Exhibit 10.19
DISTRIBUTION AGREEMENT
(the "AGREEMENT")
as of ___________, 2001,
by and between
Given Imaging Ltd., a private company incorporated under the laws of the State
of Israel, having its principal office at 0 Xxxxxx Xx., Xxx Xxxxxxxxxx Xxxx,
Xxxxxxx, Xxxxxx ("GIVEN"), and
_________________ a private company incorporated under the laws of _______
having its principal office at ______________________ ("COMPANY").
RECITALS:
A) Given is engaged in the development, production, marketing and sale of the
M2A(TM) Capsule, a DataRecorder(TM) and SensorArray(TM), and the RAPID(TM)
Work Station for the diagnosis of the Gastro-Intestinal Tract, as listed in
Schedule A, attached hereto (collectively the "PRODUCT"), and
B) COMPANY markets, distributes and sells medical equipment and disposable
items in
C) Given wishes to appoint COMPANY as the representative of Given's Product in
the territories identified in Schedule B (the "TERRITORY"), all pursuant to
the terms and conditions of this Agreement; and
D) COMPANY wishes to accept such appointment and to act as Given's
representative in the Territory for the Product pursuant to the terms and
conditions of this Agreement;
NOW THEREFORE, the parties hereto have agreed as follows
1. APPOINTMENT
1.1 APPOINTMENT: Given hereby appoints COMPANY as its
representative in the Territory for Distribution (as defined
hereinafter) of the Product. "Distribution" means the right to market,
distribute and sell the Product in the Territory.
1.2 APPOINTMENT OF RESELLERS: COMPANY is granted the right to
appoint one or more Resellers to market, distribute, and sell the
Product to Customer(s). Each Reseller appointed by COMPANY must enter
into a written agreement with COMPANY that contains all material terms
and conditions set forth in this Agreement. COMPANY will ensure that
Resellers and Customers comply with the terms of their respective
agreements and will notify Given of any violation. For the purpose of
this Agreement, "Resellers" shall mean a third party appointed by
COMPANY to market, distribute, and sell the Product directly to
Customers, subject to the terms of this Agreement. "Customer(s)" shall
mean a customer who has purchased the Product for its own personal use
and not for further marketing, distribution or sale. No Resellers shall
relieve COMPANY of any of its obligations under this Agreement. COMPANY
shall forward to Given a complete copy of each Resellers' agreement
within 10 days of signing such agreement.
1.3 RESTRICTIONS: (i) Such appointment as set froth in Section
1.1, is subject to any law and directives applicable in the Territory;
and (ii) COMPANY shall not use the Product for any purpose other than
the purposes of this Agreement; and (iii) COMPANY shall not sell,
market distribute, or conduct any marketing activity outside the
Territory, without the express prior written approval of Given; and
(iv) COMPANY shall have
no distribution rights pursuant to this Agreement for any of Given's
products other than the Product, whether or not such other products
are, from time to time, sold by Given; and (v) COMPANY shall Distribute
the Product, as such, not in combination or integration with or in
addition to other products or technologies, shall not attempt to
separate the Product's components or to use a component separately and
not as part of the Product , without first obtaining Given's prior
written consent.
2. TRADEMARKS AND DOMAIN NAMES
2.1 Given hereby grants COMPANY a limited license to use and
display the trademarks Given(TM) , M2A(TM) and RAPID(TM), or any other
xxxx owned by Given (collectively "GIVEN'S TRADEMARKS") only for
marketing purposes in publications, articles, advertisements and other
promotional materials in connection only with Product supplied by Given
and only during the term of this Agreement. All advertising and other
materials in which Given's Trademarks are used shall be subject to
Given's prior written consent. Upon termination of this Agreement, this
limited license shall immediately terminate and COMPANY shall cease all
use of Given's Trademarks. Without limiting the above, all use by
COMPANY of Given's Trademarks or domain name shall inure to the benefit
of Given, and COMPANY shall not obtain any rights with respect to
Given's Trademarks or domain names, other than any rights expressly set
forth herein. COMPANY hereby irrevocably assigns to Given in perpetuity
all worldwide right, title and interest, if any, that are owned or
obtained by the COMPANY in any of Given's Trademarks or domain names.
2.2 COMPANY agrees not to attach or apply to the Product and
any other materials (including packaging) of whatever media, any label,
marking or other information that has not been approved by Given in
writing in advance. COMPANY acknowledges that all rights in Given's
Trademarks and domain names are and shall remain the sole property of
Given. Given reserves the right to add to, change, or discontinue the
use of Given's Trademarks or domain names, on a selective or general
basis, at any time.
2.3 COMPANY shall not remove, obscure or obliterate any Given
patent, trademark or any other proprietary notices incorporated in,
marked on or affixed to the Product, and shall include such notices in
marketing materials in accordance with Given's instructions.
3. [OMITTED]
4. MARKETING APPROVALS. COMPANY shall be responsible for obtaining all
regulatory and governmental approvals necessary for the marketing of
the Products throughout the Territory, and at its sole expense. Given
shall provide COMPANY with the necessary technical and other
information about the Products as shall be necessary for COMPANY to
obtain the approvals. The approvals will be in Given's name.
5. GIVEN'S RESPONSIBILITIES.
Given shall:
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a) sell the Products to COMPANY , pursuant to purchase orders
to be placed by COMPANY and at the prices, delivery dates and
otherwise in accordance with this Agreement.
b) provide COMPANY with Product manuals, promotional materials
and literature in English.
c) provide COMPANY with the services of the Given Contact
Centers.
d) provide the technical personnel of COMPANY assigned for the
sales, service and maintenance of the Product with adequate
technical training as to the operation, installation,
maintenance, and troubleshooting of the Product. Such training
shall take place at COMPANY 's premises, as shall be
coordinated in advance.
e) assist COMPANY in its promotion efforts by sending
representatives to attend and lecture in international medical
meetings, as requested by COMPANY , and join customer visits,
international trade shows etc., all if coordinated in advance.
f) refer to COMPANY inquiries coming from the Territory
through other international promotion channels (international
advertisements, trade shows etc.) for purchasing Products for
use within the Territory.
g) give COMPANY a ninety (90) days minimum prior notice of any
modifications and improvements in the Products (including
specifications, options, features, configuration, prices etc.
h) provide COMPANY with all the leads and relevant information
received through Given's Webcentric marketing and sales
system. The automatic transfer of data will be mutually
decided within 90 days of signing this Agreement.
i) monitor COMPANY 's activities in the market, by visiting
the Territory, at Given's expense.
6. COMPANY 'S RESPONSIBILITIES.
Company shall:
a) at its own expense, market the Product for sale in the
Territory, including, without limitation, placing
advertisements in relevant media, arranging seminars and
conferences, participating in trade shows and exhibitions and
otherwise actively promote the sales of the Products
throughout the Territory.
b) Participate in every international
congress/convention/exhibit in the Territory in which Given is
participating.
c) Maintain during the terms of the Agreement, a complete
record of all sales of the Products, showing customer name,
date of sale, shipping date, instrument model, serial number,
and sales order acknowledgement and invoices for all Products
covered by this Agreement as well as special terms of the
sale, including warranty, installation date and other
appropriate information. This information shall be promptly
supplied to Given on a monthly bases or the product warranty
shall be void. COMPANY shall notify Given on each purchase
order of the name and address of the customer and the sales
price. A breach of this sub-section (c) shall be regarded as a
material breach of the Agreement.
d) Notify in writing Given's Regulatory Affairs department
point of contact(the "POC") Fax. x000-0-000-0000 immediately
and no later than three (3) days from the incident or near
incident of any incident or near incident associated with the
Product or that was caused by shortcoming in information
supplied with the Product, provide
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Given's POC all data and information required in order to
prepare a medical device agency vigilance report or to fill in
FDA form 3417 and 3500A form and otherwise cooperate fully
with Given's POC on a timely manner. A breach of this
sub-section (d) shall be regarded as a material breach of the
Agreement
In this sub section d, "incident" shall include, but is not
limited to, incident that led or might have led to death or to
serious deterioration in the state of health of a patient,
user or other person; when the Product would likely to cause
or contribute to a death or serious injury if the malfunction
were to recur. "a serious deterioration in the state of
health" shall include, but is not limited to, life-threatening
illness or injury, permanent impairment of a body function,
permanent damage to a body structure or a condition
necessitating medical or surgical intervention.
e) purchase sufficient number of the Product from Given in
order to meet the Minimum Commitment requirements set out in
Schedule B, attached hereto.
f) appoint a representative for implementation of this
Agreement, who shall serve as a point of contact. The
Representative shall prepare and issue monthly reports
detailing COMPANY sales strategy, sales forecast, visits to
prospective Customers, competition, inventory, Customers'
data, sales volume and other facts relating to the sales of
the Product as Given may from time to time reasonably request.
g) COMPANY will not make any representations or give any
warranties concerning the Product or its capabilities which
are false or misleading in anyway or go beyond those
warranties and representations made by Given in this Agreement
and its manuals.
h) Prepare, for Given's approval, a marketing plan and budget
to reflect COMPANY plans in connection with the Product.
i) apply, maintain and renew, at its expense, any license,
permit or other regulatory or governmental approval in Given's
name required for the market and sale of the Product
throughout the Territory.
j) prepare marketing materials and translate, at its expense,
basic materials, manuals, literature, web-site content, carton
labeling and brochures (which shall be provided by Given in
English) to the relevant languages in the Territory. Given
shall have no liability in the event of errors in such
translations and COMPANY shall defend, indemnify and hold
Given's harmless against all costs, damages, expenses or
liability arising form an error in the translation and any
difference from Given's documents.
k) provide Given with a link to the Given web page on its
website (if applicable).
l) at its sole expense, to install Products, service its
customers and perform in-warranty service at end-user's site.
m) ensure a high level of professional maintenance, service
and, subject to Given's authorization, repair service as well,
and in doing so to follow Given's instructions and to utilize
only such spare and service parts approved by or obtained from
Given.
n) purchase from Given from time to time and maintain a stock
of spare and service parts and units of the Product in a
quantity sufficient to provide high level of service and
availability, and purchase and maintain a sufficient number of
demonstration units of the Product.
o) notify Given of all matters of importance coming to its
attention, relating to the Product and their service,
competitive information, legislation changes, policies, new
products and market trends.
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p) refrain from making any change in Product, unless
specifically approved by Given in writing.
q) Subject to any applicable law or directive, refrain from
selling Product to any entity outside the Territory or to any
entity who COMPANY reasonably believes shall resell, export or
use the Product outside the territory and refer to Given any
inquiries regarding the Product coming from outside the
Territory.
r) cooperate with Given on all matters of medical vigilance
and report all Product problems.
s) furnish Given with quarterly reports in reasonably
sufficient detail specifying sales of the Product in the
Territory, and annual selling forecast at least ninety (90)
days prior to the beginning of each year of this Agreement and
quarterly updates of such forecast at the beginning of each
quarter (i.e., January 1, April 1, July 1, October 1) in
respect of the ensuing quarter.
t) sell the Product only under Given's Limited Warranty, as
set forth in this Agreement.
u) refrain from appointing sub-dealers, agency or
representatives unless such sub-dealer, agency or sales
representative undertakes to abide by the terms of this
Agreement, and provided that COMPANY shall be responsible for
any non-compliance herewith on their part. provide Given from
time to time with Purchase Orders detailing quantities and
required shipment schedules, together with an irrevocable
Letter of Credit to cover the full Purchase Order value to be
paid in full 30 days after shipment invoice.
7. TERMS AND CONDITIONS OF SALE.
All purchases of Products by Distributor from Given during the
term of this Agreement shall be subject to the terms and conditions attached
hereto as SCHEDULE B.
8. PROPRIETARY RIGHTS.
8.1 COMPANY undertakes to promptly inform Given of any
possible infringement by third parties of Given's proprietary rights
including any duplication of the Product, and to participate with Given
regarding any legal action against such infringement which, in Given's
judgment, should be necessary.
8.2 In the event that COMPANY notifies Given of a claim it has
received that the Product or part thereof purchased by COMPANY
hereunder infringes a third party's proprietary rights in the
Territory, then Given agrees, at its sole discretion, either to (a)
defend the claim at its expense, with the cooperation of COMPANY or (b)
make changes in the Product or part thereof to avoid the claim, or (c)
purchase the right to use such proprietary right or (d) refund to the
purchaser the purchase price of the Product less a reasonable deduction
for use, wear and tear, and depreciation upon Given taking possession
of such Product. The foregoing states the entire liability of Given
with respect to infringement of patents or other proprietary rights by
the Products or part thereof, or by their operation.
8.3 COMPANY shall cooperate fully with Given in protecting and
enforcing Given's rights in the Product and Confidential Information
(including trademarks and domain names). COMPANY undertakes to assist
Given and take all
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reasonable actions necessary to record, register and otherwise
establish and evidence Given's proprietary rights in and to the
Products, including without limitation to execute all documents,
affidavits, assignments and assurances and to provide oral testimony.
8.4 COMPANY shall inform Given of any Invention (as defined
below) relating to the Product and at Given's request and expense
COMPANY shall and will assign the entire rights, titles and interests
in and to the Inventions to Given and execute any necessary assignment,
patents forms, trade marks, and the like and will assist in the
drafting of any description or specification of the Invention as may be
required for Given records and in connection with any application for
patents. COMPANY shall treat all information relating to any Invention
as Confidential Information. While, where relevant, the name of the
Inventor on the Patent Applications will be of the inventor, Given
shall be the exclusive owner of any invention, trademark, copyright,
improvement know-how or other intellectual property which shall occur
to COMPANY as a result of providing the services and distribution of
the Product ("Inventions"), and of any patent, patent application,
trademark, copyright and such other rights therein, without any
additional compensation to COMPANY. It is understood that Given shall
pay COMPANY any expense incurred by it in assisting it, at its request,
in obtaining patent, trademark, copyright or other protection. Given's
rights shall be world-wide and shall attach to any such Invention
notwithstanding that it is perfected or reduced to specific form after
COMPANY has ceased his services hereunder, provided that its conception
arose before then.
8.5 Without derogating from section 8.4 above, Given shall
have sole and exclusive ownership rights in any results and information
relating to, arising out of or resulting from the performance of this
Agreement by both parties, including, but not limited to all
copyrights, marketing information and material..
9. WARRANTY
9.1 Given warrants that the Product shall be free from defects
for a period of one year from the date of the first installation.
Provided however, that in no event shall any warranty extend more than
16 months from the date of shipment of the Product.
This warranty shall not cover consumable components or accessories.
9.2 The liability of Given under this warranty is limited to
the repair by Given or replacement (at Given's option) of any allegedly
defective part or parts under warranty at its expense, at either a
Given authorized service center, or, at Given's option, at user's place
of business. Defective parts replaced by Given as mentioned above,
shall be returned to Given at COMPANY's expense and Given shall have
title to such parts. It is a condition precedent to Given's
undertakings under this warranty that COMPANY notifies Given promptly,
but not later than 30 days after delivery or occurrence of any alleged
defect. Such notice shall describe the full extent and nature of the
problem.
9.3 This warranty shall not apply to a Product which has been
repaired or altered not in accordance with Given's instructions, nor
shall it apply to a Product which has been subject to misuse,
unauthorized use, negligence, accident, (including fire, water,
explosion, smoke, vandalism, etc.) or which has been operated contrary
to Given's instructions or any other cause beyond Given's control.
Without derogating from the above, the warranty is void, if at any
time:
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(i) anyone other than Given's authorized personnel removes a
Product casing and/or attempts to make or makes any internal changes,
removals, attachments or additions to the Product or components
thereof;
(ii) anyone installs unauthorized software on to the Given
workstation.
9.4 Products or parts thereof may be returned for repair,
replacement or adjustment only with Given's prior written consent. No
credit allowances will be given or replacements shipped unless defects
are verified by Given or Given's authorized personnel.
9.5 THE FOREGOING WARRANTY IS COMPANY'S SOLE AND EXCLUSIVE
REMEDY TOWARD GIVEN, AND IS IN LIEU OF ANY AND ALL OTHER WARRANTIES,
GUARANTEES, PROMISES, OR REPRESENTATIONS WHETHER WRITTEN, ORAL OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORINESS OR
FITNESS FOR ANY PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL GIVEN BE
LIABLE FOR LOSS OF USE, LOSS OF PROFITS, OR OTHER COLLATERAL, SPECIAL
OR CONSEQUENTIAL DAMAGES. GIVEN'S TOTAL LIABILITY ARISING UNDER THIS
AGREEMENT, INCLUDING UNDER SECTION 10 BELOW (Indemnification) AND
SECTION 8 ABOVE (Proprietary Rights) SHALL BE LIMITED TO THE AMOUNT
PAID BY THE COMPANY FOR THE PRODUCTS.
9.6 It shall be the responsibility of COMPANY, at its sole
expense, to install Products, service its customers and perform
in-warranty service at end-user's site. Given's responsibility shall be
limited to replacing or repairing defective parts and materials under
warranty and to provide backup technical support to COMPANY.
10. INDEMNIFICATION
10.1 COMPANY shall be liable for and shall indemnify, defend,
and hold Given harmless against any liability, damages, or loss from
any claims, actions, suits, judgments, proceedings, demands, recoveries
or expenses, including, but not limited to, attorneys' fees, arising
out of, based on, or caused by (a) product claims, representations, or
warranties, whether written or oral, made or alleged to be made by
COMPANY or COMPANY's employees, agents or independent contractors, in
its advertising, publicity, promotion, or sale of any of the Products
where such product claims, representations, or warranties were not
provided by, or approved in writing by Given, (b) labeling of the
Products which was not provided by, or approved by Given, (c) negligent
handling of the Products by COMPANY or COMPANY's employees, agents or
independent contractors, (d) negligent installation, demonstration or
service of the Products by COMPANY or COMPANY's employees, agents or
independent contractors or (e) any modifications by COMPANY or
COMPANY's employees, agents or independent contractors, to the
Products.
10.2 Given agrees to indemnify, defend, and hold harmless
COMPANY, its employees or agents against any claims, suits, or
judgments for personal injury, property damage, or death to any third
party made or instituted against COMPANY to the extent that they are
arising out of the manufacture of the Given's Products. This
indemnification is conditioned upon COMPANY notifying Given as soon as
it becomes aware of any such claim or action and COMPANY 's willingness
to cooperate and authorize Given to carry out the sole management and
defense of any such claim or action. COMPANY shall not negotiate,
compromise or settle any claim, action, suit, or judgment without
Given's prior written consent (which consent may be refused in Given's
absolute discretion).
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11. REGULATORY INSPECTIONS
11.1 COMPANY shall allow representatives of regulatory
agencies or authorities with jurisdiction over the manufacture,
marketing and distribution of the Product to tour and inspect all
facilities utilized by COMPANY in the testing, distribution, or
storage, of Product sold under this Agreement, and shall co-operate
with such representatives in every reasonable manner.
11.2 COMPANY shall also provide Given with a copy of any
notices of adverse findings, regulatory letters or similar
notifications it receives from any other governmental authority setting
forth adverse findings or non compliance with any applicable laws,
regulations or standards relating to the items supplied by it
hereunder. COMPANY shall also provide Given with a copy of its proposed
written response to such governmental authority before submission and
shall incorporate all changes thereto which Given requests.
12. TERM AND TERMINATION
12.1 INITIAL TERM. Subject to the terms and conditions set
forth herein, and unless terminated earlier in accordance with Section
11.3 below, the initial term of this Agreement shall be as set forth in
Schedule B (the "INITIAL TERM").
12.2 CONTINUATION. As of the expiration of the Initial Term,
this Agreement shall continue subject to the right of either Party to
terminate with no liability by a 6 (six) months prior written notice to
the other Party (the "TERMINATION NOTICE"), which may be given with or
without cause and at the sole and absolute discretion of the
terminating Party.
12.3 TERMINATION. This Agreement and COMPANY 's distribution
rights thereunder shall terminate upon the occurrence of any one of the
following:
(i) 6 months following the delivery of a Termination Notice.;
(ii) The delivery by one Party of a written notice to the
other Party, in the event that the other Party has materially breached
this Agreement and failed to cure such breach within ninety (90) days
after having been notified thereof in writing by the terminating Party.
(iii) Immediately in the event either party voluntarily files
a petition in bankruptcy or liquidation, or has such a petition
involuntarily filed against it, which is not discharged within 45 days
after filing, or is placed in receivership, or in the hands of a
trustee for the benefit of creditors or enters into any analogous
situation or position under the law of any relevant jurisdiction or
ceases doing business in the marketing, distribution, manufacture, sale
or lease of Products.
12.4 Termination by Given. Given may, at its sole discretion,
upon 60 days prior written notice, terminate this Agreement in the
event that: (i) the COMPANY fails to meet the Minimum USD Commitments,
as defined in Schedule B, attached hereto; or(ii) the COMPANY makes any
change in its current management or shareholdings which, in the opinion
of Given, impairs Given's rights under this Agreement; or (iii) the
COMPANY engages in any illegal, unfair, or deceptive business practices
or unethical conduct whatsoever, whether or not related to the Product;
or (iv) challenges, contests or disputes, directly or indirectly
Given's proprietary rights in the Product or the validity thereof.
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13. NON-COMPETE
For the term of this Agreement and, if terminated by COMPANY - 2 years
thereafter, or otherwise - 1 year thereafter, (the "RESTRICTION
PERIOD"), COMPANY shall not directly or indirectly engage, nor assist
any other person, corporation or other entity to engage in the design,
development, manufacture, sale, marketing or use of any product or
device that competes with the Product anywhere in the world. In case of
doubt or disagreement, Given shall have the sole power to determine if
a product is competitive to the Product sold hereunder.
14. CONFIDENTIALITY.
14.1 COMPANY agrees to receive in confidence any information
disclosed by Given to COMPANY, including, but not limited to, the
Product, Inventions or technical information or information of a
business or commercial nature (hereinafter referred to as "CONFIDENTIAL
Information") and not to disclose any of the Confidential Information
to any other person, firm or corporation, and to use the Confidential
Information only for COMPANY's own use in order to fulfill its
obligations under this Agreement.
14.2 COMPANY agrees that the Confidential Information received
from Given shall be disclosed only to such of its employees and sales
or service representatives that have a need to know about such
Confidential Information for a use authorized by this Agreement.
14.3 For the purposes of this Section 14, Confidential
Information shall not include any information disclosed by Given
hereunder which (a) is already known to COMPANY and which the COMPANY
had in its possession in written or physical embodiment from prior to
the disclosure, unless such Confidential Information was previously
disclosed by Given, (b) is rightfully received by COMPANY in the
routine course of business from a third party who acquired such
Confidential Information and the right to disclose same from Given; (c)
is approved for release or publication by written authorization of
Given; or (d) is published by an established publisher (other than
COMPANY) in a printed publication of which copies have been
disseminated publicly to more than fifty (50) parties in a country
wherein Given has sold a substantial quantity of Products.
14.4 The obligations respecting Confidential Information
imposed on COMPANY shall continue during the term of this Agreement and
for a period of five (5) years after the expiration or termination of
this Agreement. COMPANY shall return all Confidential Information,
including all copies thereof, to Given upon expiration, termination or
cancellation of this Agreement or at such earlier time upon Given's
request.
14.5 COMPANY undertakes to bind its employees, officers,
sales, technical, maintenance and service representatives, and other
third parties to whom Confidential Information is disclosed as
permitted hereunder, to the terms and conditions contained herein.
14.6 Unless otherwise specifically stated herein, this
Agreement does not grant COMPANY any manufacturing, assembly,
production or licensing rights, or any rights in any patents, patent
applications, trademarks, and trade names, copyrights or know-how of
Given.
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14.7 COMPANY hereby acknowledges and agrees that in the event
of any violation hereof, Given shall be authorized and entitled to
obtain from any court of competent jurisdiction, preliminary and
permanent injunctive relief as well as an equitable accounting of all
profits or benefits arising out of such violation, which rights and
remedies shall be cumulative and in addition to any other rights or
remedies to which Given shall be entitled under law or under this
Agreement.
15. INDEPENDENT CONTRACTORS
The parties are independent contractors. Nothing in this Agreement
shall be construed to constitute the parties as principal and agent,
employer and employee, franchiser and franchisee, partners, joint
venturers, corporate affiliates, co-owners or otherwise as participants
in a joint undertaking
16. ASSIGNMENT
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either party without the prior written
consent of the other party. Notwithstanding the foregoing, Given may
transfer or assign, in whole or in part, any of Given's rights under
this Agreement to any such person or entity controlled by or under
common control with Given, to any successor to all or substantially all
of the business or assets of Given or in connection with the transfer
of the operations of Given related to the Product.
17. MISCELLANEOUS.
17.1 DISPUTE RESOLUTION, GOVERNING LAW. This Agreement is
governed by and shall be construed in accordance with the internal laws
of Israel. In the event of a dispute that arises between the parties
hereto based on a claimed breach of this Agreement, the parties shall
attempt to resolve the dispute by Given's Officer (as defined in
Schedule B) and COMPANY's Officer (as defined in Schedule B). In the
event that Given's Officer and COMPANY's Officer could not reach an
agreement within 30 days from the date such dispute brought to their
resolution, such dispute shall be determined and settled by mediation
in Israel under the procedure and rules of the London Court of
International Arbitration, and if such attempt at mediation shall fail,
the matter shall be subject to the jurisdiction of the courts of Israel
and both parties shall have the right to file and submit their claims
with such court against the other party. All parties agree that the
Courts of Israel are to have exclusive jurisdiction to settle any
dispute (including claims for set-off and counterclaim) which may arise
in connection with the creation, validity, effect, interpretation or
performance of, or the legal relationships established by this
Agreement or otherwise arising in connection with this Agreement, and
for such purposes irrevocably submit to the jurisdiction of the Israeli
Courts.
17.2 PUBLICATION, PRESS RELEASES. Given shall publish on its
website the existence of this Agreement. In addition, both Parties may
release Press Releases that refer to the existence of an agreement
between the Parties, without divulging the commercial details of the
Agreement, and subject to their respective confidentiality obligations
to each other. Both Parties shall send the other Party a copy of a
draft Press Release that refers to the other Party, for advance
approval before release. Approvals will not be unreasonably withheld,
and be provided on a timely basis.
17.3 RECITALS AND SCHEDULES. All Recitals and all Schedules
attached to this Agreement constitute an integral part of this
Agreement. The definitions of this Agreement shall apply to all
Schedules.
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17.4 HEADINGS. The headings of sections and subsections of
this Agreement are inserted only for the purposes of convenience and
they shall not be construed as to affect the scope, meaning or intent
of the provisions of this Agreement or any part or portion thereof, nor
shall they otherwise be given any legal effect.
17.5 NOTICES. Any notice given by either party in accordance
with this Agreement shall be made in writing and delivered by fax and
by registered mail or by courier, addressed as first set forth, or to
other addresses as the parties shall designate in prior written notice.
17.6 NO WAIVER. Failure by either party to enforce any
provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision.
17.7 FORCE MAJEURE: Neither party shall be responsible for any
failure to perform due to unforeseen circumstances or to causes beyond
the party's reasonable control, including but not limited to acts of
God, war, riot, embargoes, acts of civil or military authorities, fir,
floods, accidents, strikes, or shortages of transportation, facilities,
fuel, energy, labor, or materials. In event of any such delay in
delivery or payment, the party in delay may defer the performance date
for a period equal to the time of such delay, provided that the lack of
liquidity by one party shall not constitute a Force Majeure.
17.8 SEVERABILITY: If any provision of this Agreement is
determined to be invalid or unenforceable, the provision shall be
deemed to be severable from the remainder of this Agreement and shall
not cause the invalidity or unenforceability of the remainder of this
Agreement. The parties shall make their best efforts in order to render
effective such provisions of this Agreement not affected thereby and
this Agreement will continue in full force and effect.
17.9 ENTIRE AGREEMENT. This Agreement, including all
supplements and Schedules constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all
prior agreements, understanding or representations, oral or written
between the parties hereto regarding such matter.
17.10 AMENDMENTS. This Agreement may be modified or amended
only in writing, signed by duly authorized representatives of both
parties.
17.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
17.12 ENGLISH. This Agreement shall be made in the English
language, which language shall be controlling in all respects. Any and
all correspondence between the Parties hereto, including training and
technical or other documents or notices exchanged between the parties
and with third party relating to this Agreement, shall be in the
English language only.
IN WITNESS WHEREOF, the Parties hereto have executed this
Memorandum of Understanding, as of the date first above written.
GIVEN IMAGING LTD. COMPANY
By: By:
-------------------------- --------------------------
Name: Xx. Xxxxxxx X. Xxxxx Name:
Title: President and CEO Title:
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SCHEDULE A
RAPID(TM) WORKSTATION:
o Computer Workstation with 17" Display
o RAPID(TM)("Reporting And Processing of Images and Data")
Application software
o Color Ink Jet Printer
o System Accessory Package (Cables, Adaptors, Connection Box,
Manuals, Documentation)
GIVEN DATA RECORDING KIT:
o Dedicated carrying case
o DataRecorder(TM)
o RecorderBelt(TM)
o 2 X Rechargeable Battery Packs
o Battery Charger
o SensorArray(TM)
M2A(TM) 10-PAK
o 10 M2A(TM) Disposable Imaging Capsules
o 10 Accessory envelopes, each containing 10 adhesive sleeves, 2
adhesive pads, 1 sensor template
o 10 disposable razors
o 1 marker.
GIVEN IMAGING SYSTEM STARTER KIT
o 1 x RAPIDTM Workstation
o 2 x Given Data Recording Kit
o 1 x M2A(TM) 10-Pak
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SCHEDULE B
1. "TERRITORY" shall be ___________________. Other territories may be added to
this list, under mutual written agreement
2. PRODUCT TRANSFER PRICES shall be as follows:
RAPID(TM)workstation - __________
DataRecorder(TM)and SensorArray(TM) - __________
M2A(TM)capsule (each) - __________ (Arrives in packs
of 10)
Given Imaging System starter Kit - __________
Given reserves the right to increase prices upon 60 days written notice
to COMPANY. All prices shall remain firm for at least 90 days.
3. SHIPMENT. All sales are FCA ("Incoterm 0000"), Xxx Xxxxxx Xxxxxxx, Xxxxxx.
Partial shipments are allowed. Title to the Products purchased hereunder shall
pass to COMPANY and all risk of loss or damage to such Products shall be borne
by COMPANY from the time such Products are given over to the first common
carrier, Israel. Given shall arrange for freight and insurance coverage on
Products, at COMPANY's request and cost, of the type and in the amounts
specified by COMPANY, or, if unspecified, that which in Given's judgment may be
proper, provided that COMPANY shall cover Given's actual cost for such coverage.
All Products shall be inspected upon receipt from the carrier, and
claims should be filed with the carrier immediately in the event there
is evidence of damage. As used in the clauses appearing herein or
attached hereto, "delivery" shall occur when Products are shipped to
the point of destination.
COMPANY shall, prior to Given's scheduled shipment date for Products to
be delivered to COMPANY, take all actions and provide all certificates,
undertakings or other papers required of COMPANY to allow for proper
importation of the Products to the Territory, and COMPANY shall pay all
duties, taxes, fees, charges or other costs necessary to effect said
importation.
4. ORDERS AND PAYMENT TERMS: COMPANY shall submit its orders for the Product in
writing to Given. Given shall issue COMPANY, upon shipment of the Products
ordered, invoice for the due amount. Each order to be covered by an irrevocable
Letter of Credit with no recourse for 60 days or Bank Guarantee, partial
shipments allowed. In the event that the order is covered by a Bank Guarantee,
payments shall be made within 60 days of the date of the invoice. All late
payments shall bear interest from the due date until paid, at the rate of LIBOR
plus two and a half (2.5%) percent.
5. INITIAL PURCHASE ORDER: It is agreed that COMPANY will submit a purchase
order for delivery ___________________ in parallel with the signature of this
Agreement, amounting to ______________.
6. ACCEPTANCE: Each Product furnished by Given shall be deemed accepted
immediately by COMPANY unless notice of defect or nonconformity is received, and
approved by Given, within 30 days of delivery or upon installation, whichever
occurs sooner.
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7. MINIMUM COMMITMENT:
First year of this agreement (commencing the signing of this contract): US$
Second year of this agreement (commencing the signing of this contract): US$
8. POINT OF CONTACT:
9. INITIAL TERM:
10. for the purpose of section 17.1 of the Agreement, Given's Officer shall be
_________ and COMPANY's Officer shall be _________________.
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