PURCHASE & DISTRIBUTION AGREEMENT
This Agreement is made and entered into as of this ______ day of December 1996,
by and between Syncor Overseas Ltd., a company organized under the laws of the
British Virgin Islands, with registered office and agent at Citco Building,
Wickhams Cay, P.O. Box 662, Road Town, Tortola ("DISTRIBUTOR") and Imaging
Diagnostic Systems, Inc., incorporated in the State of [Florida], U.S.A., with
principal address at 0000 X.X. 00xx Xxxxx, Xxxxxxxxxx, XX 00000 ("SUPPLIER").
RECITALS
WHEREAS Supplier and Distributor enter into this Agreement for Distributor to
purchase and distribute, and for Supplier to sell, the CT Laser Mammography
system, including associated computer workstation and software (the "PRODUCT"),
as detailed in Schedule "A";
WHEREAS Distributor owns and operates a distribution and service business,
including nine (9) such operations outside the U.S.A.;
WHEREAS Distributor has built a strong reputation and has substantial contacts
within these foreign medical markets;
AND WHEREAS Supplier sees a potential for business in these high growth markets;
NOW, THEREFORE for and in consideration of the mutual agreements and promises
set forth herein, the parties hereto covenant and agree as follows:
AGREEMENT
1. APPOINTMENT AS EXCLUSIVE DISTRIBUTOR. Supplier hereby appoints and
Distributor hereby accepts appointment as Supplier's exclusive distributor for
the Product in the countries, territories and/or political units as specified in
Schedule "B" (the "TERRITORY").
2. TERM. The term of this Agreement shall commence on the date initially set
forth above and shall continue for seven (7) years beyond the date the Product
receives final USFDA approval (the "TERM"), with subsequent two (2) year renewal
periods ("RENEWAL TERM"), unless either party chooses to terminate this
Agreement by giving notice at least 180-days prior to the beginning of a Renewal
Term.
3. PRICE. Distributor agrees to pay the prices for the Product pursuant to
Schedule "A," less any applicable price incentives as set forth in Schedule "C."
4. PAYMENT TERMS & CURRENCY. Payment terms are as specified in Schedule "D." All
currencies and payments in this Agreement shall be payable in United States
Dollars.
5. DUTIES OF SUPPLIER: DOCUMENTATION, INSTALLATION, TRAINING & PARTS. For the
Product supplied under this Agreement, Supplier hereby agrees to the following:
(a) to provide, in a prompt manner, Distributor with all documentation
required by the regulatory authority(s) in the Territory in order to enable
Distributor to sell the Product in the Territory, and to provide Supplier a
liaison employee for this purpose;
(b) Supplier's liaison shall be [Xxxxx Xxxxxx];
(c) upon installation, to take all necessary steps to make the Product
fully functional as per Subsection 6.2;
(d) at no further cost and in a timely fashion, to provide a
reasonable program of training to a selected number of Distributor's personnel,
to enable said personnel to perform comprehensive routine and non-routine
service for each Product sold under this Agreement, and to provide continuing
training on an as-needed basis; and
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(e) to hold in inventory and generally make available to Distributor
such replacement and spare parts, components or any other portion of the Product
which would enable Distributor's trained personnel (trained in accordance with
Subsection 5.5), to affect comprehensive service and repair to the Product(s)
sold under this Agreement.
6. DELIVERY & SHIPPING TERMS. The definitions of INCOTERMS 1990 (as published by
the International Chamber of Commerce) as used in this Agreement, are hereby
incorporated into this Agreement by reference, except as for the specific
derogation contained in Subsection 6.2.
7. PARTS. Supplier shall make the Product, all spare parts, components of the
Product available FCA ("Free Carrier")3 at 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX
00000, X.X.X. Supplier agrees to provide coordination to transport such items at
Distributor's request, including recommending local transport companies and
procuring shipping insurance on Distributor's behalf (at Distributor's expense).
8. DELIVERY ONLY AFTER FINAL INSPECTION AND ACCEPTANCE: As a specific derogation
to the INCOTERMS 1990 definition used in this Agreement (IN PARTICULAR,
MODIFYING Section A4 OF THE INCOTERM DEFINITION ENTITLED "DELIVERY"4),
Distributor will take legal title and ownership of each Product only after each
Product is deemed to be fully functional by both Supplier and Distributor. The
effective delivery date for purposes of legal title and ownership transfer shall
be the day after that particular installed Product is thus deemed fully
functional (the "DELIVERY DATE").
9. ORDERS. To order a Product, Distributor shall submit a purchase order to
Supplier. Supplier may freely reject such purchase order if the terms of said
purchase order are not consistent with the terms and conditions of this
Agreement.
10. WARRANTY. Supplier warrants that the Product:
(a) conforms to the specifications contained in Schedule "A," and are
safe and effective under normal conditions of use for the
Product(s);
(b) currently meets with USFDA approval, including being an approved
"medical device;"
(c) complies with all applicable U.S. regulations, administrative
orders, etc. applicable to the Product; and
(d) the Supplier agrees not to manufacture or sell the Product in
violation of any of the provisions of the following U.S. laws:
the Fair Labor Standards Act of 1938, the Civil Rights Act of
1964 as amended by the Equal Employment Opportunity Act of 1972,
and the Occupational Safety and Health Act of 1970.
11. PRODUCT SUPPORT. The Seller warrants that the products delivered under this
Agreement, including components, subassemblies, spare parts, and service thereof
shall be available to Distributor during the operational life of the items or
seven (7) years after date of the last Delivery Date under this Agreement,
whichever is later. If, Supplier discontinues the manufacture or supply of the
aforementioned products, components, subassemblies, spare parts, and/or training
programs thereof and does not provide for another qualified source, the Supplier
shall make available to the Distributor a total compendium of all drawings,
specifications and know-how which will enable the Distributor to service, and to
make, have made or procure said Product, components, subassemblies, spare parts,
and service under a royalty-free license which is hereby granted.
12. NO CHANGE TO SPECIFICATIONS
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Supplier shall not change or modify the specifications of any of the Product
without the prior consent of the USFDA. Supplier shall notify Distributor of
USFDA approved specification changes prior to implementation.
13. INFRINGEMENT OF PATENTS, TRADEMARKS OR COPYRIGHTS. Supplier shall indemnify
Distributor, its parent company, subsidiaries, partners and/or customers for any
loss, damage, expense or liability that may result by reason of any infringement
or claim of infringement of any United States or foreign patent, trademark or
copyright, based on the manufacture, sale or distribution of any of the products
furnished hereunder. Supplier shall defend or settle, at its expense, any suit
against Distributor for which it is responsible hereunder. Distributor shall
notify Supplier promptly of any claim of infringement for which Supplier may be
responsible hereunder and shall cooperate with Supplier in every reasonable way
to facilitate the defense hereof.
14. SUPPLIER'S INDEMNIFICATION. Supplier hereby agrees, upon receipt from
Distributor of reasonable written notice, to defend, indemnify and hold harmless
Distributor, its officers, directors, employees, agents, parent company,
subsidiaries, partners and customers from and against any and all damages,
charges, losses (including the cost of any of the products lost by libel,
condemnation or recall), actions and proceedings brought by any federal,
provincial, state or local government entity, agent or agency or instrumentality
thereof, or any foreign government, agency or representative thereof, against
the Distributor, its officers, directors, agents and/or employees or customers
or against any products by reason of any claim or finding by said public
authority or by Distributor that any such products are not as herein warranted.
In all cases Distributor agrees to give prompt notice to Supplier concerning any
claim as to which these provisions may apply.
15. OTHER WARRANTIES
(a) The Supplier warrants that the Product shall conform with the
requirements and specifications contained in this Agreement, and are free from
defects in design, material and workmanship.
(b) Approvals by the Distributor of Supplier's design or materials used
shall not release the Supplier from any obligations under the warranties set
forth in this Agreement.
(c) All Supplier's and Supplier's subcontractors' warranties, if any,
respecting any service, the Product, components, parts, spare parts and/or Other
Items (AS DEFINED IN 13.4) to be supplied under this Agreement, at the direction
of the Distributor, shall be enforced by the Supplier for the benefit of the
Distributor. The Supplier shall obtain any warranties, which would be given in
normal commercial practice. Copies of Supplier's warranties will be provided to
the Distributor and attached as a part of Schedule "A."
(d) The term "OTHER ITEMS" as used herein includes, but is not limited
to related services, computer workstation and software, and data to be delivered
under this Agreement.
(e) The aforesaid warranty shall survive acceptance and payment and
shall run to the Distributor, its customers and the users of these items and
shall not be deemed to be the exclusive rights of the Distributor but shall be
in addition to the other rights of the Distributor under law and the terms of
this Agreement.
16. TERMINATION. If any party hereto materially defaults in the performance of
any obligation hereunder, then the other party shall have the right to terminate
this Agreement upon 30-days prior written notice unless such defaulting party
shall substantially cure such default to the reasonable satisfaction of the
other party during the 30-day notice period. In such event, this Agreement shall
continue in effect and such notice of termination shall be of no effect.
17. ASSIGNMENT This Agreement and the rights hereunder shall not be assignable
by either party or transferred by merger without the prior written consent of
the other party, except that Distributor may assign this Agreement to its parent
or subsidiary all or part of this Agreement.
18. NOTICES. Except as otherwise provided herein, any notice, report, invoice or
other communication or request required hereunder shall be deemed to have been
sufficiently given when deposited, prepaid U.S. Certified Mail Return Receipt
Requested, addressed to the recipient at its address set forth below or to such
other address as may be furnished in writing by the recipient.
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to Distributor: Syncor Overseas Ltd.
00000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
U.S.A.
Attention: General Counsel
to Supplier: Imaging Diagnostic Systems, Inc.
0000 X.X. 00xx Xxxxx
Xxxxxxxxxx, XX 00000
X.X.X.
Attention: Xxxxx Xxxxxx, President
19. ARBITRATION; GOVERNING LAW. Any controversy or claim arising out of or
relating to this contract, or the breach thereof, shall be settled by
arbitration in accordance with the arbitration rules of the International
Chamber of Commerce, and judgment upon the award rendered by the arbitrator(s)
may be entered into in any court having jurisdiction thereof. Arbitration shall
take place in Los Angeles, California. The validity, performance and
construction of this Agreement shall be construed and enforced in accordance
with the procedural and substantive laws of the State of California.
20. WAIVER. Waiver of or failure to enforce, by any party hereto, any of the
terms of this Agreement at any time shall not in any way limit or waive such
party's rights thereafter to enforce or require compliance with the terms of
this Agreement.
21. ENTIRE AGREEMENT. The provisions set forth herein constitute the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement supersedes all previous communications, representations or agreements,
whether oral or written, between the parties relating to the subject matter
hereof. The language contained herein supercedes any contradicting terms and
conditions in the attached Schedules. Neither party shall be bound by any
provisions additional to or at variance with the terms hereof that may appear in
the other party's quotation, purchase order, acknowledgment, confirmation,
invoice or in any other prior or later communication unless such provision is
specifically referenced and expressly agreed to in a separate writing signed by
both parties.
22. AMENDMENTS. Modification or amendment of this Agreement shall not be of any
force or effect unless such modification or amendment is in writing and signed
by the party to be bound thereby.
23. BINDING EFFECT; BENEFITS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
24. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart. It is not
necessary that each party hereto execute the same counterpart, so long as
identical counterparts are executed by all parties.
25. INCORPORATION OF SCHEDULES. All Schedules attached hereto are by this
reference incorporated herein and made a part hereof for all purposes as if
fully set forth herein.
26. DRAFTING. The parties acknowledge and confirm that each of their respective
attorneys have participated jointly in the review and revision of this Agreement
and that it has not been written solely by counsel for one party. The parties
hereto therefore stipulate and agree that the rule of construction to the effect
that any ambiguities are to be or may be resolved against the drafting party
shall not be employed in the interpretation of this Agreement to favor any party
against another.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first written above.
"DISTRIBUTOR"
SYNCOR OVERSEAS LTD.
a British Virgin Islands company
By: /s/ Xxxxx Xx, President
"SUPPLIER"
IMAGING DIAGNOSTICS SYSTEMS, INC.
a [Florida], U.S.A. corporation
By: /s/ Xxxxx Xxxxxx, President
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SCHEDULE "A"
PRODUCT, PRODUCT SPECIFICATION, PRICES & WARRANTEE
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SCHEDULE "B"
THE TERRITORY:
New Zealand
Australia
Indonesia
Malaysia
Singapore
Brunei
Thailand
China
Taiwan
Hong Kong
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SCHEDULE "C"
VOLUME TARGETS & CORRESPONDING PRICE INCENTIVES:
Sale of First Product = base price per Schedule "A"
Sale of Second Product = base price per Schedule "A" less 10%
Sale of Third Product Onwards = base price per Schedule "A" less 15%
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SCHEDULE "D"
PAYMENT TERMS:
10% down payment with purchase order
40% payment upon physical installation
50% upon final acceptance of fully functional system
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SCHEDULE "E"
DEFINITION OF SHIPPING/DELIVERY TERMS:
In accordance with INCOTERMS 1990 as published
by the International Chamber of Commerce, except as specified.
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