EXHIBIT 10.1
EXCLUSIVE
DISTRIBUTORSHIP AGREEMENT
This Exclusive Distributorship Agreement (the "Agreement") is entered into and
made effective this thursday, 28th december 2000 by and between BARTECH
E.M.E.A SARL, ▇, ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇. ("BARTECH"), and
BARTECH MEDITERRANEAN LTD - Hamered ▇▇▇▇▇▇ ▇▇ - ▇.▇ ▇▇▇ ▇▇▇▇▇ - ▇▇▇-▇▇▇▇
▇▇▇▇▇ - ISRAEL.
1. DEFINITIONS. Unless the context clearly requires otherwise, the following
terms shall be defined as follows:
(a) "Annual target" shall mean the amount specified on Exhibit A. "Monthly
target " shall mean the annual target for the then current target year
divided by twelve except as otherwise specified in Exhibit A. In
calculating whether Distributor has met its annual target or its monthly
target, BARTECH shall compute the net invoice cost of all Covered Products
delivered by it to the Distributor during the target year or target month
less any taxes, interest, freight or insurance charges.
(B) "Authorized location(s)" shall mean Distributor's place(s) of business
located at Hamered ▇▇▇▇▇▇ ▇▇ - ▇.▇ ▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ISRAEL.
(C) "Covered Products" shall mean the Hardware Products listed on Exhibit B and
the Software Products listed on Exhibit C.
(d) "Engineering Change" shall mean any mechanical or electrical change to a
Hardware Product which affects its form, fit, function, safety,
reliability, performance or maintainability.
(e) "Hardware Product(s)" shall mean the products listed on Exhibit B which
BARTECH may amend at any time, as provided in subparagraph 3(a), by adding
or deleting any Hardware Product.
(f) "Target Year" shall mean a year commencing on January 1 and ending on the
succeeding December 31.
(g) "Software Product(s)" shall mean the products listed on Exhibit C which
BARTECH may amend at any time, as provided in subparagraph 3(a), by adding
or deleting any Software Product.
(h) "Software Registration Agreement" shall mean Exhibit D the form of which
BARTECH may unilaterally amend at any time.
(i) "Territory" shall mean the geographic area consisting of
ISRAEL, TURKEY, JORDAN
2. APPOINTMENT. BARTECH appoints the Distributor as an exclusive distributor
of BARTECH Covered Products in the Territory and for this purpose grants to
the Distributor the exclusive right to sell, license and generally to
import, market, distribute, install and service the Covered Products as an
exclusive distributor within the Territory. The Distributor accepts such
appointment as an exclusive distributor on the terms and conditions of this
Agreement.
3. BASIC OBLIGATIONS OF BARTECH. During the term of this Agreement and any
renewal, BARTECH agrees that it will:
(a) Sell Covered Products to Distributor for distribution within the Territory.
BARTECH may, in its sole discretion, from time to time, add items to the
list of Covered Products, delete items from the list of Covered Products
and add other distributors of Covered Products in the Territory without
obligation to Distributor. Any Covered Product which BARTECH for any reason
ceases to sell in the Territory shall automatically be deleted from the
list of Covered Products without obligation to Distributor;
(b) Provide Distributor with technical and marketing bulletins, and, as it
deems appropriate, sponsor service and sales seminars for Distributor's
personnel;
(c) Use its reasonable efforts to obtain, at BARTECH' own cost and expense, any
required licenses, certifications, declarations, affidavits, or other
documentation; required by the laws of the France, or applicable
international treaties or conventions, for the export of Covered Products
to the Territory; provided however that BARTECH will in no case be liable
to the Distributor for any loss, damage or claim, whether direct, indirect
or consequential, arising from BARTECH' inability to obtain such licenses,
certificates, declarations, affidavits or other documentation; and
(d) Repair or replace at its sole discretion any Hardware Products received
from BARTECH which are determined by BARTECH to have been defective at time
of shipment at F.O.B Suresnes (or such international shipping point
designated in writing by BARTECH). All claims relative to alleged defective
Hardware Products must be made in writing to BARTECH by the Distributor
within three (3) weeks after receipt of the Product. Failure by the
Distributor to provide the timely written notice required hereunder shall
result in Distributor's loss of protection under this Agreement.
4. BASIC OBLIGATIONS OF DISTRIBUTOR. During the term of this Agreement and any
renewal, Distributor agrees that it will:
(a) Use its best efforts within its Territory to promote actively and
diligently market the sale of BARTECH Products so as to satisfy or
exceed those targeted sales numbers as stated on Exhibit A, (i) by
means of personal visits to and by correspondence with potential
purchasers (ii) by advertising and by the distribution of printed
matter; provided, however, that the form, manner, extent and wording
of all such advertising and distributed matter shall be submitted to
BARTECH forthwith after publication or distribution as the case may be
and BARTECH shall have the right to require the Distributor to cease
the advertising or the distribution of the printed matter in the
form of that submitted to it without the Distributor having recourse
to BARTECH for any expense incurred unless BARTECH shall have
specifically agreed in writing to bear such expense;
(b) Provide all end users regardless of location with prompt and efficient
installation, training, programming, documentation, and repair
services;
(c) At each of its Authorized locations, maintain a sufficient supply of
Covered Products for spare parts ("Spares") and for demonstration
purposes, and employ a sufficient number of trained sales, service,
and programming personnel; and employ and train personnel to carry out
policies set forth by BARTECH and other written customer service
policies published by BARTECH and notified to Distributor;
(d) Use the service ▇▇▇▇ "A BARTECH Distributor" which BARTECH hereby
grants Distributor a non-exclusive right to use during the term of
this Agreement to indicate that Distributor is an authorized
distributor of the Covered Products. Use of the service ▇▇▇▇ by
Distributor must comply with BARTECH graphics standards, available
upon request from BARTECH. Distributor shall acquire no proprietary
rights with respect to the service ▇▇▇▇, and Distributor's
authorization to use the service ▇▇▇▇ shall exist only so long as
Distributor is in full compliance with all material terms of this
Agreement. In any event, such authority shall cease immediately upon
the termination of this Agreement; Distributor will display BARTECH
Products in its facility, using signs and sales aids which BARTECH may
make available;
Distributor will not alter, remove or permit the removal of any patent numbers,
serial numbers, date codes or identifying marks from BARTECH products;
Distributor will not use or permit others to use the BARTECH name, or any
variation thereof, or any of the names of BARTECH products in Distributor's
business name or title unless agreed to by BARTECH in a signed writing;
BARTECH retains full control over its trade name and all of its trade or service
marks, and nothing herein shall limit or modify BARTECH' right to pursue its
legal remedies independently of Distributor or any business the Distributor may
be associated with, in the event of violation by others of said trade name or
said trade or service marks. The Distributor shall register BARTECH as the owner
and itself as the user of the "BARTECH" trade ▇▇▇▇ in the Territory to the
extent that such registration is required by law or desirable for the sale by
the Distributor of the Covered Products and Spares therein and BARTECH shall
take all reasonable steps to enable the Distributor to effect such registration
including (without limitation) the registration of BARTECH at its expense as
registered owner thereof. Upon termination of this Agreement for whatsoever
cause, the Distributor shall cancel such registration forthwith. The expense of
any such registration of the Distributor or cancellation thereof shall be borne
solely by the Distributor. The Distributor shall permit BARTECH at BARTECH'
expense to have full conduct of all matters in relation to any alleged
infringements (including without prejudice to the generality of the foregoing
the settlement, compromise or other disposal of any claim and the conduct of any
proceedings relating thereto) and shall itself take no such action in respect of
such infringement without the prior consent of BARTECH. The Distributor shall
provide all such reasonable assistance at BARTECH' expense in relation to such
matters as BARTECH may require;
(e) Fully advise all potential end users as to the terms of the BARTECH
software license agreement;
(f) Refrain from removing, defacing or otherwise changing any descriptive
markings or labels on any Covered Product and from making any
Engineering Change to any Hardware Product without the prior written
consent of BARTECH;
(g) Refrain from using any non-BARTECH replacement part or other supplies
on any Hardware Product without the prior written consent of BARTECH;
(h) Perform any Engineering Change requested by BARTECH on all Hardware
Products which it sells or which are located in the Territory;
(i) Obey all applicable laws, regulations, rules and ordinances and
conduct its business in an ethical manner;
(j) Pay BARTECH in accordance with the provisions of this Agreement;
(k) For a period of not less than ten (10) years, maintain a record of all
end users of Covered Products, which record shall include the end
users' address, the serial numbers of the Covered Products and the
dates of sale, delivery and installation, and permit BARTECH immediate
access upon request to such records for purposes of inspection and
copying of such records (i) in the case of any product recall or
safety campaign, or (ii) for the purpose of assuring or providing
customer service; which right of access shall continue during the term
of this Agreement and for an additional period of ten (10) years
following termination or expiration of this Agreement;
(l) Promptly notify BARTECH in writing of all suspected product defects
and safety problems.
(m) Not sell, represent, distribute, license or promote, either directly
or indirectly, any goods competitive with BARTECH Covered Products in
the Territory during the initial term of this Agreement or any renewal
periods without the prior written consent of BARTECH provided that a
Covered Product shall not be considered competitive unless it has the
same or an equivalent function and the same or equivalent
characteristics, price and use and provided further that the
provisions of this sub-clause shall not apply in respect of any
product(s) currently supplied to the Distributor by its existing
suppliers as at the date hereof;
(n) Promptly bring to the notice of BARTECH any information received by it
which is likely to be of material interest, use or benefit to BARTECH
in relation to the future development of the Covered Products for use
in the Territory and their marketing generally;
(o) Obtain, prepare and maintain, at the Distributor's own cost and
expense, all required licenses, certificates, declarations,
affidavits, or other documentation required by the laws of the
Territory or applicable international treaties or conventions, for the
import, sale, service, promotion and distribution of the Covered
Products;
(p) Supply such reports, returns and other information relating to orders
and projected orders for Covered Products and Spares as BARTECH may
from time to time reasonably require for the purposes of general
information required for planning and/or scheduling production of
Covered Products;
(q) Refrain from moving or closing any of its Authorized locations without
the prior written consent of BARTECH, which consent shall not be
unreasonably withheld.
(r) Not engage in any activity which may be deleterious to BARTECH
Customers or to the promoting, marketing, sale and service of all
BARTECH products; and
(s) Comply with all terms herein, and the underlying intent and meaning of
this Agreement.
5. DISTRIBUTOR REPRESENTATIONS, WARRANTIES AND COVENANTS. Distributor
represents to BARTECH as follows (and covenants that, during the pendency
of this Agreement, Distributor will continue to be):
(a) Distributor is a corporation duly organized and validly existing in
good standing under the laws of its jurisdiction of incorporation. No
provisions of the Distributor's Certificate of Incorporation or
By-Laws (Statute, or equivalent organizational documents), nor any
provision or covenant of any credit or other agreement (including
security agreements incident thereto) to which Distributor is a party
or by which Seller is bound have been or will be violated by the
execution, delivery and performance by the Distributor of this
Agreement or the performance or satisfaction of any condition herein
contained on its part to be performed or satisfied;
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Distributor and is the valid and legally binding
obligation of Distributor enforceable in accordance with its terms;
and
(c) Distributor possesses the requisite work expertise, employee staffing,
facilities and equipment necessary to perform its duties hereunder and
is capable of upgrading and improving systems and procedures to remain
competitive.
6. AREA OF SALES. Distributor agrees that it will not sell the Covered
Products directly or indirectly to customers located outside the Territory
without the prior written approval of BARTECH, which BARTECH may give or
withhold in its sole and absolute discretion. If the provisions of this
Paragraph 6 are or shall be prohibited under the law of any jurisdiction,
then such provisions shall not apply in such country and, in lieu thereof,
Distributor agrees to use its best efforts to promote, sell and service the
Covered Products in the Territory and further agrees that it shall be
primarily responsible for servicing retail accounts with the Covered
Products in the Territory and that it shall concentrate its efforts in the
Territory, which concentration Distributor acknowledges to be essential to
proper sales and servicing efforts.
7. PLACING AND DELIVERY OF ORDERS.
(a) (i) The Distributor shall on or before the beginning of each calendar
quarter inform BARTECH in writing of its approximate requirements for
Covered Products for the next following quarter so that BARTECH shall
have at least one quarter's advance notice of such requirements; (ii)
Orders shall be placed on a firm basis by the Distributor from time to
time and in accordance with such further ordering procedures as
BARTECH and the Distributor may agree; (iii) All orders for the
Covered Products shall be governed by the provisions of this Agreement
and shall not be modified by anything that may be printed on the
Distributor's purchase order. [BARTECH' then current Standard
Conditions of Sale for the relevant Covered Products shall apply save
that in the event of any inconsistency between such conditions and the
terms of this Agreement, the terms of this Agreement shall prevail.];
(iv) No order for Covered Products shall be binding on BARTECH until
written confirmation of that order is received by BARTECH and BARTECH
has confirmed in writing that such order is acceptable.
(b) During the term of this Agreement BARTECH shall sell to the
Distributor, in accordance with the Distributor's orders accepted by
BARTECH, the Distributor's reasonable requirements of the Covered
Products but BARTECH shall not be liable in any way for any loss of
trade or profit or any other loss occurring to the Distributor in the
event that BARTECH is unable to supply any of the Covered Products.
(c) (i) BARTECH shall ship to the Distributor the Covered Products and
Spares in accordance with the orders placed by the Distributor and
accepted by BARTECH as provided in subparagraph 7(a); (ii) Each sale
shall constitute a separate contract and shall be invoiced to the
Distributor accordingly.
8. TERMS.
(a) The price of all Hardware Products and the licensing fee for all
Software Products shall be the distributor price in Euro in effect at
the time of shipment, regardless of what the price was at time of
Distributor order. BARTECH agrees to notify Distributor in writing of
all price changes and in the event of a price increase agrees at
Distributor's option to cancel only those unshipped orders.
(b) Unless Distributor has qualified for credit, payment in full shall be
made in advance of shipment. To the extent that BARTECH extends credit
to Distributor, Distributor grants BARTECH a security interest in such
Covered Products until full Distributor price has been paid for the
Covered Products shipped to Distributor and in the receivables due
Distributor in respect thereof and in all proceeds therefrom, and
Distributor further agrees to execute any financing statement for
filing or other similar document as requested or required by BARTECH.
Distributor's failure to pay any amounts when due shall give BARTECH
the right to possession and removal of the Covered Products at any
time upon BARTECH' demand. BARTECH' taking of such possession shall be
without prejudice to any other legal remedy BARTECH may have. All
collection costs, including legal fees, shall be borne by Distributor.
BARTECH reserves the right to withdraw or reduce any credit line when
in its sole discretion such a withdrawal or reduction is warranted.
Distributor agrees to pay interest on all overdue payments in
accordance with the then current BARTECH policy.
(c) In the event product is sold hereunder to the Distributor on credit,
all payment terms shall be net thirty (30) days. Service charges in
the amount of the lesser of 1.5% per month or the highest charge
permitted under applicable law shall be imposed by BARTECH on the
account of the Distributor on all amounts past due. Service charges
will continue to accrue until the past due balance is liquidated in
full by the Distributor.
(d) In the event product is sold to Distributor on letter of Credit (LC),
the Distributor shall cause a Irrevocable letter of credit (LC) to be
issued in favor of BARTECH for the payment of orders on the day the
applicable ▇▇▇▇ of lading is executed. The Distributor shall be
responsible for the payment of Irrevocable LC fees and expenses.
(e) All shipments of Covered Products shall be made on an F.O.B. Suresnes,
France (or such alternative international shipping point designated in
writing by BARTECH) with Distributor bearing all freight, duty and
insurance charges and all applicable import, sales, use, value added,
property, excise and any other taxes of any nature whatsoever. BARTECH
reserves the right to make any shipment on a freight collect basis
when Distributor is responsible for freight charges and reserves the
right to refuse to make shipments other than to a Distributor's
Authorized location.
(F) All risk of loss or damage to Hardware Products shall pass to
Distributor upon delivery in good condition, F.O.B., Suresnes, France
(or such alternative international shipping point designated in
writing by BARTECH).
(G) Title to all Hardware Products shall pass on the date of shipment by
BARTECH. BARTECH shall retain all applicable rights to the
intellectual property in Software Products which, therefore, are not
subject to transfer of title. Title to the media on which Software
Products are recorded shall pass to Distributor upon shipment.
(h) Subject to the then current BARTECH policy on return items, BARTECH
will grant credit for return Hardware Products. BARTECH may modify the
policy on credits for returns in its sole discretion, but in no event
more than twice a year. (But see subparagraph 19(b) in respect of the
effect of the expiration or termination of this Agreement.)
(i) An advance payment discount, as specified by BARTECH from time to
time, is offered for any order for which BARTECH receives payment from
the Distributor via wire transfer simultaneously with the order. The
advance payment must be made via wire transfer of funds to the BARTECH
account specified above and must take place simultaneously with the
placement of the order. Such wire transfer must include instructions
to the receiving BARTECH bank to notify BARTECH immediately upon
receipt of such funds.
9. WARRANTY ON HARDWARE PRODUCTS.
(a) Except as expressly provided in paragraph 11 hereof, no warranty
condition or term (whether express, implied, statutory or otherwise)
as to the condition, quality, performance, merchantability, durability
or fitness for purpose of the Hardware is given or assumed by BARTECH
and all such warranties, conditions and terms are hereby excluded.
(b) The Distributor agrees to indemnify and hold BARTECH harmless from any
and all claims for losses or liability by a third party arising out of
or related to the business of the Distributor including but not
limited to, the installations, training or servicing carried out by
the Distributor or its affiliates or agents, any misrepresentation
concerning Covered Products made by the Distributor in the promotion
thereof (other than misrepresentations comprising the publication,
disclosure or other dissemination of sales, technical or other
literature originating from BARTECH or relating to information or data
published, disclosed or otherwise disseminated, derived from
information or data supplied to the Distributor by BARTECH) or any
breach of any representations, warranties, covenants, or other
obligations of the Distributor contained in this Agreement.
10. MARKETING OF SOFTWARE. Distributor agrees to the following terms and
conditions with respect to the marketing of Software Products:
(a) This Agreement shall operate during the current term of the Agreement,
as a license for the Distributor to use the Software Products for
demonstration, testing, support and such other purposes as are
directly connected with the implementation of this Agreement;
(b) The Distributor shall not modify, amend, add to or in any way alter
any Software Product supplied to it under this Agreement without
BARTECH' prior written consent;
(c) BARTECH will keep the Distributor informed of any enhancement or
modification to the Software Products by BARTECH which affects its
operation, performance or cost and which BARTECH considers suitable
for general release. BARTECH reserves the right to introduce any
substitute software product which it considers will adequately fulfill
the same or similar function as that which it replaces;
(d) All the Intellectual Property Rights of BARTECH in the Software
Products are and shall remain the property of BARTECH and BARTECH
reserves the right to grant licenses to use the Software Products to
such other persons and on such terms as it shall think fit, subject to
the terms of this Agreement;
(e) The Distributor agrees to purchase an annual BARTECH License-to-Copy
software agreement for those BARTECH Software Products License-to-Copy
is made available for at the prevailing International Distributor
price;
(f) Distributor agrees to take any necessary steps to insure that each end
user understands the meaning of the applicable license agreement;
(h) Software Products are currently made available under the Software
Registration Agreement. Distributor agrees that it will secure the end
user's signature on the Software Registration Agreement prior to
transferring the related Software Product(s); and
(i) In its discretion, BARTECH may make available certain Software
Products to Distributor to market under a license agreement that need
not be signed by the end user. Distributor agrees that where an
unsigned license agreement is specified, Distributor will accept
return of any unopened Software Product from those end users and in
such cases will refund any license fee paid by the end user. In such
event, BARTECH will refund the amounts paid by Distributor for the
unopened Software Product provided the unopened Software Product is
returned to BARTECH freight prepaid.
11. EXCLUSIVE WARRANTY ON HARDWARE OR SOFTWARE PRODUCTS. BARTECH MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE
HARDWARE OR SOFTWARE, ITS QUALITY OR PERFORMANCE. BARTECH DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE
HARDWARE AND SOFTWARE PRODUCTS ARE SOLD AND LICENSED RESPECTIVELY "AS IS"
WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE HARDWARE
AND SOFTWARE IS WITH THE DISTRIBUTOR AND END USER. BARTECH DOES NOT WARRANT
THAT THE OPERATION OF THE HARDWARE OR THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET DISTRIBUTORSHIP'S OR END USER'S REQUIREMENTS OR THAT
OPERATION OF THE HARDWARE AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
BARTECH SHALL HAVE NO LIABILITY TO DISTRIBUTOR OR END USER FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER LOSS, DAMAGE OR INJURY
INCLUDING, WITHOUT LIMITATION ANY DAMAGES ARISING FROM LOSS OF USE OR LOST
PROFIT. The Distributor is prohibited from providing to customer or
end-user any additional warranty. In the event Distributor extends to the
end user any express or implied warranty or assumes any other obligation
whatsoever, then Distributor shall (i) be solely responsible therefore;
(ii) have no recourse against BARTECH therefore; (iii) defend, indemnify
and hold BARTECH harmless against any claim, loss, judgment or cause of
action whatsoever arising out of, or occasioned by, Distributor's conduct
including but not limited to Distributor's extension to end user of any
express or implied warranty.
12. DISTRIBUTOR OWNERSHIP, MANAGEMENT AND BUSINESS. This Agreement is entered
into by BARTECH in reliance on Distributor's representations as set forth
in Exhibit E regarding its ownership, management and control. Distributor
agrees to give BARTECH thirty (30) days prior written notice of its
intention to either directly or indirectly sell or transfer, in whole or in
part, its ownership. No such change in Distributor's ownership shall be
made without the prior written consent of BARTECH.
13. INDEPENDENT DISTRIBUTOR; FRANCHISE DISCLAIMER.
(a) Distributor agrees that it is neither the agent of, nor legal
representative of BARTECH, and has no right or authority to make any
warranties or promises or to incur any obligations on behalf of
BARTECH and that neither the Distributor nor any of its employees are
employees of BARTECH. Distributor agrees to indemnify and hold BARTECH
harmless from any claims, liabilities, damages, costs and expenses,
including reasonable attorneys' fees, arising from Distributor's
conduct, which if true, would constitute a violation of this
provision.
(b) The Distributor shall be entitled to describe itself as an authorized
distributor of the Covered Products but shall not be entitled to
describe itself as agent for BARTECH or in any words indicating any
relationship of agency existing between the parties.
(c) Nothing in this Agreement shall constitute or be deemed to constitute
a partnership between the parties hereto.
(d) BARTECH shall not in any event be responsible for any statement or
representation made in regard to any of the Covered Products or Spares
in any sales literature or advertising material issued by the
Distributor (other than contained in or based directly upon material
supplied or agreed by BARTECH), and to the extent that any such
responsibility shall fall on BARTECH as a result of statutory
regulations or otherwise the Distributor shall indemnify BARTECH
against any claims or demands arising out of any such statement or
representation.
14. CONFIDENTIALITY OF TRADE SECRETS. Distributor agrees that all confidential
information received from BARTECH, including without limitation all
technical information and service manuals, is and shall remain the property
of BARTECH and any and all confidential information of BARTECH may not be
copied, reproduced or transferred or disclosed without the prior written
consent of BARTECH. Distributor shall return at Distributor's expenses all
confidential information to BARTECH at BARTECH' request or upon expiration
or termination of this Agreement as provided in paragraph 19 hereof.
Distributor shall take all necessary and appropriate action to prevent the
unauthorized use or distribution of BARTECH' confidential information.
15. MAJOR ACCOUNT POLICY. BARTECH reserves to itself notwithstanding anything
to the contrary herein contained the right to sell Covered Products to any
corporate entity, or any subsidiary or affiliate thereof, even though the
entity intends to use Covered Products at a location in the Territory. Any
such sales are to be carefully coordinated with Distributor to avoid
conflicts with local policies of Distributor.
16. DURATION AND RENEWAL.
(a) The initial term of this Agreement (the "Initial Term") shall be from the
date hereof until the following December 31, unless earlier terminated in
accordance with the provisions of paragraph 17 or 18.
(b) Except as provided herein, this Agreement shall be automatically renewed
after the Initial Term on each January 1 for an additional period of one
year unless either party (1) notifies the other not less than three months
prior to the end of any particular term that it does not agree to such an
automatic renewal or (2) terminates this Agreement in accordance with the
provisions of paragraph 17 or 18. The failure of either party to agree to
such an automatic renewal shall not be deemed a violation of this
Agreement. Such automatic renewal shall only apply for two one year periods
after the Initial Term.
17. TERMINATION BY DISTRIBUTOR. At any time, Distributor may terminate this
Agreement by giving BARTECH not less than ninety (90) days written notice.
18. TERMINATION BY BARTECH. At any time, BARTECH may terminate this Agreement
by giving Distributor not less than thirty (30) days written notice (the
"Notice Period") if:
(a) Distributor's account with BARTECH becomes more than 60 days past due,
provided however that, if Distributor makes full payment of all
amounts due to BARTECH during the Notice Period, then the notice of
termination shall be deemed to have been withdrawn;
(b) (i) Distributor achieves monthly target in no months or only one month
during any six consecutive month period (regardless of whether such
six months encompass one or two Target Years); (ii) Distributor fails
to achieve at least 75% of its annual target in any single Target
Year;
(c) Distributor directly or indirectly sells or transfers its ownership in
whole or in part without the prior written consent of BARTECH as
required by paragraph 12;
(d) Distributor provides BARTECH information which is false or misleading;
(e) Distributor breaches any of its responsibilities under this Agreement,
including failure not remedied within ninety (90) days notice from
BARTECH, to carry out the terms of BARTECH' customer service policies
as required by subparagraph 4 hereof; or
(f) If the Distributor enters into liquidation, whether compulsory or
voluntarily (otherwise than for the purpose of amalgamation or
reconstruction), or compounds with its creditors or has a receiver
appointed for all or any part of its assets or takes or suffers any
similar action in consequence of debt.
19. EFFECT OF TERMINATION OR EXPIRATION. The termination or expiration of this
Agreement shall not:
(a) Relieve BARTECH of the obligation from filling orders placed by Distributor
and accepted by BARTECH prior to the effective date of the termination or
expiration; provided, however, that as a condition precedent to filling any
such order, BARTECH may demand that the Distributor pay in advance and pay
any amounts which might otherwise be due to BARTECH prior to shipment;
(b) Entitle Distributor to any termination or expiration compensation or to any
other compensation for lost profits, goodwill or for any order for the
sale, rental, lease or licensing of Covered Products by BARTECH or any of
its authorized distributors. The Distributor shall immediately cease to
sell the Covered Products provided that subject to next clause, BARTECH
will permit the Distributor to sell its existing stock of the Covered
Products on the terms set out in this Agreement which, to that extent and
for this purpose only, will stay in force; Nevertheless, BARTECH at its
sole option will repurchase, at Distributor's option, all or any part of
Distributor's inventory of new and unused Hardware Products as follows: the
Distributor shall offer for sale to BARTECH all Products and Spares at that
time the property of the Distributor and which are not the subject to
binding contracts for sale. BARTECH shall be under no obligation to
repurchase all or any of those Covered Products or Spares but shall notify
its determination whether or not to repurchase any or all of them within
four weeks of the offer being made. The price to be paid for such Covered
Products and Spares shall be a percentage of the Quoted Price paid by the
Distributor as follows: (1) 75% for Product to be returned to BARTECH
within twelve months of delivery; (2) 50% for a Product to be returned to
BARTECH between twelve and twenty-four months of delivery; (3) 25% for a
Product to be returned to BARTECH between twenty-four and thirty-six months
of delivery. The cost of insurance, packaging, freight and any other costs
which may be payable in respect of a returned Product shall be borne (as
between the Distributor and BARTECH) by the Distributor and less any
deduction determined by BARTECH because the Hardware Products are
shop-worn, incomplete, obsolete or outdated. BARTECH' obligation to
repurchase shall expire if Distributor does not provide BARTECH with a
written list of the Hardware Products to be repurchased within thirty (30)
days of the effective date of the termination or expiration of this
Agreement. Distributor agrees that it shall be responsible for all costs
and risks associated with returning any Hardware Products and agrees to
permit BARTECH reasonable access for purposes of inspection prior to
reshipment; nor
(c) Relieve Distributor of its obligation to protect the confidential
information and trade secrets of BARTECH under paragraph 14 herein. Upon
termination or expiration of this Agreement, Distributor shall not retain
and shall return to BARTECH all BARTECH confidential information in its
possession or control including originals and all copies. Upon, or as a
consequence of, termination or expiration:
(d) All outstanding unpaid invoices in respect of the Products and Spares shall
become payable in place of the payment terms previously agreed between the
parties;
(e) BARTECH and Distributor each agree not to hire an employee of the other or
any person who has been employed by either party during the previous 6
months during the term of this Agreement and for a period of one (1) year
following the termination of the Agreement except by written mutual
consent;
(f) Any such notice shall be deemed to have been dully received at the time of
actual delivery or when sent by telex or fax or three business days after
it was posted in the manner provided.
(g) The waiver by BARTECH of any breach of any terms of this Agreement shall
not prevent the subsequent enforcement of that term and shall not be deemed
a waiver of any subsequent breach.
20. INDEMNIFICATION. Distributor agrees that it will indemnify, defend and hold
harmless BARTECH, its officers, directors, employees, affiliates and agents
from any and all losses, claims, damages, expenses and causes of action of
every nature whatsoever, including attorneys' fees, which are caused solely
by the negligent acts, omissions or intentional wrongdoing of Distributor
in connection with the performance or non-performance of its obligations
under this Agreement or which may arise as a result of a breach of this
Agreement.
21. ASSIGNABILITY. Neither this Agreement, nor any right or obligation
hereunder, is assignable by Distributor, whether by operation of law or
otherwise, without the prior written consent of BARTECH, which consent
shall not be unreasonably withheld.
22. NOTICES AND OTHER COMMUNICATIONS. Unless otherwise provided, every notice
hereunder shall be in writing and deemed given when delivered in person or
when mailed, postage prepaid. Notices mailed to Distributor shall be sent
to its principal place of business or any of its Authorized locations.
Notices to BARTECH shall be mailed to its address first above written to
the attention of: (1) Vice President of Sales and Marketing; copy to (2)
Corporate Secretary.
23. FORCE MAJEURE. BARTECH shall not be liable for any loss, damage, delay or
other consequences resulting from causes beyond its reasonable control,
including, but not limited to, Acts of God, fire, strikes, labor disputes,
riot or civil commotion, acts of war (declared or undeclared), labor or
material shortages or government regulations, orders, or decisions.
24. NON-WAIVER. The failure of either party to enforce any of the terms of this
Agreement shall not be deemed a waiver or bar to the subsequent enforcement
of such term or to be a waiver of any other provision of this Agreement.
25. ENTIRE AGREEMENT. This Agreement constitutes the parties' entire agreement
and may not be amended except by a writing signed by both parties.
Distributor expressly represents to BARTECH that no officer, employee,
representative or agent of BARTECH has made or entered into any oral
agreement, promise or understanding which alters, expands or modifies any
of the terms of this Agreement; provided, however, the execution of this
Agreement shall not relieve either party of the obligation to pay for any
products or services rendered pursuant to any previous distributorship
agreement. In the case of any inconsistency between this Agreement and any
other writing (manuals, technical and marketing bulletins, etc), this
Agreement shall govern unless such writing references this Agreement,
providing for amendment hereto, and is executed by both parties hereto.
26. GOVERNING LAW. The validity, construction and enforceability of this
Agreement, and all other disputes between the parties arising directly or
indirectly hereunder, shall be governed and decided by the laws of France,
and not including the 1980 UN Convention on Contracts for the International
Sale of Goods. The Distributor agrees to submit to the exclusive
jurisdiction of the Court of Nanterre, France for the resolution of any and
all disputes by and between the parties hereunder. The Distributor shall
not in any manner contest the entering of a judgement, order or other court
ruling obtained pursuant to this Paragraph 26 against the Distributor in
any other court (including international courts) which may have
jurisdiction over the Distributor.
27. EXECUTION. This Agreement shall not be effective unless and until it has
been executed by a duly authorized officer of BARTECH.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Signed By: _______________________________
Bartech Mediterranean LTD.
For and on behalf of Distributor: _________________________
(Print Name)
Date: Dec. 28, 2000 Its: ______________________________
--------------
in the presence of: ________________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Signed By: _______________________________
For and on behalf of BARTECH, EMEA.
12/28/00
Date: _________________ Its: ______________________________
in the presence of: ________________________
EXHIBIT A
TARGET
(a) Distributor's annual target for the year commencing XXXXXXXXXX
shall be XXXXXX Units.
(b) Distributor's annual target for each successive Target Year shall be
notified to Distributor by BARTECH thirty (30) days before the end of
the current Target Year based upon the current target and other
factors, if applicable, including any expanded Territory, the
introduction of new products and increased potential for product
sales.
(c) Neither the establishment of an annual target or monthly target for a
period beyond the scheduled expiration of this Agreement nor
Distributor meeting any annual or monthly target shall create any
right on the part of the Distributor to continue as an authorized
BARTECH distributor for a period of time beyond the scheduled
expiration of this Agreement.
Effective Date: ____________
Supersedes Exhibit B Dated: _____________
EXHIBIT B
Hardware Product Description
AUTOMATIC MINIBARS AND THE OPTIONS RELATED TO THESE BARS AND FRIDGES.
CENTRAL UNIT : to control and manage minibars connected on line to it
REMOTE CONTROLERS: for refill mode, maintenance, room status
Effective Date: _________________
Supersedes Exhibit C Dated: _________________
EXHIBIT C
Software Product Description
-All software necessary for BARTECH operation as well as add on features like
CESS (computerized energy saving system), room maintenance and room status
Effective Date: ___________________
Supersedes Exhibit D Dated: _________________
EXHIBIT D
SOFTWARE REGISTRATION AGREEMENT
Name of END USER _____________________________________
Address of END USER
--------------------------------------------------------------------------------
Telephone of END USER _____________________________________
Name of DISTRIBUTOR _____________________________________
SOFTWARE PRODUCTS
Description Quantity Part Number
The software products listed above are provided by BARTECH, E.M.E.A ("BARTECH")
and its Distributor subject to the following terms:
1. End user shall have a non-exclusive license to (a) use the software
products; and (b) copy the software programs in a machine readable or
printed form for back-up or modification purposes. END USER'S LICENSE DOES
NOT PERMIT ANY OTHER USE OF THE SOFTWARE PRODUCTS. END USER SHALL BE IN
COMPLIANCE WITH ALL APPLICABLE LAWS AND SHALL BE PROHIBITED HEREUNDER FROM
USING THE SOFTWARE PRODUCTS IN VIOLATION OF APPLICABLE LAWS.
2. End user's license shall terminate immediately without notice if end user
(a) uses the software products for other than a permitted use; or (b)
transfers possession of the original or any copy of the software programs
or related documentation to another person or entity; or (c) attempts to
transfer this license. Upon termination of this license, end user agrees to
destroy immediately the original and all copies (in an original or merged
form) of the software programs and related documentation.
3. BARTECH MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE SOFTWARE, ITS QUALITY OR PERFORMANCE. BARTECH DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. THE SOFTWARE PROGRAMS ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED
WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO
THE QUALITY AND PERFORMANCE OF THE SOFTWARE PROGRAMS IS WITH END USER.
BARTECH DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE
PROGRAMS WILL MEET END USER'S REQUIREMENTS OR THAT THE OPERATION OF THE
SOFTWARE PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE. NEITHER BARTECH NOR
ITS INDEPENDENT DISTRIBUTOR SHALL HAVE ANY LIABILITY TO END USER FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER LOSS, DAMAGE OR INJURY
INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOSS
PROFIT ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE PROGRAMS.
5. The entire agreement between the parties is in this Agreement which
supersedes and merges all prior discussions and agreements between the
parties relative to the subject matter hereof.
--------------------------------------------------------------------------------
(Name of end user)
By: ___________________________________
Its: ___________________________________
Date: ___________________________________
EXHIBIT E
DISTRIBUTOR APPLICATION/INFORMATION SHEET
Distributorship Name _____________________
Address ____________________________
____________________________
____________________________
City __________
Zip Code __________
Country _________________
MAILING ADDRESS IF DIFFERENT THAN ABOVE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Phone Number _________________________
After Hours Phone _________________________
Fax Number _________________________
ADDRESS, PHONE, FAX, OF ADDITIONAL OFFICES
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Distributorship is: __Proprietorship __Partnership __Corporation __Subsidiary
Names(s) and home address(es) of Principals. Include Titles of a Corporation,
include Ownership Percent of Partnerships and Corporations.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Corporation in Business since (Date of incorporation) :
Total Number of full time employees in the corporation :
Product presently marketed, distributed, or produced by the corporation :
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Based on Audited ANNUAL FINANCIAL STATEMENT :
Total Company Sales 1995 : FF ____________
Total Company Sales 1996 FF ____________
Total Company Sales 1997 FF ____________
SALES DEPARTMENT DATA
Number of Sales Representatives Employed, Full Time:
Sales Manager's Name
Sales Manager's Experience Summary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Summary of Sales Representatives Experience
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name(s) of Individuals Authorized to Place ORDERS for BARTECH products
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SERVICE/SUPPORT DEPARTMENT(S) DATA
Number of Technicians Employed, FIELD _____ SHOP _____
Service Manager's Name ___________________________________
Service Manager's Experience Summary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Summary of Technician's Experience
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Summary of Technical Services offered to Customers
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Does a Programming/Installation/Training/Support Department Exist?__________
How many Employees are in this Department:__________
Does this department perform software development :______________________
If Yes, please describe software development tools used
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signature: _____________________________________
Name ______________________ Title ____________________ Date ________
Manager Submitting Application: _____________________________________
DISTRIBUTORSHIP AGREEMENT TABLE OF CONTENTS
PAGE
1. Definitions . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment . . . . . . . . . . . . . . . . . . . . . 2
3. Basic Obligations of BARTECH. . . . . . . . . . . . . 2
4. Basic Obligations of Distributor. . . . . . . . . . . 2
5. Distributor Representations, Warranties and Covenants 5
6. Area of Sales . . . . . . . . . . . . . . . . . . . . 5
7. Placing and Delivery of Orders. . . . . . . . . . . . 5
8. Terms . . . . . . . . . . . . . . . . . . . . . . . . 6
9. Warranty on Hardware Products . . . . . . . . . . . . 7
10. Marketing of Software. . . . . . . . . . . . . . . . 8
11. Exclusive Warranty on Software Products. . . . . . . 8
12. Distributor Ownership, Management and Business . . . 9
13. Independent Distributor; Franchise Disclaimer. . . . 9
14. Confidentiality of Trade Secrets . . . . . . . . . . 10
15. Major Account Policy . . . . . . . . . . . . . . . . 10
16. Duration and Renewal . . . . . . . . . . . . . . . . 10
17. Termination by Distributor . . . . . . . . . . . . . 10
18. Termination by BARTECH . . . . . . . . . . . . . . . 10
19. Effect of Termination or Expiration. . . . . . . . . 11
20. Indemnification. . . . . . . . . . . . . . . . . . . 12
Table of Contents - Page 1
DISTRIBUTORSHIP AGREEMENT TABLE OF CONTENTS [cont'd]
PAGE
21. Assignability. . . . . . . . . . . . . . . . . . . . 12
22. Notices and Other Communications . . . . . . . . . . 13
23. Force Majeure. . . . . . . . . . . . . . . . . . . . 13
24. Non-waiver . . . . . . . . . . . . . . . . . . . . . 13
25. Entire Agreement . . . . . . . . . . . . . . . . . . 13
26. Governing Law. . . . . . . . . . . . . . . . . . . . 13
27. Execution. . . . . . . . . . . . . . . . . . . . . . 13
Exhibit A Target . . . . . . . . . . . . . . . . . . . . 15
Exhibit B Hardware Products. . . . . . . . . . . . . . . 16
Exhibit C Software Products. . . . . . . . . . . . . . . 17
Exhibit D Software Registration Agreement. . . . . . . . 18
Exhibit E Distributor Form of Application. . . . . . . . 20
Table of Contents - Page 2