EXCLUSIVE REPRESENTATIVE AGREEMENT
This Representative Agreement (“Agreement”) is made by and between Therma-Wave, Inc., with its principle place of business at 1250 Reliance Way, Sunnyvale California 94539 USA, a Delaware corporation, (“Supplier”) and Hermes-Epitek Corporation, with its principle place of business at No. 18, Creation Road 1, Science Park Hsin-Chu, 300 Taiwan, R.O.C. a corporation of the Republic of China (“Representative“) with an effective date as of April 19, 2005 (“Effective Date”).
WHEREAS, Supplier manufactures and sells or licenses certain hardware and software products primarily for use by the semiconductor industry; and
WHEREAS, Representative markets products to the semiconductor industry; and
WHEREAS, Representative now desires to have the exclusive right to market and support as applicable the Products, as defined below, on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereto agree as follows:
“Customer” shall mean a party solicited by Representative who places an order for, and is a buyer of, the Products, other than Representative, physically located within the Territory as hereinafter defined.
“Order Acknowledgement Form” shall mean a document provided and signed by Supplier evidencing a binding order for the goods or services described therein.
“Net Invoice Amount” shall mean the amount paid by Customer to Supplier for Products, net of any freight, sales tax, value added tax, duties or like charges and any discounts, rebates, allowances, adjustments, or cancellations,
“Products” shall mean the subset of Supplier’s product line in respect of which Representative is authorized to serve as a marketing representative. A current list of Products is attached hereto as Attachment 1. The list is subject to revision in the sole discretion of Supplier.
“SLA” shall mean Supplier’s then current applicable software license agreement. A copy of Representative’s current SLA is attached hereto as Attachment 2.
“Territory” shall mean the country or region as set forth in Attachment 3.
TERMS AND CONDITIONS
1. APPOINTMENT OF EXCLUSIVE REPRESENTATIVE; TERRITORY
Subject to the terms of this Agreement, Supplier hereby appoints and Representative hereby accepts appointment as an exclusive Representative of the Products and, where applicable, related support services within the Territory to the Customers.
2. RESPONSIBILITIES OF REPRESENTATIVE
RESPONSIBILITIES APPLY TO ALL ACTIVITIES: The responsibilities in this Section 2 shall apply to all of Representative’s activities with respect to the Products.
DEGREE OF CARE - Representative shall represent Supplier’s interests with the same degree of care with which it handles its own interests and use its best efforts to market and support the Products within the Territory.
PROMOTION - Representative shall promote the Products within the Territory to the best of its abilities, making suitable use of sales literature, catalogues and related materials as provided by Supplier. Notwithstanding the above, Representative shall not issue any press releases without the written prior authorization of Supplier.
EXPENSES - All expenses and costs incurred by Representative in connection with the marketing or support of the Products including local public relations, advertising and similar costs, shall be borne by Representative.
ADEQUATE FACILITIES - Representative shall maintain properly equipped, professional office space in the Territory to market and support the Products. Representative shall employ, qualified personnel in order to ensure an effective sales effort and the ability to fulfill Representative’s obligations under this Agreement.
TRAINING/DEMONSTRATION UNITS - At Supplier’s discretion, Representative will be provided demonstration Product(s) for no additional fee and Supplier shall retain title and ownership of such Products. Representative may use such demonstration Products solely for Representative’s employee Product support training and for Customer demonstrations. Furthermore, Representative agrees to maintain such systems in the Representative’s clean room environment (exceeding the requirements of Clean 100) and shall add Supplier as an additional named insured only to the extent of liability for loss or damage to demonstration Product(s).
NO REPRESENTATIONS - Representative will not make any promises, warranties or guarantees concerning the Products but rather will at all times refer Customers to the product documentation, specifications and marketing materials provided by Supplier.
ORDERS - Supplier shall have no obligation to enter into a contract with any Customer that does not agree to terms and conditions acceptable to Supplier.
INTERNET ACCESS - Representative will maintain a high-speed internet connection at its own expense to facilitate communication with Customers and Supplier.
ACTIVITIES OUTSIDE TERRITORY - Representative agrees that it will not directly or indirectly advertise or market or otherwise actively solicit orders for Products from prospective customers located outside the Territory. No commissions will be paid on sales to customers located outside the Territory.
REPORTS - Representative shall use its best efforts to provide Supplier with regular reports of its marketing and promotion activities with respect to the Products. Such reports shall be submitted to Supplier at least quarterly and shall address, among other issues: a) current status of market and competition; b) business standing of major Customers including point of sales information by Product type; c) sales forecasts; d) effectiveness and results of promotional activities and attendance at trade fairs and exhibitions; and e) accounts update, (including sales objectives, strategic plan and tactical implementation).
PROVISION OF SUPPORT SERVICES - Representative hereby agrees to provide Customers with technical support services as necessary for efficient initial installation and for First Line Support of the Products as more fully set out in Attachment 4.
NO CONFLICTING OBLIGATIONS – Representative represents and warrants to Supplier that Representative is free to enter into this Agreement and is not under any contractual or other obligation, whether written or otherwise, to any other Party that would be breached by or otherwise prevent Representative’s performance of its obligations under, or compliance with, any or all of the terms and conditions of this Agreement.
BUSINESS STANDARDS - As a representative of Supplier, Representative shall conduct its business to the highest ethical and business standards and shall not, by word or deed, imply or express any false, misleading or disparaging statements about Supplier or its Products. It is understood that any such actions shall be cause for immediate termination of this Agreement.
CUSTOMER CREDIT - When requested, Representative shall use all reasonable efforts to secure for Supplier information pertaining to the financial or credit responsibility of a Customer, and shall aid in the collection of accounts and in the adjustment of any claims that may arise for damages or defects in connection with Products sold in the Territory.
3. RESPONSIBILITIES OF SUPPLIER
MARKETING MATERIALS - Supplier shall provide Representative with a reasonable amount of literature required for the conduct of its business (sales literature, price lists, business terms, etc.) Translations of marketing materials will be made by Supplier on terms to be agreed, taking into account the effort required for translation and the likely benefits to be gained thereby.