EXHIBIT 10.58
INTERNATIONAL MARKETING AND SALES REPRESENTATION AGREEMENT
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THIS INTERNATIONAL MARKETING AND SALES REPRESENTATION AGREEMENT (this
"Agreement") is made and entered into as of the 3rd day of January, 1997 by and
between POSITRON CORPORATION, a corporation organized and existing under the
laws of the state of Texas, United States of America ("U.S.A."), having its
principal office at 00000 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxx, X.X.X. (hereinafter
referred to as "Positron"), and BEIJING AERO-SPACE XXXXX FENG MEDICAL DEVICES
CO., LTD., a company organized and existing under the laws of the People's
Republic of China ("PRC"), having its principal office at Xx. 0, 000-0 Xxxxxxxx
Xxxx, Xxxxxx, Xxxxxxx, PRC (hereinafter referred to as "Xxxxx Feng").
RECITALS
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A. Positron is engaged in the business of designing, manufacturing,
marketing and selling, under the trademark "POSICAM", medical diagnostic
scanners utilizing proprietary Positron Emissions Tomography ("PET") imaging
technology.
B. Positron desires to sell its POSICAM systems to hospitals and other
medical facilities in the PRC.
X. Xxxxx Feng possesses certain knowledge and experience relevant to
the marketing and sale of medical equipment, including medical imaging machines,
in the PRC.
D. Positron desires to appoint Xxxxx Feng as an independent marketing
and sales representative for Positron's POSICAM systems in the PRC pursuant to
the terms and conditions set forth in this Agreement, and Xxxxx Feng desires to
accept such appointment.
E. Positron and Xxxxx Feng contemplate that upon identifying and
testing the market for Positron's POSICAM machines in the PRC under this
Agreement, Positron and Xxxxx Feng will commence good faith negotiations
directed towards the establishment of further business arrangements between
Positron and Xxxxx Feng, including a distributor relationship and/or the
formation of an equity joint venture for the manufacture of PET machines in the
PRC.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
.1.APPOINTMENT OF SALES REPRESENTATIVE
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1.1 Appointment. Subject to the terms and conditions of this
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Agreement, Positron hereby appoints Xxxxx Feng on a non-exclusive basis to
solicit orders on Positron's behalf in the Territory with respect to the
products identified and described in
Schedule 1 to this Agreement (the "Products"), and Xxxxx Feng hereby accepts
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such appointment. In connection with such appointment, Xxxxx Feng is authorized
to (i) market and sell the Products to hospitals and other medical facilities
located in the Territory, (ii) receive purchase orders for Products from
customers and transmit such purchase orders to Positron for acceptance, and
(iii) install the Products at the customer's facility and provide product
support services.
1.2 Territory. Xxxxx Feng shall act as a marketing and sales
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representative for the Products in the PRC, excluding the Hong Kong and Macau
regions and Taiwan Province (the "Territory"). The Territory may be expanded
from time to time as agreed by Positron and Xxxxx Feng. Xxxxx Feng shall not
engage in any marketing, sales or other activities with respect to the Products
outside the Territory without the prior written consent of Positron.
1.3 Term of Appointment. Unless terminated earlier pursuant to Article 11
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hereof, this Agreement and Xxxxx Xxxx'x appointment hereunder shall commence as
of the date hereof and shall continue for a period of twelve (12) months
thereafter (the "Initial Term"). Upon the expiration of the Initial Term, this
Agreement and Xxxxx Xxxx'x appointment hereunder may be renewed or extended upon
the mutual agreement of the parties.
1.4 Authority to Perform Agreement. Change Feng hereby represents and
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warrants to Positron that it possesses (i) a valid current business license
issued by the Beijing State Administration for Industry and Commerce, a copy of
which shall be provided to Positron contemporaneously with the execution of this
Agreement, (ii) all requisite import/export authority from PRC governmental
authorities necessary for the performance by Xxxxx Feng of its obligations under
this Agreement, and (iii) all requisite authority from PRC governmental
authorities to deal in foreign exchange and process payments for the Products.
1.5 Covenant Not to Compete. During the term of this Agreement, Xxxxx Feng
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shall not design or manufacture, directly or indirectly, in the Territory any
products which are substantially similar to the Products.
2. MINIMUM ORDER COMMITMENT
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Xxxxx Feng agrees that it shall use its best commercial efforts to solicit
and obtain no less than three (3) purchase orders for Products (including at
least two (2) orders for POSICAM PET cameras) during the Initial Term of this
Agreement.
3. PRODUCTS AND PRICING
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3.1 Change in Product Line. From time to time during the term of this
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Agreement, Positron may, upon prior written notice to Xxxxx Feng and subject to
Xxxxx Xxxx'x reasonable approval, amend Schedule 1 to this Agreement to add new
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product(s) which Positron determines to offer for sale in the Territory.
Notwithstanding the foregoing, Positron may amend Schedule 1 to include the
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products currently listed on Schedule 2 to this Agreement at any time upon prior
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written notice to Xxxxx Feng. Positron may discontinue the sale of any of the
Products upon ninety (90) days prior written notice to Xxxxx Feng of such
discontinuance, in which event Schedule 1 shall be amended accordingly.
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3.2 Orders for Products. Xxxxx Feng shall transmit orders for Products
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by submitting to Positron a written purchase order duly executed by the
customer, in the form attached to this Agreement as Exhibit A, identifying the
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customer, the Products ordered, the installation location, requested delivery
date(s), any export/import information required to enable Positron to fill the
order, and any other relevant information. Xxxxx Feng acknowledges that it is
familiar with Positron's standard payment terms as set forth in Exhibit A and
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agrees to inform each customer in the Territory of such payment terms prior to
submitting the purchase order to Positron. All orders for Products are subject
to acceptance in writing by Positron at its office in Houston, Texas, U.S.A. All
orders for Products hereunder are subject to Positron's standard terms and
conditions of sale as in effect at the time of acceptance of the purchase order
for such Products. In the event of any inconsistency between such standard terms
and conditions and the terms of this Agreement, the terms of this Agreement
shall govern.
3.3 Pricing. Positron's export prices for the Products as of the date
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of this Agreement are listed on Schedule 1. If a purchase order is accepted by
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Positron, the prices for Products covered by such purchase order shall be based
on Positron's then current export price quotation, F.O.B. Houston, as in effect
on the date of Positron's acceptance. Accordingly, the customer shall be
responsible for the payment of any and all taxes (including VAT), duties,
tariffs, costs, fees and charges of any nature imposed in the Territory in
connection with the purchase or import of the Products. Positron may from time
to time increase or decrease its prices for the Products, such change to be
effective immediately upon Xxxxx Xxxx'x receipt of written notice thereof, which
may be in the form of an amendment to Schedule 1.
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3.4 Shipment of Products. It shall be the responsibility of Positron
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to render invoices for, and to effect the collection of payment with respect to,
all shipments of the Products. Unless the customer requests otherwise, all
Products ordered through Xxxxx Feng shall be packed for shipment and storage in
accordance with Positron's standard commercial practices. It is Xxxxx Xxxx'x
obligation to notify Positron of any special packaging requirements (which shall
be at the customer's expense). Positron shall deliver Products into the
possession of a common carrier designated by Positron or Xxxxx Feng at
Positron's manufacturing facility no later than the date specified for such
delivery on the relevant purchase order for such Products and no earlier than
the date three (3) days prior to such specified date. Xxxxx Feng acknowledges
that risk of loss and damage to a Product shall pass to the customer upon the
delivery of such Products to the common carrier designated by the customer.
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3.5 Governmental Approvals. The shipment of orders to the customer shall be
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subject to the right and ability of Positron or Xxxxx Feng to obtain any
required licenses and permits, under all applicable statutes, rules and
regulations of the United States government and its agencies and
instrumentalities. Xxxxx Feng hereby agrees to assist Positron in obtaining any
such required licenses or permits by supplying such documentation or information
as may be requested by Positron. Xxxxx Feng shall be responsible for obtaining
all governmental approvals and licenses necessary to import the Products into
the Territory, including without limitation, any necessary permits from the
Ministry of Health.
4. COMPENSATION OF SALES REPRESENTATIVE; OPTION TO PURCHASE
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AND RESELL PRODUCTS
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4.1 Sales Commission. As consideration for the services to be performed by
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Xxxxx Feng under this Agreement, Positron agrees to pay to Xxxxx Feng, in United
States Dollars or such other currency as may be required by applicable
regulations, a commission equal to twenty-five percent (25%) of the F.O.B.
price for orders for Products which are solicited by Xxxxx Feng and received and
accepted by Positron from customers in the Territory during the term of this
Agreement. No commissions will be paid on the value of technical, installation
or product support services. Any U.S.A or PRC taxes attributable to commissions
paid to Xxxxx Feng shall be the sole responsibility of Xxxxx Feng.
4.2 Payment Schedule. All amounts payable to Positron shall be not of
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sales representative's commission.
4.3 Expenses of Xxxxx Feng. Xxxxx Feng shall be responsible for the Payment
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of all of its costs and expenses incurred in connection with the performance of
its obligations under this Agreement. Except as otherwise expressly agreed by
Positron in writing, Positron shall not be obligated to reimburse Xxxxx Feng
for any of such costs or expenses.
4.4 Option to Purchase and Resell Products. In addition to Xxxxx Xxxx'x
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rights and obligations as a sales representative as described in this Agreement,
Xxxxx Feng also shall have an option to purchase Products directly from Positron
for resale to Xxxxx Xxxx'x customers in the PRC. In the event Xxxxx Feng elects
to purchase Products directly from Positron, Xxxxx Feng shall submit a purchase
order to Positron in its own name for the Products to be purchased. Xxxxx Feng
shall be entitled to purchase any Product for resale in the Territory at the
transfer price therefor, which shall be equal to twenty-five percent (25%) less
than the then current F.O.B. price for such Product. Xxxxx Feng shall be
responsible for the payment of any and all taxes (including VAT), duties,
tariffs, and other fees and costs imposed with respect to Products purchased
directly by Xxxxx Feng. If Xxxxx Feng elects to purchase Products directly from
Positron as provided in this Section 4.4, Xxxxx Feng shall not
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be entitled to any sales commission under Section 4.1 with respect to the
Products so purchased and resold.
5 RESPONSIBILITIES OF XXXXX FENG
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5.1 Marketing. At all times during the term of this Agreement, Xxxxx Feng
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shall use its best efforts to market, promote, sell and expand the sale of the
Products within and throughout the Territory, including through participation at
industry trade shows. In connection therewith, Xxxxx Feng shall make such
inquiries of potential customers and conduct such market tests and surveys
regarding the Products as are objectively reasonable under the circumstances. At
Positron's request, Xxxxx Feng shall provide to Positron from time to time
during the term of this Agreement, data (in reasonable detail) concerning the
overall market for Products in the Territory, specific market segments, market
potential and other relevant marketing information to assist Positron in
planning its sales efforts in the Territory.
5.2 Business Location. At all times during the term of this Agreement, Xxxxx
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Feng shall maintain a continuous and adequate permanent business location,
equipped with reliable telephone and facsimile capabilities.
5.3 Sales and Technical Personnel. Xxxxx Feng shall train and maintain a
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qualified and sufficient sales force to solicit and process orders for the sale
of the Products throughout the Territory. Such sales force shall maintain active
contacts with potential purchasers of the Products in the Territory. Xxxxx Feng
also shall train and maintain sufficient technical personnel to install the
Products at the customer's facility and to provide other product support
services. In connection therewith, Positron shall provide the services to Xxxxx
Feng specified in Section 6.2.
5.4 Product Knowledge. Xxxxx Feng shall cause its personnel to become
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familiar with the proper uses, applications and limits of the Products and with
all instructions published by Positron with respect thereto. If Xxxxx Feng is
unable to determine whether the Products will adequately meet a particular
customer's needs, Xxxxx Feng will contact Positron prior to soliciting an order
from such customer.
5.5 Compliance with Laws. At all times during the term of this Agreement,
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Xxxxx Feng shall comply, and shall cause its personnel to comply, with all
applicable laws, rules and regulations of the United States of America and the
People's Republic of China, as the same may exist from time to time. Xxxxx Feng
shall maintain all applicable licenses, permits, authorizations and
certifications necessary in order for Xxxxx Feng to perform its duties and
obligations under this Agreement. Without limiting the generality of the
foregoing, Xxxxx Feng shall not solicit any orders for Products or take any
other action under this Agreement if such act would constitute a violation of
any applicable laws, rules or regulations of the United States of America or the
People's Republic of China, including, without limitation, the U.S. Foreign
Corrupt Practices Act.
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5.6 Reporting. Xxxxx Feng shall provide Positron with written reports on a
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quarterly basis, or on such other basis as reasonably may be requested by
Positron, regarding the ongoing performance of Xxxxx Xxxx'x obligations under
this Agreement. Xxxxx Feng also shall keep Positron fully informed of all
Chinese governmental activities, plans and regulations that could affect the
sale of Products in the Territory.
6 RESPONSIBILITIES OF POSITRON
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6.1 Product Information. Positron shall provide Xxxxx Feng, at no charge,
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with copies of such printed marketing and technical materials and manuals
relating to the Products as Positron may consider necessary or appropriate to
assist with the promotion, marketing, sale, installation and maintenance of the
Products in the PRC. Any such materials shall be provided by Positron in both
English and Chinese language versions.
6.2 Technical Assistance Positron shall arrange for its personnel to visit
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Xxxxx Xxxx'x place of business, at Positron's expense and at mutually convenient
times, to provide assistance and training in connection with the marketing,
promotions, sale, installation and maintenance of the Products. Alternatively,
or in addition, Positron may require Xxxxx Xxxx'x personnel, who have a working
knowledge of the English language and who possess appropriate technical training
and knowledge, to visit Positron's facilities in the U.S.A. to observe and
become familiar with the methods used by Positron in the marketing, promotion,
sale, installation and maintenance of the Products. Positron shall pay all
direct expenses associated with such training programs. Xxxxx Feng shall be
responsible for travel and lodging costs and any other indirect expenses related
to attendance of its personnel at such training programs.
6.3 New Developments. Positron shall keep Xxxxx Feng advised of new
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prospects.,sales plans and objectives, and new product developments with respect
to Positron's sale of Products and other equipment to hospitals and other
medical facilities in the Territory.
7 JOINT MARKETING EFFORTS
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7.1 Participation in Upcoming PRC Trade Shows. Positron and Xxxxx
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Feng agree to attend and participate in, on a cooperative basis, the
____________ to be held in ______________ , PRC on May ____ , 1997 (the "May
1997 Show"), for the purpose of conducting a joint promotional and marketing
effort for the Products. Positron and Xxxxx Feng will each cause ______ members
of their sales force to attend the May 1997 Show, and Positron will prepare and
supply sufficient quantities of printed marketing and technical materials
regarding the Products for distribution at such events, which materials shall be
in the Chinese language. Xxxxx Feng agrees to procure, on a timely basis,
appropriate written invitations from the organizer of the May 1997 Show to
permit Positron's representatives to participate in
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the May 1997 Show and to obtain Chinese entry visas in connection with such
participation.
7.2 IMPORT OF POSICAM SYSTEM FOR MARCH 1997 SHOW. Positron, agrees to discuss
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with Xxxxx Feng the benefits of importing a demonstration model PET machine (or
components thereof) into the PRC, on a temporary basis, to be used for display
and marketing purposes at the May 1997 show. If the parties determine that
import of a PET machine for such purpose is desirable, Xxxxx Feng agrees to
procure, on a timely basis, a written invitation or other appropriate documents
from the organizer of the May 1997 show to permit the import of the POSICAM
system into PRC. Xxxxx Feng also shall arrange for all necessary PRC import and
customs clearances for such equipment.
8. LIMITED PRODUCT WARRANTY
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As to the Products, Positron's only warranty is to the customer, and such
warranty as set forth in Exhibit B attached hereto and made a part hereof.
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Under no circumstances shall the warranties set forth in Exhibit B apply to any
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Product which has been customized, modified, damaged or misused. Xxxxx Feng has
no authority to modify or extend such warranty. THE PROVISIONS OF THE
WARRANTIES SET FORTH IN EXHIBIT B ARE IN LIEU OF ANY AND ALL OTHER
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REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF
DEALING OR USAGE OF TRADE. IN NO EVENT WILL POSITRON BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RESULTING FROM
THE SALE, USE OR INSTALLATION OF THE PRODUCTS. [Xxxxx Feng acknowledges and
agrees that Positron shall not have any liability whatsoever to Xxxxx Feng with
respect to any claims, actions, suits or proceedings brought against Xxxxx Feng
by customers relating to defects in the Products.]
9. PATENTS AND TRADEMARKS
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Nothing herein shall give Xxxxx Feng any right or interest in any patent,
trademark, copyright or other intellectual property or proprietary technology of
Positron, and Xxxxx Feng shall not engineer, reverse engineer, manufacture,
replicate or duplicate any hardware or software comprising the Products or
assist any other person or entity in doing so. Xxxxx Feng shall not at any time
do or permit any act to be done which may in any way impair the rights of
Positron in its patents or trademarks. Xxxxx Feng has no authority to register
or use Positron's trademarks without Positron's prior written consent, and then
only at Positron's direction. Xxxxx Feng shall not use any stationery or other
supplies bearing Positron's name or trademark, except as specifically authorized
by Positron in writing.
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10. CONFIDENTIALITY
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Xxxxx Feng agrees that Positron has a proprietary interest in all information
concerning Positron and its business, products, designs, methods, manuals,
policies, practices, prices, suppliers, customers, agents, and sales
representatives which is not in the public domain (hereinafter referred to as
"Proprietary Information"), whether in connection with this Agreement or
otherwise and whether in written or oral form. Proprietary Information shall
include but shall not be limited to: trade secrets, inventions, ideas,
discoveries and know-how not publicly known or annotated by a legend, stamp or
other written identification as confidential or proprietary information. Xxxxx
Feng shall disclose the Proprietary Information provided by Positron only to
those of its agents and employees to whom it is necessary in order to properly
carry out their duties as limited by the terms and conditions hereof. Both
during and after the term of this Agreement, all disclosures by Xxxxx Feng to
its agents and employees regarding the Proprietary Information shall be held in
strict confidence by such agents and employees. During and after the term of
this Agreement, Xxxxx Feng, its agents and employees shall not use the
Proprietary Information for any purpose other than in connection with
discharging its duties in the Territory pursuant to this Agreement. Xxxxx Feng
shall, at its expense, return to Positron all Proprietary Information provided
by Positron as soon as practicable after the termination or expiration of this
Agreement. During the term of this Agreement and thereafter, all such
Proprietary Information shall remain the exclusive property of Positron. This
Article 9 also shall apply to any consultants or subcontractors that Xxxxx Feng
may engage in connection with its obligations under this Agreement.
11. TERMINATION OF AGREEMENT
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11.1 Mutual Consent. This Agreement may be terminated at any time prior to
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the expiration of the term specified in Section 1.3 hereof by the mutual written
consent of Positron and Xxxxx Feng.
11.2 Material Defaults. Either party may terminate this Agreement in the
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event of a material breach or default by the other party of any representation,
warranty, covenant or agreement to be performed by such other party, which
breach or default is not cured within thirty (30) days after written notice
thereof.
11.3 Bankruptcy. Either party may terminate this Agreement by written
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notice to the other party effective immediately if such other party makes an
assignment for the benefit of creditors, files a petition in bankruptcy or
otherwise becomes insolvent or unable to pay its debts as they become due.
11.4 Effect Of Termination. In the event that an order from any customer in
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the Territory for the purchase of Products is accepted by Positron prior to the
termination or expiration of this Agreement, the obligations assumed by both
parties hereunder in respect of any such order shall continue in force until
fully performed. In addition, if an order for Products is accepted by Positron
within three (3) months
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following expiration or termination of this Agreement, and payment in full for
such Products is received by Positron during such 3-month period, Xxxxx Xxxx'x
rights with respect to the payment of a commission in connection with such order
shall be fully protected provided that such order is obtained, in the opinion of
Positron, as a result of services performed by Xxxxx Feng hereunder.
12. INDEMNIFICATION
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Xxxxx Feng hereby agrees to indemnify, defend and hold harmless Positron,
its affiliates and all officers, directors, employees and agents thereof from
all liabilities, claims, damages, losses, costs, expenses, demands, suits and
actions (including without limitation attorneys' fees, expenses and settlement
costs) (collectively, "Damages") arising out of, or in connection with any
breach by Xxxxx Feng, its principals, employees and agents, of any of the terms
and conditions of this Agreement, including, but not limited to any Damages
arising from any representations or warranties of Xxxxx Feng not authorized
hereunder. Xxxxx Xxxx expressly acknowledges that as an independent contractor,
it is free to hire its employees, and accordingly, Xxxxx Feng agrees to
indemnify Positron against any claim by Xxxxx Xxxx'x employees against Positron.
13. FORCE MAJEURE
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Neither Positron nor Xxxxx Feng shall be liable for damages or be subject
to termination of this Agreement by the other party for any delay or default in
performing any obligation hereunder if such delay or default is due to any cause
beyond the reasonable control and without fault or negligence of that party;
provided that, in order to excuse its delay or default hereunder, a party shall
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notify the other of the occurrence or the cause, specifying the nature and
particulars thereof and the expected duration thereof and provided, further,
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that within fifteen (15) calendar days after the termination of such occurrence
or cause, such party shall give notice to the other party specifying the date of
termination thereof. All obligations of both parties shall resume full force and
effect upon the termination of such occurrence or cause (including without
limitation any payments which became due and payable hereunder prior to the
termination of such occurrence or cause). For the purposes of this Article 13, a
"cause beyond the reasonable control" of a party shall include, without
limitation, any act of God, act of any government or other authority or
statutory undertaking, embargo, fire, explosion, accident, power failure, flood,
strike, riot or war.
14. MISCELLANEOUS PROVISION
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14.1 RELATIONSHIP OF THE PARTIES. Xxxxx Feng shall be deemed to be an
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independent contractor. The relationship between Positron and Xxxxx Feng under
this Agreement shall not be construed to be that of employer and employee, nor
to constitute a partnership, joint venture or agency of any kind. XXxxx Feng
shall have no authority to assume or create any obligation in Positron's name or
on Positron's
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behalf with respect to the Products or otherwise, or to bind Positron in any
respect whatsoever.
14.2 ASSIGNMENT. The rights granted to Xxxxx Feng under this Agreement
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are personal in character and may not be assigned, delegated or transferred, in
whole or in part, by Xxxxx Feng without the prior written consent to Positron.
Any attempted assignment absent such prior written consent shall be null and
void. Xxxxx Feng shall notify Positron in writing in advance of any proposed
change in the ownership, control or management of Xxxxx Feng. [For purposes of
this Section 14.2, any change in the ownership or control of twenty percent
(20%) or more of the proprietary interest of Xxxxx Feng shall be deemed to be an
assignment.]
14.3 GOVERNING LAW. The construction, interpretation and performance of
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this Agreement shall be governed by and construed and enforced in accordance
with the laws of the state of Texas, U.S.A., excluding conflicts of law rules.
The United Nations Convention on Contracts for the International Sale of Goods
shall not be applicable to the Agreement.
14.4 SETTLEMENT OF DISPUTES. Any dispute or claim arising out of or
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relating to this Agreement, or the execution, breach, termination or validity
thereof, shall be settled through good faith consultations between the parties.
In the event no settlement can be reached through consultation within thirty
(30) days after a written request by one party to the other party to engage in
such consultations, either party may submit the dispute to the London Court of
International Arbitration for arbitration in accordance with the UNCITRAL
Arbitration Rules in force at the time of the arbitration proceeding. The place
of arbitration shall be London, England and the arbitration proceedings shall be
conducted in English. Any arbitration shall be final and binding on the parties.
The losing party shall be responsible for the payment of the reasonable costs
and expenses incurred by the other party as determined by the arbitration
tribunal. Neither party shall be entitled to obtain an award of punitive
damages in any arbitration proceedings conducted under this Agreement. During
any arbitration proceedings, this Agreement shall be performed continuously by
both parties. In addition to the remedies provided in this Section 14.4 and
elsewhere in this Agreement, Xxxxx Feng expressly acknowledges that Positron
shall have the right to seek injunctive and other relief from an appropriate PRC
court in oder to enforce its rights under Section 9 and Section 10 of this
Agreement and to prevent the unauthorized use or disclosure of Positron's
patents, trademarks, copyrights or other Proprietary information.
14.5 ENTIRE AGREEMENT: AMENDMENTS. This Agreement, including the
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schedules and exhibits attached hereto, sets forth the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersedes any prior agreements or understandings between the parties, whether
oral, written or implied. This Agreement may be amended or modified only by a
written instrument duly executed by an authorized representative of each party.
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14.6 NOTICES. All notices given under this Agreement shall be in writing
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and shall be addressed to the parties at their respective addresses set forth
below:
If to Positron:
Positron Corporation
00000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000, X.X.X.
Attention: Xxxxxx X. Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 713-492-2961
If to Xxxxx Feng:
Beijing Aero-Space Xxxxx Feng Medical Devices Co., Ltd..
Xx. 0, 000-0, Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx, 100039 PRC
Attention: _______________
Telephone No.: 00-00-00000000
Telecopy No.: 00-00-00000000
Either party may change its address or its telephone or telecopy number for
purposes of this Agreement by giving the other party written notice of its new
address or telephone or telecopy number. Any such notice if given or made by
certified or registered international air mail letter shall be deemed to have
been received on the earlier of the date actually received and the date ten (10)
calendar days after the same was posted (and in proving such it shall be
sufficient to prove that the envelope containing the same was properly addressed
and posted as aforesaid), and if given or made by telecopy transmission such
notice shall be deemed to have been received at the time of dispatch, unless
such date of deemed receipt is not a business day, in which case the date of
deemed receipt shall be the next such succeeding business day.
14.7 SEVERABILITY. If any provision of this Agreement is declared invalid
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or unenforceable by a court having competent jurisdiction, it is mutually
agreed that this Agreement shall endure except for the part declared invalid
or unenforceable by order of such court. The parties shall consult and use their
best efforts to agree upon a valid and enforceable provision which shall be a
reasonable substitute for such invalid or unenforceable provision in light of
the intent of this Agreement.
14.8 WAIVER. The waiver by either party of any right hereunder or the
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failure to enforce at any time any of the provisions of this Agreement, or any
rights with respect thereto, shall not be deemed to be a waiver of any other
rights hereunder or any breach or failure of performance of the other party.
14.9 VALIDITY. Positron represents and warrants that this Agreement is
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lawful and may be performed in accordance with its terms under all laws in force
in the U.S.A.
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at the time of execution of this Agreement. Xxxxx Xxxx warrants that this
Agreement is lawful and may be performed in accordance with its terms under all
laws in force in the PRC at the time of execution of this Agreement. Each party
covenants and warrants to the other party that it will advise the other party of
any changes in the applicable laws and regulations of the country or countries
as to which it is making a warranty in this Section 14.9 of which the party
making such warranty becomes aware if such changes might or will impair the
validity or lawful performance of all or any part of this Agreement.
14.10 LANGUAGE. This Agreement has been entered into in both the English
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and Chinese languages. Both language versions shall be equally effective and
enforceable. In case of a dispute, the English language version of this
Agreement shall prevail.
14.11 COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
POSITRON CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
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BEIJING AERO-SPACE XXXXX FENG
MEDICAL DEVICES CO., LTD.
By: /s/ ZHOU ZHFENG
--------------------------
Name: Zhou Zhfeng
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Title: General Manager
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-13-
SCHEDULE 1
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PRODUCTS
DESCRIPTION PRICE (IN USD)
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Positron POSICAM HZ Whole Body PET Camera $1,510,000.00
Positron POSICAM HZL/R Whole Body PET Camera $1,820,000.00
SCHEDULE 2
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POTENTIAL PRODUCTS
New Positron Whole Body PET Camera
New Positron 18 Mev Cyclotron
The foregoing products are based on technology to be acquired by Positron
from GE and may be added to Schedule 1 by Positron, at its option, upon prior
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written notice to Change Feng following the successful consummation of
Positron's acquisition of the PET division of GE Medical Systems.
EXHIBIT A
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PURCHASE ORDER
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Quotation Number Page 1 of 4 pages
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PURCHASE ORDER/QUOTATION
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Customer:
SAMPLE
Positron Corporation is pleased to submit the following quotation, consisting of
16 pages, and offers to sell the products described herein at the prices and
--
terms stated, subject to your acceptance of the terms and conditions on the face
and reverse hereof and the agreement between Positron Corporation and
______________________________________________________________________________.
This quotation is valid for thirty days from ___________.
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CATALOG NO. DESCRIPTION PRICE
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712-100030 POSICAM HZL-R SYSTEM
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POSICAM Low Profile Gantry and Patient Couch
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- 53.4 cm patient opening diameter
- 1.0 RPS wobble speed
- Laser positioning reference guides, top and both sides
- Digital display for patient axial position
- Computer controlled axial couch position
- Digital display for count rate
- Digital display for acquisition time
- Retractable septa
Detector Modules
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- 32 ring staggered BGO crystals
- Crystal dimensions 8.5 x 9.8 x 30 mm
- 1024 PMTs with 4,096 crystals with a 4:1 ratio for optimum
sensitivity
- 61 slice generation with 2.6 mm separation
- 16.6 cm axial field of view
- 260K counts/sec/microCi/cc sensitivity typical
- 1.3m counts/sec/microCi/cc sensitivity with SEPTA retracted
- 5.8 mm cubic resolution
- 78 cm ring diameter
- overlapping (patented) design
- 5 msec temporal resolution
- 5 nsec FMHM coincidence resolving time with 12 ns window
Quotation Number Page 2 of 4 pages
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POSICAM Data Acquisition System (PDAS)
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Hardware and Software
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- 68030 processor, 25 MHZ
- VME bus plus 2 dedicated VSB busses
- PDAS software
- Real time binning rate of 2 million events/sec
- 32 Mbyte memory (Optionally expandable)
- Static, real-time dynamic, real-time gated acquisition modes
Operator Console/View Station
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- Sun SPARCstation
- 16" color monitor
- 32 MBytes memory
- 207 MByte hard disk
- Ethernet network interface
- Software applications package
POSICAM Image Workstation
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- Viewing console table and chair
- 19" color monitor
- Sun SPARCstation
- 32 MByte memory
- 650 MByte hard disk storage minimum
- 4mm DAT Tape 2-8 GByte
- Keyboard with optical mouse and pad
- Ethernet network interface
- Dedicated applications accelerator for reconstruction
POSICAM ACS Software
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- Window interface
- Automated protocols
- Acquisition
- Reconstruction
- Corrections
- Image processing and display
- Utilities
Rotating Fan Beam
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- Transmission scan with real-time randoms and scatter rejection
- Reduced attenuation acquisition time
- Employs sealed 68Ge rod sources (customer supplied) from recommended
vendor
- Patient aperture cover
Communications Modem
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- 9600 baud V.32 bis, V.42 bis standards
System Documentation
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Quotation Number Page 3 of 4 pages
________________________________________________________________________________
OPTIONS
712-011003 Codonics High Resolution Color Printer
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- 300 dots per inch resolution
- Over 16.7 million high quality colors
- 256 levels each of cyan, magenta and yellow
- 8.5" x 11" print size
- Paper or color transparencies
- Ethernet connection
712-013000 Cardiac Quantitative Software
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- XXX (Rubidium Absolute Uptake)
712-013020 Neuro Quantitative Software
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- FDG Uptake
712-013030 Oncology Quantitative Software
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- FDG Uptake
712-005150 Head Holder - Adjustable
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- Foam inserts and mounting hardware included
- Adjustable elevation and tilt
712-005011 Deluxe PET Phantom
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- 20 cm cylinder phantom
- Inserts include six solid spheres, cold rod
insert, and hardware for mounting user-
supplied capillary line sources
712-020003 Remote Physician's View Station
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- Sun SPARCstation
- 16" color monitor
- 32 MByte memory
- 207 MByte hard disk
- Ethernet network interface
- Software applications package
Quotation Number Page 4 of 4 pages
________________________________________________________________________________
Payment Terms:
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30% upon receipt of purchase order with Irrevocable Letter of Credit for
the remaining 70%
60% upon shipment
10% upon acceptance or first clinical use, whichever occurs first
Notes:
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F.O.B. Positron Corporation
Any and all taxes and duties are excluded.
Installation and training are included in the price of the equipment.
Service will be provided during the twelve (12) month warranty by Positron.
________________________________________________________________________________
CUSTOMER ACCEPTANCE, AS QUOTED: POSITRON CORPORATION
THIS QUOTATION IS SUBJECT TO ALL PROVISIONS
AND CONDITIONS CONTAINED HEREIN. By___________________(Signature)
Customer Requested Delivery Date___________ Name: Xxxxxx X. Xxxxx
By_______________________________(Signature) Title: Executive Vice President
Name & Title________________________________ Sales Representative
________________________________________________________________________________
PC\Quote Forms\sample.wpd
EXHIBIT B
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PRODUCT WARRANTY
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Quotation Number SAMPLE
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LICENSE AGREEMENT FOR OPERATION SOFTWARE
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The License Agreement, by and between Positron Corporation ("Positron") and the
Customer, designated below, is entered into as part of a sale of certain
equipment ("Equipment") more fully defined on Positron Quotation Number SAMPLE
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dated ("Quotation"). This License Agreement does not
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supersede or replace any terms and conditions of the Quotation, or any written
warranties or service contracts applicable to the Equipment, and Positron has
not authorized any employee or agent to grant any other or different licenses
or other rights with respect to any patent application, patent, copyright,
trademark, trade secret, proprietary right, or other property right of Positron
or any of Positron's suppliers.
Positron grants to Customer a nonexclusive and nontransferable license to use
the computer software package ("the Software") necessary for the operation of
the Equipment on the terms and conditions defined or referenced herein for so
long as Customer may own or use the Equipment. THIS LICENSE DOES NOT EXTEND TO
ANY MAINTENANCE OR SERVICE SOFTWARE SHIPPED TO OR LOCATED AT CUSTOMER'S PREMISES
WHICH IS INTENDED TO ASSIST POSITRON EMPLOYEES IN THE INSTALLATION, TESTING,
SERVICE, AND MAINTENANCE OF THE EQUIPMENT.
Customer agrees to pay Positron a one-time license fee. This fee is included in
the basic system price defined in the Quotation.
THE LICENSE HEREBY GRANTED TO THE CUSTOMER DOES NOT INCLUDE ANY RIGHT TO USE THE
SOFTWARE (FOR PURPOSES OTHER THAN OPERATION OF THE EQUIPMENT) OF TO COPY,
REPRODUCE, SELL, ASSIGN, TRANSFER, OR SUBLICENSE THE SOFTWARE FOR ANY PURPOSE,
IN WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN PERMISSION OF THE PRESIDENT OR A
VICE PRESIDENT OF POSITRON. If such permission is obtained, Customer agrees to
apply Positron's copyright notice or other identifying legends to such copies
or reproductions.
The rights herein granted to Customer shall not affect the exclusive ownership
by Positron of the Software of any trademarks, copyrights, patents, trade
secrets, proprietary rights, or other property rights of Positron (or any of
Positron's suppliers) pertaining to the Software.
Customer agrees that only authorized officers, employees, and agents of Customer
will use the Software or have access to the same (of to any part thereof) and
that none of Customer's officers, employees, or agents will disclose any part or
all of the Software, or permit any part or all of the same to be used by any
person or entity other than those identified herein. Customer acknowledges that
certain of Positron's rights may be derived from license agreements with third
parties and as such Customer agrees to preserve the confidentiality of
information imparted to Positron under such third party license agreements.
If the Customer modifies the Software in any manner, all warranties associated
with the Software and the Equipment shall become null and void. If the Customer
or any of its officers, employees, or agents should devise any revisions,
enhancements, or improvements in the Software, Customer shall disclose such
improvements to Positron and Positron shall have a nonexclusive royalty-free
license to use such revisions, enhancements and improvements and the right to
grant sublicenses thereof.
Quotation Number SAMPLE
The Software is licensed to Customer on the basis that (a) the Customer shall
maintain the configuration of the Equipment as it was originally designed and
manufactured and (b) the Equipment includes only those subsystems and components
certified by Positron. The Software may not perform as intended on systems
modified by personnel other than those under the direct supervision of Positron
or on systems which include subsystems or components not certified by Positron.
Positron does not assume any responsibility or liability with respect to
unauthorized modification or substitution of subsystems or components.
Customer shall cause each authorized user of the Software to abide by the terms
and conditions of this License Agreement as if each were a party hereto.
This license shall continue for as long as the Customer continues to use the
Equipment, except that Positron may terminate this license in the event of any
default by the Customer. The Customer agrees to return the Software and any
authorized copies thereof to Positron immediately upon expiration of or
termination of this license.
TO BE USED only on the following equipment and location:
Model # S.N. Located at
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POSITRON CORPORATION Customer
Xxxxxx X. Xxxxx
--------------------------------- --------------------------------
Type or Print Type or Print
Title Executive Vice President Title
---------------------------- -----------------------------------
Date January 22, 1997 Date
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Quotation Number SAMPLE
TERMS AND CONDITIONS
EXCLUSIVE TERMS OF SALE
The equipment ("Equipment") and all other goods and services ("Goods and
Services") described in this quotation are offered by Positron Corporation
("Positron") only on the following terms and conditions. Any additional or
different terms or conditions stated in any purchase order, acknowledgement, or
other document issued by Customer in connection with this quotation will have no
effect and will not under any circumstances be binding on Positron unless
specifically accepted in writing by the President or any Vice President of
Positron.
Customer's signature on this quotation constitutes an agreement (1) that this
quotation states the exclusive terms and conditions of the contract sale of the
Equipment and other Goods and Services to Customer and (2) that any
contemporaneous or subsequent references by the parties to Customer's purchase
order, acknowledgement, or other document will be effective only for Customer's
administrative purposes (e.g., tracking Customer's purchases through purchase
order numbers assigned by Customer's purchasing or accounting personnel).
This quotation supersedes all previous Positron quotations with respect to the
equipment and other Goods and Services. There are no written or oral agreements,
statements, representations, or understandings which shall in any way relate to,
affect, or control the validity or enforcement of these terms and conditions,
except as expressly provided herein.
All sales are subject to Positron management review and approval of credit and
finance matters and any terms or descriptions included in this quotation by
Positron representatives. Positron accepts Customer's down payment(s) without
prejudice and subject to the foregoing rights and approvals. Down payment(s)
will be refunded without interest if approval is not granted.
PRICE AND PAYMENT TERMS
The price quoted includes installation of the Equipment at the location
specified on the face of this quotation. Unless otherwise indicated, the price
also includes transportation of the Equipment and other Goods and Services from
Positron to such location. The price does not include (1) any taxes or duties
(including without limitation all sales taxes on the equipment, other Goods and
Services, and freight) or (2) any handling, rigging, uncrating, storage, or
other charges incidental to shipment, delivery, or installation of the Equipment
or other Goods and Services.
If installation of the Equipment, for any reason beyond the control of Positron,
is not completed within one year of the date of this quotation, then for each
month (or fraction thereof) during which installation thereafter remains
incomplete the price of the Equipment and the other Goods and Services will be
increased by one percent (1%) until installation is completed. If installation
is not completed within 24 months of the date of this quotation, either (1) the
price of the Equipment and other Goods and Services will be adjusted to include
any increase in Positron's then-current list price(s) or (2) Positron may
terminate this agreement without any further liability. All payments due under
this paragraph are in addition to any other payments due under other terms and
conditions.
If this quotation covers Equipment and other Goods and Services for more than
one system, room, suite, or location, each such system, room, suite, or location
will be treated as if it were the subject of a separate sale. At the time of
each shipment hereunder, Positron will prepare an invoice showing the price of
the Equipment and other Goods and Services shipped or provided. The amount of
each such invoice will be paid by Customer according to the payment terms stated
herein. If separate prices are not stated in the quotation for each such system,
room, suite, or location, the amount to be shown in each of Positron's
invoice(s) with respect to such shipment(s) will be determined by multiplying
the total contract price by a fraction, the numerator of which will be the
higher of (1) Positron's list price(s) as of the date of this quotation and (2)
Positron's then-current list
QUOTATION NUMBER SAMPLE
price(s) for the Equipment and other Goods and Services identified in the
invoice(s), and the denominator of which will be the total list price(s) for all
of the Equipment and other Goods and Services identified in this quotation.
PAYMENT TERMS FOR POSITRON EMISSION TOMOGRAPHY EQUIPMENT. A down payment of
thirty percent (30%) of the price of the Equipment is due upon Customer's
signing this quotation, along with the Irrevocable Letter of Credit for the
remaining 70%. When Customer's down payment is received Positron will assign a
priority for production and will schedule a shipping date. Upon delivery of the
Equipment, Customer will pay Positron an additional sixty percent (60%) of the
price(s) stated herein. The balance due for the Equipment will be paid by
Customer upon completion of installation of the Equipment. The balance due for
all other Goods and Services identified in this quotation will be paid by
Customer upon delivery.
SHIPPING AND DELIVERY TERMS
All terms are F.O.B. place of shipment, freight prepaid and allowed. Title and
risk of loss will pass to Customer upon shipment and Customer will provide
insurance against such risk. Equipment will be shipped to the address indicated
on the face of this quotation. Shipping dates are subject to revision by
Positron to adjust for future production schedule requirements.
Delivery is subject to availability and lead times required by Positron's
production schedule. Delivery for purposes hereof is deemed to have occurred on
the earlier of the actual date of delivery or ten (10) days from the date of
shipment.
Customer may request reasonable delays of the scheduled shipping date
established by Positron prior to the date the Equipment is shipped, provided
that Customer submits its request to Positron in writing at least 90 days
before the scheduled shipping date and Positron consents in writing to the date
requested by Customer. Positron's consent will not be withheld unreasonably, but
Positron may (1) refuse to honor any request for delay received within 90 days
of the scheduled shipping date, (2) store the Equipment at Customer's expense if
Customer is unable to accept delivery on the original scheduled shipping date
(or any rescheduled shipping date), and (3) invoice Customer for the Equipment
as if it had been shipped on the original scheduled shipping date (and Customer
will pay such invoice immediately upon receipt). If any request for delay in
shipment is honored by Positron, the price of the Equipment is subject to
adjustment in accordance with the other terms and conditions hereof.
Positron has not authorized any employee or agent to offer any shipping
or delivery terms other than those appearing above.
SITE PREPARATION AND INSTALLATION
All down payments and progress payments will have been made and all applicable
license agreements will have been signed by Customer before installation of
the Equipment will commence.
Except as otherwise expressly provided in this section, Customer is responsible
for preparing its site for installation of the Equipment. Full, free, and
immediate access to the installation site (and a suitable and safe place for
storage of the Equipment before installation) will be provided by Customer.
Customer is responsible for having the Equipment moved from its point of
delivery to the installation site. Any scaffolding, platforms, lifting
equipment, rigging, building alterations, climate controls, power supplies,
electrical circuits, safety switches, power outlets, conduits, wiring,
structural support, utilities, plumbing, carpentry, or other work required by
any applicable laws or by Positron in connection with installation of the
Equipment will be provided by Customer at its own expense.
If trade unions or other third parties interfere with (or threaten to interfere
with) the installation of the Equipment by Positron employees, Customer is
responsible for making any necessary arrangements with such parties to permit
completion of installation, all at Customer's expense.
If members of trade unions for any reason are required to install the Equipment,
Positron's obligation will be
25
Quotation Number SAMPLE
limited to providing engineering supervision of the installation activities.
POSITRON OFFERS NO WARRANTY AND ASSUMES NO LIABILITY FOR THE FITNESS OR ADEQUACY
OF THE PREMISES (OR THE UTILITIES AVAILABLE AT THE PREMISES) IN WHICH THE
EQUIPMENT IS TO BE INSTALLED, USED OR STORED. CUSTOMER AGREES TO INDEMNIFY AND
HOLD POSITRON HARMLESS AGAINST ANY LOSS, DAMAGE, OR CLAIM ARISING OUT OF THE
CONDITION OF SUCH PREMISES (OR UTILITIES).
The Equipment will be installed during normal working hours. Installation
services include (1) connecting the Equipment to safety switches and power
outlets provided and installed by Customer prior to delivery of the Equipment
and (2) testing the Equipment after installation to verify compliance with
Positron's published performance specifications only. Installation will be
considered complete for the purposes hereof upon Customer's first used of the
Equipment of upon Positron's verification that the Equipment substantially
complies with Positron's published performance specifications (Positron's final
invoice constituting confirmation of the same), whichever occurs first. For the
purpose of commencement of any applicable warranty period, Positron will
maintain records reflecting the actual date installation is completed, and upon
request Positron will furnish Customer with written confirmation of such date.
The price includes standard installation services only. Any additional time
required or delay(s) experienced in installing the Equipment resulting from the
condition or location of the premises, the condition or location of power
supplies, outlets, switches, conduits, wiring, or circuits, delay(s) in
completing site preparation, or any similar or dissimilar cause(s) will be at
Customer's own expense. Any labor in excess of standard installation services
and any overtime incurred by Positron employees in respect of such additional
time required or delay(s) experienced (as well as any extra labor or overtime
work performed at the request of Customer) will be invoiced to and paid by
Customer at then-prevailing Positron demand service rates.
Customer is responsible for obtaining all government approvals required for
the purchase, installation, and use of the Equipment, including without
limitation any certificate of need and zoning variances. Customer will complete
all such activities diligently, will keep Positron notified periodically of the
results of its efforts, and upon request will provide Positron with written
confirmation of such approvals.
Positron has not authorized any employee or agent to offer any site preparation
or installation terms other than those appearing above. The provisions of this
section may be superseded only by supplemental terms and conditions
("Construction Terms") under which Positron agrees to design and construct
facilities into which the Equipment is to be installed. In such event, the
provisions of this section will be considered as supplemental to the
Construction Terms, and to the extent of any conflict between the terms and
conditions of this section and the Construction Terms, the Construction Terms
will govern.
DEFERRED INSTALLATION
If installation (or commencement of installation) is delayed for reasons beyond
the control of Positron (including without limitation Customer's not having
completed site preparation requirements stated in the previous section),
Positron may place the Equipment in storage (in Positron's facility or in a
warehouse) at Customer's expense. Storage charges will be billed to Customer
monthly, and Customer will pay all such invoices upon receipt. Customer also
will continue to make all progress payments which may become due under the terms
and conditions of this agreement during the period installation is deferred. If
such delay lasts for a period of 60 days following delivery, Customer will pay
Positron one-half (1/2) of any balance due. If such delay continues beyond 180
days after delivery, Customer will pay Positron the remaining balance due.
CREDIT TERMS, SECURITY AGREEMENT, AND CUSTOMER DEFAULT
Positron may establish or change the credit and payment terms extended to
Customer when in Positron's sole opinion Customer's financial condition or
previous payment record warrants such action, and Customer's signature on this
quotation constitutes an agreement to honor the credit and payment terms so
established or changed. Customer will provide promptly upon request such
financial information as may be reasonably
Quotation Number SAMPLE
required by Positron to complete its credit review of Customer.
In signing this quotation, Customer grants to Positron a purchase money security
interest in all of the Equipment identified herein until all payments for the
Equipment have been received by Positron. Customer agrees to secure, to sign,
and to deliver such promissory notes, security agreements, financing statements,
landlord and mortgagee waivers, and other documents as may be required by
Positron, or by any of Positron's assignees, to evidence or to perfect the
security interest in the Equipment. (If the Equipment is to be delivered in
Louisiana, Customer hereby grants to Positron, and to Positron's assignees, a
vendor's lien against the Equipment and agrees to sign such documents as may be
required to record such lien.) Where permitted by applicable law, Customer's
signature on this quotation constitutes authorization for the employees or
agents of Positron, or of Positron's assignees, to execute and file financing
statements (and any amendments thereto) and other documents on behalf of
Customer in order to perfect the security interest in the Equipment. As long as
any balance is due hereunder, Customer further agrees that the Equipment will
not be removed from the location specified on the face of this quotation without
the prior written consent of the President or any Vice President of Positron (or
Positron's assignees).
If Customer does not pay any amount when due or does not meet any other
obligation hereunder, then (in addition to any other remedies available at law
or in equity) Positron may accelerate any balance due and require immediate
payment thereof, may enter Customer's premises peacefully and render the
Equipment inoperable, may repossess the Equipment, and may resell the Equipment.
The net proceeds of any such resale, after Positron's costs of repossessing,
removing, transporting, reconditioning, storing, and reselling the Equipment,
and all other associated costs, will be applied to the unpaid balance owed by
Customer. Customer will remain liable for any deficiency which remains after
such resale, and Positron will return to Customer all net proceeds in excess of
Customer's unpaid balance.
With respect to any delinquent payment(s), Customer agrees to pay a finance
charge at the rate of one and one-half percent (1-1/2%) per month computed from
the date each delinquent payment or accelerated balance shall have become due.
Furthermore, in any action initiated to enforce the terms of this agreement
following Customer's default, Positron shall recover as part of its damages all
costs, expenses, and attorney fees incurred in connection with such action.
LEASES
In the event Customer desires to convert the sale of the Equipment to a lease,
Customer will arrange for the lease agreement and all other related
documentation to be reviewed and approved by Positron, and executed by all
parties involved, not later than 90 days prior to the scheduled delivery date.
Customer is responsible for all efforts to convert this transaction to a lease
and is required to secure the leasing company's approval of all the terms and
conditions hereof without modification.
No Equipment will be delivered unless Positron receives copies of the fully
executed lease documents and approves the same.
WARRANTY, DISCLAIMERS, AND LIMITATION ON LIABILITY
Positron provides specific warranties with respect to the Equipment. All
warranties applicable to the Equipment accompany this quotation. No other
warranties are offered by Positron with respect to the Equipment, and Positron
has not authorized any employee or agent to offer any warranties except those
referenced above.
THE WARRANTIES REFERENCED IN THIS SECTION ARE EXPRESSLY IN LIEU OF ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AND IN LIEU OF ANY OTHER
OBLIGATIONS OR LIABILITY ON THE PART OF POSITRON. POSITRON NEITHER ASSUMES (NOR
HAS AUTHORIZED ANY PERSON TO ASSUME FOR IT) ANY OTHER WARRANTY OR LIABILITY IN
CONNECTION WITH THE EQUIPMENT.
Quotation Number SAMPLE
POSITRON SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL
DAMAGES BY REASON OF ANY ACT OR OMISSION OR ARISING OUT OF OR IN CONNECTION WITH
THE EQUIPMENT OR ITS SALE, DELIVERY, INSTALLATION, MAINTENANCE, OPERATION,
PERFORMANCE, OR USE, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOST
REVENUES, LOST PROFITS, DAMAGE TO ASSOCIATED EQUIPMENT OR TO FACILITIES, COSTS
OF CAPITAL, COSTS OF SUBSTITUTE PRODUCTS, FACILITIES, OR SERVICES, COSTS OF
REPLACEMENT POWER, COSTS ASSOCIATED WITH DOWN TIME, AND ANY SIMILAR AND
DISSIMILAR LOSSES, COSTS, OR DAMAGES.
PATENT INDEMNITY
Positron agrees to indemnify and to hold Customer harmless against any claims,
damages, and expenses to the extent the same arise out of or are asserted
against Customer alleging that the Equipment infringes any United States patent,
provided that (1) Customer immediately give Positron written notice of any such
claims, damages or expenses, (2) Customer grants to Positron full and complete
authority, information, and assistance reasonable necessary to defend, settle,
reimburse, or avoid any such claims, damages, and expenses, and (3) the
Equipment as of the alleged date of infringement was in the same form and
configuration as originally supplied by Positron and had not been modified in
any way without the prior written consent of the President or any Vice President
of Positron.
Upon timely receipt of Customer's written notice, Positron will assume the
defense of any claims against Customer. Customer agrees to cooperate with
Positron in the defense or settlement of all such claims.
Positron shall not be bound by the terms of any compromise or settlement
agreement negotiated or concluded by Customer without the prior written consent
of the President or any Vice President of Positron.
The terms of this section will not apply in the event of any sale or other
transfer of the Equipment by Customer or to the extent of any use of the
Equipment in combination with products or devices not furnished by Positron.
Positron has not authorized any employee or agent to offer any patent indemnity
terms other than those appearing above.
SOFTWARE AND LICENSE
All software is and shall remain the sole property of Positron. Use of such
software is subject to the terms of a separate license agreement to be signed by
Customer prior to or upon delivery of the Equipment. No license or other right
is granted to Customer or to any other party except as specifically set forth in
this section and Positron has not authorized any employee or agent to grant any
other licenses or other rights with respect to or under any patent application,
patent, copyright, trademark, trade secret, or proprietary right of Positron or
any of Positron's suppliers.
Upon Customer's signing the standard Positron license agreement, Positron grants
to Customer a nonexclusive and paid-up right and license to use the Equipment,
its operating software, and any documentation required for Customer's personal
use of such operating software in connection with the Equipment for so long as
Customer may own or use the Equipment. Such right and license does not include
any right to copy, reproduce, sell, assign, transfer, or sublicense the same and
does not include any rights or licenses whatsoever in any maintenance or service
software or any related documentation. Any maintenance or service software and
documentation shipped to or located at Customer's premises is intended solely to
assist Positron employees in the installation, testing, service, and maintenance
of the Equipment, as may be required by the terms and conditions hereof or by a
separate service support agreement, and Customer agrees to restrict access to
such maintenance or service software and documentation to Positron employees
only. IN THE EVENT OF ANY UNAUTHORIZED TRANSFER OR DISCLOSURE OF THE SOFTWARE
IDENTIFIED IN THIS SECTION (OR ANY TRANSFER OF OTHER RIGHTS OR LICENSES GRANTED
HEREBY) RESULTING
Quotation Number SAMPLE
FROM CUSTOMER'S ACTS OR OMISSIONS, CUSTOMER SHALL BE LIABLE FOR ALL DAMAGES
RESULTING FROM SUCH TRANSFER OR DISCLOSURE AND POSITRON SHALL HAVE THE RIGHT TO
REVOKE ALL RIGHTS AND LICENSES GRANTED TO CUSTOMER.
Customer will take such steps as may be reasonably required to preserve the
confidentiality of all proprietary information referenced in this section (and
all other proprietary information which Customer may acquire) and to cause any
employees, agents, representatives, or other persons to whom such proprietary
information is disclosed to abide by the terms and conditions of this section as
if each were a party hereto. Customer will restrict the dissemination of
proprietary information to only those persons who are assigned to operate or use
the Equipment and for whom access to such proprietary information is necessary
in the performance of their duties.
The minimum hardware requirements for any software upgrades for the Equipment
may be greater than the minimum hardware requirements for the Equipment as
described herein as of the date of Positron's quotation. Except for possible
future upgrades of Equipment hardware as may be required to accommodate any
future software upgrades, Positron software is described and offered on the
basis that (1) Customer will maintain the configuration of the Equipment as it
was originally designed and manufactured and (2) the Equipment includes only
those subsystems and components certified by Positron. Software for the
Equipment may not perform as intended on systems modified by personnel other
than those acting under the direct supervision of Positron or on systems which
include subsystems or components not certified by Positron. POSITRON WILL NOT
ASSUME ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY MODIFICATION OR
SUBSTITUTION OF SOFTWARE, SUBSYSTEMS, OR COMPONENTS, AND ALL WARRANTIES
ASSOCIATED WITH THE SOFTWARE AND HARDWARE SYSTEMS SHALL BECOME NULL AND VOID IN
THE EVENT OF ANY MODIFICATION OR SUBSTITUTION MADE WITHOUT THE PRIOR WRITTEN
CONSENT OF THE PRESIDENT OR ANY VICE PRESIDENT OF POSITRON.
MISCELLANEOUS
Positron may change the construction, design of configuration or the Equipment
without notice to Customer as long as the general function of the Equipment is
not thereby altered. The Equipment may contain certain components which have
been remanufactured or refurbished following limited prior use.
These terms and conditions are to be interpreted and enforced under the law of
the State of Texas without regard to principles of choice of law.
Customer will not assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the President or any Vice
President of Positron.
The invalidity or unenforceability of any provision hereof will not affect any
other provision, and all terms and conditions will be construed in all respects
as if any such invalid or unenforceable provision(s) were omitted. The failure
of Customer or Positron at any time to require the performance of any obligation
will not affect the right to require such performance at any time thereafter.
The waiver of any remedy with respect to any default will not be taken as a
waiver of any remedy for any succeeding default. Unless otherwise provided
herein, no limitation or restriction on the remedies available to either party
is intended by these terms and conditions. Clerical errors are subject to
correction.
Course of dealing, course of performance, course of conduct, prior dealings,
usage of trade, community standards, industry standards, and customary practice
or interpretation in matters involving the sale, delivery, installation, use, or
service of the Equipment and Goods and Services or similar or dissimilar
equipment, goods, or services shall not serve as references in interpreting the
terms and conditions hereof.
Positron shall not be liable for any delay or default caused by events beyond
its control, including (by way of example and not by way of limitation) any acts
of God, acts of third parties, acts of Customer (or any of Customer's employees,
agents, or representatives), acts of civil or military authorities, fires,
floods, and other
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similar or dissimilar natural causes, riots, wars, sabotage, vandalism,
embargoes, labor disputes, strikes, lockouts, lack or shortage of Rubidium-82,
water, transportation, labor, materials, supplies, fuel, or power, delays in
receiving any permits or licenses, delays caused by any laws, regulations,
proclamations, ordinances, or any government action or inaction, delays caused
by contractors and subcontractors, and any other cause or condition beyond
Positron's control, and the time for performance of Positron's obligations
hereunder shall be extended for a commercially reasonable period of time in the
event of any delay or default for such cause(s).
Positron reserves the right to allocate its available supplies amount its
Customers on such bases as Positron may deem fair and practical, without
liability for any resulting failure of performance.
Customer's obligations hereunder are independent of any other obligations
Customer may have under any other contract or account with Positron. Customer
will not exercise any right of offset in connection with the terms and
conditions hereof or in connection with any other contract or account with
Positron.
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PRODUCT WARRANTY
POSITRON EMISSION TOMOGRAPHY SYSTEMS
Positron warrants to its Customer that the positron emission tomography systems
sold by Positron ("Equipment") will be free from defects in material and
workmanship and will meet the technical and performance specifications
contained in applicable product data sheets and operation manuals published by
Positron specifically related to the Equipment as of the date of shipment.
System Warranty Terms. Except as otherwise provided below, the warranty for the
Equipment will be for a period of 12 months. All warranty terms described in
this warranty will commence on the earlier of (1) the date installation of
Equipment is completed or (2) the date Customer first uses the Equipment.
Warranty Terms for System Software and Software Upgrades. The software provided
with the Equipment will be the latest version of the standard software available
as of the 90th day prior to the date the Equipment is delivered to Customer.
Upgrades to standard software for the Equipment which do not require additional
hardware or Equipment modifications will be performed as a part of normal
warranty service during the term of Customer's warranty. Any software upgrades
requiring supplemental, additional, exchange, or replacement hardware will be
installed by Positron at no charge to Customer if Customer purchases such
required hardware. All software upgrades designated by Positron in its product
data sheets or other published materials as optional software are available to
Customer on terms and conditions to be quoted by Positron. Any optional software
upgrades to the Equipment purchased from Positron will be warranted for 90 days
from date such upgrade is installed by Positron.
The purchase of the Equipment includes a license only to customer to use the
software provided with the Equipment exclusively for the purpose of operating
the Equipment and does not include any right or license to use any software or
related documentation required to perform maintenance or service of the
Equipment.
Warranty Terms for System Hardware Upgrades. Any supplemental, additional,
exchange or replacement hardware purchased from Positron for the Equipment will
be warranted for a period of 90 days from the date such hardware is installed by
Positron.
CONDITIONS
This warranty is subject to the following conditions: the Equipment (a) is to be
installed by authorized Positron representatives (or is to be installed in
accordance with all Positron installation instructions by personnel trained by
Positron), (b) is to be operated only by personnel duly trained in the proper
operation of the Equipment, (c) is to be operated according to all instructions
provided with the Equipment, and (d) is to be maintained in strict compliance
with all recommended and scheduled maintenance instructions provided with the
Equipment, and (e) the Customer is to notify Positron immediately in the event
the Equipment at any time fails to meet performance specifications.
WARRANTY SERVICE
Warranty service includes all requested service calls to repair or replace the
Equipment as provided by this warranty. Warranty service will be performed
during the normal working hours of Positron, Monday through Friday, except for
recognized national legal holidays. In the event it is not possible to
accomplish warranty service within normal working hours, or in the event
Customer specifically requests that warranty service be performed outside of the
normal working hours of Positron, Customer agrees to pay for such services at
the standard Positron demand service rates in effect.
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When warranty service is scheduled or requested, Customer will give Positron
service personnel full, free, and immediate access to the Equipment and to
Customer's operation, performance, and maintenance records for the Equipment.
Customer waives warranty service if it does not provide such access to the
Equipment and Customer's records. Customer agrees to compensate Positron at
prevailing demand service rates in effect as of the date any such warranty
service is to be performed for all time spent by Positron service personnel
waiting for access to the Equipment and records prior to beginning work on a
warranty service call.
EXCLUSIONS
Warranty coverage does not include any defect or performance deficiency which is
the direct or indirect result, in whole or in part, of (1) accident, (2) abuse,
(3) misuse, (4) operation of the Equipment outside its environmental, electrical
or performance specifications, conditions, capabilities, or standards, (5) power
fluctuation or failure, (6) vandalism or any other damage or alteration of the
Equipment by persons other than Positron employees, (7) combining incompatible
products, (8) fires, floods, and other similar and dissimilar natural causes,
(9) failure or lack of humidity or temperature control, or (10) damage, neglect,
alteration, or any impairment of the Equipment resulting from (a) causes or
conditions not associated with ordinary storage, handling, installation,
maintenance, service, or use, or (b) maintenance or service by any party other
than Positron or a designated representative of Positron, or (c) any acts,
omissions, causes, or events beyond the control of Positron.
This warranty does not include items which are consumed through normal daily use
and does not include any liability or responsibility for such losses or expenses
as removal or reconstruction of walls, partitions, ceilings, floors, or other
parts of any facility occasioned by any warranty services performed hereunder or
any other losses or expenses incurred in providing any other building
alterations, scaffolding, platforms, lifting equipment, rigging, climate
controls, power supplies, electrical circuits, safety switches, power outlets,
conduits, wiring, structural supports, utilities, plumbing, carpentry, or other
work required in connection with providing warranty services.
REMEDIES
If Positron determines that the Equipment does not meet any warranty, Positron
will replace the Equipment or repair any defects in material or workmanship
reported during the warranty period, all without charge for labor or materials,
(unless otherwise provided), Positron retaining the option of furnishing either
new or exchange replacement parts or assemblies when providing warranty service.
TRANSFER OF THE EQUIPMENT
In the event Customer transfers or relocates the Equipment, all obligations
under this warranty will terminate unless Customer receives the prior written
consent of Positron for the transfer or relocation. Upon any transfer or
relocation, the Equipment must be inspected and certified by Positron as being
free from all defects in material, software, and workmanship and as being in
compliance with all technical and performance specifications. Customer will
compensate Positron for these services at the prevailing demand service rates in
effect as of the date the inspection is performed. Equipment which is
transported intact to pre-approved locations and is maintained as originally
installed in mobile configurations will remain covered by this warranty.
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FORCE MAJEURE
Nothwithstanding any other provision, and in addition to all conditions and
exclusions set forth, Positron will not be liable for any delay or default in
performing any warranty obligations caused by events beyond its control,
including (by way of example and not by way of limitation) acts of God, acts of
third parties, acts of Customer (or any of the Customer's employees, agents, or
representatives), acts of civil or military authorities, fires, floods and other
similar or dissimilar natural causes, riots, wars, sabotage, vandalism,
embargoes, labor disputes, strikes, lockouts, lack or shortage of transporation,
labor, materials, supplies, fuel, power or water, delays in receiving any
permits or licenses, delays caused by any laws, regulations, proclamations,
ordinances, or any government action or inaction, delays caused by contractors
and subcontractors, and any other cause or condition beyond Positron control. In
the event of any such delay or default, the time for performance of the warranty
obligations of Positron will be extended for a commercially reasonable period of
time.
DISCLAIMERS AND LIMITATIONS ON LIABILITY
THE WARRANTIES SET FORTH ABOVE ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTLY OR
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AND IN LIEU OF ANY OTHER
OBLIGATIONS OR LIBILITY ON THE PART OF POSITRON. POSITRON NEITHER ASSUMES (NOR
HAS AUTHORIZED ANY PERSON TO ASSUME FOR IT) ANY OTHER WARRANTY OR LIABILITY IN
CONNECTION WITH THE EQUIPMENT.
CUSTOMER'S SOLE REMEDIES FOR BREACH OF SUCH WARRANTIES ARE SET FORTH IN THIS
WARRANTY. POSITRON WILL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, OR
SPECIAL DAMAGES BY REASON OF ANY ACT OR OMISSION OR ARISING OUT OF OR IN
CONNECTION WITH THE EQUIPMENT, OR WITH THE SALE, DELIVERY, INSTALLATION,
MAINTENANCE, OPERATION, PERFORMANCE, OR USE OF THE EQUIPMENT, INCLUDING (BY WAY
OF EXAMPLE AND NOT BY WAY OF LIMITATION) DAMAGES, EXPENSES, OR LOSSES INCURRED
BY REASON OF LOSS OF USE, LOST REVENUES, LOST PROFITS, DAMAGE TO ASSOCIATED
EQUIPMENT OR TO FACILITIES, COSTS OF CAPITAL, COSTS OF SUBSTITUTE PRODUCTS,
FACILITIES, OR SERVICES, COSTS OF REPLACEMENT POWER, COSTS ASSOCIATED WITH DOWN
TIME, AND ANY SIMILAR AND DISSIMILAR DAMAGES, EXPENSES, OR LOSSES.
