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DISTRIBUTOR AGREEMENT

This Agreement is made as of this [__] day of [_____] (the “Effective Date”) by and between _________________
_______________________________, a corporation organized and existing under the laws of _________________,
with its principal offices located at __________________________________ (“the Company”), and [Distributor
Company Name], a [type of entity] organized and existing under the laws of _____________, with its principal
offices located at [Distributor Address] (“Distributor”).

1. Appointment as Authorized Company Distributor. 2. Obligations of Distributor.

(a) Appointment. Subject to the terms of (a) Promotion and Advertising. Distributor
this Agreement, Company appoints Distributor, and will use its best efforts to: (1) vigorously promote the
Distributor accepts such appointment, as an distribution of Company Products in the Territory in
independent distributor of the products listed in Exhibit accordance with any terms and policies of Company as
A of this Agreement (the “Company Products”) in and may be announced from time to time; and (2) satisfy
limited to the territory of [Country] (the “Territory”). those reasonable criteria and policies with respect to
Company Products do not include any other products Distributor’s obligations under this Agreement as may
distributed by Company other than those listed in be communicated in writing to Distributor by Company
Exhibit A. Distributor shall have no right to appoint from time to time. Distributor will aggressively
subdistributors under this Agreement, unless (i) advertise Company Products in the Territory in
Distributor has obtained the prior written consent of accordance with this Agreement, provided that
Company, (ii) the subdistributor agrees to not use Distributor will not use advertisements that have not
further subdistributors, (iii) Distributor enters into been approved in writing by Company.
written agreements with its subdistributors consistent
with the terms and conditions of this Agreement and (b) Inventory. Distributor will maintain an
acceptable in form and content to Company and (iv) inventory of Company Products and warehousing
Distributor strictly enforces the terms of such facilities sufficient to serve adequately the needs of its
agreements. Subject to the provisions in Section 12, customers on a timely basis. As a minimum, such
Distributor’s appointment shall be exclusive in and inventory shall include not less than the quantity of
limited to the Territory and shall include internet sales Company Products necessary to meet Distributor’s
to customers physically located in the Territory. reasonably anticipated demands for a thirty (30)-day
Distributor shall have no right to actively distribute period.
Company Products in the ‘duty-free’ channel. This
section does not restrict or limit any passive sales by (c) Distributor Personnel. Distributor will
Distributor. Company will take reasonable efforts in train and maintain a sufficient number of capable
accordance with all applicable laws to prevent third technical and sales personnel having the knowledge
party sales of Company Products in the Territory. and training necessary to: (i) inform customers
[Confirm with local counsel that this exclusivity properly concerning the features and capabilities of
provision is acceptable under local law.] Company Products and, if necessary, competitive
products; (ii) service and support Company Products in
(b) Company’ Reserved Rights. Company accordance with Distributor’s obligations under this
reserves the rights from time to time, in its sole Agreement; and (iii) otherwise carry out the obligations
discretion and without liability to Distributor, to and responsibilities of Distributor under this
change, or to add to or delete from the attached list of Agreement. Distributor and its staff will have a
Company Products upon reasonable written notice to reasonable understanding of the specifications, features
Distributor. and benefits of the Company Products and similar
products in general, and will develop sufficient
(c) Distributor Prices. Distributor will knowledge of the industry, of Company Products and
determine in its sole discretion the actual prices at of products competitive with Company Products
which Company Products will be sold to its customers. (including specifications, features and benefits) so as to
Distributor will notify Company of its current customer be able to explain in detail to its customers the
pricing on a quarterly basis when otherwise reasonably differences between Company Products and
requested by Company. [Confirm with local counsel competitive products.
that this language complies with applicable
competition laws.] (d) Meetings and Trade Show Attendance.
Distributor will at its expense: (i) attend, and
aggressively promote Company Products in, such trade
shows, conventions and exhibits as Company

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reasonably requests; and (ii) attend any sales meetings Distributor will handle and transport all Company
held by Company to which Company invites Products in a manner so as to preserve the quality of
Distributor with reasonable notice, including at least the products and will refrain from exposing the
one annual business planning meeting with a Company Company Products to excessive heat and sunlight.
regional manager.
(h) No Competing Products. Except as
(e) Distributor Financial Condition. expressly authorized in writing by Company,
Distributor will maintain and employ in connection Distributor will not represent or distribute during the
with Distributor’s business under this Agreement such term of this Agreement any products which in
working capital and net worth as may be required in Company’ reasonable opinion, compete, directly or
Company’ reasonable opinion to enable Distributor to indirectly with Company Products.
carry out and perform all of Distributor’s obligations
and responsibilities under this Agreement. Distributor (i) Distributor Covenants. Distributor
will furnish unaudited semi-annual financial statements will: (i) conduct business in a manner that reflects
and audited annual financial statements based upon the favorably at all times on Company Products and the
annual tax declaration and confirmed by a tax good name, good will and reputation of Company;
counselor to the Company, as well as such other (ii) avoid deceptive, misleading or unethical practices
financial reports and data as Company may reasonably that are or might be detrimental to Company, Company
request from time to time as necessary to determine Products or the public; (iii) make no false or
Distributor’s financial condition. misleading representations with regard to Company or
Company Products; (iv) not publish or employ, or
(f) Annual Business Plan. Attached to this cooperate in the publication or employment of, any
Agreement as Exhibit D is a Business Plan agreed to misleading or deceptive advertising material with
by Company and Distributor. The plan includes (1) a regard to Company or Company Products; (v) make no
12-month forecast for anticipated volumes and sales for representations, warranties or guarantees to customers
the Company Products, (2) anticipated sales channels or to the trade with respect to the specifications,
and retailers, and (3) a comprehensive marketing features or capabilities of Company Products that are
strategy for the promotion and distribution of the inconsistent with the literature distributed by
Company Products in the Territory, including Company; and (vi) not enter into any contract or
Distributor’s proposed advertising and pricing strategy. engage in any practice detrimental to the interests of
Distributor and Company will meet regularly (either in Company and Company Products as determined by
person or via telephone conference) to review and Company and as communicated by Company to
discuss the Business Plan Distributor.

(g) Packaging and Handling. Distributor (j) Compliance with Law. Distributor will
will distribute Company Products with all labeling, comply with all applicable international, national, state,
packaging, instructions, warnings and disclaimers regional and local laws and regulations in performing
intact as delivered to Distributor; provided, however, its duties hereunder and in any of its dealings with
that Distributor shall apply warning and use respect to Company Products.
instructions and other legal and marketing language
(including third-party seals or certifications) in the (k) Governmental Approval. Distributor
local language(s) as required by applicable law or as acknowledges and agrees that it may be necessary to
deemed necessary by Distributor and Company, which obtain certain approvals, notifications or registrations
additional instructions and language shall be approved to give legal effect to this Agreement or sell Company
by Company prior to application. Distributor shall be Products in the Territory. If any approval with respect
responsible for taking all actions necessary for to this Agreement, or the notification or registration
Distributor to obtain any such third-party seals or thereof, is required at any time during the term of this
certifications from any governmental or non- Agreement, with respect to giving legal effect to this
governmental entity on behalf of Company; provided Agreement or selling Company Products in the
however, Company will cooperate with Distributor in Territory, or with respect to compliance with exchange
providing information necessary for Distributor to regulations or other requirements so as to assure the
obtain such third-party seals or certifications. right of remittance abroad of the invoice currency
Distributor shall be responsible for complying with all under this Agreement, Distributor agrees to
applicable laws when applying any additional labeling immediately take whatever steps may be necessary to
information under this paragraph. Notwithstanding the obtain the approval, notification or registration.
foregoing, Distributor shall not apply any marketing Distributor will pay any charges incurred in connection
language, including third-party seals or certifications, with obtaining the approval, notification or registration.
on any product without obtaining the express written Distributor will keep Company currently informed of
approval of the certifying party and Company. its efforts in this regard. Company will be under no

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obligation to ship Company Products to Distributor Company Product distributed by Distributor and the
under this Agreement until Distributor has provided party maintaining possession or control of each
Company with satisfactory evidence that the approval, Company Product. Such records shall also include for
notification or registration is not required or that it has each customer in the Territory, the customer name and
been obtained. Company and Distributor acknowledge address.
and agree that any approval, notification or registration
is the property of Company and shall remain the 4. Purchase of Company Products.
property of Company upon expiration or termination of
this Agreement. Upon expiration or termination of this Distributor shall have the right to purchase Company
Agreement, Distributor will promptly execute and Products from Company pursuant to the terms and
deliver all documents reasonably requested by conditions of sale attached as Exhibit B of this
Company that may be appropriate and necessary to Agreement. Distributor agrees to purchase, market and
change the reference of the authorized distributor on sell Company Products from all product categories
the approval, notification or registration to any person made available for distribution by Company in the
Company designates. Territory[, including but not limited to _______]. The
terms and conditions of this Agreement, including
(l) Market Conditions. Distributor will without limitation Exhibit B, and of the applicable
advise Company promptly concerning any market Company invoice or confirmation, will apply to each
information that comes to Distributor’s attention order accepted or shipped by Company hereunder.
respecting Company, Company Products, Company’
market position or the continued competitiveness of 5. Prices, Statements and Records.
Company Products in the marketplace. Distributor will
confer with Company from time to time at the request (a) Prices. During the term of this
of Company on matters relating to market conditions, Agreement, prices to Distributor for the Company
sales forecasting and product planning relating to Products shall be as stated in Exhibit A of this
Company Products. Agreement. Company may change its prices to
Distributor from time to time upon at least ninety
(m) Costs and Expenses. Except as (30) days’ prior written notice. [Confirm that this
expressly provided herein or agreed to in writing by provision is acceptable under local taw laws.]Prices
Company and Distributor, Distributor will pay all costs as stated in Exhibit A or amendments thereto are not
and expenses incurred in the performance of necessarily all-inclusive and do not specifically
Distributor’s obligations under this Agreement. include, without limitation, those costs, fees and
charges otherwise allocated to Distributor under this
3. Inspections, Records and Reporting. Agreement and in accordance with the delivery terms
and conditions, unless otherwise expressly stated in a
(a) Reports. Within thirty (30) days of the separate writing. All prices are quoted and shall be paid
end of each fiscal quarter, Distributor will provide to in € unless otherwise specified by Company.
Company a written quarterly report showing, for the
time periods Company reasonably requests: (b) Payment for Purchased Company
Distributor’s shipments of Company Products by sales Products. For all Company Products purchased by
value, units, customers, pricing and terms, both in the Distributor pursuant to Section 4, Distributor shall pay
aggregate and for such categories as Company may Company pursuant to the terms and conditions set forth
designate from time to time. in Exhibit B of this Agreement.

(b) Notification. Distributor will: (c) Books of Account and Other Records.
(i) notify Company in writing of any claim or
proceeding involving Company Products within ten (i) Distributor shall keep full and
(10) days after Distributor learns of such claim or accurate books of account and all documents and other
proceeding; and (ii) report promptly to Company all material relating to this Agreement at Distributor’s
claimed or suspected product defects. principal office at all times during the initial and all
renewal terms of this Agreement, if any, and for two
(c) Records. Distributor will maintain, for (2) years thereafter. During business hours and upon
at least two (2) years after termination of this reasonable notice, Company or its authorized
Agreement, its records, contracts and accounts relating representatives shall have the right to examine and
to distribution of Company Products, and will permit make necessary copies of such books, documents and
examination thereof by authorized representatives of other material for so long as this Agreement is in effect
Company at all reasonable times. Such records will and for a period of two (2) years thereafter.
include, without limitation, the location of each

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(ii) Company acknowledges that act or assistance to any act, which may infringe or lead
Distributor’s records are strictly confidential, and to the infringement of any of Company’ proprietary
neither Company nor its representatives shall reveal rights). Distributor agrees to adhere to Company
any of the contents of such records to third parties policies and instructions regarding use of the Company
except insofar as necessary to enforce Company’ rights IP, as may be published or communicated to Distributor
under this Agreement or to register, protect or enforce from time to time. All uses of the Company IP shall
Company’ rights in Company Products. inure to the benefit of Company.

6. Trademarks, Trade Names, Logos, (c) No Continuing Rights. Upon


Designations and Copyrights. expiration or termination of this Agreement, Distributor
will immediately cease all display, advertising and use
(a) Use During Agreement. During the of all Company IP and will not thereafter use, advertise
term of this Agreement, Distributor is authorized by or display any trademark, trade name, logo or
Company to use the trademarks, trade names, logos, designation which is, or any part of which is, similar to
designations and copyrights Company uses for or confusing with any trademark, trade name, logo or
Company Products (the “Company IP”) in connection designation associated with any Company Product.
with Distributor’s advertisement, promotion, packaging
and distribution of Company Products in the Territory. (d) Obligation to Protect. Distributor
Distributor shall not use any advertising, promotional, agrees to use reasonable efforts to protect Company’
packaging or other materials for Company Products proprietary rights and to cooperate at Distributor’s
without Company’ prior written approval. Distributor’s expense in Company’ efforts to protect its proprietary
use of the Company IP will be in accordance with rights. Distributor agrees to promptly notify Company
Company’ policies in effect from time to time, of any known or suspected breach of Company’
including but not limited to trademark usage and proprietary rights that comes to Distributor’s attention.
cooperative advertising policies. Distributor agrees not Company may initiate or refrain from initiating at its
to attach any additional trademarks, trade names, logos sole discretion any legal actions against infringement
or designations to any Company Product. Distributor of Company IP.
also agrees not to use any Company IP on any internet
website or outside the Territory without the prior 7. No Assignment.
written approval of Company. Distributor further
agrees not to use any Company IP in connection with Company has entered into this Agreement with
any non-Company product. Distributor further agrees Distributor because of Distributor’s commitments in
not to use or register any domain names which use or this Agreement, and further because of Company’
include Company IP without the prior written consent confidence in Distributor, which confidence is personal
of Company. A list of Company’ current trademarks is in nature. Distributor may not assign its rights or
set forth on Exhibit C to this Agreement. Exhibit C delegate its duties under this Agreement without the
may be amended from time to time by Company by prior written consent of Company. The provisions of
written notice to Distributor. this Agreement shall be binding upon and inure to the
benefit of the parties, their successors and permitted
(b) Distributor Does Not Acquire assigns.
Proprietary Rights. Distributor has paid no
consideration for the use of the Company IP, and 8. Duration and Termination of
nothing contained in this Agreement will give Agreement.
Distributor any right, title or interest in any of the
Company IP. Distributor shall not use in the Territory (a) Term. The term of this Agreement shall
any trademarks, tradenames, logos, company names, commence on the Effective Date and will expire
domain names or other designations nor attempt to automatically on [Expiration Date] [Generally a one
register any trademarks, trade names, logos, company year term absent compelling circumstances. If local
names, domain names or other designations so counsel is comfortable that local law permits
resembling Company’ IP as to likely cause confusion termination upon breach without undue efforts,
or deception. Distributor acknowledges that Company term of up to three years is acceptable, with no
owns and retains all Company IP and other proprietary renewal rights specified.] without renewal or
rights in or associated with Company Products, and extension absent the written agreement of the parties.
agrees that it will not at any time during or after this Nothing shall be interpreted as requiring either party to
Agreement claim any interest in or do anything that renew or extend this Agreement. If the parties
may adversely affect the validity of any Company IP or mutually agree to extend the term of this Agreement,
any other Company trademark, trade name, logo, they shall execute an amendment to this Agreement
domain name, designation or copyright belonging to or reflecting such terms of agreement and such
licensed to Company (including, without limitation any

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amendment must contain a new pricing list and a new (c) Termination for Convenience by either
Business Plan agreed to by Distributor and Company. party. Either Company or Distributor may terminate
Notwithstanding the provisions of this Section 8(a), or this Agreement at its sole discretion for any reason
any other provisions of this Agreement, this Agreement whatsoever upon sixty (60) days written notice to the
may be terminated prior to the expiration of its stated other party without any liability to the other party.
term as set forth below. [Discuss with local counsel how to draft this term to
provide the maximum likelihood of enforceability in
(b) Company Termination For Cause. the jurisdiction.]
Company may terminate this Agreement at any time
prior to the expiration of its stated term in the event (d) Automatic Termination. This
that: Agreement terminates automatically, with no further
act or action of either party, if a receiver is appointed
(i) Distributor defaults in any payment for Distributor or its property, Distributor makes an
due to Company and such default continues assignment for the benefit of its creditors, any
unremedied for a period of ten (10) days following proceedings are commenced by, for or against
written notice of such default; Distributor under any bankruptcy, insolvency or
debtor’s relief law, or Distributor is liquidated or
(ii) Distributor fails to perform any other dissolved.
obligation, warranty, duty or responsibility or is in
default with respect to any term or condition (e) Orders After Termination Notice or
undertaken by Distributor under this Agreement and Notice of Default. In the event that any notice of
such failure or default continues unremedied for a termination or notice of default of this Agreement is
period of thirty (30) days following written notice of given, Company will be entitled to reject all or part of
such failure or default; any orders placed thereafter and to cancel any
previously accepted orders. Notwithstanding any
(iii) Any bill or regulation granting credit terms made available to Distributor prior to such
Distributor extracontractual compensation upon notice, any Company Products shipped thereafter shall
termination or expiration of this Agreement is be paid for by certified check, cashier’s check, or wire
introduced into law by the legislature or other transfer prior to shipment.
governing body of the Territory.
(f) Effect of Termination or Expiration.
(iv) Distributor at any time challenges the Upon termination or expiration of this Agreement:
validity of any Company IP or other proprietary rights
in or associated with the Company Products; (i) Company, at its option and at any
time after such termination or expiration, may
(v) Distributor sells all or substantially reacquire any or all Company Products shipped to
all of its assets, or undergoes a Change of Control, or Distributor by Company then in Distributor’s inventory
dissolves, liquidates or is distributed.. For purposes of at prices not greater than the prices paid by Distributor
this section, a Change of Control shall mean (a) for such products (or, if the products are not in
acquisition by a third party of a majority of the share unopened factory sealed boxes, fifty percent (50%) of
ownership or equity interest in Distributor, (b) Control such prices). Upon receipt of any Company Products
by a third party of a majority of members of the board so reacquired from Distributor, Company shall issue an
of directors or other management body of a Party; or appropriate credit to Distributor’s account with respect
(c) merger by Distributor with a third party (excluding to amounts owed to Company by Distributor, if any,
those third parties whose net assets are less than fifty and Company shall pay any remaining amounts owed
percent (50%) of those of Distributor). Control shall by Company, if any, for such repurchased Company
mean the possession, directly or indirectly, of power to Products within thirty (30) days of Company’ receipt of
direct or cause the direction of management or policies such Company Products.
(whether through ownership of securities or otherwise);
or (ii) The due dates of all outstanding
invoices to Distributor for Company Products
(vi) Distributor fails to meet the automatically will be accelerated so they become due
minimum sales volume for the Company Products for and payable on the effective date of termination or
two (2) consecutive quarters. The minimum sales expiration, even if longer terms had been provided
volume shall be 70% of the forecasted sales volume in previously. All orders or portions thereof remaining
the Business Plan in Attachment D. unshipped as of the effective date of termination shall
automatically be cancelled.

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(iii) For a period of two (2) years after the INDUCEMENT FOR COMPANY TO ENTER INTO
date of termination or expiration, Distributor shall THIS AGREEMENT AND THAT COMPANY
make available to Company for inspection and copying WOULD NOT HAVE ENTERED INTO THIS
all books and records of Distributor, including all AGREEMENT BUT FOR THE LIMITATIONS OF
customer lists, statements of trade terms and those LIABILITY AS SET FORTH HEREIN.
books and records that pertain to Distributor’s
performance of and compliance with its obligations, For the avoidance of doubt, any termination of this
warranties and representations under this Agreement. Agreement shall be without prejudice to any rights
accrued in favor of either party in respect of any breach
(iv) Distributor shall cease using any and committed prior to the date of such termination by the
all Company IP. other party including (without limitation) the breach
giving rise to termination. [Work with local counsel to
(v) To the extent permissible by amend this language as necessary to comply with
applicable law, Distributor shall refrain from soliciting local law and to minimize the likelihood of
any employees or consultants of Company for the termination payments.]
duration of the Term of this Agreement.
(h) Survival. Company’ rights and
Distributor’s obligations to pay Company all amounts
(vi) Distributor’s confidentiality obligati-
due hereunder, as well as any other provisions which
ons in Section 13 below shall continue indefinitely.
by their nature may reasonably be interpreted to
(g) No Damages For Termination or survive termination shall survive termination or
Expiration. NEITHER COMPANY NOR expiration of this Agreement.
DISTRIBUTOR SHALL BE LIABLE TO THE
OTHER FOR DAMAGES OF ANY KIND, (i) Relationship of the Parties.
INCLUDING INCIDENTAL OR CONSEQUENTIAL Distributor’s relationship with Company during the
DAMAGES, ON ACCOUNT OF THE term of this Agreement will be that of an independent
TERMINATION OR EXPIRATION OF THIS contractor and will not be construed to be one of
AGREEMENT IN ACCORDANCE WITH THIS employment, partnership, joint venture, agency or
SECTION 8. DISTRIBUTOR WAIVES ANY RIGHT similar relationship. Distributor will not have, and will
IT MAY HAVE TO RECEIVE ANY COMPEN- not represent that it has, any power, right or authority
SATION OR REPARATIONS ON TERMINATION to bind Company, or to assume or create any obligation
OR EXPIRATION OF THIS AGREEMENT UNDER or responsibility, express or implied, on behalf of
THE LAW OF THE TERRITORY OR OTHERWISE, Company or in Company’ name, except as herein
OTHER THAN AS EXPRESSLY PROVIDED IN expressly provided.
THIS AGREEMENT. Neither Company nor
Distributor will be liable to the other on account of 9. Indemnification.
termination or expiration of this Agreement for
reimbursement or damages for the loss of goodwill, Distributor and Company agree to defend, indemnify
prospective profits or anticipated income, or on and hold harmless each other and their respective
account of any expenditures, investments, leases or Affiliates (as defined in Section 12(h)), and their
commitments made by either Company or Distributor officers, directors, employees, shareholders and agents,
or for any other reason whatsoever based upon or against any claims, demands, losses, liabilities, costs
growing out of such termination or expiration. (including reasonable attorneys’ fees and related costs),
Distributor acknowledges that: (i) Distributor has no damages, suits and judgments arising out of or related
expectation and has received no assurances that any to their negligent or intentional acts, omissions or
investment by Distributor in the promotion of misrepresentations, or their breach of any of the
Company Products will be recovered or recouped, that provisions of this Agreement, regardless of the form of
Distributor will obtain any anticipated amount of action.
profits by virtue of this Agreement or that Company
has agreed (explicitly or implicitly) to extend or renew 10. Warranties.
the Term beyond the duration specified herein or to
preserve the same exclusivity provisions in any (a) Warranties. Distributor represents and
extended or renewed Term; and (ii) Distributor will not warrants that: (i) Distributor has the knowledge,
have or acquire by virtue of this Agreement or experience, expertise, and resources to perform all of
otherwise any vested, proprietary or other right in the its obligations under this Agreement; (ii) Distributor
promotion of Company Products or in “goodwill” has full power and authority to execute, deliver and
created by its efforts hereunder. THE PARTIES perform this Agreement; it is a corporation duly
ACKNOWLEDGE THAT THIS SECTION HAS organized, validly existing and in good standing under
BEEN INCLUDED AS A MATERIAL the laws governing its incorporation and has full

6
corporate power and authority to execute, deliver and (c) Distributor agrees that the limitations
perform this Agreement; (iii) the execution, delivery of liability and disclaimers of warranty set forth in this
and performance of this Agreement have been duly Agreement will apply regardless of whether Company
authorized by all necessary action of Distributor and has tendered delivery of Company Products or
Distributor is qualified to do business in all Distributor has accepted any Company Product.
jurisdictions where such qualification is required for its Distributor acknowledges that Company has set its
performance hereunder; and (iv) Distributor holds, and prices and entered into this Agreement in reliance on
throughout the term of this Agreement shall maintain, the disclaimers of liability, the disclaimers of warranty
all required permits, licenses, approvals or other and the limitations of liability set forth in this
authorizations, and is in compliance with all necessary Agreement and that the same form the basis of the
legal or other requirements necessary to perform its bargain between the parties.
obligations under this Agreement.
12. Territorial Restrictions
(b) Disclaimer of Warranties. COMPANY
MAKES NO WARRANTIES OR REPRESEN- (a) Sales Outside the Territory. Distributor
TATIONS AS TO PERFORMANCE OF COMPANY may not actively sell Company Products to customers
PRODUCTS. TO THE EXTENT PERMITTED BY located in countries outside of the Territory where
APPLICABLE LAW, ALL IMPLIED WARRANTIES, Company has allocated to a distributor or reserved for
INCLUDING BUT NOT LIMITED TO IMPLIED itself exclusive distribution rights for Company
WARRANTIES OF MERCHANTABILITY, FITNESS Products (the “Allocated Territories”). As of the date
FOR A PARTICULAR PURPOSE AND hereof, the Allocated Territories include __________.
NONINFRINGEMENT, ARE HEREBY EXCLUDED Company will promptly notify Distributor upon any
BY COMPANY. changes to the Allocated Territories. Prior to executing
any active sales to customers outside the Allocated
(c) Distributor Warranty. Distributor will Territories located outside of the European Union,
make no warranty, guarantee or representation, whether Distributor must obtain confirmation in writing from
written or oral, on Company’ behalf. Company that the territory of the proposed sale has not
been added to the list of Allocated Territories. For the
11. Limited Liability. avoidance of doubt, an Internet presence by the
Distributor advertising the Products is not considered
(a) COMPANY WILL NOT BE LIABLE as an active sale.
FOR ANY LOST PROFITS OR FOR ANY DIRECT,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, (b) Sales to Third Parties. Distributor shall
PUNITIVE OR OTHER SPECIAL DAMAGES not, directly or indirectly (through brokers, distributors
SUFFERED BY DISTRIBUTOR, ITS CUSTOMERS or otherwise), actively sell or agree to sell any of the
OR OTHERS ARISING OUT OF OR RELATED TO Company Products to any wholesaler, consignee,
THIS AGREEMENT OR COMPANY PRODUCTS, broker, retailer, customer or other third party buyer
FOR ALL CAUSES OF ACTION OF ANY KIND who Distributor knows, or has reason to know:
(INCLUDING TORT, CONTRACT, NEGLIGENCE, (i) intends to receive delivery of such Company
STRICT LIABILITY AND BREACH OF WAR- Products in the Allocated Territories; or (ii) sells or
RANTY) EVEN IF COMPANY HAS BEEN intends to sell such Company Products into the
ADVISED OF THE POSSIBILITY OF SUCH Allocated Territories. Without limiting the foregoing,
DAMAGES. Distributor hereby represents, warrants, covenants and
guarantees that any and all Company Products
(b) EXCEPT FOR LIABILITY FOR delivered to Distributor by Company will be
PERSONAL INJURY OR PROPERTY DAMAGE transported by Distributor only in sealed containers en
ARISING FROM COMPANY’ GROSS NEGLI- route to a final destination.
GENCE OR WILLFUL MISCONDUCT, IN NO
EVENT WILL COMPANY’ TOTAL CUMULATIVE (c) Notification. Distributor shall notify
LIABILITY IN CONNECTION WITH THIS Company in writing of any active sales in the Allocated
AGREEMENT OR COMPANY PRODUCTS, FROM Territories by any person or entity of any of the
ALL CAUSES OF ACTION OF ANY KIND, Company Products sold to Distributor, promptly upon
INCLUDING TORT, CONTRACT, NEGLIGENCE, becoming aware thereof.
STRICT LIABILITY AND BREACH OF
WARRANTY, EXCEED THE TOTAL AMOUNT (d) Liquidated Damages. Distributor
PAID BY DISTRIBUTOR HEREUNDER. acknowledges and agrees that in the event of any
breach of Section 12 by the Distributor, Company
would suffer substantial damage, including but not
limited to loss of sales of Company products intended

7
for sale in the Allocated Territories, which damages where the Company Products sold in breach of this
would be extremely difficult and impracticable to Section 12 may be found; and (3) to seize and
ascertain with any specificity. Therefore, Distributor otherwise stop the importation of such products
and Company, by initialing where provided below, through administrative action, including, but not
hereby agree that in the event of any breach by limited to, U.S. Customs Service procedures and non-
Distributor of the above provisions of Section 12 of U.S. customs procedures.
this Agreement, and in addition to the remedies
available under Subsection (g) below, Company shall (g) Subdistribution Agreements.
be entitled to liquidated damages in an amount equal to Distributor shall, expressly for the benefit of Company
the greater of (a) € 50.000 or (b) 35% of the Company and its Affiliates, include in its contracts with its
wholesale price (excluding all discounts) for Company subdistributors, brokers and other applicable third
Products sold by Distributor or its designee in breach parties, a prohibition against active sales of any of the
of Section 12, which method of determining damages Company Products into the Allocated Territories in
is accepted and acknowledged by Distributor as substantially the form set forth in the above provisions
reasonable under the circumstances, and which of Section 12 of this Agreement, and shall further take
damages shall be in lieu of actual damages suffered by such action as reasonably necessary to prevent such
Company as a result of such breach. This Section 12 active sales, including, without limitation, the refusal to
(d) shall not apply where Distributor demonstrates that deliver more Company Products to subdistributors,
the sale to the Allocated Territories was not an active brokers and other third parties who have engaged in
sale but an unsolicited request from a customer in the such active sales. Company and its Affiliates shall
Allocated Territories. expressly be made third party beneficiaries of such
contracts. As used in this Agreement, an “Affiliate”
Company, initial here: ( ) means any entity that directly or indirectly controls, is
directly or indirectly controlled by, or is under common
Distributor, initial here: ( )
control with, Company.
(e) Application of Payments. Without
limiting any other provision hereof, Company shall 13. Confidentiality
have the right to apply any advance payments received
from Distributor for outstanding purchase orders (a) Confidential Information.
against any damages claimed owing hereunder, “Confidential Information” consists of: (i) any
regardless of whether Company was aware of any information designated in writing by either party as
breach of this Agreement at the time it accepted any proprietary or confidential, or if orally disclosed,
such outstanding order and any payment therefore, in identified at the time of disclosure as proprietary or
which event Company shall be relieved of any confidential and confirmed in writing to have been
obligation to satisfy such order without liability of any confidential within thirty (30) days of disclosure;
kind to Distributor. (ii) Company’ business and marketing plans with
respect to Company Products and any other products;
(f) Breach. Distributor acknowledges and and (iii) the terms and conditions of this Agreement.
agrees that the active sale of Company Products into
the Allocated Territories constitutes a breach of this (b) Restrictions. Except as expressly
Agreement and a violation of Company’ rights and, authorized in writing, neither Company nor Distributor
among other things, will interfere with Company’ shall disclose to any person or entity or use any
contractual relations with third parties and with Confidential Information of the other party except as
Company’ competitive advantage. In order to assure reasonably necessary to perform and exercise its rights
that Company’ rights are protected, Distributor agrees and obligations hereunder or to comply with applicable
that, in addition to Company’ right to liquidated law or government authorities. Neither Company nor
damages as provided for herein, and without otherwise Distributor shall disclose any Confidential Information
derogating from or limiting Company’ rights under to any person or entity that has not agreed in writing to
Section 8 above, in the event of any breach by keep such information confidential. Any reproduction
Distributor of the above provisions of Section 12 of or copy of Confidential Information shall carry the
this Agreement, Company shall have the following same proprietary and/or confidential notices and
rights: (1) to terminate this Agreement and collect any legends that appear on the original.
unpaid amounts for Company Products sold and
delivered by Company to Distributor; (2) to obtain (c) Nonconfidential Information. The
injunctive relief, a decree of specific performance or foregoing restrictions shall not apply to information
any other equitable remedy available under the that: (i) is already known to the receiving party
applicable law before a court or governmental entity of without restriction on use or disclosure at the time of
competent jurisdiction, including without limitation a communication to the receiving party; (ii) is or
court or governmental entity located in the locale becomes publicly known through no wrongful act or

8
inaction of the receiving party; (iii) has been rightfully Each party shall bear its own costs and expenses
received from a third party authorized to make such (including filing fees) with respect to the arbitration,
communication, without restriction on use or including one-half of the fees and expenses of the
disclosure; or (iv) has been independently developed Arbitral Tribunal; provided, however, that the Arbitral
by the receiving party. The receiving party shall have Tribunal shall have the authority to award, as part of
the burden of proving the existence of the foregoing the Arbitral Tribunal’s decision, to the prevailing party
exceptions. its costs and expenses of the arbitration proceeding,
including reasonable attorneys’ fees and experts’ fees.
(d) Injunctive Relief. The parties agree The Arbitral Tribunal shall render its award based on
that any breach of the restrictions contained in this the explicit terms of this Agreement; and in instances
Section 13 will cause irreparable harm to the non- where it is silent, on the basis of strict principles
breaching party entitling such party to injunctive relief consistent with the terms of the Agreement. The
in addition to all other legal remedies. Arbitral Tribunal shall be bound by strict rules of law
in making its decision, and may not pronounce
14. Governing Law and Dispute judgment on equitable principles or the basis of ex
Resolution. aqueo et bono. The Arbitral Tribunal shall have the
authority to include in its award a decision binding
(a) The validity, interpretation, and upon the parties enjoining them to take or refrain from
performance of this Agreement will be determined in taking specific action with respect to the Dispute or
accordance with the laws of [to be determined by declaring their rights, responsibilities and liabilities as
local counsel], without regard to conflict of laws rules to the Dispute. The Arbitral Tribunal shall state the
and principles and excluding the Convention on reasons for its decision in writing in the award it issues.
Contracts for the International Sale of Goods. The award of the Arbitral Tribunal shall be final and
shall be enforceable in any court of competent
(b) Any dispute, claim, controversy or jurisdiction and the parties agree not to appeal,
difference regarding the interpretation or validity of, challenge, contest, or otherwise seek relief from the
the alleged breach of, or otherwise arising out of or award in any court; subject only to the provisions in
relating to this Agreement (“Dispute”) that the parties this section and applicable law.
are unable to resolve through direct negotiations shall
be resolved by binding arbitration pursuant to this (e) The provisions of this section will not
section. Either party may demand arbitration by giving be construed to prevent a party from (i) undertaking
the other party notice to such effect, which notice shall litigation seeking a temporary restraining order or
describe, in reasonable detail, the facts and legal preliminary injunctive relief or other preliminary
grounds forming the basis for the demanding party’s equitable relief or preliminary specific performance,
request for relief and shall include a statement of the pending an award by the Arbitral Tribunal, with respect
total amount of damages claimed, if any, and any other to a breach (or attempted breach or alleged breach) of
remedy sought by that party. this Agreement by the other party, or (ii) undertaking
litigation or other formal proceedings to the extent
(c) The arbitration shall be held in Belgium necessary (a) to enforce the award of the Arbitral
(at the registered office of Cedires, except if the arbitral Tribunal or (b) to avoid the expiration of any
tribunal decides to have the arbitration elsewhere, after applicable limitations period. Except for such matters,
consulting with the parties) before an Arbitral Tribunal the parties agree that the provisions of this section are a
consisting of three arbitrators, who shall be appointed complete defense to any suit, action or other
as provided for in the Procedural Rules of the Center proceeding instituted in any court or before any
for Dispute Resolution (Cedires, www.cedires.be). The administrative tribunal with respect to any Dispute as
arbitration shall be governed by the Procedural Rules defined herein.
of Cedires, except as expressly provided in this section.
The language of the arbitration shall be English. 15. General.
Pending the Arbitral Tribunal’s determination of the
merits of the Dispute, either party may apply to any (a) Waiver. The waiver by either party of
court of competent jurisdiction to seek injunctive or any default by the other shall not waive subsequent
other extraordinary relief. defaults of the same or different kind.

(d) The decision of, and award rendered (b) Notices. All notices and demands
by, the Arbitral Tribunal shall be final and binding on hereunder will be in writing and will be served by
the parties and shall not be subject to appeal except as personal service, mail or confirmed facsimile
agreed herein. Judgment on the award may be entered transmission at the address of the receiving party set
in and enforced by any court of competent jurisdiction. forth in this Agreement (or at such different address as
may be designated by such party by written notice to

9
the other party). All notices or demands by mail shall Company irreparable injury for which there are
be by certified or registered airmail, return receipt inadequate remedies at law, and that notwithstanding
requested and shall be deemed complete upon receipt. the provisions of Section 14, in the case of any such
breach, Company will be entitled to equitable relief
(c) Attorneys’ Fees. In the event any (including injunctive relief) from a court of law in
arbitration or litigation is brought by either party in addition to all other remedies provided by this
connection with this Agreement, the prevailing party in Agreement or available at law.
such arbitration or litigation shall be entitled to recover
from the other party all the costs, reasonable attorneys’ (g) Entire Agreement. This Agreement
fees and other expenses incurred by such prevailing constitutes the complete and exclusive agreement
party in the arbitration or litigation, and all other costs between the parties pertaining to the subject matter
and expenses related thereto. hereof, and supersedes in their entirety any and all
written or oral agreements previously existing between
(d) Severability. If any term or provision the parties with respect to such subject matter.
of this Agreement shall be found to be invalid, illegal Distributor acknowledges that it is not entering into
or otherwise unenforceable, such finding shall not this Agreement on the basis of any representations not
effect the other terms or provisions of this Agreement, expressly contained herein. Any modifications of this
or the whole of this Agreement, but such term or Agreement must be in writing and signed by both
provision shall be deemed modified to the extent parties hereto. Any such modification shall be binding
necessary to render such term or provision enforceable, upon Company only if and when signed by one of its
and the rights and obligations of the parties shall be duly authorized officers.
construed and enforced accordingly, preserving to the
fullest permissible extent the intent and agreements of (h) Choice of Language. The original of
the parties set forth in this Agreement. this Agreement has been written in English.
Distributor waives any right it may have under the law
(e) Force Majeure. Company shall not be of Distributor’s Territory to have this Agreement
responsible for any failure to perform due to written in the language of Distributor’s Territory.
unforeseen circumstances or to causes beyond
Company’ reasonable control, including but not limited (i) Due Execution. The party executing
to acts of God, war, riot, embargoes, acts of civil or this Agreement represents and warrants that he or she
military authorities, fire, floods, accidents, strikes, has been duly authorized under Distributor’s charter
failure to obtain export licenses or shortages of documents and applicable law to execute this
transportation, facilities, fuel, energy, labor or Agreement on behalf of Distributor.
materials. In the event of any such delay, Company
may defer the delivery date of orders for Company (j) Reliance on Counsel. Distributor
Products for a period equal to the time of such delay. acknowledges that it has had the opportunity to consult
with counsel in negotiating this Agreement and it
(f) Equitable Relief. Distributor represents and warrants that it has read, knows,
acknowledges that any breach of its obligations under understands, and agrees with the terms and conditions
this Agreement with respect to the proprietary rights or of this Agreement.
Confidential Information of Company will cause

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the Effective Date.

COMPANY DISTRIBUTOR

Signature:_____________________________ Signature:___________________________

[Name]
[Title]

10
EXHIBIT A

COMPANY PRODUCTS

[Insert Pricing List]


EXHIBIT B

TERMS AND CONDITIONS OF SALE

1. Order Procedure. 2. Prices, Quantities and Payment.

(a) Company Acceptance. Distributor shall (a) Prices to Distributor. During the term of this
submit binding purchase orders for Company Products Agreement, prices to Distributor for the Company
no later than forty-five (45) days prior to the desired Products shall be as stated in Exhibit A of this
ship date. All orders for the Company Products by Agreement. Company may change its prices to
Distributor shall be subject to acceptance in writing or Distributor from time to time upon at least thirty
in an e-mail message by Company at its principal place (30) days’ prior written notice. Prices as stated in
of business and shall not be binding until the earlier of Exhibit A or amendments thereto are not necessarily
such acceptance or shipment, and, in the case of all-inclusive and do not specifically include, without
acceptance by shipment, only as to the portion of the limitation, those costs, fees and charges otherwise
order actually shipped. Distributor shall provide allocated to Distributor under this Agreement and in
Company with a rolling ninety-day forecast every accordance with the delivery terms and conditions,
thirty (30) days. unless otherwise expressly stated in a separate writing.

(b) Controlling Terms. The terms and conditions (b) Price Increase and Decrease. In the event
of this Agreement, including without limitation this Company increases the price to Distributor for any
Exhibit, and of the applicable Company invoice or Company Products, the increase shall apply to any
confirmation shall apply to each order accepted or order received by Company after the effective date of
shipped by Company hereunder. The provisions of the increase. In the event Company decreases the price
Distributor’s form of purchase order or other business to Distributor for any Company Products, the decrease
forms shall not apply to any order notwithstanding shall apply to all units of such product ordered after the
Company’ acknowledgment or acceptance of such effective date of the decrease.
order, except for the following terms which Company
shall accept with respect to each order pursuant and (c) Payment Terms. All payments shall be made
subject to the provisions of this Exhibit: (i) quantity in the invoice currency, free of any currency control or
and type of Company Products ordered; and other restrictions. Distributor shall at the time of
(ii) requested delivery dates. submission of any order for the Company Products
hereunder, pay by certified check or wire transfer to a
(c) Cancellation. Company reserves the right to bank account designated by Company the amount of
cancel any orders placed by Distributor and accepted the aggregate prices of the Company Products ordered
by Company as set forth above, or to refuse or delay (plus any applicable taxes and other charges).
shipment thereof, if Distributor (i) fails to make any
payment as provided in this Agreement or under the
terms of payment set forth in any invoice or otherwise
agreed to by Company and Distributor, (ii) fails to meet
reasonable credit or financial requirements established
by Company, including any limitations on allowable
credit, or (iii) otherwise fails to comply with the terms
and conditions of this Agreement. Company also
reserves the right to discontinue the manufacture or
distribution of any or all Company Products at any time
with respect to the Territory, and to cancel any orders
for such discontinued Company Products without
liability of any kind to Distributor or to any other
person. Company shall exercise commercially
reasonable efforts to provide Distributor with advance
notice of any such discontinuation. No such
cancellation, refusal or delay shall be deemed a
termination (unless Company so advises Distributor) or
breach of this Agreement by Company.
(d) Credit Terms. Upon credit approval by (g) Interest. Interest shall accrue on any
Company, shipments may be made on Company’ credit delinquent amounts owed by Distributor for Company
terms in effect at the time an order is accepted. Products at the rate of fifteen percent (15%) per annum
Company reserves the right, upon written notice to or the maximum rate permitted by applicable law.
Distributor, to declare all sums immediately due and [Local law to confirm that rate is acceptable.]
payable in the event of a breach by Distributor of any
of its payment obligations to Company. Furthermore, (h) No Setoff. Distributor shall not setoff or
Company reserves the right at all times either generally offset against Company’ invoices any amounts that
or with respect to any specific order by Distributor to Distributor claims are due to it. Distributor shall bring
vary, change or limit the amount or duration of credit to any claims or causes of action it may have in a separate
be allowed to Distributor. Distributor agrees to pay for action and waives any right it may have to offset, setoff
the Company Products as invoiced. Subject to the or withhold payment for the Company Products
provisions of this subsection, as of the effective date of delivered by Company.
this Agreement, Company’ credit terms with respect to
Distributor shall be [CHOOSE ONE: [CASH UPON 3. Shipment, Risk of Loss, Delivery, and Inspection.
DELIVERY] [NET THIRTY (30) DAYS FROM THE
INVOICE DATE WITH DOCUMENTARY (a) Shipment. All Company Products shall be
COLLECTION] [NET THIRTY (30) DAYS FROM delivered to Distributor or Distributor’s carrier at
INVOICE DATE WITH LETTER OF CREDIT] [NET Company facilities or the facilities of a third party
THIRTY (30) DAYS FROM THE INVOICE DATE].]. manufacturer that manufactures the Company Products
on Company’ behalf (the “Company Manufacturer”).
(e) Taxes and Tariffs. Company’ prices do not Distributor shall arrange and pay for all shipping of
include any national, state or local sales, use, value Company Products, EXW (Incoterms 2000).
added or other taxes, customs duties, or similar tariffs Distributor shall select the mode of shipment and the
and fees which Company may be required to pay or carrier. Notwithstanding the parties’ use of the EXW
collect upon the delivery of Company Products or upon term in this Agreement, Distributor shall be responsible
collection of the prices or otherwise. Should any tax or for payment of all packing, shipping, freight insurance
levy be made, Distributor agrees to pay such tax or charges, export duties, and any other expenses incurred
levy and indemnify Company for any claim for such by Company in delivering the Company Products to
tax or levy demanded. Distributor represents and the delivery site (“Shipping Charges”). At Company’
warrants to Company that all Company Products sole option and discretion, Distributor shall either
acquired hereunder are for redistribution in the reimburse Company or the Company Manufacturer for
ordinary course of Distributor’s business, and all Shipping Charges or pay all Shipping Charges in
Distributor agrees to provide Company with advance.
appropriate resale certificate numbers and other
documentation satisfactory to the applicable taxing (b) Title and Risk of Loss. Title and all risk of
authorities to substantiate any claim of exemption from loss of or damage to the Company Products ordered by
any such taxes or fees. Distributor shall pay any Distributor shall pass to Distributor upon delivery of
withholding taxes required by applicable law. the Company Products by Company or the Company
Distributor shall supply Company with evidence of Manufacturer at the disposal of Distributor or
such payment of withholding tax, in a form acceptable Distributor’s carrier at the delivery site.
to Company to meet the requirements for claiming
foreign tax credits on Company’ federal income tax (c) Delivery. Company shall use reasonable
return. efforts to meet Distributor’s requested delivery
schedules for the Company Products, but any dates
(f) Return Policy. Distributor agrees that all units quoted for delivery of the Company products are
of the Company Products are non-returnable. In the approximate only and time for delivery shall not be of
event Distributor receives defective units of Company the essence. Company reserves the right to refuse,
Products, Distributor shall provide evidence of such cancel or delay shipment to Distributor when
defects to Company for approval, identifying the type Distributor’s credit is impaired, when Distributor is
of defect and number of defective units. If Company delinquent in payments or fails to meet other credit or
agrees that such units are defective, Company will financial requirements established by Company, or
provide further written instruction to Distributor when Distributor has failed to perform its obligations
regarding the disposition of such defective units. If under this Agreement. Should orders for the Company
Company requests that Distributor destroys the Products exceed Company’ available inventory,
defective units, Distributor shall destroy the defective Company shall allocate its available inventory and
product in compliance with all applicable laws and make deliveries on a basis Company deems equitable,
shall provide Company with written proof of such in its sole discretion, and without liability to Distributor
destruction. on account of the method of allocation chosen or its
implementation. Should Distributor not receive the full
amount of its order due to unavailable inventory, the
undelivered portion of Distributor’s order shall be
cancelled and Distributor shall be required to submit a
new order for any undelivered product that Distributor
still wishes to purchase. In any event, Company shall
not be liable for any damages, direct, consequential,
special or otherwise, to Distributor or to any other
person for failure to deliver or for any delay or error in
delivery of the Company Products for any reason
whatsoever.

4. Acceptance.

Within thirty (30) calendar days after any order of


Company Products clears customs in Distributor’s
Territory, Distributor shall (a) inspect such Company
Products to determine their conformity to the
requirements of this Agreement, and (b) if any such
Company Products fail to so conform, deliver notice to
Company providing an explanation of the nature and
details of the alleged nonconformity. In the absence of
such timely and proper notice, Distributor shall be
deemed to have accepted such Company Products.
EXHIBIT C

COMPANY TRADEMARKS

[Insert trademarks registered in Territory and trademarks used in products to be sold in Territory]

15
EXHIBIT D

BUSINESS PLAN

[Insert Business Plan agreed to by Company and Distributor including 12-month forecasted sales]