Exhibit 10.1


 


NOTE: 
CONFIDENTIAL TREATMENT HAS BEEN OBTAINED OR REQUESTED AS TO CERTAIN
PORTIONS OF THIS DOCUMENT.  WHENEVER
CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED BY AN
ASTERISK), SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.


 


1/28/05


 


 


DISTRIBUTOR AGREEMENT


 


DANISH DERMATOLOGIC DEVELOPMENT


 


Territory: USA


 





















 


 


TABLE OF CONTENTS


 


	
  SECTION I:

  	
   

  
	
   

  	
  APPOINTMENT, TERRITORY, TERM AND SCOPE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Appointment of Distributor

  	
   

  
	
   

  	
  B.

  	
  Territory

  	
   

  
	
   

  	
  C.

  	
  Term and Scope

  	
   

  
	
   

  	
  D.

  	
  Previous Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION II:

  	
   

  
	
   

  	
  DISTRIBUTOR RESPONSIBILITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION III:

  	
   

  
	
   

  	
  PRINCIPAL’S RESPONSIBILITY

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION IV:

  	
   

  
	
   

  	
  TERMS AND CONDITIONS OF SALE AND PRODUCT
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION V:

  	
   

  
	
   

  	
  PRODUCT, PRICES AND PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION VI:

  	
   

  
	
   

  	
  GENERAL CONDITIONS AND DISTRIBUTION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Principal Trade Names and Trademarks

  	
   

  
	
   

  	
  B.

  	
  Product Changes

  	
   

  
	
   

  	
  C.

  	
  Private Information

  	
   

  
	
   

  	
  D.

  	
  Export Controls

  	
   

  
	
   

  	
  E.

  	
  Relationship of Parties and Controlling
  Laws

  	
   

  
	
   

  	
  F.

  	
  Limitation of Liability

  	
   

  
	
   

  	
  G.

  	
  Termination

  	
   

  
	
   

  	
  H.

  	
  Renewal

  	
   

  
	
   

  	
  I.

  	
  Failure to Enforce

  	
   

  
	
   

  	
  J.

  	
  Notices

  	
   

  
	
   

  	
  K.

  	
  Execution and Modification

  	
   

  



 


2





















 


INTERNATIONAL DISTRIBUTOR AGREEMENT


FOR PRODUCTS OF DDD


 


SECTION I


APPOINTMENT, TERRITORY, TERM AND SCOPE


 


A.            Appointment of Distributor


 


DDD, Danish Dermatologic Development A/S, a
corporation organized and existing under the laws of Denmark (hereinafter
called “Principal”), having a principal place of business at Agern Alle 11,
DK-2970 Hoersholm, Denmark, hereby appoints Candela Corporation, having its
principal office and place of business and situated at 530 Boston Post Road,
Wayland, MA 01778-1886, USA , (hereinafter called the “Distributor”) an
authorized exclusive Distributor for the Principal’s Products (hereinafter
called the “Products”) described in Appendix A. All other products of Principal
not described in Appendix A are not a part of this Agreement and may be
distributed by Principal in Territory by whatever means or manner Principal, in
its sole discretion, considers in its best interest.


 


B.            Territory


 


The geographical area (hereinafter called the
“Territory”) in which the Distributor is authorized to resell on an exclusive
basis is the USA.


 


C.            Term and Scope


 


This Agreement is effective from 28 January
2005 to 31 January 2008, unless sooner terminated as hereafter provided. This
Agreement consists of this document and attached Appendices and constitutes the
agreement in its entirety.


 


D.            Previous Agreements


 


This agreement replaces all previous
agreements and contracts between Distributor and Principal regarding the above
mentioned Territory.


 


3





















 


SECTION II


DISTRIBUTOR RESPONSIBILITIES


 


The Distributor hereby agrees to:


 


1.                                       Use commercially reasonable efforts to promote and sell Principal’s
Products (“Products”) in the Territory and to achieve the sales goal mutually
agreed to in Appendix D.


 


2.                                       Not manufacture nor deal in any IPL products in the territory which
Principal may reasonably consider to be competitive with the Products during
the term of this Agreement.


 


3.                                       Establish an organizational structure and method of operation which
Principal will accept as being adequate for the maintenance and further
expansion of its market position.


 


4.                                       Establish or sub-contract a service organization adequate and
competent to furnish technical advice, service and service contracts


 


5.                                       Principal will place a consignment stock of spare parts at
Distributor and the Distributor FSE’s trunk stock to adequately service
Products.  Parts used for repair of
out-of-warranty products will be invoiced by Principal. Distributor will ship
back all defective in-warranty parts to Principal unless otherwise agreed on a
case by case basis. Principal agrees to waive the requirement for returns for
re-curring problems on non-refurb warranty parts. Distributor may return to
Principal parts that have been purchased and replaced out of warranty.
Distributor may purchase such repaired parts at reduced prices. Appendix F to
this agreement lists the critical parts to be returned to Prinicipal for
repair. The timing and minimum quantities of these parts that must be returned
must be agreed to minimize shipping costs.


 


6.                                       Exhibit at and provide personnel for trade shows in the Territory
that relate to the Products. Trade shows exclusive to Territory are Distributor
responsibility.


 


7.                                       Use commercially reasonable efforts to:


 


a.                                       Maintain and repair, at competitive service rates charged to end
users, Products in the Territory (whether or not sold by Distributor), as
requested by such end users, and


 


b.                                      Generally provide adequate customer service to keep users of
Products in the Territory satisfied.


 


8.                                       At Principal’s request, provide Principal a complete list of IPL
products distributed by Distributor.


 


9.                                       Notify Principal promptly, if unable to perform maintenance or
repair service on any of Principal’s Products in the Territory.  Principal shall have have the right to carry
out service if prior agreement is reached with Distributor and documented in


 


4





















 


writing.   The services must be completed
while in the company of Distributor’s service rep.


 


10.                                 Advise Principal of the end user on each order placed.


 


11.                                 Submit names of competitors’ customers as discovered.


 


12.                                 Maintain adequate technical level of personnel by attending, at Distributor’s
cost, product training sessions conducted by Principal. Minimum technical
personnel requirements are specified in Appendix C. Distributor shall complete
and return to Principal every 90 days, a system generated summary installation
report from the Candela ISR system that lists every new system installed by
Distributor.


 


13.                                 Distributor will submit to Principal changes in original advertising
and promotional material for review by Principal. Principal will furnish the
operators manual in English language.


 


14.                                 Distributor will not, without the prior written consent of
Principal, appoint a sub-distributor or service contractor.


 


15.                                 The Distributor shall not seek customers for the Products, nor
establish any branch or maintain any distribution depot in relation to the
Products, outside the Territory. Furthermore, the Distributor is not allowed to
offer, sell or install products outside the Territory.


 


16.                                 Distributor will, at Principal ́s request, provide sales forecasts.
(See Appendix D.)


 


5





















 


SECTION III


PRINCIPAL’S RESPONSIBILITY


 


The Principal hereby agrees to:


 


1.                                       Use reasonable efforts to furnish to Distributor, on terms to be
agreed upon by both parties, sales promotion materials such as catalogs,
specification sheets, suggested price lists and demonstration software which
shall be used by Distributor only for purposes of this Agreement. All such
materials shall remain Principal’s property, unless otherwise agreed.


 


2.                                       Provide replacement spare parts for Principal’s Products at no
charge to Distributor in connection with any repair or maintenance service
performed by Distributor during the manufacturer’s warranty period.


 


3.                                       Not appoint any other Distributor in the Territory.


 


4.                                       For twelve (12) months from its date of installation by
Distributor,  Principal warrants each
respective product and all other parts (for example service spare parts)
delivered by Principal to be free from defects. 
The installation date of record will be the quarterly ISR report from
the distributor to the Principal.


 


During the warranty period specified above,
in-warranty defective product(s) listed in Appendix F will be returned to
Principal ́s facility with transportation charges paid by Distributor. Items
under warranty will be repaired or replaced at no cost to Distributor.
Transportation charges for repaired or replacement items that are returned to
Distributor will be paid by Principal.


 


6





















 


SECTION IV


TERMS AND CONDITIONS OF SALE AND PRODUCT
WARRANTIES


 


A.                                   All orders placed by Distributor hereunder shall be in writing, and
shall be subject to approval and acceptance in writing by Principal within 24
hours of receipt.


 


B.                                     All sales by Principal to Distributor hereunder shall be subject to
the provisions of this Agreement and to the provisions of the applicable “Product
Warranties” attached (Appendix E) hereto and made a part hereof, and any
subsequent modification of said Product Warranties provided, however, that such
modifications shall not be inconsistent with the other provisions of this
Agreement, and shall be effective only upon thirty (30) days’ notice to
Distributor; and any provisions of any purchase order placed by the Distributor
which is inconsistent hereafter shall be null and void unless accepted by the
Principal in writing.


 


C.            Delivery
terms from Principal to Distributor are Ex Works (FOB Plant).


 


7





















 


SECTION V


PRODUCT, PRICES AND PAYMENTS


 


A.                                   Except as otherwise agreed to by the parties in writing, the price
to Distributor for all Principal’s Products, spare parts and installation
equipment sold by Principal to Distributor hereunder shall be as described in
Appendices A and B attached hereto and made part hereof. Principal shall
provide Distributor six (6) months advance notice of any change in list prices
and shall honor old prices for orders already placed up to sixty (60) days from
such notice.


 


For any Products, spare parts or installation
equipment ordered by Distributor, Distributor shall make payment to Principal
in EURO by means of wire transfer 68 days from the invoice date.


 


8





















 


SECTION VI


GENERAL CONDITIONS AND DISTRIBUTION


 


A.            Principal
Trade Names and Trademarks


 


The Distributor acknowledges that the words
Ellipse and  DDD are the dominant
features of the trade names of the Principal and that the marks Ellipse and DDD
(“the Trademarks”) are the Principal trademarks for the Products manufactured
and/or sold by the Principal. The Distributor acknowledges that the Trademarks
are owned exclusively by Principal. Distributor agrees that it will not, in any
manner, use the word DDD, or any imitation or variant thereof, as a part of the
Distributor’s trade name, company or firm name, nor will it grant such use to
any subsidiary or affiliate or to dealers, if any, appointed by the
Distributor. The Distributor shall use the Trademarks on or in relation to the
Products, but shall ensure that each reference to, and use of any of, the
Trademarks by it is in the manner from time to time approved in writing by the
Principal and, where required by the Principal, is accompanied by an
acknowledgement in a form approved by the Principal that the Trademarks are
trademarks of the Principal.


 


The Distributor shall not:


 


1.                                       Alter, remove, tamper with or obscure any trademarks, numbers, or
any other means of identification used on or in relation to the Products.


 


2.                                       Use any of the Trademarks in any way which might prejudice their
distinctiveness or validity or the goodwill of the Principal in them.


 


3.                                       Use any trademark other than the Trademarks in relation to the
Products or spare parts for the products without obtaining the Principal’s
prior written consent, or


 


4.                                       Use any marks in the Territory which so resemble any of the
Trademarks as to be likely to cause confusion in the marketplace.


 


5.                                       Market the Ellipse systems under any other Principal name than
Danish Dermatologic Development A/S (DDD).


 


Except for the right to use the Trademarks
expressly granted under this clause, the Distributor acknowledges that it shall
not acquire any rights in respect to the Trademarks and that all and any rights
and goodwill which accrue in the Territory arising out of the use of the
Trademarks shall vest in the Principal.


 


The Distributor shall, at the request of the
Principal:


 


1.                                       Execute such registered user agreements or licenses in respect of
the use of the Trademark in the Territory as the Principal may reasonably
require.


 


2.                                      At principal’s expense, take such steps as the Principal may
reasonably require to assist in maintaining the validity and enforceability of
the Trademarks in the territory. The Distributor shall promptly and fully
notify the Principal of any actual


 


9





















 


infringement in the Territory or any
intellectual property of the Principal which comes to the Distributor’s notice,
and of any claim by any third party that the sale of Products in the Territory
may infringe the rights of any other person; and the Distributor shall, at the
request and expense of the Principal, do all such things as may be reasonably
required to assist the Principal in taking or resisting any proceedings in
relation to such an infringement or claim.


 


B.            Product Changes


 


The Principal reserves the right from time to
time in its absolute discretion, without thereby incurring any liability to the
Distributor with respect to any purchase order theretofore transmitted or
placed by the Distributor or otherwise, to discontinue or to limit its
production of any Product(s) of model(s) thereof, to terminate or to limit
deliveries of any such Product(s) or model(s), the production of which is so
discontinued or limited, to alter the design or construction of any such
Product(s) or model(s).


 


C.            Private Information


 


The Distributor shall keep confidential,
during the term of this Agreement and for three years thereafter, all trade
secrets and proprietary, and confidential information pertaining to Product(s)
furnished to it by the Principal and shall return all copies of all documents
containing this information to the Principal on expiration or termination of
this Agreement. The provisions of this clause shall not apply to any
information which was or becomes known to the public or which is contained in
any printed publications made available to customers.


 


D.            Export Controls


 


The Principal’s obligation hereunder shall be
at all times subject to the export administration and control laws and
regulations of the Danish Government, and any amendment thereof. The
Distributor agrees that, with respect to the resale or any other disposition of
products and any printed commercial and technical data and information supplied
by the Principal, the Distributor shall, where necessary, comply fully with the
export administration and control laws and regulations of Denmark, and any
amendments of such laws and regulations, to the extent those laws and
regulations apply in and/or are not in conflict with the laws and regulations
of the Territory.


 


E.             Regulatory
Compliance and Approvals


 


The parties hereto agree that it will be the
responsibility of the Principal to obtain and maintain required FDA clearances.
It is the responsibility of the Distributor to obtain  other local regulatory approvals and required
registrations with respect to the sale of Products in Territory. Distributor
will be responsible for filling out and sending standard forms needed for CE
compliance to Principal. Principal agrees to provide such information and
assistance as is reasonable and necessary, including forms to be used for
reporting.


 


Principal sells the Products to Distributor
under the assumption that Distributor adheres to relevant legislation,  rules and regulations for the sale and use
of  the Products in the Territory.


 


10





















 


Distributor agrees to defend and hold
Principal harmless from and against any and all claims, liabilities, penalties,
damages, demands and expenses which may arise because the Products have been
sold to and used by persons who may not use the Products, according to relevant
legislation, rules and regulations in the Territory.


 


F.             Relationship
of Parties and Controlling Laws


 


1.                                       This Agreement is non-assignable. The Distributor is an independent
contractor to the Principal. It is understood that the Distributor and/or its
agents, subsidiaries, affiliates and employees are in no way the legal
representative, agent or employees of the Principal for any purposes whatsoever
and the Distributor shall not hold them out as such, and they shall have no
right or authority to assume or create, in writing, or otherwise, any
obligation of any kind, expressed or implied, in the name of or on behalf of
the Principal. The Principal reserves the right to determine in its sole
discretion the acceptability of any order or contract provision proposed by the
Distributor.


 


2.                                       Any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity, or termination, shall
be referred to and finally resolved by arbitration under the Rules of the
London Court of International Arbitration, which Rules are deemed to be
incorporated by reference into this clause. The tribunal shall consist of three
arbitrators. The place of arbitration shall be London, England. The language of
the arbitration shall be the English language. The result of the arbitration
and the award shall be final and binding on all parties and each agrees not to
seek judicial review or bring suit except for the purpose of enforcement of the
arbitration award. The prevailing party in any arbitration proceeding brought
by one party against the other shall be entitled, in addition to any other
rights and remedies it may have, to reimbursement for its expenses, including
arbitration fees and reasonable attorney’s fees.


 


Principal stipulates and represents that, to
its knowledge and information, this Agreement is in compliance with all laws
and regulations of Denmark.  Distributor
stipulates and represents that, to its knowledge and information, this
Agreement is in compliance with all laws and regulations of the USA. In the
event any clause or any part of any clause contained in this Agreement shall be
determined to be invalid or unenforceable, but which clause or part of the clause
would be valid if it were modified in some way, the parties shall agree to such
reasonable modification as may be necessary to make it valid and effective.


 


The governing law of this contract shall be
the substantive law (both statutory law and common law, but without regard to
principles of conflicts of law) of the United Kingdom.


 


G.            Limitation
of Liability & Product Liability


 


In no event shall the Principal be liable to
Distributor for consequential or special damages, and the Principal’s liability
to Distributor on any claim, whether in contract tort (including negligence and
strict liability) or otherwise (including indirect or incidental), for any loss
or damage arising out of, connected with, or resulting from this Agreement,


 


11





















 


shall in no case exceed the price allocable
to the Product(s), or parts thereof, to which the claim relates.


 


The limitation
of liability described above does not apply if a product liability
claim for damages is lodged by a third party against one of the parties of this
Agreement.


 


If such a claim is
instituted by a third party, the parties of this Agreement shall in good faith
:


 


•        investigate or research the causes of the accidents,
occurrences, injuries or losses affecting any person or property as a result of
the manner in which the Products are designed, manufactured, treated,
fabricated, constructed, packaged, delivered, sold or used, and use its best
effort to correct or eliminate such causes within a reasonable period;


 


•            provide the accused
party reasonable assistance which is necessary for the accused party’s defense
to such claim, suit or action in relation to the Products sold by Principal to
Distributor.


 


•            discuss and agree on
the continuation or discontinuation of the sales and marketing of the Product
in the Territory.


 


If one of the parties
incurs liability towards any third party for damages, to body or property, the
liability between Principal and Distributor shall be settled by arbitration in
accordance with Section VI, Article F of the Distribution Agreement.


 


Subject to the articles
and limitations set out in this section G, the Principal shall be liable for
such product liability to the extent that it is proven that the loss, death or
injury is caused by failure or negligence committed by the Principal.


 


The Principal will not be responsible for
indemnifying the Distributor to the extent that product liability arises out of
failure or negligence committed by the Distributor.


 


The Distributor will not be responsible for
indemnifying the Principal to the extent that product liability arises out of
failure or negligence committed by the Prinicpal.


 


The parties shall obtain and maintain, at
their own expense, product liability insurance to cover any and all losses,
damages, liabilities, penalties, claims, demands, suits or actions, and related
costs and expenses of any kind for injury to body or property, suffered by any
person or entity, arising out of the Products.


 


Principal cannot take
any responsibility for the safe and efficient function of the product(s) if the
service of the products have been performed by use of spare parts or
refurbishments not provided by Principal – or if the service has been performed
by personnel who has not been trained by Principal.


 


12





















 


H.            Patent Infringement Claims


 


*


 


To the best knowledge
of the Parties, none of the intellectual property rights related to the
products infringe any third party rights. 
However neither of the Parties make any warranty or representation to
that effect.


 


Should a patent
infringement claim be lodged against one or both of the Parties to this
Agreement, the Parties agree to:


 


•        Immediately inform the
other Party of such claim


•        In good faith discuss continuing
or stopping marketing and sales of the Product in the Territory


•        In good faith discuss
obtaining a patent license agreement for the Product in the Territory


•        Principal will pay the
legal costs of such possible litigation and consequently Principal has the
final say with respect to the response to such possible patent infringement claims.


 


*


 


As it relates to
patent infringements claims, it is agreed that neither party will indemnify the
other.


 


I.              Termination


 


1.                                       After the initial 36 months of this Agreement, either party shall
have the right to terminate the Agreement for any reason by giving six months
written notice.


 


2.                                       Either party shall have the right to terminate this Agreement
immediately in the event that the other fails to cure a material breach of any
of the terms or conditions of this Agreement to the satisfaction of the first
party within 30 days after service of written notice regarding remedy of that
breach.


 


3.                                       Either party shall have the right to terminate this Agreement
immediately, at any time, by notice to the other, in the event of insolvency or
bankruptcy or the like of the other party, without the need to resort to formal
legal proceedings.


 


4.                                       Either party shall have the right to terminate upon 90 days’ advance
written notice if there occurs a material change in legal or beneficial
ownership, control or management of the other party, including acquisition or
merger by the other party. For purposes of this Agreement, a change in majority
share ownership or control shall be deemed material.


Principal shall also have the option to
terminate the Agreement with ninety (90) days’ advance written notice to
Distributor if a third party obtains control of more than 50% of the shares of
Principal.


 


5.                                       Failure of the Distributor to meet mutually agreed upon sales goals
shall provide Principal with the option to terminate the Agreement with ninety
(90) days’ notice. Sales goals for this Agreement are described in Appendix D,
attached hereto and


 


13





















 


made part hereof, and shall be established on
an annual basis thereafter upon renewal, if any, of this Agreement.


 


6.                                       Upon Termination of this Agreement for any cause:


 


a.                                       Distributor shall immediately cease to use Principal’s name and logo
or the trade names in connection with its business;


 


b.                                      Distributor shall not be entitled to any separation compensation.


 


7.                                       Termination of this Agreement shall not relieve Distributor from any
obligations to pay sums due Principal and vice versa.


 


8.                                       Distributor agrees that it shall not be entitled to any payments for
development of clientele distribution/service network, loss of anticipated
profit nor any associated business costs.


 


9.                                       Upon termination by either party, all sales and service records and
literature, customer lists, and unpaid demonstration equipment and, at the sole
discretion of Principal, Products which have not been paid for in full, shall
be turned over to the Principal free of charge. Principal will designate
disposition of its property and assume responsibility for transportation
charges.


 


10.                                 Upon termination by either party, Principal is obliged to repurchase
from Distributor Products owned by Distributor and used by Distributor for
demonstration purposes. The repurchase price is as follows: less than 6 months
old: 100% of purchase price; 6-12 months: 75%; 12-18 months: 50%; 18-24 months:
25%; more than 24 months: Free of charge.


 


11.                                In the event Distributor is unable to perform service to the
satisfaction of     customers as reported
to Principal, Principal reserves the right to cancel service responsibility of
this Agreement. Such cancellation would result in change in distribution net
prices to reflect distribution responsibilities limited to sales and
application support.


 


12.                                Upon termination of this Agreement, by either party, Distributor and
Principal agrees to find solutions, acceptable to the customers, for continued
service and maintenance of the products sold and installed by Distributor in
the Territory. Principal is committed to take over the service and maintenance
responsibility in the Territory. Distributor is committed to provide Principal
with complete service records, including list of customers, no later than one
week after termination.


 


13.                                Conditions beyond control of parties. Neither party to the Agreement
shall be held liable for failure to comply with any of the terms of this
Agreement when such failure has been caused solely by fire, labor dispute,
strike, war, insurrection, government restrictions, force majeure, or act of
God beyond the control and without fault on the part of the party involved,
provided such party uses due diligence to remedy such default.


 


14





















 


J.             Renewal


 


Prior to ninety (90) days from expiration of
the Agreement, a renewal of this Agreement shall be negotiated, including
defining mutually acceptable sales goals for the new period of the Agreement.


 


K.            Failure to Enforce


 


The failure of either party to enforce at any
time, or for any period of time, the provisions hereof in accordance with its
terms shall not be construed to be a waiver of such provision or of the rights
of such party thereafter to enforce each and every such provision.


 


L.             Notices


 


Except as provided in Paragraph G of this
Section VI, notices between parties shall be in the English language and shall
be deemed to be validly given if transmitted by telegraph, telex, facsimile,
electronic mail or in writing to the other party at the address indicated in
Section I of this Agreement and after confirmation of the receipt thereof by
the other party. Notwithstanding the foregoing, confirmation is not a necessary
requirement for the validity of notice, if such notice or other communication
were sent by registered mail. Either party may change its address by giving
notice thereof to the other party. Nothing in this paragraph shall be deemed to
modify in any way the notice requirements set forth in Paragraph G of this
Section VI.


 


M.           Execution and Modification


 


This Agreement contains the entire and only
Agreement between the parties respecting sale to and the purchase, distribution
and servicing by the Distributor of any product(s), and any representations,
terms or conditions relating thereto or in connection therewith not
incorporated herein shall not be binding upon either party.


 


 


	
  Danish Dermatologic Development A/S

  	
   

  	
  Candela Corporation, Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  (Authorized Signature)

  	
   

  	
   

  	
  (Authorized Signature)

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Sales Director

  	
   

  	
   

  	
  Title:

  	
  President & CEO

  	
   

  
	
   

  	
   

  	
   

  
	
  Printed Name:

  	
   Gunnar Hallsson

  	
   

  	
   

  	
  Printed Name:

  	
  Gerard Puorro

  	
   

  
	
  Date:

  	
       January 28,
  2005

  	
   

  	
   

  	
  Date: 

  	
       January 28,
  2005

  	
   

  
																		



 


15





















 


Appendices to this Agreement:


 


A: Description of Products and Transfer
Prices to Distributor


B: Accessories, Service Spare Parts and
Refurbishment


C: Minimum Technical Personnel Requirements


D: Sales Goals Mutually Agreed


E: Product Warranties


F: Spare Parts 


 


16





















 


Appendix A: Description of
Products and Transfer price to Distributor:


 


*


 


	
  Qty

  	
   

  	
  Description

  	
   

  	
  EURO

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 


The transfer price, * Euro, is based on a
USD/Euro exchange rate of 1,3. As long as the exchange rate remains in the 1,2
– 1,4 range the transfer price remains unchanged. If the exchange rate moves
outside the above band, the following transfer price adjustment, based on 50/50
“pain/gain share”, will apply (also beyond the lower and upper limit examples
given in the table below):


 


	
  Rate

  	
   

  	
  TP €

  	
   

  	
  TP US $equiv.

  	
   

  
	
  1,00-1,04

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,05-1,09

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,10-1,14

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,15-1,19

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,20

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,25

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,30

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,35

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,40

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,41-1,45

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,46-1,50

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,51-1,55

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1,56-1,60

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 


All systems will be invoiced @ * Euro. At the
end of each calendar quarter the average USD/Euro exchange rate for the quarter
is calculated based on http://www.x-rates.com. If the average rate was outside
the 1,20-1,40 band the appropriate adjustment is applied to all system invoices
for the quarter. Principal issues a credit note to Distributor if the rate was
1,41 or more. If the rate was 1,19 or less Principal invoices Distributor for
the difference.


 


Options to *


 


	
  Qty

  	
   

  	
  Description

  	
   

  	
  EURO

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 


17





















 


Appendix B: Accessories, Service
Spare Parts and Refurbishment.


 


The warranty for the system is only valid if
spare parts, accessories and consumables used are original parts and
consumables delivered from DDD.


 


Prices of Accessories, Consumables and Spare
Parts are according to current pricelist.


 


Refurbishment of applicators:


 


The Applicator is not covered by a warranty. The light source and filter
in the applicator are consumables that wear down during use (depending on the
settings) and have a limited lifetime. Therefore the applicator needs to be
refurbished. Refurbishments are charged as follows:


 


*


 


When an applicator is returned for
refurbishment, it must be accompanied by a written order stating the applicator
serial number. A floppy disc containing the number of shots released by the
applicator must be enclosed with the order. If the diskette is not enclosed,
the refurbishment will be charged at EURO * transfer price.


 


The Parties agree that refurbishments will be
performed by Distributor soonest possible. Principal will supply, at cost plus
a * handling fee, all tools and instruments required for performing said
refurbishments. Distributor will send technical personnel for training at
Principal’s facilities.


 


Distributor will purchase all
consumables/parts needed for the refurbishments from Principal as per Principal’s
distributor price list.


 


18





















 


Appendix C: Minimum Technical
Personnel Requirements.


 


Distributor must have technical personnel
employed - alternatively have external engineers contractually engaged - to
perform systems installation, post installation training, software upgrades and
field service on the products.


 


Systems installation, post installation
training, software upgrades and field service on the products can only be
performed by Technical Personal trained by DDD or duly authorized trainers from
Candela’s Tech Support group.


 


The number of technically skilled persons
available must at all times be sufficient to respond to customer requests for
support and / or service as well as any problem affecting safety of use no
later than 24 hours after a customer call. In case of injuries and / or
operational problems affecting safety, which have caused or could have caused
injury, Distributor must notify DDD within 24 hours. The reporting must be
according to the PMS and Vigilance requirements specified in the Council
Directive 93/42/EEC of 14 June 1993 concerning medical devices. For this reporting
the distributor must use the DDD Customer Complaint Report and the DDD Initial
Incident Report procedures. DDD will train Distributor and provide these
procedures during service training sessions. Distributor must be able to offer
service contracts to the customers.


 


The technical personnel must attend service
training sessions scheduled by Principal - typically once per year or duly
authorized trainers from Candela’s Tech Support group.   In addition Distributor can request
unscheduled training sessions for personnel at Principal ́s site which will be
carried out at Principal ́s sole discretion. Travel costs are borne by
Distributor while accommodation and meal costs are borne by Principal.


 


The Distributor Technical Personnel will need
the following basic skills / education:


 


•             Thorough understanding of analog and digital electronic hardware.


•             Software expertise - at minimum on PC software “super user” level.


•             Ability to understand, read and communicate in English language.


•             Based on the above basic skills and after having participated in
service training classes the technical personnel must be capable of identifying
and correcting system failures on a module level.


 


Neither sales staff nor technical staffs from
the Distributor are allowed to take responsibility for patient treatments and
no modifications to the product hardware or software must be made without
written consent from Principal.


 


19





















 


Appendix D: Sales Goals mutually
agreed to.


 


*


 


Appendix E: Product Warranties


 


For twelve (12) months from its date of
installation by Distributor, Principal warrants each respective product and all
other parts (for example service spare parts) delivered by Principal to be free
from defects in manufacture, performance, material and workmanship.


 


The warranty is only valid if the products
have been transported, installed, handled, operated, maintained and serviced
according to the instructions and the operators and service manuals provided by
Principal.


 


The twelve months warranty does not cover
wear of the Applicators. The light source and the filters in the Applicators
are consumables which are known to have a limited lifetime which depends on
energy levels and pulse times selected for the individual treatment options.


 


The warranties described above are only valid
if spare parts and consumables which may have been used before the end of the
warranty period are original parts and consumables delivered from Principal.


 


Distributor will provide quarterly summary installation
report with serial number and installation date.


 


Terms and conditions for credit relating to
repair products under this warranty is given in Section II, 5 of this
agreement.


 


Appendix F: Spare Parts


 


(to be specified).


 


20