EXHIBIT 10.41
IMAGING DIAGNOSTIC SYSTEMS, INC.
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is made and entered into as
of April 12, 2001, by and between Medical Imaging Systems, Inc. a corporation
duly incorporated under the laws of the Province of Ontario, Canada (the
"Distributor"), and Imaging Diagnostic Systems, Inc., a corporation organized
and existing under the laws of the State of Florida ("IDSI").
WITNESSETH:
RECITALS
WHEREAS, IDSI is the owner, and manufacturer of a state of the art
laser imaging system for detection and analysis of masses in the breast
("CTLM(R)"), and ancillary equipment as more fully described on Exhibit A hereto
and incorporated herein (the "Equipment").
WHEREAS, IDSI is the owner of a certain Patents, Patents pending and
Patent applications, trade secrets and other proprietary information in
connection with the Equipment and represents that it has the legal right to
manufacture, sell and distribute the Equipment, either individually or through
others;
WHEREAS, IDSI wishes to grant to Distributor and Distributor wishes to
obtain the exclusive right to be supplied with, sell, distribute and market the
Equipment, in the Territory.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the parties
hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement the following terms shall have
the definition set forth below.
(a) Equipment. The term "Equipment" shall mean and include only those
products listed on Exhibit A, as amended from time to time. IDSI may add to, or
upgrade the Equipment from time to time by providing written notice not less
than thirty (30) days prior to any such change.
(b) Territory. The term "Territory" shall mean the territories set
forth in Exhibit "B" hereto.
(c) Software. The term "Software" shall mean the license for the use
of the Software. IDSI retains sole ownership and rights to the Software
itself. This Software is included in the CTLM(R).
2. TERM. This Agreement shall be for a term of three (3) years from the date of
its execution by Distributor and will automatically renew for an additional five
(5) years provided however that Distributor meets the Performance Standards set
forth in Section 5. That Distributor satisfactorily fulfills all other terms and
conditions of this Agreement and that the Distributor sells two CTLM(R)'s per
two (2) quarters commencing upon Canadian Health Bureau approval. If the
Distributor fails to sell two (2) CTLM(R) s, as set forth above then IDSI any
sever this agreement immediately and without any opportunity to cure the
default. Additionally, Distributor must provide a letter from its attorneys that
said Distributor is financially solvent. Should Distributor fail to obtain
adequate funding or experience financial problems they must immediately notify
IDSDI in writing and said agreement will become null and void.
3. RIGHT TO SELL, DISTRIBUTE AND MARKET. During the term of this Agreement and
any renewal hereof, IDSI hereby grants to Distributor, as its exclusive agent,
the right to sell, distribute, individually or through outside distributors, and
market the Equipment in the Territory. Distributor shall also have the right to
use the trade names, and trademarks associated with the Equipment in connection
with the promotion, sale, marketing and distribution of the Equipment.
Distributor hereby acknowledges and agrees that all trade names and trademarks
associated with the Equipment are the property of and proprietary to IDSI.
4. DISTRIBUTOR'S DUTIES, REPRESENTATIONS AND WARRANTIES. Distributor agrees to
use its best efforts to sell, market and/or distribute the Equipment in the
Territory. Distributor agrees that it will perform at its expense the following
duties to IDSI's reasonable satisfaction
(a) Promotion and Marketing.
(i) Distributor will maintain a qualified sales and
distribution organization which will provide sales personnel, advertisement,
marketing and distribution support for the solicitation of customers and
potential customers in the Territory for the sale of the Equipment.
(ii) Any sales promotion, promotional activities, marketing or
advertising strategies, pamphlets, advertisements, brochures or other
promotional materials, other than those provided by IDSI, must have the prior
written approval of IDSI. At least one copy of all Distributor's advertising and
sales promotion materials in which the Equipment of IDSI is mentioned, must be
provided for IDSI's review and approval prior to the time of first use. All
advertisements, pamphlets, brochures or other promotional materials, other than
those provided by IDSI shall be at the sole cost of the Distributor. The
Distributor shall have the continuing right to use any promotional materials
produced by IDSI while this Agreement is in effect.
(iii) Distributor, at its sole cost, will attend the RSNA and be
present in the IDSI booth for at least 4 hours per day.
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(iv) Distributor will exhibit the CTLM(R) in at least one major
exhibit in the Territory or in the countries surrounding the Territory.
(v) Any costs incurred in the promotion, promotional activities,
advertising, marketing and exhibits of the Equipment will be the full
responsibility of the Distributor.
(b) Quarterly Reports. Distributor shall promptly prepare and
deliver to IDSI quarterly reports identifying each purchaser of Equipment by
name, address and designation of type of business and the date of sale, model
and serial number for each unit of Equipment sold during the preceding three
months and a forecast of requirements for Equipment, as well as a description
of all training, support, and advertising and sales promotional activities
undertaken during such period. In addition, such Report shall contain a
statement of the Distributor's then current inventory of spare parts and
technical literature available for customer service, maintenance and support
of the Equipment. Such reports should be in Excel Master Activity Sales Report
(MASR) e-mail format. An officer of the Distributor shall certify the Report.
(c) General Conduct. Distributor shall at all times conduct its
business in a manner that reflects favorably on IDSI and its Equipment and will
not engage in any deceptive, misleading, illegal or unethical business
practices.
(d) Service and Support. Distributor's personnel will be required to be
trained at IDSI's headquarter facilities in sales and support techniques for all
of the Equipment and services. (See attached as Exhibit "E") All service
personnel must successfully pass a CTLM service-training program as soon as
possible and using their best efforts, prior to installation. IDSI will not
charge for such initial training, however Distributor shall be responsible for
all travel, accommodation and other expenses. Distributor will provide adequate
installation, customer service, and maintenance and support for the Equipment in
the Territory. Distributor will establish and maintain a staff of certified
trained technicians and purchase and maintain stock of spare parts and technical
literature necessary in order to provide adequate installation, customer
service, maintenance and support of the Equipment in the Territory. Distributor
hereby agrees to provide such service and support in a prompt and workmanlike
manner to any user of the Equipment in the Territory. All service agreements
must be approved by IDSI.
(e) Competitive Products. Distributor will do everything within its
power to feature, promote, and advertise, as part of its merchandising and sales
policy, the Equipment and use its best efforts to stimulate and increase
interest in IDSI's Equipment. IDSI understands that some existing and some new
customers may request competitors' products. Distributor will use its best
efforts to sell, market and distribute the IDSI Equipment to such customers.
Distributor will give IDSI the opportunity to assist with these accounts.
(f) Customer Requirements. With a view to maximizing the potential
market for the Equipment within the Territory, Distributor will report to IDSI
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on a quarterly basis, and assist IDSI in the assessment of the needs and
requirements of the potential customer base in the Territory with respect to the
Equipment, including, but not limited to: (i) a rolling twelve-month quantity
forecast, (ii) quality of the Equipment, (iii) design, functional capability and
additional features of the Equipment and related modifications, improvements and
enhancements, and (iv) general market conditions of the Territory.
(g) Co-marketing Protection. Distributor will maintain confidentiality
of IDSI supplied prospective customers and not conduct any direct efforts
to persuade such clients toward competitive equipment or services.
(h) Purchase Orders. Distributor shall forward all orders promptly to
IDSI. The orders shall state clearly the name of the purchaser, the
quantity purchased, and the time and place of delivery.
(i) Delivery. Distributor shall give IDSI at least 90 days prior
written notice before each shipment is required.
(j) Expenses and Taxes. Distributor is an independent contractor, and
as such shall pay all expenses, including compensation of salesmen, rentals,
travel, and all taxes, including assessments, which may be made against the
salary or wages of those directly employed by Distributor.
(k) Relationship of Parties. Except as set forth herein, Distributor
shall have no right or authority to create any obligation on the part of IDSI or
bind IDSI to any agreement.
(l) Offices. Distributor shall maintain a suitable office with a
telephone, facsimile line, and e-mail with Microsoft Word, PowerPoint, and Excel
suitable for use for the sale of the Equipment. The office shall contain a
suitable display area where the Equipment shall be prominently displayed at all
times. This display area or another area shall be suitable for and used for the
demonstration of and training in the use of, the Equipment. The office shall be
staffed from 9:00 a.m. to 5:00 p.m., Monday through Friday, subject to
recognized national holidays.
(m) Complaints. Any event that causes injury or that might have caused
injury to patient or health professional once the Equipment has been "Put into
Service" must be reported to IDSI within 24 hours. Each report should contain
the name of the individual injured, customer name, address, and serial number of
the Equipment and installation information. Failure to report any such injury
shall result in a breach of this Agreement and the Distributor would be subject
to liability. Further, any installation or service problems must be reported to
IDSI immediately together with a full report of the situation.
(n) The Distributor shall notify IDSI of any product or healthcare
related information including but not limited to changes in the Territory's
medical reimbursement system, breast cancer treatment, hospital procedural
changes, etc.
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(o) A Distributor may not unilaterally start a recall.
(p) All records must be retained for at least five (5) years after the
last date of manufacturer or the length of time as set forth in the Territory's
Rules and Regulations.
5. PERFORMANCE STANDARDS.
If the following performance standards (the "Minimum Performance
Standards") are not met, IDSI will notify Distributor, in writing, that it
is in default of this Agreement. If Distributor does not cure the
deficiency within 30 days from receipt of the notice, IDSI, at its sole
option, may: (i) continue this Agreement on a nonexclusive basis; (ii)
continue this Agreement on a nonexclusive basis and limit the Territory; or
(iii) terminate this Agreement. Any such action taken by IDSI shall be
without prejudice to the rights of the parties with respect to Equipment
already ordered, sold or delivered.
6. PURCHASE OF EQUIPMENT.
(a) Orders. Orders from Distributor for equipment shall be made by
delivery of a purchase order to IDSI. As soon as practicable after receipt of
such purchase order, IDSI will: (i) if such order is accepted, return to
Distributor IDSI's standard form of Sales Acknowledgment (the "Acknowledgment")
setting forth dates on which delivery will be made, or (ii) notify Distributor
in writing that such order is rejected. IDSI will use its best efforts to make
prompt delivery of the Equipment accepted by IDSI on the delivery dates
specified in the Acknowledgment, F.O.B. Fort Lauderdale, at the time and to the
entities and destinations listed in the purchase orders. IDSI shall not be
liable for any failure to deliver, if such failure has been occasioned by fire,
embargo, strike, failure to secure materials from a usual source of supply, or
any circumstance beyond IDSI's control, which shall prevent IDSI from making
deliveries in the normal course of its business. IDSI shall not, however, be
relieved from making delivery when the causes interfering with deliveries shall
have been removed. In particular, the Parties acknowledge that IDSI is reliant
on outside suppliers, which supply the components for its Equipment. Should
these suppliers fail to produce the required components in a timely manner, than
IDSI shall be excused from the delivery obligations under this Agreement until
such time as the components can be manufactured, delivered and installed in the
Equipment. In no event shall IDSI be responsible for any loss or liability
suffered by Distributor as a result of delay in delivery of any order.
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(b) Cancellation of Orders. Distributor may not cancel an order once
the letter of credit has been approved by IDSI. Should such cancellation occur,
the Distributor is responsible for thirty (30) percent of the full purchase
price of all Equipment ordered.
(c) Rescheduling Orders. Distributor may at any time, upon not less
than forty-five (45) days written notice to IDSI, reschedule and/or postpone the
delivery date relating to an order (or any part thereof) for up to forty-five
(45) days. The postponement of delivery to a date more than forty-five (45) days
from the delivery date specified in the initial order shall be deemed a
cancellation of such order. DISTRIBUTOR MAY NOT POSTPONE THE DELIVERY DATE MORE
THAN ONCE WITH RESPECT TO ANY ORDER. THIS SECTION DOES NOT AFFECT THE TERMS OF
THE LETTER OF CREDIT.
7. PRICE.
(a) Purchase Price. The purchase price for the Equipment to be sold
hereunder shall initially be as set forth on IDSI's Price List attached hereto
as Exhibit "C", which may be discounted based on the cumulative quantities of
such Equipment purchased by Distributor during the term hereof or any Additional
Term. Discounts shall not apply retroactively to prior purchases of Equipment.
IDSI shall have the sole right to set the price and other terms of the sales of
the Equipment. IDSI, at its sole discretion, reserves the right to change
prices, materials used, Equipment line and the components of the Equipment. IDSI
will provide reasonable notice of any price or other changes to Distributor as
to not disrupt the sales and distribution of the Equipment. IDSI reserves the
right to amend Exhibit "C" with respect to any Additional Term.
(b) Price Changes. IDSI may change the prices to be charged for
Equipment sold hereunder by amending its published Price List and giving
Distributor sixty (60) days prior notice. All orders received and accepted by
IDSI prior to the effective date of the price increase for shipment within
thirty (30) days of such effective date will be billed at the prices in effect
at the time of acceptance of the order; provided, however, that if Distributor
notifies IDSI in writing prior to the effective date of such price increase that
it quoted the original price in an outstanding bid submitted prior to receipt of
IDSI's amended Price Lists, any order relating to such bid accepted by IDSI
prior to the effective date of such price increase for shipment within ninety
(90) days of such effective date will be billed at the prices in effect at the
time of acceptance. All other shipments after thirty (30) days (or ninety days,
if applicable) of such effective date shall be billed at the prices set forth in
the amended Price List.
(c) Payment. All payments hereunder shall be in United States dollars and
shall be effected by means of confirmed, irrevocable letters of credit on a
United States bank established, upon execution of this Agreement, to IDSI's
satisfaction 90 days prior to the final shipping. All exchange, interest,
banking, collection and other charges outside the USA shall be the sole expense
of the Distributor.
Shipment will be made upon receipt of the letter of credit approved by IDSI.
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8. TERMS AND CONDITIONS OF SALE. This Agreement and all sales of Equipment
hereunder by IDSI to Distributor shall be subject to IDSI's standard terms and
conditions of sale as set forth on the applicable Acknowledgment. A copy of
IDSI's current Standard Terms and Conditions of Sale is attached hereto as
Exhibit "D" and incorporated herein. To the extent that IDSI's standard terms
and conditions are inconsistent with express provisions of this Agreement, the
provisions of this Agreement shall prevail. Distributor agrees that although it
may use its standard forms for others or other notices hereunder, said standard
forms will be governed by the terms and conditions of this Agreement and any
applicable Acknowledgment shall have no force and effect. Distributor agrees to
place the following legend on its standard forms submitted to IDSI hereunder:
"NOTWITHSTANDING ANY OTHER TERMS AND CONDITIONS APPEARING HEREON, THIS PURCHASE
SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF SALE SET FORTH IN THE IDSI
DISTRIBUTION AGREEMENT."
9. PRODUCT WARRANTY.
(a) Distributor Warranty. The sole warranties provided by IDSI to
Distributor with respect to the Equipment are those contained in IDSI's Standard
Terms and Conditions. Notwithstanding the foregoing, with respect to Equipment
for which IDSI is not the original manufacturer, the sole warranties provided by
IDSI to Distributor shall be equivalent to the sole warranties provided by the
original manufacturer to IDSI (current original manufacturer warranties and the
Equipment to which they pertain are set forth on Exhibit A).
IDSI DISCLAIMS ALL OTHER WARRANTIES, WARRANTS OF TITLE, MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT UPON THE RIGHTFUL
CLAIM OF ANY THIRD PERSON. IDSI DISCLAIMS LIABILITY FOR ALL CONSEQUENTIAL
DAMAGES IN ANY FORM, EVEN THOUGH IDSI MAY HAVE BEEN ADVISED OR MAY OTHERWISE
KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
Nothing contained in this warranty shall make IDSI liable beyond the express
limitations of this warranty for loss or damage to the business of Distributor,
including any claims as to breach of contract, lost receipts or profits,
business interruptions or other tangible business loss.
(b) End-User Warranty. Distributor is hereby authorized, subject to the
succeeding sentence, to offer the warranties set forth in Section 9 (a) to
customers to whom it sells the Equipment, and IDSI agrees to honor such
warranties. Distributor acknowledges and agrees that the warranty period set
forth in the Acknowledgment commences, with respect to both Distributor and its
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customers, on the date of delivery to Customer provided however, in no event
shall the warranty period exceed fifteen months. In the event that the
Distributor extends or otherwise represents to a customer that the warranties
are more extensive or encompassing than those set forth herein, the Distributor
shall indemnify IDSI for any warranty claims made by a customer based on
Distributor's representations.
10. MAINTENANCE.
(a) Distributor's Obligation to Provide Service. Distributor agrees
that IDSI shall have no obligation to maintain the Equipment except for the
warranty obligations specified in Section 9. Distributor acknowledges and agrees
that it will perform, at no expense to IDSI, maintenance and repair of Equipment
sold or leased to the Distributors customers
(b) Consignment of Spares Parts. IDSI may, at its sole discretion,
consign to Distributor, from time to time, as it may deem necessary, spare parts
to support warranty repair service in Distributor's Territory. The title to such
parts shall at all times remain with IDSI and Distributor shall have no right,
title or interest therein until such time as payment is made to IDSI as set
forth below. In the event that such parts used for non-warranty repair service,
Distributor will purchase the part used or to be used for non-warranty repair
services at prices listed in Exhibit A, as may be amended from time to time.
Distributor will provide IDSI with a monthly report, not later than 15 days
after the first day of each month, which will indicate the Customers name,
address and phone number, the work performed, the parts used and whether the
repair was under warranty. The report shall also include a total dollar amount
for parts used for non-warranty repair and be accompanied by a check for full
payment therefore.
11. TERMINATION.
(a) Either party may, by written notice to the other party, terminate
this Agreement upon the occurrence of any one or more of the following events:
(i) Upon the failure of the other party to pay any monies when
due hereunder, if such default continues for five (5) business days or more
after written notice to the defaulting party;
(ii) Upon material failure of a party to observe, keep or
perform any of the covenants, terms or conditions herein, if such default
continues for thirty (30) business days or more after written notice to the
defaulting party;
(iii) In the event: (A) a party makes a general assignment for
the benefit of creditors or transfers all or a substantial portion of its
assets; (B) a receiver is appointed and not discharged within 30 days of
appointment, or (C) the other party has become insolvent.
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(b) IDSI may, by written notice to Distributor, terminate this
Agreement upon occurrence of any one more of the following events:
(i) In the event that Distributor solicits orders for Equipment outside its
Territory;
(ii) In the event of any dispute, disagreement or controversy between or
among the owners, partners, managers, officers or stockholders of Distributor
which in the opinion of IDSI adversely affects the ownership, operation,
management, business or interests of Distributor, or in the event of a change in
control or majority ownership of Distributor, unless XxxXxx Xxxxx remains in
control of the sales and marketing aspect of the Distributor;
(iii) If Distributor ceases to function as a going concern or to conduct
its operations in the normal course of business, or
(iv) If the Distributor unilateral commences a recall of the Equipment
listed on Exhibit "A", IDSI may file suit for consequential and liquidated
damages against the Distributor;
(v) Failure to comply with the Regulatory Compliance Section of the Council
Directive;
(vi) Failure to comply with National Rules and Regulations;
(vii) Distributor financial problems,
(viii) Failure to comply with confidentiality requirements, or
(ix) Direct efforts to persuade prospective customers towards competitive
equipment or services.
(c) If Distributor fails to meet the Minimum Performance Standards set
forth in Section 5, IDSI shall have the right, upon 30 days written notice to
the Distributor, to terminate this Agreement. Distributor shall have the right
to cure the deficiency within such 30-day period. If Distributor does not cure
the Deficiency within such 30-day period, IDSI may terminate this Agreement on
the 30th day.
(d) Upon termination or expiration of this Agreement, for any reason
Distributor shall discontinue the use of IDSI's name, trademarks, trade names,
labels, copyrights, and other advertising media and shall remove all signs and
displays relating thereto: and will no longer identify itself as a distributor
of IDSI or indicate, in any way, that it is associated with IDSI. Distributor
shall promptly return to IDSI all marketing and selling materials, all manuals,
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all technical data, all other documents and copies thereof previously supplied
by IDSI and all spare parts consigned to Distributor by IDSI.
(e) Upon termination or expiration of this Agreement, for any reason,
IDSI shall have the option to repurchase its Equipment and spare parts then in
possession of the Distributor, at prices originally billed to the Distributor if
the Equipment and spare parts are new and at an adjusted price if the Equipment
is used, and with deductions for money due or to become due to IDSI under this
Agreement. As to any of the IDSI's Equipment or spare parts not repurchased by
IDSI, Distributor shall have the right to dispose of them in the regular course
of its business and for this purpose only, the restrictions of preceding sub
paragraph shall be deferred until three months after the termination of this
Agreement.
(f) It is expressly understood and agreed that the rights of
termination as provided in this Agreement are absolute and that both parties
hereto have considered the costs and expenditures associated with the
preparation and performance of this Agreement and the possible losses and
damages which may be incurred by both parties in the event of its termination.
The parties hereto acknowledge and agree, by execution hereof that they have
entered into this Agreement with full knowledge of such possibilities, and
except as provided herein neither party hereto shall be responsible to the other
for compensation, damages, losses, or otherwise, for termination of this
Agreement as set forth above.
12. TRADEMARKS: MARKINGS.
(a) Trademarks and Names. Distributor is hereby granted permission to
use during the term of this Agreement, and any renewal hereof, the trademarks
and trade names used by IDSI in connection with the Equipment. Such permission
is expressly limited to uses by Distributor necessary to performance of
Distributor's obligations under this Agreement, and Distributor hereby admits
and recognizes IDSI's exclusive ownership of such marks and names and the renown
of IDSI's marks and names, both worldwide and specifically in the Territory.
Distributor agrees not to take any action, inconsistent with such ownership and
further agrees to take any action, including without limitation the conduct of
legal proceedings, which IDSI deems necessary to establish and preserve IDSI's
exclusive rights in and to its trademarks and trade names. Reproductions of
IDSI'S trademarks, logos, symbols, etc. shall be true reproductions and shall be
done photographically, in a manner, which enhances the reputation and status of
IDSI.
(b) Markings. Distributor will not remove or make or permit any
alterations in any labels or other identifying markings placed by IDSI on any of
the Equipment without written consent by IDSI.
(c) No Additional Rights. No rights to manufacture, alter, or use the
Equipment for purposes other than those contained herein are granted by this
Agreement. Moreover, no licenses are granted or implied by this Agreement under
any patents owned or controlled by IDSI or under which IDSI has a right, except
the right to sell, market and distribute IDSI's Equipment, as contemplated
herein, during the term of this Agreement.
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13. IDEMNIFICATION. Distributor shall indemnify and hold harmless IDSI, its
officers, directors, employees, or agents (collectively referred to in this
Section 13as "IDSI") for damages or expenses resulting from any claim, suit or
proceeding brought against IDSI, with regard to any untrue statement or alleged
untrue statement, misrepresentation or alleged misrepresentations, promise or
agreements made or allegedly made by Distributor or arising from the marketing,
sale or distribution of the Product by Distributor. This provision shall not
apply to Distributor or any person controlling Distributor in respect of any
losses, claims, damages, liabilities or actions arising out of or based upon any
untrue statement or alleged untrue statement, misrepresentation or alleged
misrepresentations, promise or agreement made or allegedly made by Distributor
or arising from the marketing, sale or distribution of the Product by
Distributor, if such untrue statement or alleged untrue statement,
misrepresentation or alleged misrepresentations, promise or agreement was made
in reliance upon information furnished in writing to Distributor by IDSI
specifically for use in connection with the sale, marketing or distribution of
the Equipment. IDSI agrees that Distributor has the right to defend, or at its
option to settle, and Distributor agrees, at its own expense, to defend or at
its option to settle, any claim, suit or proceeding brought against IDSI.
Distributor agrees to pay any costs of litigation, investigation or defense
incurred by IDSI, including reasonable attorney fees, and final judgment,
entered against IDSI on such issue in any such suit or proceeding.
14. RISK OF LOSS. Title to the Equipment shipped shall pass upon shipping,
subject to full payment. Distributor assumes the risk of loss and damage of the
Equipment in transit from IDSI's shipping point to the point of destination.
15. COMPLIANCE WITH LAWS. Distributor shall comply with all material applicable
present and future federal, state, county, local and foreign laws, ordinances
and regulations relating to the importation and sale of the Equipment.
Distributor will take all steps necessary to obtain the proper import licenses,
if applicable and Distributor shall be solely responsible for any excise tax,
duties, insurance or other costs for the importation of the Equipment.
16. NON-CIRCUMVENTION AGREEMENT. The respective Parties involved in this
Agreement, agree not to circumvent each other. The Parties agree that they will
not make any contact, directly or indirectly, written, oral, electronic or by
any medium of contact whatsoever, with any Sources without the express written
consent of the other introducing Party. Each of the listed Parties hereto,
accepts and understands that any overt or covert action of circumvention, or
unauthorized disclosure shall constitute a breach of trust and shall be
considered a breach of the terms and conditions of this agreement. Such action
shall be subject to judicial action, and recompense.
If either Party shall bring an action to recover payment or other compensation
pursuant to the terms of this Agreement, the prevailing Party shall be entitled
to reasonable attorney's fees and expenses as may be awarded, including legal
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fees and costs, and recovery for liquidated damages and punitive damages as may
be awarded by and through any legal process or jurisdiction.
For the purposes of this Section 16, the term "Party" or "Parties" shall be
considered to include and be binding upon the parties to this Agreement, any
individual, entity or entities, including but not limited to, associates,
partners, assigns, spouses, employees, agents, principals, clients,
corporations, companies, subsidiaries, divisions, affiliated, associations,
collateral providers or the like, which the Parties hereto may now or in the
future be associated with during the term of this Agreement and any renewal
thereof.
For the purposes of this Section 16, the term "Sources" shall be considered to
include any business opportunity, principal, individual, entity or entities,
including but not limited to, customers and distributors, their associates,
partners, assigns, spouses, employees, agents, principals, clients,
corporations, companies, subsidiaries, divisions, affiliated partnerships,
associations or the like, introduced to or brought to the attention of a Party
to the other Party during the term of this Agreement or any renewal thereof.
Distributor acknowledges and agrees that no separate or additional payment will
be required to be made to it in consideration of its undertakings in this
Section 16.
17. NO COPYING. Without the prior written consent of IDSI, Distributor shall
refrain from copying, reverse engineering, disassembling, translating or
modifying the Equipment for its benefit, or granting any other person or entity
the right to do so.
18. NOTICES. Any notice required or permitted by this Agreement shall be in
writing and shall be delivered by U.S. Certified Mail, return receipt requested,
or by special messenger service with receipt (such as Federal Express), by
facsimile delivery or by hand, to the parties at the following addresses or such
substitute person or address of which notice is given in like manner:
Imaging Diagnostics Systems, Inc.
0000 XX 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone (000) 000-0000 Fax (000) 000-0000
Distributor:
Medical Imaging Systems, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx X0X0X0 Xxxxxx
Phone (000) 000-0000
Fax (000) 000-0000
E-mail _________________________
Or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
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facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
19. GOVERNING LAW. VENUE AND ARBITRATION. This Agreement shall be deemed to be
executed in the State of Florida and governed by the laws of the State of
Florida. Any controversy or claim arising out of or relating to this Agreement
or to the interpretation, breach or enforcement thereof, except a claim for
injunctive relief, shall be submitted to an arbitrator and settled by
arbitration in Broward County, Florida, in accordance with the rules then
obtaining of the American Arbitration Association. Any award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof. Nothing contained herein shall serve to prohibit the parties from
seeking injunctive relief in a court of competent jurisdiction.
20. GENERAL.
(a) Independent Contractor. Distributor will act as an independent
contractor under the terms of this Agreement and not an agent or legal
representative of IDSI for any purpose, whatsoever, and, except for the
extension of the warranty set forth in Section 9, Distributor has no right or
authority to assume or create any obligation of any kind, express or implied, on
behalf of IDSI to Distributor's customers or to any other person.
(b) Product Changes. IDSI reserves the right to make design and other
modifications in the Equipment at any time but shall not be obligated to
implement such modifications in Equipment that has previously been delivered.
(c) Confidential Information. Distributor agrees not to disclose to any
person outside of its employ, and not to use for any purpose other than to
fulfill its obligations under this Agreement, any information which is disclosed
to Distributor by IDSI and which is not otherwise publicly available.
Distributor agrees to take all preventative measures and precautions to guard
against and prevent any use or disclosure of such confidential information by
its partners, employees, agents, or other persons consistent with the intent of
this paragraph. Distributor further agrees not to disclose to IDSI any
information, which Distributor deems to be confidential, and it is understood
that any information received by IDSI will not be of a confidential nature.
(d) Waiver and Amendment. Any party shall not construe the waiver by
any party to this Agreement of a breach of any provision hereof by any other
party as a waiver of any subsequent breach. The failure by either party at any
time to enforce the provisions of this Agreement, or to exercise any election or
option provided herein, shall in no way be construed as a waiver of such
provisions or options, nor in any way to affect the validity of this Agreement
or any part thereof, or the right of either party thereafter to enforce each and
every such provision. No provision of this Agreement may be terminated, amended,
13
supplemented, waived or modified other than by an instrument in writing signed
by the party against whom the enforcement of the termination, amendment,
supplement, waiver or modification is sought.
(e) No Other Warranty or Representation. Distributor hereby
acknowledges that it has not entered into this Agreement in reliance upon any
warranty or representation by any person or entity except for the warranties or
representations specifically set forth herein.
(f) Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall be for accommodation only and shall not be binding upon the
parties hereto. All communications and materials made or given pursuant to this
Agreement, including without limitation any operations and maintenance manuals,
shall be in the English language. IDSI shall have no obligations or liabilities
to Distributor or any other person for loss of profits, loss of use or
incidental, special or consequential damages, even if IDSI has been advised of
the possibility thereof, arising out of or in connection with the translation
from English into any other language of any materials made or given pursuant to
this Agreement, including without limitation any operations and maintenance
manuals.
(g) Licenses and Permits. Distributor will aid the Company in securing
approval by the Canadian Government, including but not limited to,
"Investigational Testing Medical Devices" implemented on 7/1/98t, import
licenses and permits required in connection with the importation, marketing,
sale and distribution of the Equipment. Distributor will furnish IDSI with the
name of the clinical site institution, principal investigator's CV and IRB
approval. Each party will furnish any information and assistance reasonably
required by the other party in connection with securing any such licenses and
permits.
(h) Import/Export Controls. IDSI's obligations hereunder shall be at
all times subject to the export administration and control laws and regulations
of the United States Government, and any amendments thereof and the import
administration and control laws and regulations of the Territory, and any
amendments thereof. Distributor shall provide IDSI with any written assurances
it may reasonably request with respect to Distributor's compliance with such
laws or regulations. Distributor agrees that, with respect to the import, resale
or any other disposition of Equipment and any printed commercial and technical
data and information supplied by IDSI, Distributor will comply fully with the
import/export administration and control laws and regulations of the United
States of America and the Territory, and any amendments of such laws and
regulations.
(i) Compliance with Laws. IDSI represents that, with respect to the
production of Equipment to be furnished hereunder, IDSI will fully comply with
all applicable laws of the United States and the State of Florida. Distributor
represents that, with respect to the purchase, marketing, sale and distribution
of the Equipment furnished hereunder, Distributor will comply with all
applicable laws of the Territory.
14
(j) Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties concerning the subject matter hereof and
supersedes all prior agreements, negotiations and understandings of the parties
with respect thereto. No representation, promise, modification or amendments
shall be binding upon either party as a warranty or otherwise, unless in writing
and signed on behalf of each party by a duly authorized representative.
Although, Distributor may use its standard purchase order form to give any order
or other notice provided for hereunder, said order or notice will be governed by
the terms and conditions of this Agreement any applicable Acknowledgment, and
any term or condition set forth in any such standard form which is inconsistent
with or in addition to the terms and conditions of this Agreement and any
applicable Acknowledgment shall have no force or effort.
(k) Attorney's Fees. In the event any action is commenced with regard to
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and expenses.
(l) Severability Clause. In the event any parts of this Agreement are
found to be void, the remaining provisions of this Agreement shall nevertheless
be binding with the same effect as though the void parts were deleted.
(m) Successors. Subject to the provisions of this Agreement, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, subject to limitations set forth in
paragraph (q) of this Section.
(n) Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
(o) 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. The execution of this
Agreement may be by actual or facsimile signature, provided however that
original signatures must be provided within ten days from the date of signing.
(p) Further Assurances. The Parties hereto agree to execute and deliver
from time to time at the other Party's request, without further consideration,
such additional documents and to take such other action necessary to consummate
the transactions contemplated herein.
(q) Assignment. This Agreement may be assigned by IDSI. Distributor will
not be permitted to assign this Agreement with out the prior written consent of
IDSI.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year set forth below.
Dated: April 12, 2001
15
In the presence of: Imaging Diagnostic Systems, Inc.
/s/ Xxxxx Xxxxx BY: /s/ Xxxxx X. Xxxxxx
Xxxxx Xxxxxx, President
Dated: April 12,2001
In the presence of: Cycle of Life Technologies, Inc.
/s/ Timur Mostarac BY: /s/ Xxx Xxxx Xxxxx
Xxx Xxxx Xxxxx
TITLE:Vice-President
16
EXHIBIT "A"
DESCRIPTION OF EQUIPMENT
CTLM
17
EXHIBIT "B"
TERRITORIES
Distributors may not solicit orders outside their territory
without prior written consent by IDSI.
"Territory" collectively defined as all of the following:
Iran, Iraq, Yemen, Kuwait, Jordan, Lebanon, Saudi Arabia, Qatar, Syria, Turkey,
Dubai, Egypt, Slovenia, Bosnia, Macedonia, and Canada.
18
EXHIBIT "C"
PRICING
19
EXHIBIT "D"
IMAGING DIAGNOSTIC SYSTEMS, INC.
STANDARD TERMS AND CONDITIONS
1. PAYMENT. Payments hereunder shall be made through confirmed, sight,
irrevocable letters of credit in U.S. dollars, opened by DISTRIBUTOR/PURCHASER
and advised through First Union National Bank of Florida, OR ANY OTHER BANK
APPROVED BY IDSI in the full amount of the Purchase Price for all Equipment,
including an amount estimated for freight and insurance. DISTRIBUTOR/PURCHASER
shall open the letter of credit upon issuance of any purchase order. IDSI shall
receive disbursement under the letter of credit upon presentment to the
issuing/confirming bank of (i) an airway xxxx, xxxx of lading or similar
certificate issued by the transportation IDSI, and (ii) a copy of IDSI's invoice
for goods shipped (including freight and insurance). No other documents shall be
required. All interest, banking, collection, or other charges shall be at the
sole expense of DISTRIBUTOR/PURCHASER. Payment shall be made without regard to
whether DISTRIBUTOR/PURCHASER has made or may make any inspection or use of the
Equipment. Shipment will not be made until First Union National Bank is in
receipt of the letter of credit and IDSI has been notified of same.
Each shipment shall be treated as a separate transaction, but in the event of
any default of DISTRIBUTOR/PURCHASER, IDSI may decline to make further shipments
without in any way affecting its rights hereunder. If, despite any default by
DISTRIBUTOR/PURCHASER, IDSI elects to continue to make shipments, IDSI's action
shall not constitute a waiver of any default by DISTRIBUTOR/PURCHASER or in any
way effect IDSI's legal remedies for any such default.
2. TAXES. The purchase price is exclusive of any sales, use or privilege tax,
customs or import duty, excise tax based on gross revenue or any similar tax or
charge which might be levied as a result of the production, sale or shipment of
any Equipment or the use of any Equipment by DISTRIBUTOR/PURCHASER.
DISTRIBUTOR/PURCHASER agrees to pay and otherwise be fully responsible for any
such taxes (except for taxes based on the net income of IDSI). Any personal
property taxes assessable on the Equipment after delivery shall be borne by
DISTRIBUTOR/PURCHASER. IDSI shall have the right, but shall not be obligated, to
pay any such taxes directly, in which event DISTRIBUTOR/PURCHASER shall promptly
reimburse IDSI in the amount thereof upon presentation by IDSI of evidence of
payment.
3. DELIVERY. The Equipment shall be delivered to DISTRIBUTOR/PURCHASER
F.O.B. IDSI's plant in Plantation, Florida. Delivery of the Equipment to a
common carrier shall be deemed a satisfactory delivery by IDSI to
DISTRIBUTOR/PURCHASER. DISTRIBUTOR/PURCHASER agrees to pay all freight,
insurance, packing and other transportation charges related to said delivery.
IDSI shall have the right, but shall not be obligated, to prepay such charges,
in which event DISTRIBUTOR/PURCHASER shall promptly reimburse IDSI in the amount
thereof upon presentation by IDSI of evidence of payment. In connection with the
delivery of the Equipment, DISTRIBUTOR/PURCHASER may designate in writing, not
less than ten (10) business days prior to the shipment date, the carrier for
shipment and the amount of insurance and nature of coverage. If
DISTRIBUTOR/PURCHASER fails to so designate any or all such items, IDSI, at its
discretion, may specify any item not so designated. IDSI shall select, at its
discretion, the types, amount of crating, and the carrier of any insurance. The
purchase price does not include any maintenance, installation, or training
except as provided for under the Warranty and paragraph 9. IDSI will use its
best efforts to make prompt delivery of the EQUIPMENT on the delivery date
specified, to the entities and destinations listed above. IDSI shall not be
liable for any failure to deliver, if such failure has been occasioned by fire,
embargo, strike, failure to secure materials and/ or components from a usual
20
source of supply in a timely manner, or any circumstance beyond IDSI's control.
Should these suppliers fail to produce the required components in a timely
manner, than IDSI shall be excused from the delivery obligations under this
Advance Purchase Order until such time as the components can be manufactured,
delivered and installed in the EQUIPMENT. In no event shall IDSI be responsible
for any loss or liability suffered by DISTRIBUTOR/PURCHASER as a result of delay
in delivery of any order. 4. CANCELLATION OF ORDERS. Distributor may not cancel
an order once the DISTRIBUTOR/PURCHASER has secured a letter of credit. Should
such cancellation occur, the Distributor is responsible for the full purchase
price of all Equipment ordered 5. RESCHEDULING ORDERS. DISTRIBUTOR/PURCHASER may
at any time, upon not less than forty-five (45) days written notice to IDSI,
reschedule and/or postpone the delivery date relating to an order (or any part
thereof) for up to forty-five (45) days. The postponement of delivery to a date
more than forty-five (45) days from the delivery date specified in the initial
order shall be deemed a cancellation of such order. DISTRIBUTOR/PURCHASER MAY
NOT POSTPONE THE DELIVERY DATE MORE THAN ONCE WITH RESPECT TO ANY ORDER. THIS
SECTION DOES NOT AFFECT THE TERMS OF THE LETTER OF CREDIT.
6. RISK OF LOSS; SECURITY INTEREST. Title and risk of loss or damage to the
Equipment shall pass to DISTRIBUTOR/PURCHASER upon delivery by IDSI to a common
carrier for shipment. DISTRIBUTOR/PURCHASER assumes the risk of loss and damage
of the EQUIPMENT in transit from IDSI's shipping point to the point of
destination. IDSI retains a security interest in the Equipment, any replacements
of the Equipment, and all proceeds of the Equipment or its replacements,
including, but not limited to, insurance proceeds, to secure performance of all
DISTRIBUTOR/PURCHASER's payment obligations under this Agreement. If
DISTRIBUTOR/PURCHASER shall fail to pay any portion of the purchase price or any
related charges when due, IDSI shall have the right, without liability, to
repossess the Equipment and to avail itself of any legal remedy.
DISTRIBUTOR/PURCHASER agrees to execute and deliver such financing statements
and other documentation as IDSI may reasonably request to perfect and protect
IDSI's interests in the Equipment.
7. PROGRAMS LICENSE. IDSI hereby grants to DISTRIBUTOR/PURCHASER a nonexclusive
license to use the Software Programs solely in connection with the use of the
EQUIPMENT. DISTRIBUTOR/PURCHASER shall not assign, transfer, or sublicense any
Programs to any third party, without the express written consent of IDSI. IDSI
shall retain all right, title and interest in and to any Programs provided or
licensed to DISTRIBUTOR/PURCHASER. DISTRIBUTOR/PURCHASER agrees to maintain the
confidentiality of the Programs and to instruct and obligate its employees and
agents to do the same. Without limiting the generality of the foregoing,
DISTRIBUTOR/PURCHASER shall not reproduce or modify all or any portion of the
Programs, nor shall DISTRIBUTOR/PURCHASER disclose, sell, sublicense or
otherwise transfer or make available all or any portion of the Programs to any
third party, without the prior express written consent of IDSI. In addition to
any other remedy IDSI may have, IDSI reserves the right to terminate
DISTRIBUTOR/PURCHASER's license if DISTRIBUTOR/PURCHASER fails to comply with
any term or condition hereof. DISTRIBUTOR/PURCHASER's license, granted pursuant
to this paragraph 7 shall also terminate at such time as DISTRIBUTOR/PURCHASER
shall permanently cease to use the EQUIPMENT. DISTRIBUTOR/PURCHASER agrees, upon
notice from IDSI of any termination of the license granted pursuant to this
paragraph 7 and, in accordance with any more specific directions from IDSI, to
deliver immediately to IDSI all Software and copies thereof, and all Firmware
chips and printed circuit boards and other tangible items and materials in the
possession or custody of DISTRIBUTOR/PURCHASER embodying the Programs. As used
herein, the word "Programs" shall include IDSI' Firmware and Software, each of
which is defined as follows: (a) "Firmware" shall mean all fixed electrical
21
circuits (including printed circuit boards and chips embodying such circuits)
placed in the EQUIPMENT by IDSI that perform predetermined programs and routines
in the EQUIPMENT in response to specific inputs. (b) "Software" shall mean all
alterable programs and routines for the internal operation of the EQUIPMENT
placed in the EQUIPMENT by IDSI, or furnished with or for the EQUIPMENT by IDSI.
IDSI retains all ownership rights to the Software. The license to the Software
is sold with the Equipment.
8. PROPRIETARY TECHNICAL MATERIALS. Documentation, maintenance manuals and
drawings relating to the Equipment or the Programs (collectively, "Proprietary
Technical Material") that IDSI may furnish shall be in DISTRIBUTOR/PURCHASER's
or customer's possession pursuant only to a restrictive, nonexclusive license
under which DISTRIBUTOR/PURCHASER or customer may use such Proprietary Technical
Materials solely for the purpose of operating, servicing and repairing the
Equipment and the Programs and for no other purpose. One installation,
maintenance and operation manual will be provided with each system purchased
hereunder. DISTRIBUTOR/PURCHASER agrees to maintain the confidentially of all
Proprietary Technical Materials and to instruct and obligate its employees and
agents to do the same. Without limiting the generality of the foregoing,
DISTRIBUTOR/PURCHASER may not reproduce or copy any Proprietary Technical
Material or transfer, assign, sublicense, loan, disclose or otherwise make
available all or any portion of such Proprietary Technical Materials to any
other person or entity, without prior express written consent of IDSI. Title to
and ownership of the Proprietary Technical Materials shall at all time remain in
IDSI. In addition to any other remedy IDSI may have, IDSI reserves the right to
terminate DISTRIBUTOR/PURCHASER's license granted pursuant to this paragraph 8
if DISTRIBUTOR/PURCHASER fails to comply with any term or condition hereof.
DISTRIBUTOR/PURCHASER's license granted pursuant to this paragraph 8 shall also
terminate at such time as DISTRIBUTOR/PURCHASER shall permanently cease to use
the Equipment. DISTRIBUTOR/PURCHASER agrees, upon notice from IDSI of any
termination of the license granted pursuant to this paragraph 8 and, in
accordance with any more specific directions from IDSI, to deliver immediately
to IDSI all Proprietary Technical Material and all copies thereof.
9. LIMITED WARRANTY. With respect to Equipment for which IDSI is the original
IDSI, IDSI warrants to DISTRIBUTOR/PURCHASER that, for a period of twelve (12)
months from installation each item of Equipment will conform in all materials
and workmanship. A Certificate of Acceptance must be signed by the
DISTRIBUTOR/PURCHASER for the warranty to be effective. IDSI's obligation under
this warranty is limited to, at IDSI's option, repairing or replacing, at IDSI's
facility or at the location of the Equipment, any Equipment or parts thereof
that do not conform to this warranty. DISTRIBUTOR/PURCHASER shall promptly
notify IDSI in writing of any alleged defects in the Equipment and specifically
describe the problem. Upon receipt of such notice, IDSI shall either advise
DISTRIBUTOR/PURCHASER that warranty service shall be provided at the location of
the Equipment or shall instruct DISTRIBUTOR/PURCHASER as to the part or parts of
the Equipment that DISTRIBUTOR/PURCHASER shall ship back to IDSI for repair or
replacement. IDSI will pay the costs of transporting Equipment to IDSI which to
have been defective; otherwise, DISTRIBUTOR/PURCHASER shall pay all costs of
transportation in both directions. With respect to Equipment for which IDSI is
the original manufacturer, IDSI warrants to DISTRIBUTOR/PURCHASER that the
Programs provided to DISTRIBUTOR/PURCHASER in connection with such Equipment
will conform to and perform in accordance with the then existing Equipment
documentation for a period of one (1) year from shipment of the last item of
Equipment in conjunction with which the Programs are to be used if properly used
on the Equipment. IDSI's obligation under this warranty is limited to, at IDSI's
option, correcting, repairing or replacing, at IDSI's option, at IDSI's facility
or the location of the Programs, any Program or parts thereof that do not
conform to this warranty.
22
With respect to Equipment for which IDSI is not the original manufacture, the
sole warranties provided by IDSI to DISTRIBUTOR/PURCHASER shall be equivalent to
the sole warranties provided by the original manufacturer to IDSI (current
original manufacturer warranties and the identification of Equipment to which
they pertain shall be provided to DISTRIBUTOR/PURCHASER upon request). The
foregoing warranties shall not apply to any Equipment or Programs which have
been (i) used or operated in a manner inconsistent with the license granted by
IDSI, (ii) modified or repaired by anyone other than IDSI personnel or IDSI's
authorized service representatives in a manner which adversely affects their
operations or reliability, or (iii) damaged because of accident, neglect or
misuse by anyone other than IDSI personnel, failure or surge of electrical
power, air conditioning or humidity control, transportation, or other than
ordinary use. THE FOREGOING WARRANTIES APPLY ONLY TO THE ORIGINAL
DISTRIBUTOR/PURCHASER AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY UPON THE RIGHTFUL CLAIM OF ANY THIRD PERSON.
10. LIMITATION OF LIABILITY. IDSI shall in no event have obligations or
liabilities to DISTRIBUTOR/PURCHASER or any other person for loss of profits,
loss of use or incidental, special or consequential damages, whether based on
contract, tort (including negligence), strict liability, or any other theory or
form of action, even if IDSI has been advised of the possibility thereof,
arising out of, or in connection with, the sale, delivery, use, repair or
performance of the Equipment or the Programs, or any failure or delay in
connection with any of the foregoing, which resulted from unauthorized use of
the EQUIPMENT.
11. PATENTS AND TRADEMARK INDEMNITY. IDSI will defend, at its own expense, any
suit or proceeding against DISTRIBUTOR/PURCHASER in a court of the United States
for the direct infringement of United States patents and trademarks by Equipment
from which IDSI is the original IDSI purchased from IDSI hereunder. IDSI shall
pay all damages and costs finally awarded against DISTRIBUTOR/PURCHASER because
of direct infringement; provided, however, that IDSI shall not be obligated to
defend or be liable for costs or damages awarded in any suit or proceeding for
infringement of patents by any other products, or any completed equipment,
system, assembly, combination, method or process, in which, or in the
manufacture or testing of which, any Equipment purchased from IDSI may be used;
and provided further that IDSI's obligations to pay such damages and costs shall
not apply to any alleged infringement occurring after DISTRIBUTOR/PURCHASER has
received notice of such alleged infringement unless IDSI thereafter gives to
DISTRIBUTOR/PURCHASER written consent for such continuing alleged infringement.
IDSI's liability hereunder shall not exceed the purchase price paid by
DISTRIBUTOR/PURCHASER for the infringing Equipment, and IDSI shall not be liable
for any collateral, incidental, or consequential damages awarded against
DISTRIBUTOR/PURCHASER. IDSI's duties under this paragraph 11 are conditioned
upon DISTRIBUTOR/PURCHASER giving IDSI prompt written notice of commencement of
any suit or proceeding or any claim of infringement and furnishing to IDSI a
copy of each communication relating to the alleged infringement and giving to
IDSI all authority (including the right to exclusive control of the defense of
any such suit or proceeding), information and assistance (at IDSI's expense)
necessary to defend or settle such suit or proceeding. IDSI shall not be bound
by any settlement made without IDSI's prior written consent.
If in any such suit or proceeding, DISTRIBUTOR/PURCHASER's continued use of any
item Equipment is enjoined or, if by reason of any claim of infringement, IDSI
deems it advisable to do so, IDSI may, at its option and expense, (i) procure
for DISTRIBUTOR/PURCHASER the right to continue using such Equipment, (ii)
modify or replace such Equipment with non-infringing Equipment, provided that
such modification does not materially affect performance, or (iii) remove such
Equipment, grant DISTRIBUTOR/PURCHASER a credit thereon as depreciated on a
straight-line-3-year basis and accept its return. If an infringement is alleged
23
prior to completion of deliveries of the Equipment, IDSI may decline to make
further shipments without being in breach hereunder.
IDSI shall not be obligated to defend any suit or proceeding, or be liable for
any costs or damages, if the infringement arises out of compliance with
DISTRIBUTOR/PURCHASER's specifications or any marking or branding applied at the
request of DISTRIBUTOR/PURCHASER. DISTRIBUTOR/PURCHASER agrees, at its own
expense, to defend and to pay costs and damages finally awarded in any suit or
proceeding against IDSI based on any such infringement, provided that
DISTRIBUTOR/PURCHASER is promptly notified by IDSI in writing of the
commencement or threat of such suit or proceeding or claim of infringement and
is given all authority (including the right to exclusive control of the defense
of any such suit or proceeding), information and assistance (at
DISTRIBUTOR/PURCHASER's expense) necessary to defend or settle such suit
proceeding.
12. COMPLIANCE WITH LAWS. PURCHASER shall comply with all applicable present and
future federal, state, county, local and foreign laws, ordinances, and
regulations relating to the importation and sale of the EQUIPMENT.
DISTRIBUTOR/PURCHASER will take all steps necessary to obtain the proper import
licenses, if applicable and DISTRIBUTORURCHASER shall be solely responsible for
any excise tax, duties or other costs for the importation of the EQUIPMENT.
13. IMPORT/EXPORT CONTROLS. IDSI's obligations hereunder shall be at all times
subject to the export administration and control laws and regulations of the
United States Government, and any amendments thereof and the import
administration and control laws and regulations of the country to which the
EQUIPMENT is being shipped, and any amendments thereof. Purchaser shall provide
IDSI with any written assurances it may reasonably request with respect to
Purchaser's compliance with such laws or regulations. Purchaser agrees that,
with respect to the import, resale or any other disposition of EQUIPMENT and any
printed commercial and technical data and information supplied by IDSI,
Purchaser will comply fully with the import/export administration and control
laws and regulations of the United States of America and the Territory, and any
amendments of such laws and regulations.
14. FORCE MAJEURE. If the performance hereof or any obligation hereunder, except
the making of payments hereunder, is prevented, restricted or interfered with by
reason by fire, flood, earthquake, explosion or other casualty or accident;
strikes or labor disputes; inability to procure parts, supplies or power; war or
other violence; any law, order, proclamation, regulation, ordinance, demand or
requirement of any government agency; or any other or condition whatsoever
beyond the reasonable control of the affected party, the party so affected, upon
giving prompt notice to the other party, shall be excused from such performance
to the extent of such prevention, restriction or interference; provided,
however, that the party so affected shall take all reasonable steps to avoid or
remove such causes of nonperformance and shall resume performance hereunder with
dispatch whenever such causes are removed.
15. ASSIGNMENT. The rights of DISTRIBUTOR/PURCHASER hereunder may not be
assigned in whole or in part, by operation of law or otherwise, without the
express written consent of IDSI.
16. APPLICABLE LAW. The validity, construction and effect of this Agreement and
the respective rights and obligations of the parties hereunder, shall be
governed by and determined in accordance with the laws of the state of Florida
in the United States of America as such laws are applied to contracts between
Florida residents entered into and to be performed entirely within the state of
Florida, without reference to principles of conflicts of law. The parties hereby
agree to opt out of coverage of the United Nations Convention on Contracts for
the International Sale of Good. The parties hereby agree that this Agreement
shall be governed by the Uniform Commercial Code ("UCC") as adopted by the state
of Florida.
17. FORUM AND SERVICE OF PROCESS. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in a state or federal
court sitting in the County of Broward, State of Florida. Service of process
24
shall be considered effective if done pursuant to any of the methods set forth
in Rule 4(i), Federal Rule of Civil Procedure or pursuant to Florida law. 18.
ATTORNEY'S FEES AND COSTS OF LITIGATION. If any action or proceeding arising out
of or relating to this Agreement is commenced the prevailing party shall be
entitled to its reasonable attorney's fees, costs, and expenses including the
costs, expenses, and fees associated with the enforcement or collection of any
judgment.
25
EXHIBIT "D"
SERVICE TRAINING
Monday
9:00am-4:00pm - Terminology, Theory of Operation, IDSI Policies, CTLM
Hardware and Software
Tuesday - Thursday
9:00am-4:00pm - Installation, Servicing, Maintenance on CTLM System
Friday
9:00am-10:00am - Written Test
10:30am-12:30 pm - Demonstration of Skills Proficiency
12:30pm-1:00 pm - Wrap up and Presentation of Certificates
26
