EXHIBIT 10.23(d)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 8
and
Related Target Equipment
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................19
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................22
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
------------------------
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Xxxxxx xx Xxxxxxxxx 0, 0000 Xxxxxxx-xx-Xxxxx, Xxxxxxx
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
0000 Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000, XXX (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model _____________ cyclotron, related _______
equipment and spare parts therefore, all as more particularly described herein :
and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the _______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"________________________."
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a ________________ model cyclotron, the technical
specifications of which are more fully described in the Appendix "Cyclotron
Parameters" Appendix hereto; (ii)__________________________, the technical
specifications of which are more fully described in the Appendix
"__________________________" hereto; and (iii) a set of spare parts listed in
the Appendix "Included Spare Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ______________________
________________________. This price shall also include the technical assistance
by the Seller as described in Section 25, the Spare Parts as listed in Appendix
"Included Spare Parts" and the Seller's contribution to the applicable USA
customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
i) _____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ____________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii) _____________________________________________________________ to be
paid to the Seller on April 1, 1998. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) ___________________________________________________________ to be paid
to the Seller within 15 days from shipment of the Supplies as evidenced by
receipt of the shipping documents and no later than September 1, 1998 if the
shipment is delayed by Buyer's fault. This payment shall be guaranteed by an
irrevocable standby Letter of Credit to be issued in favor of and approved by
the Seller by the date of shipping of the Supplies, to be notified by Seller to
the Buyer at least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _____________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
seven weeks of the Effective Date. All additional costs related to making the
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on _________________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _______________, the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ________________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding required
to prevent radiation leakage and of the systems required to handle the disposal
of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by _______________. If the preparatory work as
regards the cyclotron vault is substantially completed before that date, the
Buyer shall accept delivery and/or installation of the Supplies as soon as
possible under the applicable laws and regulations. In the event that such work
has not been completed before that date, or if for any other reason the Buyer is
unable to accept delivery of the Supplies or commencement of the installation
thereof by that date, the Buyer shall immediately give the Seller written notice
of this fact and the anticipated new date for completion of the preparatory
work. In any case, the Seller may ship the Supplies to the Buyer at any time and
the Buyer shall store them in one of its warehouses until the date the
preparatory work is completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until _________________ the Seller shall have unimpeded access to the Supplies
to complete the Acceptance Tests. If the Seller is unable to successfully
complete the Acceptance Tests by __________________ the Buyer shall be free to
begin use of the Supplies forty five (45) days later. Should the Supplies be put
into use under this condition, it is understood the Buyer and Seller will make a
good faith effort to facilitate the completion of the Acceptance Tests, but it
is further understood that the Buyer's production of Pd-103 with the machine
takes precedence. The Buyer agrees to allow the Seller three (3) prescheduled
days of unimpeded access to the Supplies per month during the period between
____________________ until the period for acceptance has expired as specified in
Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix __________________________ for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by ______________, the Seller's warranty shall start and be in effect
until ________________.
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in __________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, ____________________, spare parts and components to the Supplies,
and the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Xxxxxx xx Xxxxxxxxx, 0
0000 Xxxxxxx-xx-Xxxxx
Xxxxxxx
Attn : Xx. Xxxx Xxxxxx
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
0000, Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
XXX
Attn : Xx. Xxxxx Xxxx
Fax Number : 0 (000) 000 00 00
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Xxxxxxxxx Xxxxxx
President
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxx
Xxxxx Xxxxx Xxxxx Xxxx
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Xxxx Xxxxxx /s/ Xxxxxx xx Xxxxxx
Xxxx Xxxxxx Xxxxxx xx Xxxxxx
President Area Sales Manager
APPENDIX
CYCLOTRON PARAMETERS
APPENDIX
APPENDIX
BUILDING REQUIREMENTS
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
APPENDIX
INCLUDED SPARE PARTS
APPENDIX
ACCEPTANCE CRITERIA
APPENDIX
ACCEPTANCE TESTS
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date
of________________. Official request must be made in writing and addressed to
Xxxx Xxxxxx, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of _____________ for each complete day between the actual date of
early acceptance and ____________________, including the day of _____________.
