DISTRIBUTOR & RESELLER AGREEMENT
This ExOne Distributor Agreement ("Agreement") is made effective as of (“Effective Date”), by and between
ExOne, and Pacto Intl Group LLC , (collectively defined as “Company”). Company may be working with subcontractors and/or sub-agents as noted in Amendment 1 and shall be at all times responsible for the actions of
its sub-contractors or sub-agents.
In consideration of the mutual promises contained herein, the parties agree as follows:
1. APPOINTMENT OF DISTRIBUTOR
ExOne appoints Company and Company agrees to become a Distributor of ExOne to promote the sale of
ExOne's equipment and related products and services (the “Products” as defined in Section 4) in the Territory
(as defined in Section 3), and ExOne grants Company the non-exclusive right to sell, lease, and license
ExOne's Products in the Territory for the term of this Agreement. Company shall also have the right to provide
installation, training, maintenance and customer support services for ExOne's Products installed in the Territory
subject to Company’s certification by ExOne.
2. BEST EFFORTS & NO-COMPETITION/REPRESENTATION OF COMPETITIVE PRODUCTS
Company acknowledges that the Territory is the area of its principal responsibility and agrees to use its best
efforts to promote ExOne’s Products and the goodwill of ExOne in the Territory. In accordance with this
understanding, Company agrees not to directly or indirectly sell, lease, license or otherwise deal in
products which in the reasonable discretion of ExOne are competitive with the Products. Breach of this
non-competition stipulation will result in an immediate termination of this agreement “with cause” and
legal action including injunctive measures and other compensation of damages will be pursued by ExOne
against the Company.
3. TERRITORY
Company’s Territory shall consist of the following:
MEXICO, GUATEMALA, BELIZE, HONDURAS, NICARAGUA, COSTARICA,
PANAMA, COLOMBIA, VENEZUELA, ECUADOR, PERU, BOLIVIA, PARAGUAY,
URUGUA, CHILE, ARGENTINA & THE CARIBBEAN ISLANDS
Named Accounts shall also be established with specified companies for a specified project in any market.
Company name, address, primary contact and project description shall be provided to ExOne. Named Account
opportunities will remain active for as long as the project is active and is forecasted with updated status to
ExOne. Named Accounts will be eliminated if an active opportunity does not progress according to an
established project timeline or budget is not approved for purchase within a 12 month period.
4. PRODUCTS
The ExOne Products referred to in this Agreement include those systems, services and accessories set forth
below, and may be amended from time to time by ExOne:
1.
2.
3.
4.
Various Laser Metal Deposition and/or Powder Bed Fusion systems including the ExOnes,
collectively 3D Metal printing systems. The systems offering from ExOne may be modified from
time to time at ExOne’s discretion.
Optional Equipment, Upgrades and Spare Parts Kits
Maintenance Contracts and Support Services
Engineering, Application and Development Work performed at ExOne
5. TRANSACTION OPTIONS
There are two types of transaction options that the Company may choose: commission on sales or to be a
reseller as defined below. In addition, a generic “finder’s fee” arrangement is described in this section.
5.a. COMMISSION ON SALES
In the case where ExOne sells Products and Services to the End User, then ExOne agrees to compensate
Company at commission rates, specified in the table, of the Net Invoice Price (as defined herein) for sales of the
Products made by Company in the Territory.
Discount off
List Price
5% or less
6-7%
8-9%
10-12%
13-15%
16% or greater
Commission
Rate
10%
9%
8%
7%
6%
5%
Named Account Sales ONLY: In the case where ExOne sells Products and Services to the End User, then
ExOne agrees to compensate Company at a commission rate equal to 5% of the Net Invoice Price (as defined
herein) for sales of the Products made by Company in the Territory. This commission rate is subject to any
discount provided to the End User. Such discount and commission rate to be mutually agreed to prior to any
quotation or proposal made to the End User.
“Net Invoice Price” shall mean the total price at which an order is invoiced to the customer including any
increase or decrease in the total amount of the original order, but excluding shipping and insurance costs,
installation services, sales, use and excise taxes, any allowances or discounts granted to the customer by ExOne,
and any tariffs, duties and export fees involved in international shipments.
Except as noted below, all sales commissions due hereunder shall be payable to Company within thirty (30)
days following receipt of payment by ExOne from the customer. Commissions shall be considered “earned” as
of the date of payment to ExOne by the customer. Commissions paid to Company for goods authorized and
accepted as returns by ExOne will be debited against Company's earned commission immediately following
receipt of the returned goods by ExOne.
Company shall make best efforts to assist ExOne in collecting all outstanding invoices due for each customer
order. Until such time that 95% of all payments are received by ExOne for each customer order, ExOne will
withhold 30% of any commission payable to Company. Once 95% of all payments are received for each
customer order, any amounts withheld will be paid to Company within thirty (30) days.
5.b. RESELLER: For International Sales only (outside North America)
“Reseller” is defined as an independent contractor engaged in purchasing ExOne’s Products for resale to its
customers. If Company chooses to be a Reseller, as opposed to a Distributor as described in Section 5.a., then
ExOne agrees to provide Company with transfer pricing of 10% off the then current International Price
list. It is expected that the Reseller will sell the Products and Services to the End User at any price they deem
appropriate.
5.c. General Finder’s Fee agreement: For International Sales only (outside North America)
A stipulation is provided herein for a “Finder’s Fee” compensation in the event that the Company neither
is acting as an agent or a reseller of ExOne products and services. In such case, provided the Company
provides in writing (and acknowledged by ExOne for pursuing or not) the following:




Name of customer
Contact names with title and email/phone of contact at customer
Business of customer and potential applications being pursued at customer
Last contacted, and next planned contact with customer
then Company will be provided a flat fee in the range of 3% up to 5% (depending on the final discounted
price of any purchase by customer) from ExOne upon completion of the project sale and receipt of payment by
ExOne from the customer. ExOne will be making all quotations, negotiations, and performance of all terms and
conditions under any purchase agreements directly with the customer. Company is obliged to make the
introductions, set up initial meetings and attend the same together with ExOne, maintain contact, follow up, and
good relations with the customer at all times. The key to effective management of such agreement is good
communications and documentation. ExOne at all times will reserve the right to terminate eligibility of the
Company for any finder’s fee arrangements with cause, including non-performance of obligations or poor or
ineffective communications.
6. SPLIT COMMISSIONS
If execution of an order involves different territories, ExOne will split the full commission among the
Representatives whose territories are involved. ExOne will make this determination in consultation with the
Representatives involved. The sum of the split commission shares shall add up to a full commission.
7. TERMS OF SALE
All sales shall be at prices and upon terms established by ExOne, and ExOne shall have the right, in its
discretion, from time to time, to establish, change, alter or amend prices and other terms and conditions of sale.
ExOne will honor valid quotations for the validity period stated in each quotation. Company shall not accept
orders in ExOne’s name or make price quotations or delivery promises without ExOne’s prior approval.
8. ACCEPTANCE OF ORDERS
All orders are subject to acceptance or rejection by an authorized officer of ExOne at its home office and to the
approval of ExOne’s credit department. ExOne shall be responsible for all credit risks and collections. If ExOne
notifies customer of its acceptance or rejection of an order, a copy of any written notification shall be
transmitted to Company.
9. PERFORMANCE.
From time to time, the parties agree to establish Performance Objectives including marketing plans, revenue
targets and additional responsibilities related to ongoing market development. Company agrees to meet the
business development goals established between the parties and provide routine sales forecasts in its Territory.
If Company fails to meet these goals without evidence of progress toward completion, ExOne, at its sole
discretion, may terminate this agreement with 30 days written notice, but no sooner than 12 months from the
Effective date, except for those situations noted in Section 12 a), b), c), e) and f) below. If Agreement is
terminated under Section 9, Company may continue for a period of 3 months to sell to any Named Account
where a quotation is currently in effect.
10. REPRESENTATIVES RELATIONSHIP AND CONDUCT OF BUSINESS
a)
Company shall devote such time as may be reasonably necessary to sell and promote ExOne’s products
within the territory to achieve the Performance Objectives established above.
b) Company will:
i)
conduct all of its business in its own name and in such manner it may see fit,
ii)
pay all expenses whatever of its office and activities, and
iii)
be responsible for the acts and expenses of its employees.
c) Nothing in this Agreement shall be construed to constitute Company as the partner or employee of ExOne
nor shall either party have any authority to bind the other in any respect, it being intended that each shall
remain an independent contractor responsible only for its own actions.
d) Company shall not, without ExOne’s prior written approval, alter, enlarge, or limit orders; make
representations or guarantees concerning ExOne’s products; or accept the return of, or make any allowance
for such products.
e) Company shall furnish to ExOne’s Credit Department any information that it may have from time to time
relative to the credit standing of any of its customers.
f) Company shall abide by ExOne’s policies and communicate same to ExOne’s customers.
g) ExOne shall be solely responsible for the design, development, supply, production and performance of its
products.
h) ExOne shall furnish Company with marketing collateral in electronic form including catalogs, literature
and any other material necessary for the proper promotion and sale of its products in the territory. Any
literature which is not used or samples or other equipment belonging to ExOne shall be returned to ExOne
at its request.
i) ExOne will keep Company fully informed about sales and promotional policies and programs affecting
Company’s territory.
11. TERM OF AGREEMENT
This Agreement will remain in effect for a period of Three (3) Years from the Effective Date, unless sooner
terminated as provided herein. This Agreement can be renewed for up to 3 additional One (1) Year Terms upon
mutual written consent of both ExOne and Company. The expiration or earlier termination of this Agreement
shall not relieve either party of obligations incurred prior thereto.
12. TERMINATION
ExOne shall have the right to terminate this Agreement and any purchase orders hereunder: if Company assigns
this Agreement or any of its rights hereunder; if Company neglects or fails to perform or observe any of its
existing obligations to ExOne; if Company makes an assignment for the benefit of creditors; if a trustee in
bankruptcy is appointed to take charge of Company's property; or, if Company is adjudged a bankrupt, and such
condition is not remedied within ten (10) days after written notice has been given from ExOne to Company.
Termination may also be invoked subject to Section 9 above. Termination of this agreement shall not exempt
either party from Section 13 or 14 below. This Agreement may also be terminated:
a)
By ExOne immediately upon written notice to Company by registered or certified mail if there is a change
of fifty (50%) percent or more of the present ownership or control of Company’s business without ExOne’s
written consent.
b) By ExOne if Company, without ExOne’s written consent, offers, promotes or sells any product which is
competitive with any product Company is to offer, promote or sell for ExOne in accordance with the terms
of this Agreement, and written notice of this breach of the Agreement is mailed to or served upon
Company, the breach is not cured within ten (10) days after receipt of such notice by Company, and written
notice of termination is mailed to or served upon Company.
c)
By Company immediately upon written notice to ExOne by Registered or Certified mail in the event
ExOne sells substantially all of the assets of its business or there is a change of 50% or more of its present
ownership, or it is merged with another firm, corporation or business and ExOne is not the surviving
company.
d) By failure to meet mutually agreed upon Performance Objectives, Revenue Targets or responsibilities
spelled out in Section 9.
e)
By either party if the other party or its officers is found guilty of criminal or civil misconduct for any
reason such that said misconduct impairs the offending party’s ability to conduct business as usual and
reflects poorly on the goodwill of the non-offending party.
f)
By mutual written agreement, except that this agreement may not be terminated for 12 months from the
effective date by ExOne.
13. CONFIDENTIALITY
Company, and its employees, agents, or representatives will not at any time or in any manner, either directly or
indirectly, use for the personal benefit of Company, or divulge, disclose, or communicate in any manner, any
information that is proprietary to ExOne. Company and its employees, agents, and representatives will protect
such information and treat it as strictly confidential. This provision will continue to be effective for 3 years
after the termination of this Agreement.
Upon termination of this Agreement, Company will return to ExOne all records, notes, documentation and other
items that were used, created, or controlled by Company during the term of this Agreement.
14. TRADEMARKS
ExOne authorizes the limited use of its trademarks by Company for the purposes of advertising where this
purpose is to further the business development within the territory for the Sale of ExOne Products. ExOne
requires that Company execute and comply with separate ExOne Logo Use agreement.
15. ADVERTISING
All expenses incurred in advertising are to be borne by Company. All language translations into local
languages in Company’s territory are to be provided by Company. ExOne will provide such promotional and
technical data as available to support the sales efforts by Company on ExOne’s behalf. However, any perceived
lack of support will not relieve Company of its obligations in Section 9. ExOne retains the right to review and
approve uses of its trademarks prior to publication.
16. REMEDIES
In addition to any and all other rights a party may have available according to law, if a party defaults by failing
to substantially perform any provision, term or condition of this Agreement (including without limitation the
failure to make a monetary payment when due), the other party may terminate the Agreement by providing
written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default.
The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s).
Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result
in the automatic termination of this Agreement.
17. GENERAL
This Agreement contains the entire understanding of the parties, shall supersede any other oral or written
agreements, and shall be binding upon and inure to the benefit of the parties’ successors and assigns. It may not
be modified in any way without the written consent of both parties.
18. ASSIGNMENT
Neither party may assign or transfer this Agreement without the prior written consent of the other party.
19. ENFORCEABILITY
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or impaired thereby.
20. NO WAIVER
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver
of any right hereunder
21. CONSTRUCTION OF AGREEMENT
This Agreement shall be construed according to the laws of the State of Pennsylvania, U.S.A.
22. DISPUTES AND ARBITRATION
The parties agree that any disputes or questions arising hereunder, including the construction or application of
this Agreement, shall be settled by arbitration in accordance with the rules of the American Arbitration
Association then in force, and that the arbitration hearings shall be held in a location of ExOne’s choosing. If
the parties cannot agree upon an arbitrator within ten (10) days after demand by either of them, either or both
parties may request the American Arbitration Association to name a panel of five (5) arbitrators. ExOne shall
strike the names of two (2) on this list, the Company shall then strike two (2) names, and the remaining name
shall be the arbitrator. The decision of the arbitrator shall be final and binding upon the parties both as to law
and to fact, and shall not be subject to appeal to any court in any jurisdiction. The parties shall share the
expenses of the arbitrator equally, unless the arbitrator determines that the expenses shall be otherwise assessed.
23. NOTICES
All notices, demands or other communications by either party to the other shall be in writing and shall be
effective upon personal delivery or if sent by mail ten (10) days after deposited in the mail, first class postage,
prepaid, Registered or Certified, and all such notices given by mail shall be sent and addressed as follows until
such time as another address is given by notice pursuant to this Notices section:
To ExOne:
To Company: PACTO INTL GROUP LLC
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above
written in multiple counterparts, each of which shall be considered an original.
For ExOne LLC:
For Company: Pacto Intl Group LLC
Name
______________________________
Name
William Ortiz
Title
______________________________
Title
CEO
Date
______________________________
Date
Signature
______________________________
Signature
5.02.2014
_______________________________