AGENCY AGREEMENT
This AGENCY AGREEMENT (this "Agreement") is entered into and effective as of this 17th day of March, 2004, by and between NORTH AMERICAN SCIENTIFIC, INC., a Delaware corporation ("NASI"), and NOMOS CORPORATION, a Delaware corporation ("NOMOS").
RECITALS
WHEREAS, NASI produces and sells the products described on Schedule A attached hereto (such seeds being referred to herein, collectively, as "NASI Products");
WHEREAS, NOMOS produces and sells the products described on Schedule B attached hereto (collectively, the "NOMOS Products" and, together with the NASI Products, the "Products");
WHEREAS, the NASI Products are single use, consumable products that compete most directly with, and are priced in relation to other brachytherapy seeds;
WHEREAS, the NOMOS Products are capital equipment and related software that are intended for use over a period of years, and which are priced in relation to similar capital equipment;
WHEREAS, the NASI Products and the NOMOS Products are complementary in nature and NOMOS AND NASI believe that the Products may be able to achieve greater customer exposure if the sales forces of each of NOMOS and NASI are able to promote both the NASI Products and the NOMOS Products;
WHEREAS, NASI and NOMOS desire to work together to sell the NOMOS Products and the NASI Products in the United States, its territories and possessions, and in Canada and Europe (collectively, the "Territory") upon the terms and conditions set forth herein;
WHEREAS, NASI desires that NOMOS act as its non-exclusive agent, and NOMOS desires to act as NASI's non-exclusive agent, in connection with sales of NASI Products in the Territory;
WHEREAS, NOMOS desires that NASI act as its non-exclusive agent, and NASI desires to act as NOMOS' non-exclusive agent, in connection with sales of NOMOS Products in the Territory;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and promises set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, NASI and NOMOS agree as follows:
1. Appointment.
1.1 NASI hereby appoints NOMOS, and NOMOS hereby accepts such appointment, as NASI's nonexclusive sales agent to sell NASI Products to third parties at the prices and upon the terms and conditions determined by NASI from time to time. The price or prices at which such NASI Products may be purchased will be based solely upon a price list provided by NASI as the same may be updated from time to time at the sole discretion of NASI. NOMOS sales representatives shall have no authority to fix or otherwise negotiate such prices.
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1.2 NOMOS hereby appoints NASI, and NASI hereby accepts such appointment, as NOMOS' nonexclusive sales agent to sell NOMOS Products to third parties at the prices and upon the terms and conditions determined by NOMOS from time to time. The price or prices at which such NOMOS Products may be purchased will be based solely upon a price list provided by NOMOS as the same may be updated from time to time at the sole discretion of NOMOS. NASI sales representatives shall have no authority to fix or otherwise negotiate such prices.
1.3 Each party shall use its commercially reasonable best efforts to sell and promote the other party's Products to customers in the Territory.
1.4 In performing its duties hereunder, each party shall, and shall cause its employees and the employees of its relevant affiliates to, comply with all regulatory, professional and legal requirements. No employee of either party or of any of its relevant affiliates shall make any representation, statement, warranty or guaranty with respect to the Products that is not consistent with current labeling of the Products, that is deceptive or misleading, that disparages the Products or the good name, good will and reputation of the other party or that diminishes in any material respect any Trademark.
1.5 Each party shall have the sole responsibility for the manufacture, shipment, distribution, warehousing, billing and order confirmation of its Products and for the collection of receivables resulting from sales of its Products in the Territory. Each party shall have the sole authority to determine the price of its Products in the Territory during the Term, including price increases and decreases and the timing thereof. Each party shall manufacture or cause to be manufactured its Products in accordance with all applicable laws.
2. Commissions.
2.1 Entitlement. Each party shall earn a commission upon the acceptance by the other party of an order from or on behalf of a customer to purchase one or more Products.
2.2 Calculation of Commission. Each party's commission shall be ten percent (10%) of the net sales price of each sale to the customer of the Products. The "net sales price" shall mean the gross sales price less all deductions and adjustments thereto including, but not limited to, any and all trade discounts and allowances, sales, use and similar taxes, freight and delivery charges, and credits for returns. Each party shall provide the other party with tracking reports within 30 calendar days after the end of each calendar month setting forth all sales performed during such month. Commissions, for purposes of this Agreement, shall be deemed earned and payable upon invoice.