced
warranty, as may be changed or modified from time to time by Company, in its
sole discretion.
2.19 INSURANCE. During the term of this Agreement and for a period of
two (2) years thereafter, Distributor agrees to maintain policies of insurance
of the nature and amounts specified below and to provide evidence of the same
upon the Company's request:
- General commercial liability insurance of at least $2.0 Million.
- Property damage insurance of at least $2.0 Million.
- Excess or umbrella liability insurance of at least $3.0 Million
- Other statutory insurance provisions required by the applicable
laws of the Territory.
2.20 INSTALLATION OBLIGATIONS. Distributor is primarily responsible for
installation, commissioning, start up and acceptance, except as provided in
Section 4.9 with respect to the first two installations of a new product in each
of Asia and Europe. Generally, Distributor's installation/service personnel are
expected to be certified as to a Product within each of Europe and Asia prior to
the third installation of such Product in Europe and Asia, respectively. If
certified personnel are not available, the Company and Distributor agree that at
the time of the
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acceptance of such order a determination will be made whether Company will
perform the installation and reduce the discount to Distributor or if Company
will ▇▇▇▇ Distributor on an hourly basis for support and service provided by
Company. Distributor may use subcontractors to assist on an installation so long
as they are insured, bonded and certified to service that Company Product.
Distributor accepts full responsibility and liability for such subcontractors'
work.
2.21 NEW PRODUCT INTRODUCTION INSTALLATION OBLIGATIONS. With respect to
a new product to which this Agreement applies now or in the future, Distributor
will:
- develop an internal plan to ensure it can support the product;
- commit sales personnel to participate in product introduction
programs and develop strategic and tactical sales and market
plans;
- provide qualified sales, application, and service personnel to
be trained and/or certified with respect to the Product; and
- assist in the development and installation of Company's
marketing and strategic plans.
2.22 METRICS. Distributor and Company shall agree upon Distributor's
performance metrics during the term of this Agreement which are to be reflected
in the performance reviews per Section 2.12, which metrics will include not only
the Key Account and Tactical Plans referred to above, but also (i) price
attainment and lead attainment goals and incentives; (ii) customer satisfaction
surveys (similar to Company's own survey); (iii) inventory, service, and
installation metrics in a form acceptable to Company; (iv) tool performance; and
(v) cycle time problem resolution.
3. OBLIGATION TO MAINTAIN INTEGRITY OF COMPANY TRADEMARKS,
SERVICE MARKS AND BRAND NAMES
3.1 OWNERSHIP OF TRADEMARKS, PATENTS, AND COPYRIGHTS. Distributor
acknowledges Company's exclusive right, title, and interest in and to any and
all trademarks and trade names, whether or not registered, (hereinafter, such
trademarks and trade names shall be collectively referred to as "Trademarks"),
patents and patent applications ("Patents"), copyrights ("Copyrights") and trade
secrets and know-how ("Know-How") which Company may have at any time created,
adopted, used, registered, or been issued in the United States of America or in
any other location, and Distributor agrees that it shall not do, or cause to be
done, any acts or things contesting or in any way impairing or tending to impair
any portion of Company's right, title, and interest in and to the Trademarks,
Patents, Copyrights, trade secrets and Know-How.
3.2 PROMINENCE OF TRADEMARKS. In advertising, promotions or in any
other manner so as to identify Products, Distributor shall clearly indicate
Company's ownership of the Trademarks, Patents, and Copyrights. Distributor
further agrees that before distributing or publishing any sales literature,
promotional or descriptive materials, Company shall have the right, upon
request, to inspect, edit and approve such materials which describe or discuss
Company's products. Distributor agrees to comply with any trademark usage
guidelines that Company provides to it in writing.
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3.3 COMPLIANCE WITH LAWS. When referring to or using the Trademarks,
Patents, and Copyrights, Distributor shall comply with any and all applicable
laws and regulations within the Territory or the United States.
3.4 NOTIFICATION OF VIOLATIONS. Distributor shall promptly notify
Company, in writing, of any and all infringements, imitations, illegal use or
misuse of the Trademarks, Patents, Copyrights, and/or Know-How of which the
Distributor is aware. Distributor further agrees that it shall take action in
connection with infringement of the Trademarks, Patents, Copyrights, and/or
Know-How and otherwise attempt to prevent the infringement, imitation, illegal
use or misuse of the Trademarks, Patents, Copyrights and/or Know-How only with
Company's prior written consent.
3.5 ASSISTANCE IN THE PROTECTION OF THE TRADEMARKS, PATENTS, AND
COPYRIGHTS. Distributor agrees, except to the extent prohibited by applicable
law, to render to Company any and all assistance reasonably requested of it by
Company in connection with the protection and/or registration of Trademarks,
Patents, and/or Copyrights, and to make promptly available to Company
Distributor's personnel files and any other files or records, or any other
information it possesses, or to which it has access, which may be of use to
Company in connection with this Article 3.
3.6 LIMITATION ON DISTRIBUTOR RIGHTS. Distributor agrees that at no
time during the term of this Agreement, nor at any time after this Agreement's
expiration or termination, shall Distributor adopt, register, or use in any
manner whatsoever or permit the adoption, registration, or use without Company's
prior written consent, any word, symbol, or combination thereof, which in any
way imitates, resembles, or is similar to any Trademarks of Company, nor shall
Distributor in any manner whatsoever infringe the rights of Company in any
Patent or Copyright.
3.7 LICENSE AGREEMENT. By executing this Agreement, Distributor hereby
agrees to grant and does grant to Company an exclusive, worldwide, royalty-free
license to make, have made, offer for sale, use, sell, import, duplicate, create
derivative works, distribute, perform and to display all improvements,
modifications or inventions (whether patentable or not) that Distributor has
made in the past or makes to any Product or any process implemented or capable
of being implemented on a Company Product during the period of this Agreement
and for two (2) years thereafter. With respect to all such inventions, during
the term of this Agreement, Distributor agrees to prosecute and be responsible
for the costs associated with prosecuting such inventions. If following
termination of this Agreement, Distributor intends to abandon prosecution of any
inventions or the maintenance of a Patent related to the Products of the Company
or processes related thereto, it shall provide the Company with at least sixty
(60) days advance notice and the right to prosecute or continue maintenance of
such Patent at Company's cost.
4. RESPONSIBILITIES AND OBLIGATIONS OF COMPANY
4.1 CONSIDERATION OF ORDERS. Company shall give reasonable
consideration to Distributor's orders for Products and shall make shipments of
accepted orders promptly in accordance with Company's production schedule and
subject to Product manufacturing lead times. If not rejected within seven (7)
business days, all orders for Products shall be considered accepted. After
acceptance, order cancellations by Distributor are subject to Company's
cancellation policy; provided, however, the parties recognize that there are
circumstances where it would be inequitable to impose such charges.
14
4.2 SALE BY COMPANY. Company shall, subject to commercial availability,
offer for sale to Distributor those Products listed on Exhibit A for resale to
Customers within the Territory; provided, however, Company reserves the right
(and this Agreement does not apply to) sales by Company of items or Equipment to
a third party where the third party intends to integrate Company's item,
Products or Equipment into such third party's product and sell such integrated
product in the Territory or elsewhere. Company will not knowingly sell Products
to customers within the Territory except as included within Company's
responsibility pursuant to Exhibit B. Notwithstanding the preceding sentence, if
Company reasonably determines that additional sales are desirable for the full
development of the Products in the Territory, and Distributor has demonstrated
that it is unable to develop fully the market for Products to Customers in the
Territory, then Company may, without notice and without Distributor's consent,
sell Product in the Territory so long as Company does not change the
compensation structure of Distributor. Company further reserves the right, on a
Product by Product basis, to sell or, in the Company's sole discretion, to
establish a local presence through a joint venture, strategic alliance in
specific countries or otherwise for any one or more of Company's Products and
Company may unilaterally change, in a reasonable manner, the compensation
structure to be commensurate with the change in each parties respective
responsibilities in such area or for such Product upon twelve (12) months prior
notice. The Company must obtain the consent of Distributor if it proposes a
change in Distributor's compensation structure which is to be effective in less
than twelve (12) months. The prices and terms fixed by Company for sales to
Distributor hereunder are special prices and terms applicable only to the
Company Products intended for ultimate resale in the Territory for which
Distributor is responsible and in which Distributor is to employ all its
marketing efforts.
4.3 SHIPMENT OF PRODUCTS AND RETURNED MATERIALS. Unless otherwise
determined by Company, Products shall be sold ExWorks Company's
warehouse/distribution center and title and risk of loss shall pass to
Distributor at the ExWorks point. Distributor to pay freight and customs
penalties on all Spare Parts or other materials returned to Company pursuant to
the Surface Conditioning Division's RMA policy, such items to be F.O.B.
Company's warehouse distribution center.
4.4 TECHNICAL AND SALES ASSISTANCE. Company will assist Distributor in
promoting sales of Products within the Territory by:
4.4.1 Providing periodic technical and sales seminars and programs
relating to the sales and service of Products, in the United States for the
training and certification of Distributor's personnel, and the relevant
certification criteria for such personnel;
4.4.2 Providing technical service and support, including the
establishment of procedures for the installation, design and certified training
process and the tools required for installation of Products;
4.4.3 Providing technical service and promotional literature
including any documentation and drawings of maintenance procedures and tool
configurations;
4.4.4 Making joint sales calls and conducting Product seminars in
support of Distributor's sales efforts in the Territory;
4.4.5 Providing the necessary personnel, guidance and support for
the initial installation of a new Product in the Territory;
4.4.6 Providing new Product introduction service obligations;
15
4.4.7 Providing telephone support during normal business hours;
4.4.8 Making Company service and applications personnel available
for assistance at its then prevailing hourly rates, plus travel expenses;
4.4.9 Providing Distributor with guidelines for staffing levels
and the job descriptions and qualifications of such individuals;
4.4.10 Providing copies to Distributor of process, technical,
service and safety bulletins;
4.4.11 Assisting Distributor in developing its Key Account and
Tactical Plans; and
4.4.12 Providing any other assistance that Company may deem
appropriate to promote Product sales in the Territory.
Each party shall be responsible for the expenses (including the
cost of transportation, meals and lodging) incurred by its own employees with
respect to subparagraphs 4.4.1, 4.4.2, 4.4.4, and 4.4.5 above. In addition to
this Section 4.4, Exhibit C, Part II also describes in general the Company's
overall responsibilities with respect to Equipment sales and service hereunder.
4.5 STOCK OBSOLESCENCE. Consistent with the intent of Section 2.3, the
Company shall issue a Quarterly Obsolescence Report which shall list by part
number the obsolescence status/category and estimate the effective date for the
Spare Parts status change. Categories of obsolescence are as follows:
"Obsolete" means the part is obsoleted and may be returned for a
credit within the time period specified in the Obsolescence Report; or
"Use to Deplete" means the part is to be used until there is no
more stock left.
Company's order administration will provide instructions for return
of the obsolete parts. Following the one time adjustment referred to above with
respect to obsolescence reports, on and after July 1, 2000, Distributor will
have thirty (30) days to remove obsolete items from its inventory and return
them for a credit at ninety-five percent (95%) of current price. Items not
returned within such time period shall remain Distributor's responsibility and
may not be returned. Company reserves the right to reasonably reject any Spare
Part which is not in the condition as originally delivered to Distributor or
which does not meet Company's current design standards.
4.6 NEW PRODUCT INTRODUCTION. Company, in consultation with
Distributor, will develop comprehensive product introduction programs addressing
the issues of: (i) documentation of procedures, processes, marketing and product
specifications; (ii) installation, support and criteria; (iii) training,
certification and transition responsibility; (iv) strategic location of
demonstration units and trade show demonstrations; (v) process and process
support requirements of Distributor; (vi) identification of strategic accounts;
(vii) beta site support criteria; (viii) Spare Parts issues; and (ix)
recommended Spare Parts.
16
4.7 NEWLY ACQUIRED PRODUCTS. If Company acquires or otherwise merges
with an existing company with a direct sales presence in Distributor's
territory, the Company retains the right to operate those sales and services
offices and to use them to support the acquired company's products in those
areas without compensation to Distributor notwithstanding any other provision of
this Agreement.
4.8 NEW PRODUCT INSTALLATION. For the first two installations of a new
product in each of Asia and Europe, Company will provide service and
applications personnel to assist with and support Distributor, generally until
product acceptance.
4.9 PRODUCT PERFORMANCE. Company is responsible for designing and
delivering Products capable of achieving published specifications. Company and
Distributor will follow an escalation policy (currently ISO Doc. No. SCD-1905)
to address any performance issues relating to the Product's specifications. If
the escalation policy fails to resolve the issue, upon mutual agreement, such
failure may result in additional charges to Company.
5.0 TERMS AND TERMINATION
5.1 TERMINATION: RENEWAL. This Agreement shall take effect as of the
Effective Date and continue until terminated. The Company or Distributor may
terminate this Agreement on or after November 19, 2001 by giving twelve (12)
months prior written notice. Neither party shall be entitled to any
compensation, indemnity, damages, or other payment in the event of termination
in accordance herewith. Each party hereby waives the application of any law
providing for such payment or restricting termination as provided herein.
Notwithstanding anything contained above in this Section 5.1, this
Agreement may be terminated at any time by either party with one (1) year notice
to the other party upon the happening of any of the following events: (i) sale
of all or substantially all of the Company, or of Distributor, or of the Surface
Conditioning Division of the Company; (ii) an acquisition involving more than
fifty percent (50%) of the assets of Company or Distributor; (iii) a merger or
consolidation involving Distributor or Company in which forty percent (40%) or
more of the new entity is owned by persons other than the respective
shareholders of Company or Distributor (as the case may be) immediately
preceding the effective date of the merger; or (iv) the sale of the Surface
Conditioning Division of the Company.
5.2 ORDERS. Orders for Products accepted by Company as of the date of
termination of this Agreement which have not been delivered as of such date
shall be processed under the terms of this Agreement, subject to Distributor's
ability to provide adequate assurance of payment to Company for such Products.
Upon termination, if requested by Company, Distributor shall assemble and
deliver to Company all records pertaining to past, current, and pending orders
for Products. Termination of this Agreement shall not affect accrued rights of
Company which by their nature are intended to survive termination. In all
events, such terminated Distributor shall work towards a transition plan to
address customer support, warranty, and spare parts.
5.3 DEFAULT: FAILURE TO CURE. This Agreement also may be terminated by
Company with one hundred-eighty (180) days written notice if Distributor
defaults in performance of any of its obligations under Article I, Sections 1.1
or 1.2, Articles 2, 3 or Article 6, Sections 6.1, 6.2, 6.4, 6.6 or 6.8 of this
Agreement if Distributor was first given prior written notice of the default, an
opportunity to cure such default and informed at the time of the notice of
default that failure to cure could result in termination.
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5.4 DEFAULT: INSOLVENCY. Notwithstanding any other provision of this
Agreement, if Distributor is the subject of any judicial or non-judicial
bankruptcy or insolvency proceeding, or becomes insolvent, or if a receiver,
liquidator or administrator of the Distributor's property or any part thereof is
appointed by a court of competent authority, or if Distributor shall make an
assignment for the benefit of creditors, Company may terminate this Agreement by
giving written notice to the Distributor, its legal representative or assigns,
as the case may be. Any termination, whether for default or otherwise, shall not
relieve Distributor from liability for amounts owed to Company.
5.5 WAIVER: REPURCHASE OF INVENTORY. Distributor hereby waives any
right or claim to damages or compensation resulting from Company's decision not
to extend this Agreement. If this Agreement is terminated or expires, Company
may, at its option, repurchase inventory from Distributor in accordance with the
Company's then current Spare Parts Policy. Notwithstanding the provisions of the
Company's then current Spare Parts Policy, if Company has given notice of a
termination other than for breach of the Agreement by Distributor, it shall
repurchase those spare parts in Distributor's inventory at the date of
termination, which were purchased within one (1) year of the termination, at
Distributor's cost and will purchase at its depreciated value any demonstration
equipment of Products from Distributor. In addition, Company shall become
responsible for service, warranty and other obligations of Distributor with
respect to Company's Products following the effective date of the termination
and Distributor agrees to assign its obligations to Company subject to mutual
agreement by the parties as to an appropriate amount of compensation to be paid
to Company to assume Distributor's obligations with its customers for Company
Products. Company reserves the right to reasonably reject any Spare Part which
is not in the condition as originally delivered to Distributor or which does not
meet Company's current design standards.
5.6 TERMS APPLYING AFTER TERMINATION. If this Agreement is terminated
or expires, the terms of this Agreement shall continue to apply to the Products
then owned, possessed or controlled by Distributor. Termination of this
Agreement will not release either party from any obligation accrued prior to the
effective date of termination.
6.0 MISCELLANEOUS
6.1 CONFIDENTIAL DATA AND INFORMATION. Distributor acknowledges that it
is to receive confidential information as defined below pursuant to Distributor
relationship with Company. Distributor shall limit its disclosure to only those
of its employees having a need to know such information and shall protect all
disclosed Confidential Information by using at least the same degree of care
that it uses to protect its own confidential information of a like nature but in
no event less than a reasonable degree of care, to prevent:
- the unauthorized use or dissemination to any employee or
independent contractor of Distributor without a need to know;
- communication with any other third party; or
- copying or publication of the Company Confidential Information.
In addition, Distributor shall neither use nor disclose to any
third parties any confidential information concerning the business, affairs, or
Products of Company which Distributor may acquire during the course of its
activities under this Agreement (or any prior agreements between Company and
Distributor). If Distributor wishes to make such disclosures
18
to prospective or actual customers, it must first obtain Company's written
consent and all such disclosures must be subject to a confidentiality agreement
in a form acceptable to Company. As used herein confidential information of
Company shall include, but not be limited to, any confidential or proprietary
information or compilation of information acquired by or disclosed to
Distributor which relates to the business, products, markets or research or
planning activities of Company, which is disclosed in writing and designated by
Company as "Confidential" or "Proprietary" or disclosed orally and identified as
confidential or proprietary at the time of disclosure or within twenty (20) days
thereafter. Company Confidential Information also includes inventions made,
strategies, forecasts, research and development plans of Company, Company
customer lists, supplier lists, and information about Company's computer systems
and networks. Distributor shall take any and all necessary precautions to
prevent unauthorized disclosures by its employees including, but not limited to,
agreements with items employees and others working on its behalf that require
such individuals to keep all Company Confidential Information confidential and
assigning to Distributor all inventions conceived or reduced to practice in
performing services on behalf of Distributor. Employees of Distributor exposed
to Company Confidential Information on a regular basis or of a highly sensitive
nature will, at Company's request, be expected to sign the form of Agreement
attached as Exhibit E and Distributor shall assist Company in obtaining such
agreements, subject to any limitations imposed by law in the applicable country.
Distributor and Company agree to protect the confidential information of third
parties that is exchanged between them in writing, using reasonable care, but in
no event less than the same degree of care it uses to protect its own
confidential information.
6.2 FINANCIAL CONDITION. If Distributor defaults in any financial
obligation hereunder, or if its financial condition is inadequate in Company's
opinion to justify extension of credit or further shipments of Products, then
Company may cancel any outstanding order for Products or delay any shipment of
Products to Distributor, unless adequate assurance of payment is provided.
Company may require execution of a security agreement or an irrevocable letter
of credit by Distributor at any time as a condition of sale of Products to
Distributor hereunder.
6.3 AFFILIATES OF COMPANY. Company reserves the right, upon written
notice to Distributor to assign to any company affiliated with Company (herein
called "Company Affiliate") responsibility for filling orders for Company
Products or Spare Parts from Distributor. Distributor agrees to place orders
with such Company Affiliate, and make payment as above in accordance with such
notice. Sales made by such Company Affiliate pursuant to this Section shall be
deemed to be sales of Company Products or Spare Parts made to Distributor
hereunder.
6.4 MAINTENANCE OF RECORDS. Distributor shall keep accurate accounts
and records of all transactions covered by this Agreement, and shall permit
Company or its agents at any time during normal business hours to examine such
accounts and records. Company's right to examine such accounts and records shall
cease one (1) year after the termination of this Agreement.
6.5 IRREPARABLE HARM. Any breach by Distributor under Sections 2.5 or
2.16, Article 3 or Sections 6.1, 6.21 or 6.22 hereof shall be deemed to have
caused irreparable injury to Company which is not compensable by an adequate
remedy at law. In such event, Company shall be entitled, in addition to any
other remedy permitted by law, to injunctive relief in respect to such breach,
plus an award of all costs and actual attorney's fees, incurred in enforcing the
same.
6.6 COMPLIANCE WITH GOVERNMENT REGULATIONS. In the event any law or
regulation is enacted in a country which is part of the Territory, which law or
regulation commercially
19
frustrates Company's purpose in entering into this Agreement or its ability to
perform hereunder, Company shall have the right, in its sole discretion, upon
sixty (60) days notice, notwithstanding any other provisions of this Agreement,
to immediately terminate this Agreement as to the affected Territory or to
modify unilaterally that portion of the Agreement which has been so affected.
6.7 FORCE MAJEURE. Each party shall be excused from its obligation to
order or deliver Products under this Agreement in the event of national
emergency, war, acts of God, prohibitive government regulations or other causes
beyond the reasonable control of such party if such event renders performance of
this Agreement impossible. If the event renders performance impossible for a
period exceeding sixty (60) days, either party may terminate this Agreement
immediately by giving the other party written notice of its intention to do so
and Distributor shall immediately pay all sums owed to Company.
6.8 NON-ASSIGNABILITY BY DISTRIBUTOR. This Agreement may not be
assigned by Distributor, nor may any duty of obligation hereunder be delegated
to any party without the prior written consent of Company. Any permitted
assignee shall enter into a new distributorship agreement with Company upon
request.
6.9 NOTICE. All notices required to be given hereunder shall be deemed
to have been effectively given only when delivered personally to an officer of
the applicable party, or when first sent by facsimile transmission and confirmed
by registered mail, addressed to the applicable party at its address set forth
below, or at such other address as such party may hereafter designate as the
appropriate address for the receipt of such notice:
To the Company at: FSI International, Inc. With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ General Counsel
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇. ▇.▇.▇.
To the Distributor at: Metron Technology B.V. With a copy to: Metron Technology Ltd.
Attention: ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇-Prinsep
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 6 & ▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, CA 94010 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
U.S.A.
6.10 CONSTRUCTION OF AGREEMENT. This instrument and the attached
Exhibits constitutes the entire Agreement of the parties with respect to the
subject matter thereof and shall be construed in accordance with the laws of the
State of Minnesota without regard to choice of law doctrines or conflict of law
principles. The United Nations Convention on Contracts for the International
Sale of Goods will not be applicable to this Agreement or the transactions
contemplated hereunder. For purposes of resolving any issue pertaining to
conflict of laws, this Agreement shall be deemed to be fully and solely
executed, performed, and observed in the State of Minnesota. The parties consent
to personal jurisdiction in the State of Minnesota and to accept service of
process with respect to any action or proceeding brought in any court as
provided in the following sentence. Distributor and Company agree that any
action brought by either party shall be filed only in the United States District
Court for the District of Minnesota.
20
6.11 COMPLIANCE WITH LAWS AND REGULATIONS. Distributor shall comply
with all applicable laws and regulations during the course of performance of
this Agreement and in related activities. Should registration of this Agreement
with governmental authorities be required under the local laws of the Territory,
Distributor shall comply with such registration requirements and provide proof
of such compliance with Company. Distributor shall not, directly or indirectly,
engage in any acts which would constitute a violation of United States laws and
regulations, including but not limited to laws and regulations governing exports
of products or technology, the Foreign Corrupt Practices Act and the
Anti-Boycott Act.
6.12 EXECUTION. This Agreement shall be executed in duplicate but shall
not be binding upon Company until a copy, signed by the Distributor, is executed
by Company.
6.13 ALTERNATIVE DISPUTE RESOLUTION. The parties shall first resolve
any dispute arising out of or relating to this Agreement in accordance with the
procedures specified below.
6.13.1 The parties shall attempt in good faith to resolve any
dispute arising out of or relating to this Agreement promptly by negotiation
between executives who have authority to settle the controversy and who are at a
higher level of management than persons with direct responsibilities for
administration of this contract. Any party may give the other party written
notice of any dispute not resolved in the normal course of business. Within
fifteen (15) days after delivery of the notice, the receiving party shall submit
to the other a written response. The notice and the response shall include (i) a
statement of such party's position and a summary of arguments supporting the
position, and (ii) the name and title of the executive who will represent the
party and any other person who will accompany the executive. Within thirty (30)
days after delivery of the disputing party's notice, the executives of both
parties shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to attempt to resolve the dispute. All
reasonable requests for information made by one party to the other will be
honored.
6.13.2 If the matter has not been resolved within sixty (60) days
of the disputing party's notice, or if the parties fail to meet within thirty
(30) days of such notice, either party may initiate mediation of the controversy
or claims as provided below in Section 6.13.3.
6.13.3 If the dispute has not been resolved by negotiation as
provided above, the parties shall endeavor to settle the dispute by mediation
through JAMS/Endispute under its then current Rules at either Chaska, Minnesota
or the San Francisco, California Bay Area. The neutral third party mediator will
be selected from the JAMS/Endispute Panels of Neutrals, with the assistance of
JAMS/Endispute, unless the parties agree otherwise.
6.13.4 All negotiations pursuant to this clause are confidential
and shall be treated as compromise and settlement negotiations for purposes of
the Federal Rules of Evidence and state rules of evidence.
6.13.5 If the parties fail to resolve the dispute through
mediation within forty-five (45) days of the request for mediation, then either
party may pursue its remedies in Federal District Court of Minnesota.
6.13.6 Notwithstanding the above provisions of this Section 6.13,
the parties shall not be required to attempt to negotiate or mediate the dispute
if it relates to a breach of the provisions of Sections 2.5, 2.16, 2.17, 2.18,
5.1, 5.3, 6.1, 6.21, 6.22 or Article 3 or to Distributor's financial
obligations.
21
6.14 GOVERNING LANGUAGE. The governing language of this Agreement shall
be English.
6.15 WAIVER OF BREACH. The failure of either party to require the
performance of any term of this Agreement or the waiver by either party of the
breach of any term of this Agreement shall not prevent a subsequent enforcement
of such term, nor be deemed a waiver of any subsequent breach.
6.16 BENEFIT. This Agreement shall be binding upon the legal
representatives, successors, and assigns of Company and Distributor.
6.17 NO OTHER AGREEMENTS. Except as expressly contemplated in this
Agreement, there are no other agreements, oral or written, between the parties
effecting this Agreement or relating in any way to the selling or servicing of
Products. This Agreement supersedes all previous negotiations and agreements
between the parties.
6.18 AMENDMENTS. No change or addition to any portion of this Agreement
shall be valid or binding upon either party unless mutually agreed to in
writing.
6.19 SEVERABILITY. If any provision of this Agreement is determined to
be invalid or unenforceable, the provision shall be deemed to be severable from
the remainder of this Agreement and shall not cause the invalidity of the
remainder of this Agreement.
6.20 SOLICITATION OF EMPLOYEES. Company and Distributor agree that
during the term of the Agreement and for a period of six (6) months thereafter
it, nor its successor company, will not directly or indirectly solicit the other
party's employees or alternatively will agree upon an appropriate amount of
compensation for each individual solicited and hired by it.
6.21 COMPETING PRINCIPAL. If an existing principal of Distributor
becomes a competitor of the Company, Distributor must choose within sixty (60)
days thereafter which principal's competing product it intends to present and
shall terminate its representation of the other principal for product in the
geographic area where it has been or is authorized to represent both products as
soon as possible but no later than six (6) months from the date of its election.
In the event Distributor elects to continue representing a principal whose
product or products competes with a Company Product then, notwithstanding
anything herein to the contrary, Company may terminate this Agreement upon
ninety (90) days written notice. Further, to reduce the likelihood of such
conflicts, Distributor will provide a quarterly report to Company of principals
of whom it is negotiating and the Company must indicate whether or not it
objects to proposed principal and, if so, the basis for its objection shall be
provided to Distributor.
RESALE OF EQUIPMENT. Distributor agrees only to restore and/or
resell used Company Equipment pursuant to a Statement of Work to be mutually
agreed upon by Distributor and Company.
6.22 SIGNATURES. This Agreement may be executed in counterparts and
facsimile signatures are considered originals.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
Metron Technology B.V. FSI International, Inc.
By: /s/ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- --------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Director Its: President
Surface Conditioning Division
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-Prinsep
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇-Prinsep
Its: Managing Director