DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Distribution Agreement") is made and entered
into as of June 2, 1997, by and among UPSYS-CERPROBE, L.L.C., an Arizona limited
liability company (the "Company"), CERPROBE CORPORATION, a Delaware corporation
(the "Distributor"), and UPSYS, a French corporation ("Upsys").
RECITALS
A. The Company was formed by Upsys and the Distributor, pursuant to an
operating agreement signed on February 12, 1997, (the "Operating
Agreement"), to engage in the assembly, testing, repair and
distribution of all versions of the Cobra Probe (the "Products").
B. Upsys is engaged in, among other things, the design, engineering and
manufacture of the Products involving certain Upsys technology
described in the Operating Agreement (the "Upsys Technology").
C. Until the date of this Distribution Agreement, Upsys and Distributor
were parties to a distribution agreement dated June 12, 1995 concerning
the Products in the Territory which the present agreement replaces.
D. The Products consist of three main component parts ("Product
Components"): (i) the probes formed in an arc, (ii) space transformers
and (iii) printed circuit boards, used in probing semiconductor wafers.
E. Concurrently with the execution of this Distribution Agreement, the
Company has entered into a Supply Agreement with Upsys (the "Supply
Agreement"). Pursuant to this Agreement and the Supply Agreement: (i)
Upsys has granted the Company the exclusive right to assemble and
repair the Products in the Territory, (ii) Upsys has granted the
Company the right to sell the Products exclusively to Upsys, (iii) for
its needs in the Territory, Upsys has agreed to purchase Products
exclusively from the Company, and (iv) Upsys has agreed to purchase
from the Company all Products ordered by Distributor pursuant to this
Agreement and assembled or purchased by the Company.
F. Upsys desires to engage Distributor as the exclusive distributor of the
Products to customers throughout the Territory (as hereinafter defined)
and Distributor desires to accept such engagement on the terms and
conditions set forth in this Distribution Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Appointment of Distributor. Subject to and in accordance with the terms
and conditions of this Distribution Agreement, Upsys appoints
Distributor as the sole exclusive distributor of the Products for the
Company in the Territory during the term of this Distribution
Agreement, and Distributor accepts such appointment and agrees to act
as the exclusive distributor of the Products in the Territory.
2. Territory. The "American Territory" is defined for purposes of this
Distribution Agreement as the United States of America (including
territories thereof), and the "Asian Territory" as South Korea, Japan,
Singapore, Malaysia and Taiwan. The American Territory and the Asian
Territory are collectively referred to as the "Territory". Upsys and
the Company will forward, and will cause all of their respective
employees, agents and representatives to forward, to the Distributor
all leads and inquiries with respect to the distribution of the
Products received from entities located in the Territory.
3. Exclusive Nature of Distributorship. The distributorship granted
hereunder shall be exclusive in the American Territory during the term
of this Distribution Agreement, and in the Asian Territory from the
date of this Distribution Agreement through March 31, 1998. The
existence of and the nature of the distributorship in the Asian
Territory beginning April 1, 1998 and thereafter shall depend upon the
decision of Upsys under the terms of Section 1(b) of the Supply
Agreement. Upsys will promptly notify the Company and the Distributor
of its decision concerning the Asian Territory. Upon notification
thereof, the Distributor's right to distribute in the Asian Territory
shall be modified. Should Upsys and Distributor agree during the term
of this Agreement that a separate structure is necessary in the Asian
Territory, they shall enter into discussions with a local partner and,
if necessary, the terms of this Agreement shall be modified
accordingly. For the purposes of this Agreement, "Exclusive" shall mean
that Upsys will not knowingly permit the establishment of a distributor
other than Distributor in the American and Asian Territories, as
defined above. In conformity with U.S. and other applicable national or
international anti-trust laws, Upsys does not guarantee that there will
be no competition with the Distributor from third parties.
4. Ordering Procedures; Annual Service Fee. All orders by Distributor for
the Products pursuant to this Distribution Agreement shall,
automatically and without further action on the part of Upsys,
simultaneously constitute (i) an order by Upsys to the Company for such
Products, and (ii) an order by Distributor to Upsys for such Products,
in each case subject to the terms and conditions set forth in this
Agreement and in Exhibit A. Distributor will communicate all of its
orders for Products to the Company. Upon receipt by the Company of an
order from Distributor in accordance with this Distribution Agreement
(1) the
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Company will forward a copy of the order to Upsys, (2) Upsys will be
deemed to have ordered from the Company the same Products described in
the order subject to the terms of this Distribution Agreement, (3) the
Company will satisfy such order by transfer of title as provided below,
and (4) on behalf of Upsys, the Company will deliver the Products
described in the order to Distributor. The Company will (A) receive
payment of the Distributor Purchase Price (as defined below) from
Distributor on behalf of Upsys for the sale of such Products by Upsys
to Distributor, (B) deduct from such payments and retain for itself the
Upsys Purchase Price (as defined below) for the sale of such Products
by the Company to Upsys, and (C) pay to Upsys on or prior to the
fifteenth day following the end of each of the Company's fiscal years
the accumulated balance of the Distributor Purchase Prices (i.e., the
accumulated sum of the difference between the Distributor Purchase
Prices and the Upsys Purchase Prices) payable by Distributor to Upsys
for Products sold to Distributor by Upsys during such fiscal year. On
or prior to the fifteenth day following the end of each of the
Company's fiscal years, Upsys shall pay to the Company as consideration
for its order and delivery services hereunder a fee equal to $10,000
for the first year and, for subsequent years, an amount to be agreed
between Upsys and the Company in consideration of the volume of
Products sold by Upsys to Distributor during such fiscal year.
5. Purchase Price; Payment Terms. The purchase price that Distributor will
pay to Upsys (the "Distributor Purchase Price") for each unit of any of
the Products shall be a per unit purchase price for that Product based
on Exhibit B attached hereto, as amended or superseded from time to
time as provided herein, and other relevant factors determined by
Upsys. The purchase price that Upsys will pay to the Company (the
"Upsys Purchase Price") for each unit of any of the Products will be
equal to 99.9% of the Distributor Purchase Price actually received by
Upsys. The Company may increase or decrease the respective per unit
purchase prices payable by Distributor (and therefore by Upsys) for any
or all the Products by written notice to Distributor. The parties agree
that the prices set forth in Exhibit B will be reviewed annually on the
basis of currency fluctuations, inflation and change in any of the
applicable price indexes for raw materials used in the Product
Components. The Company shall notify the Distributor of the price
revisions forty-five days (45) prior to the implementation of such
revisions. Any change in the purchase price shall only apply to orders
received from Distributor following lapse of such 45-day notification
period. The price for any Products ordered by Distributor shall be the
price on the date the Company receives the order for that Product.
Except as otherwise expressly agreed in writing by the parties hereto,
all payments for the Products (whether by Distributor or Upsys) shall
be made in United States dollars in an amount adequate to cover the
full purchase price plus all other charges, if any, incurred by the
Company for the account of Distributor (in the case of payments by
Distributor) or Upsys (in the case of payments by Upsys), and such
payment shall be due and payable in full within thirty (30) days after
notice to Distributor of the availability of the Products at the
Company's assembly facilities. All such other charges shall be retained
by the Company. Any late payments shall be subject to interest
payments, per day of late payment, at a rate of twelve percent (12%)
per annum. All such late payments shall be retained by the Company.
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6. Pricing and Responsibility for Costs. All prices for the Products to be
sold hereunder are and shall be prices EX-WORKS, as defined in the 1990
Incoterms (except that delivery will occur when the Distributor's
carrier takes possession of the goods), from the Company's assembly
facility. All Products shall be packaged by the Company as necessary
for protection against handling. All costs of preservation,
waterproofing or other special packaging shall be paid by the
Distributor to the Company, and the Company shall be entitled to retain
all such amounts. The Distributor shall contract directly with the
carrier to pay all shipping costs.
7. Title and Risk of Loss. Upon payment by Distributor, title to the
Products shall pass first to Upsys and then immediately to Distributor.
Risk of loss to the Products shall pass directly from Company to
Distributor upon delivery to Distributor's carrier at the Company's
assembly facility. If the Company delays in so delivering the Products
to Distributor's carrier due to any action or request of Distributor,
Distributor shall pay to the Company (and the Company shall retain) all
reasonable storage and insurance charges incurred by the Company.
Distributor agrees to indemnify and hold the Company harmless for, from
and against any and all loss of or damage to the Products sustained
while risk of loss remains upon Distributor. The Company agrees to
indemnify and hold Distributor and Upsys harmless for, from and against
any and all loss of or damage to the Products sustained while risk of
loss remains upon the Company.
8. Warranty.
(a) The Company warrants to Distributor that all Products will be
free of defects in design, manufacturing and raw materials for
a period of three (3) months from the date of delivery of such
Products to Distributor by the Company. Upsys makes no
warranty to Distributor. Distributor will make any warranty
claims only against the Company and not against Upsys.
(b) All claims under the warranty rights in this Section 8 must be
received by the Company before the expiration of the three (3)
month warranty period, accompanied by written notice (each a
"Warranty Notice") giving a reasonably detailed description of
the defect in goods. Within fifteen (15) days of receiving a
Warranty Notice, the Company will, at its option, (i) cause
the defective goods to be repaired or replaced (with shipping
and insurance for the account and risk of the Company), or
issue a credit or refund for the defective goods or (ii)
request a return of the goods in question, in which case the
Distributor will return the goods in question within five (5)
days of the request of the Company (with shipping and
insurance for the account and risk of the Company). The
Company will inspect the returned goods and if the goods are
nonconforming, the Company will issue a credit or refund for
the defective goods. If the Company reasonably believes the
goods are conforming, the Company will communicate its
findings to the Distributor and the Company and the
Distributor
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will take appropriate actions to resolve such dispute
(including good faith discussions between the parties).
(c) The Company shall have no liability whatsoever under this
limited product warranty or otherwise if the defect or failure
to conform to specifications is due to transportation
conditions, improper storage, handling or conditions of use of
the Products by Distributor or by any third party.
(d) This limited warranty is extended by the Company solely to
Distributor and applies only to the Products which were
manufactured and delivered by the Company. The Company hereby
disclaims and excludes all other warranties, express or
implied, or any liability whatsoever with respect to assembled
equipment integrating the Products.
(e) Any warranty replacement of a part cannot have the effect of
extending the initial warranty period.
(f) The Company declines any liability for any Product or Product
Component not delivered by or on behalf of itself and, in
particular, for other products or components used by the
Distributor and integrated into an assembly. The Company
cannot be liable if the failure of one of its Products is
caused by other neighboring components or by components to
which they are linked by the Distributor or a third party.
(g) Under no circumstances shall the Company, Upsys, or
Distributor be liable to the other for any special,
incidental, consequential, indirect or exemplary losses or
damages pertaining in any way to the products or product
components under this Distribution Agreement.
9. Duties of Distributor.
(a) Purchasing Obligation. Distributor is obliged, to the extent
allowed under the local or international antitrust rules and
regulations, to exclusively purchase the Products and any
Product Components from Upsys. Distributor shall neither
purchase from or distribute for any Person other than Upsys
any products using the Upsys Technology without the express
written approval of Upsys.
Sales Efforts. The Distributor shall vigorously and diligently promote the sale
of the Products. To that end, the Distributor shall:
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(i) Maintain in the Territory, directly or through other
distributors, as specifically approved by Upsys, an
appropriate sales organization in order to adequately
solicit the clientele.
(ii) Convey to the Company upon its request all
information concerning the Distributor's sales policy
and participate with the Company in market planning,
analysis, research and sales forecasting.
(c) Reporting. Within thirty (30) days following the end of each
calendar quarter, the Distributor shall provide the Company
with sales performance data for the previous quarter, and
projections for the following quarter, such projections to
include the reasonably expected volume of future orders of
Products. None of such projections shall be deemed purchase
orders or commitments, nor shall the Distributor have any
liability for failure to meet any such projections.
(d) Intellectual Property Rights.
(i) The Distributor agrees that, except as is
specifically provided herein, it will not, directly
or indirectly, at any time during the term of this
Distribution Agreement or thereafter: (a) represent
that it has any ownership interest in or rights to
the intellectual property rights owned by Upsys
(i.e., trademarks, trade names, license and other
intellectual property used in conjunction with the
Products and Product Components in the Territory),
("Intellectual Property Rights") or (b) register or
attempt to register or use in any manner whatsoever
such Intellectual Property Rights, without such
party's specific prior written consent.
(ii) If the Distributor or any of its directors, officers,
employees or Affiliates registers any Intellectual
Property belonging to Upsys, the Distributor hereby
agrees to cause the assignment of such to Upsys
immediately upon request, and without charge.
(iii) Should the Distributor become aware of a potential
third party infringement of any of the Intellectual
Property Rights of Upsys, it shall immediately inform
Upsys who shall, at its sole discretion, determine
whether or not to proceed against such potential
infringement.
(iv) The Distributor's use of Upsys Intellectual Property
Rights shall be expressly limited to the distribution
and sale of the Products and Product Components under
the terms provided in this Distribution Agreement.
(v) Upon the termination of this Distribution Agreement
for any reason, the Distributor shall immediately
return to Upsys, all originals and any copies of
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Intellectual Property Rights belonging to Upsys in
its possession or control and immediately stop using
such Intellectual Property.
10. Nondisclosure and Limited Use of Confidential or Proprietary
Information.
(a) The Parties agree that, except to the extent necessary to
comply with applicable law and regulatory and supervisory
requirements, each Party shall keep, and cause their
respective Affiliates to keep, the terms and conditions of
this Agreement and the transactions contemplated by this
Agreement confidential.
(b) During the term of this Agreement, the Parties will receive
certain trade secrets and confidential information relating to
each Party's business and operations ("Confidential
Information"). The Parties shall hold in strictest confidence
and not disclose to any third party any such Confidential
Information designated in writing or which by its nature
should reasonably be deemed confidential. Further, neither of
the Parties shall use or permit the use of any such
Confidential Information in a manner detrimental to the other
or in any manner other than in furtherance of the purposes
hereof.
(c) Notwithstanding any provision in this Agreement or a related
agreement to the contrary, the parties agree that for as long
as this Agreement is in force, the Distributor shall use the
same care and discretion (but not less than reasonable care
and discretion) to avoid disclosure, publication or
dissemination of any Confidential Information within the scope
of the Upsys Technology as the Distributor uses with its own
similar information that the Distributor does not wish to
disclose, publish or disseminate.
(d) To the extent that they do not use the Confidential
Information of the parties hereto, information, be it
technical or not, concerning the activity of the Company,
created by an employee of the Company or by a seconded
employee of one of the parties hereto, along or in
collaboration, are considered as information belonging to the
Company, and it alone.
(e) Each party shall take all necessary measures concerning its
seconded employees so that they abstain from disclosing the
Confidential Information of the Company.
(f) No Confidential Information can be exchanged between the
Company and a party through a seconded employee except with
the prior agreement of the party to whom the Confidential
Information belongs. The Confidential Information will be
considered by the Party which receives it as confidential and
treated by such party in the manner described above.
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(g) Notwithstanding the foregoing, the Parties will be permitted
to make use of or disclose Confidential Information:
(i) which is in or comes into the public domain other
than through the default of a Party;
(ii) which was already in the possession of a Party prior
to disclosure by the disclosing Party hereto as
evidenced by documentation in such Party's
possession;
(iii) which is lawfully acquired from a third party who did
not obtain it directly or indirectly from the
disclosing Party;
(iv) which is required to be disclosed by or to a court or
governmental agency, but only to the extent and for
the purpose so required (it being understood that the
Party being required to disclose such Confidential
Information will endeavor to (but shall not be liable
for failure to) notify the other Party of such
requirement so that the other Party may take steps to
legally protect its interests); or
(v) with a Party's financial advisors, attorneys,
accountants or any other third party engaged by it to
the extent strictly necessary to effect the purposes
and intent of this Agreement, it being understood
that, in the case of any such disclosure, the Party
shall previously have obtained from such third
parties satisfactory written undertakings of
confidentiality and either obtained for itself from
such third parties or ensured that such third parties
have given to the provider of such Confidential
Information written undertakings not to disclose or
use such Confidential Information for any purpose
other than the fulfillment of this Agreement, and
shall cause such third parties to respect such
undertakings.
(h) The Parties acknowledge and agree that the unauthorized use or
disclosure of such Confidential Information would constitute,
inter alia, an act of unfair competition and cause irreparable
harm to the non disclosing Party, its competitive position and
goodwill, and each Party acknowledges responsibility for
damages caused to the others by such unauthorized use or
disclosure.
(I) This obligation of confidentiality shall remain in effect
during the term of this Agreement and for five (5) years
thereafter.
11. Advertising and Promotion. During the term of this Agreement,
Distributor shall have the right to advertise and to promote the
Products and Product Components by telephone, mail, newspaper,
magazine, radio, television and any other lawful means, as specifically
agreed
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to by the Company upon proposition by the Distributor. All use of
Upsys' trademarks for the Products and Product Components, are subject
to Distributor submitting all proposed uses of such trademarks to Upsys
for approval prior to such use. Upsys will not unreasonably withhold
its agreement to any such proposal referred to in this Section 11.
Upsys will respond promptly to any such proposal, and any such proposal
shall be deemed approved if not reasonably disapproved by Upsys within
thirty (30) days of its receipt of the proposal. The use of any such
trademarks, symbols, tradenames, corporate names or other Intellectual
Property Rights shall not give Distributor any proprietary rights
therein.
12. Term of Agreement. Subject to Sections 3 and 13 hereof, the term of
this Agreement shall be for a period of eighteen (18) months from date
of this Agreement and shall be extended to the extent the Operating
Agreement is still in force between the Upsys and Distributor for
additional consecutive one-year periods as specifically agreed to by
the parties, except as otherwise agreed.
13. Termination.
(a) Generally. Except as otherwise provided for in this
Distribution Agreement, if any party defaults in the
performance of any of its obligations under this Distribution
Agreement or if an event of default as described below occurs,
the nondefaulting party may defer deliveries, payments, orders
for Products or receipt of deliveries without incurring
additional costs until the default is cured. If the default is
not cured within thirty (30) business days of the giving of
written notice thereof to the defaulting party, at the option
of the non-defaulting party exercised in writing to the
defaulting party, this Distribution Agreement shall terminate
at the end of the thirty (30) business day period.
(b) Dissolution of the Company. Upon dissolution of the Company
for any reason whatsoever or should Upsys or Distributor no
longer be a Member of the Company, this Agreement shall
automatically terminate.
(c) Termination of the Supply Agreement. Should the Supply
Agreement between Upsys and the Company terminate for any
reason, this Distribution Agreement shall automatically
terminate.
(d) Right to Sell. After the termination or the expiration of this
Agreement, the Distributor may return to the Company the
inventory of unused and non-obsolete Products and standard
Product Components purchased from Upsys by the Distributor,
limited to forty-five (45) days of inventory of such Products
measured by the average inventory for the prior six months of
operations for 85% of the purchase price originally paid by
the Distributor for such items. No remaining inventory may be
sold with Upsys' trademarks or tradenames after termination of
this Distribution Agreement without the approval of Upsys.
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(e) Survival of Certain Obligations. Notwithstanding any
termination or expiration of this Agreement, the Distributor
shall fill all orders for Products ordered prior to
termination and shipped or delivered before or after
termination, and the Company shall not be relieved of its
warranty and indemnification obligations concerning such
Products under the terms set forth herein. Distributor shall
fulfill the customer orders which have been received prior to
termination in the sixty (60) days following termination.
(f) Events of Default. The occurrence of any of the following
events shall be considered an event of default hereunder: (i)
with respect to any Party, the filing of any voluntary or
involuntary petition for bankruptcy or upon any agreement
(oral or written) in respect of any arrangement of creditors;
(ii) with respect to the Company, the Company's decision to
discontinue the manufacture, sale or distribution of the
Products or Product Components necessary for the assembly of
the Products, without proposing an acceptable alternative.
14. Force Majeure.
(a) None of the Distributor, Upsys, or the Company shall be
responsible for any breach or non-observance of any term or
condition of this Distribution Agreement (except payment
obligations) in case of Force Majeure.
(b) "Force Majeure" includes, but is not limited to:
(i) compliance with any law, ruling, order, regulation,
requirement or instruction of any government or any
department or agency thereof;
(ii) acts of God; and
(iii) fires, strikes, labor slowdowns, embargoes, war or
riot.
(c) Any delay resulting from any of such causes shall extend
performance accordingly or excuse performance in whole or in
part, as may be necessary. Any party shall have the right to
terminate this Agreement upon thirty (30) days prior notice if
any party is unable to fulfill its obligation under this
Distribution Agreement due to Force Majeure and if such
inability continues for a period of one hundred and twenty
(120) days.
(d) The party claiming Force Majeure shall notify the other
parties by registered mail within fifteen (15) days of the
occurrence of Force Majeure and shall send within forty-five
(45) days thereafter by registered mail, proof of the force
majeure event.
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15. Independent Contractor. Distributor, Upsys, and the Company each
acknowledges and agrees that Distributor is an independent contractor
and that under this Distribution Agreement none of Distributor, Upsys,
or the Company shall be considered for any purpose to be the agent,
franchisor, or franchisee of the others. None of the Company, Upsys, or
Distributor will have any obligation or responsibility to act on behalf
of or in the name of the others, or the power or authority to bind the
others in any manner whatsoever.
16. Indemnification. The Distributor agrees to indemnify, defend and hold
the Company and Upsys, and the Company agrees to indemnify, defend and
hold the Distributor (the indemnifying party being referred to herein
as the "Indemnifying Party"), harmless for, from and against any and
all damages, losses, liabilities (absolute and contingent), fines,
penalties, costs and expenses (including, without limitation,
reasonable attorney's fees and costs and expenses), incurred
("Damages") with respect to or arising out of any demand, claim,
proceeding, action and/or cause of action that any indemnified party
(an "Indemnitee") may suffer or incur by reason of or arising out of
(i) if the Indemnifying Party is the Distributor, any claim by any
third party in respect to infringement of the intellectual property
rights of any third party arising solely out of the distribution and
sale of any of the Products by Distributor contrary to the terms of
this Distribution Agreement, (ii) if the Indemnifying Party is the
Company, any claim by any third party in respect to the infringement of
intellectual property rights of any third party arising solely out of
the assembly, repair, sale or distribution by the Company of any of the
Products contrary to the terms of this Distribution Agreement, or (iii)
if the Indemnifying Party is the Distributor or the Company, the
nonperformance by such Indemnifying Party of any obligation or
agreement of such Indemnifying Party under this Distribution Agreement,
or any breach of a representation or warranty made by such Indemnifying
Party in this Distribution Agreement.
The indemnification obligation set forth above is limited by the
following:
(i) The Indemnitee shall notify the Indemnifying Party
within thirty (30) days of: (i) its receiving actual
notice of a demand, claim, proceeding, action or
cause of action from a third party, or (ii) in any
other case, its becoming aware of (or, in the case of
any Indemnitee that is not a natural person, its
executive officers or supervisory personnel becoming
aware of) a potential demand, claim, proceeding,
action or cause of action (provided that the failure
to notify the Indemnifying Party shall in no case
prejudice the rights of an Indemnitee under this
Agreement unless the Indemnifying Party shall be
prejudiced by such failure and then only to the
extent the Indemnifying Party has been prejudiced by
such failure). The Indemnifying Party shall solely
determine whether or not to settle a given claim
(provided that the Indemnifying Party shall obtain
the consent of the Distributor or Upsys to settlement
of any nonmonetary claim against the Distributor or
Upsys or their respective officers, directors,
employees, agents or representatives).
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(ii) The above indemnification does not apply if the
Products are used or combined with another item by
the Indemnitee and such use or combination is not
permitted by this Agreement and is what gives right
to the infringement.
(iii) The above indemnification does not apply to any
Damages that arise subsequent to a demand by the
Indemnifying Party for the Indemnitee to cease
delivery of a particular Product or to begin delivery
of a non-infringing substitute.
(iv) An Indemnifying Party's indemnification obligation
shall terminate with respect to any demand, claim,
proceeding, action or cause of action for which an
Indemnitee has not given notice hereunder within (A)
in the cause of clause (i) or (ii) of the first
paragraph of this Section 16, the expiration of all
applicable legal statutes of limitations and similar
laws, or (B) in the case of clause (iii) of the first
paragraph of this Section 16, two (2) years following
termination of this Agreement for any reason.
17. No Restriction on Competition. The parties hereto acknowledge and agree
that no provision of this Distribution Agreement shall create, and no
provision contained in or relationship created by this Distribution
Agreement shall be deemed to create, any obligation on the parties
hereto to refrain from competing with one another or from developing
products or services in competition with the products or services of
the other except as concerns products directly in competition with the
Products that use the Upsys Technology. This competition restriction
shall apply during the term of this Distribution Agreement.
18. General Provisions.
(a) Upsys' Obligations. Upsys' obligations hereunder shall be
limited to those obligations that are specifically mentioned
herein. In no case shall Upsys be considered the guarantor of
any of the obligations of the Company.
(b) Authority to Enter into Agreement. Each of the parties hereby
covenants and represents in respect of itself that it is
authorized to, and that all necessary corporate or company
action has been taken on its behalf to, enter into this
Distribution Agreement and that in so doing it is not in
violation of the terms and conditions of any contract or other
agreement to which it may be a party.
(c) Further Assurances. Each of the parties hereto shall execute
and deliver all such other instruments and take all such
actions as either party may reasonably request from time to
time in order to effectuate the purposes of this Distribution
Agreement and the transactions provided for herein.
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(d) Notices. All notices, requests, demands and other
communications required or permitted under this Distribution
Agreement shall be in writing and shall be deemed to have been
duly given, made and received when delivered against receipt,
twelve (12) hours after being sent by telecopy, or three (3)
days after being sent by registered or certified mail, postage
prepaid, return receipt requested, addressed to the
recipient's address as set forth below:
If to Distributor:
------------------
Cerprobe Corporation
600 South Rockford Drive
Tempe, Arizona 85281
Fax Number: 1-602-967-4636
Attn: C. Zane Close
If to the Company:
------------------
Upsys-Cerprobe, L.L.C.
600 South Rockford Drive
Tempe, Arizona 85281
Fax Number: 1-602-967-4636
Attn: C. Zane Close
If to Upsys:
------------
Upsys
283, boulevard John Kennedy
91100 Corbeil-Essonnes
France
Fax Number: 011-33-16-089-5202
Attn: Jean-Claude Gery
Any party may alter the address to which communications are to
be sent by giving notice of the change of address in
conformity with the provisions of this paragraph for the
giving of notice.
(e) Binding Nature of Agreement; Assignment. This Distribution
Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and
assigns, except that neither party hereto may assign or
transfer its rights or obligations under this Distribution
Agreement without prior written consent of the other, and any
such assignment or transfer without such approval shall
constitute a breach hereof and shall be null and void and of
no force or effect, and shall not convey any rights to or
interest in this Distribution Agreement. This
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Distribution Agreement may only be amended or modified by
written agreement signed by both of the parties hereto.
(f) Entire Agreement. This Distribution Agreement contains the
entire agreement and understanding between the parties hereto
with respect to the subject matter hereof, and supersedes and
is in lieu of all prior and contemporaneous agreements,
understandings, inducements and conditions, express or
implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof, including, without
limitation, the terms of the distribution agreement dated June
12, 1995 between Upsys and the Distributor. The express terms
hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
(g) Governing Law, Jurisdiction and Venue. This Agreement and all
questions relating to its validity, interpretation,
performance and enforcement, will be governed by and
construed, interpreted, and enforced in accordance with the
laws of the State of New York, notwithstanding any conflict of
laws rules to the contrary and in accordance with the United
States Arbitration Act, 9 U.S.C. Sections 1 et seq. Subject to
the mandatory arbitration provision in Section 18(h) below,
the exclusive jurisdiction and venue of any action relating to
this Agreement will be the United States District Court for
the Southern District of New York and each of the parties to
this Agreement submits to the exclusive jurisdiction and venue
of such courts for the purpose of any such action.
(h) Arbitration. If any dispute arises under this Agreement, upon
written notice of either party, the parties will immediately
seek to resolve the dispute by good faith negotiations. If the
parties are unable to resolve the dispute in writing within
ten (10) business days from the commencement of such good
faith negotiations, then without the necessity of further
notice or agreement between the parties, such dispute will be
finally settled in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and its
Supplementary Procedures for International Commercial
Arbitration, as in effect as of the date of this Agreement.
The language for such arbitration will be English and the site
will be New York, New York. The number of arbitrators will be
three (3) (the "Arbitrators"). If the parties agree on the
persons to be the Arbitrators at the time the dispute is
submitted to arbitration, then those persons shall be the
Arbitrators. Otherwise, each party will select one (1) of the
Arbitrators, and those Arbitrators will select the third
arbitrator. Failing an agreement on the third Arbitrator, the
president of the American Arbitration Association will be the
sole appointing authority for the third Arbitrator. The
decision of the Arbitrators will be final and non-appealable
as between the parties to this Agreement. Either party may, at
its option, seek injunctive relief or other provisional
remedies against the other party from any court of appropriate
jurisdiction. Each party to the dispute will bear its
respective expenses incurred in
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respect of the dispute and the costs of the Arbitrators will
be borne equally by both parties.
(i) Remedies Cumulative. Except as specifically set forth herein
to the contrary, the remedies of the parties hereto under this
Distribution Agreement are cumulative and will not preclude
the recovery, award or grant of any other remedies to which
any party may be lawfully entitled.
(j) Indulgences Not Waivers. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or
privilege under this Distribution Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or
further exercise of the same or of any right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect
to any other occurrence. No waiver shall be effective unless
it is in writing and is signed by the party asserted to have
granted such waiver.
(k) Severability. If any provision of this Agreement shall be
conclusively determined by a court of competent jurisdiction
to be invalid or unenforceable to any extent, the remainder of
this Agreement shall not be affected thereby.
(l) Numbers of Days. In computing the numbers of days for purposes
of this Distribution Agreement, all days shall be counted,
including Saturdays, Sundays and holidays in the State of
Arizona and in France; provided, however, that if the final
day of any time period falls on a Saturday, Sunday or holiday,
then the final day shall be deemed to be the next day that is
not a Saturday, Sunday or holiday.
(m) Attorneys' Fees. If any action is brought to enforce the
provisions of this Distribution Agreement, the prevailing
party in the action shall be entitled, in addition to any
other relief, to recover reasonable attorneys' fees and other
costs and expenses incurred in the action in an amount to be
fixed and determined by the arbitrator(s) agreed upon by the
parties or by the court.
(n) Construction. The parties hereto acknowledge and agree that
each party has participated in the drafting of this
Distribution Agreement and that this document has been
reviewed by the respective legal counsel for the parties
hereto and that the rule of construction to the effect that
any ambiguities are to be resolved against the drafting party
will not be applied to the interpretation of this Distribution
Agreement. No inference in favor of, or against, any party
shall be drawn from the fact that one party has drafted any
portion hereof.
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(o) Definitions. All capitalized expressions not otherwise defined
in this Agreement will have the meanings given such respective
expressions in the Operating Agreement.
(p) Amendment. This Agreement may only be amended or modified by
written agreement signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Distribution Agreement to be
executed and delivered by their proper and duly authorized representatives as of
the date first above written.
UPSYS-CERPROBE, L.L.C., an Arizona
limited liability company
Cobra Venture Management, Inc.
its Manager
By: /s/ Michael K. Bonham
-------------------------------------
Name: Michael K. Bonham
-----------------------------------
Its: Vice President
------------------------------------
CERPROBE CORPORATION,
a Delaware corporation
By: /s/ C. Zane Close
-------------------------------------
Name: C. Zane Close
-----------------------------------
Its: President and Chief Executive Officer
------------------------------------
UPSYS, a French corporation
(societe anonyme)
By: /s/ Jean Claude Gary
-------------------------------------
Name: Jean Claude Gary
-----------------------------------
Its: General Manager
------------------------------------