EXHIBIT 10.57
AGREEMENT FOR SERVICE SUPPORT
THIS AGREEMENT (this "Agreement") is made and entered into as of this ___ day of
February, 1997, by and between SIEMENS MEDICAL SYSTEMS, INC., a Delaware
corporation, doing business at 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Siemens Medical Systems" or "Siemens") and IMATRON
INC., a New Jersey corporation, doing business at 000 Xxxxxx Xxxxx Xxxxxxxxx,
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Imatron").
RECITALS
WHEREAS, Imatron is the manufacturer of the Imatron C-150 (hereinafter referred
to as the "Imatron C-150") product, and pursuant to a Memorandum of
Understanding dated March 31, 1995 (the "Memorandum of Understanding"), sells
and supplies for resale the same to Siemens Medical Systems, and to other
companies which are affiliates of Siemens Medical Systems (Siemens Medical
Systems and its affiliates are hereinafter sometimes referred to as the"Siemens
Companies"; and
WHEREAS, pursuant to the Memorandum of Understanding, Siemens Medical Systems
has exclusive rights commencing April 1, 1995, and continuing thereafter for
three years, to market, sell, distribute, service and support the Imatron C-150
product (including present and future versions, generations, derivatives,
modifications, enhancements and improvements, and
upgrades thereto) in the Territory, as defined in the Memorandum of
Understanding, and the Siemens Companies are engaged in the marketing, sale,
distribution, service and support of the Imatron C-150 in the Territory; and
WHEREAS, Siemens Medical Systems desires to contract with Imatron for services
as described in this Agreement, with respect to and including Imatron C-150
hardware and software, such services to be provided to the Siemens Companies,
their designated respective customer/end-users, and their respective personnel,
with respect to the Imatron C-150 ("Services"), in the Territory on the terms
and conditions set forth in this Agreement, and
WHEREAS, Imatron is willing to provide such Services in the Territory to the
Siemens Companies and their customers/end-users of the Imatron C-150, upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, it is mutually agreed by the Parties as follows:
DEFINITIONS.
The following defined terms wherever used in this Agreement shall have the
following respective meanings unless indicated otherwise by the context
where the respective term is used:
"Customer" or "customer/end-user" (singular or plural) are used
interchangeably and mean the named customer or end-user of the Imatron
C-150 unit who has rightful possession of and is engaged in the
operation and use of said Imatron C-150 unit. Attachment A, as amended
from time to time, sets forth the names of those designated
customers/end-users of the respective Siemens Companies to whom
Imatron shall provide assistance and services as provided in this
Agreement and the respective related purchase orders and other
agreements referred to in this Agreement.
EXISTING IMATRON OBLIGATIONS.
Nothing contained herein or in any subcontract or purchase order for
services to Imatron by a Siemens Company is intended to or shall
operate to amend, alter or affect, reduce or limit the liability and
obligations of Imatron under the Memorandum of Understanding for the
Imatron C-150 products, or under any and all Imatron warranties as
manufacturer and supplier of the Imatron C-150 products against errors
or defects in design, material and workmanship, or as provided in the
Memorandum of Understanding that the Imatron C-150 products shall be
delivered ready for commercial sale and shall meet all governmental
and regulatory requirements in the U.S.A., Canada, and Europe and ISO
9001, IEC-601-1-2, CE and EMC. Further, Imatron confirms its
obligation contained in the Memorandum of Understanding that Imatron
shall upon request of Siemens, provide Siemens and its customers and
end-users with full repair, service, replacement, support and
maintenance for the life of the product at a fair and reasonable
price. Imatron agrees that the price for a one year labor only
warranty agreement with coverage commencing upon completion of
installation shall not exceed US$65,000 per machine and the price of a
one year full service agreement shall not exceed US$130,000 per
machine. The foregoing prices shall be effective for a one year period
from the Effective Date.
Nothing contained herein is intended to or shall operate to amend,
alter or affect the rights and licenses, or obligations of Imatron and
Siemens Medical Systems pursuant to the Memorandum of Understanding,
with respect to patents, copyrights, know-how, 064 results, or the
results of the Collaborative Research described in the Memorandum of
Understanding.
It is expressly agreed and understood that in addition to providing
services, support (such as those related to hotline), assistance under
this Agreement to Siemens Medical Systems, Imatron shall provide such
same services, support, and assistance to each of the following
Siemens Companies, who are intended as third party beneficiaries of
this Agreement:
Siemens Aktiengesellschaft
Siemens AG Osterreich
Siemens Nederland N.V.
Siemens S.A. (France)
Each of the foregoing Siemens Companies shall be entitled to
(i)-request and issue purchase orders to Imatron in the same manner
and to the same extent as Siemens Medical Systems, i.e. the terms of
such shall be at all times subject to the terms and conditions of this
Agreement as amended from time to time by mutual written agreement of
Siemens Medical Systems and Imatron, and (ii-any claims and disputes
between such Siemens Companies and Imatron shall be resolved in
accordance with the arbitration provisions set forth in this
Agreement. Any and all correspondence, invoices, and requests for
payment shall be issued to such respective Siemens Company requesting
or ordering such services and assistance, in accordance with and
subject to the terms of this Agreement. Imatron agrees to promptly
advise Siemens Medical Systems of (a)-the status of any request of
such Siemens Companies and particularly any requests or proposals by
any persons for terms and conditions which vary materially from the
terms and conditions agreed to by Siemens Medical Systems and Imatron,
(b)-any payments which may be more than thirty days past due to or
from such Siemens Companies, and (c)-any claims and disputes with such
Siemens Companies; and Siemens Medical Systems agrees to assist
Imatron and such Siemens Companies in resolving outstanding claims and
disputes including but not limited to any relating to payments which
are past due.
SUPPORT FUNCTIONS; HOTLINE.
In order to enable the respective Siemens Companies personnel
(including the respective Siemens Companies' Field Services Engineers
("FSE" or "Siemens FSE")) and the respective designated Siemens
Companies' Imatron C-150 customers/end-users in the Territory to
obtain prompt response to any Imatron C-150 related questions, and
prompt warranty or other Imatron C-150 product service, as the case
may be, Imatron agrees to put in place upon execution of this
Agreement and maintain at all times, a hotline telephone number, 24
hours a day, seven days a week, including holidays.
All escalated service calls from the Siemens FSE may be directed to
such 24 hour hotline. The respective Siemens Companies' field
organizations may at all times utilize Imatron's 24 hours hotline for
assistance and support in the installation of Imatron C-150 products
at such Siemens Companies' designated customer(s) site(s) and support
of such customer(s)/end-user(s). Imatron agrees to promptly respond to
any and all technical questions and/or inquiries regarding Imatron
C-150 products and assist Siemens FSE in the diagnosis and/or analysis
of any product problems. Further, Imatron agrees to immediately
respond to any questions from the respective Siemens Companies'
personnel and/or respective Siemens Companies' Imatron C-150
designated customer/end-users regarding operation and/or use of the
Imatron C-150 product; Imatron agrees to promptly assist such
customer/end-users with any problems experienced with the Imatron
C-150 and promptly diagnose and provide, at agreed upon prices, any
application support which may become necessary.
At Siemens' request, Imatron agrees to maintain and make available to
Siemens all records related to the delivery of services, charges (if
any), repair, support and maintenance, under this Agreement to the
designated customer/end-user.
Imatron agrees to immediately add 1 fully trained and qualified person
to the existing 9 Imatron service and application support staff at
Imatron's South San Francisco facility. Imatron agrees to add other
qualified and trained personnel as may reasonably be necessary from
time to time to service additional customer(s)/end-users added under
this Agreement or because of increased demand for assistance, services
and support under this Agreement.
For the hotline support function (Sections 3.1 to 3.3) (which will be
accounted for on a twelve month basis from January 1 to December 31),
each Siemens Company (with respect to its designated
customers/end-users) shall pay Imatron US $8,000 per year (12 months)
for each Imatron C-150 unit sold and installed to date and hereinafter
sold and installed by Siemens. Such sum of US $8,000 shall be due on
April 1, 1997, for each of the C-150 units installed on the date this
Agreement is signed; if any additional Imatron C-150 unit(s) is/are
added during the first twelve months after the execution of this
Agreement, such US$8,000 shall be adjusted proportionately to reflect
the actual number of months of hotline service provided with respect
to such additional unit(s); after the initial twelve months said sum
shall thereafter be due on December 1 for each year (12 month period),
in the same manner, per Imatron C-150 unit for which such hotline
service is requested by Siemens and provided by Imatron.
STANFORD UNIVERSITY.
Stanford University has a newly installed Imatron C-150 unit. The
Siemens warranty to Stanford commences in September 1996. Imatron
agrees to perform all warranty, repair, support and maintenance
obligations agreed to be provided by Siemens to Stanford, bear all
cost and expenses (including labor costs and charges, costs of parts,
freight, shipment, installation, costs of repairs), and warrant such
work for 12 months. The price for Imatron to perform all of such work
is US$40,000 which shall be paid to Imatron by Siemens within ten days
after the signing and execution of this Agreement by the parties.
INSTALLATION ASSISTANCE AND SERVICES.
Imatron agrees to provide the respective Siemens Companies and
customers/end-users with services and assistance in the installation
of the Imatron C-150 as well as the application training of
customer/end-user personnel, at customer/end-user site, in the
Territory. The price that shall be paid to Imatron for providing such
installation and application training is as follows:
Pre-Installation Site Planning
Imatron, for a fee of $5,000 plus travel and living expenses,
will provide site oversight, power and magnetic field testing,
and site measurement verification (one visit). One set of
preliminary drawings, ongoing planning review,
architect/contractor phone support and one pre-installation site
sign off visit. The fee shall be due and payable to Imatron upon
delivery by Imatron of the preliminary planning document set.
Where Imatron does the entire installation and training without
any Siemens FSE participating (i.e., Imatron provides all site
review prior to installation, installation, training, services
and assistance associated with installation, testing, and
acceptance by the customer/end-user), the total price to be paid
by Siemens to Imatron for such services with respect to each such
C-150 unit shall be the sum of the following:
US$40,000 (including all travel and all other out-of-pocket costs
and expenses) (pre-Application).
US$8,000 (Application - at least two full weeks) plus actual
travel costs not to exceed the cost of coach air travel and per
diem expenses of $200.00 (domestic) and $300.00 (international).
US$4,000 (Application one full week follow-up within six months)
plus actual travel costs not to exceed the cost of coach air
travel and per diem expenses of $200.00 (domestic) and $300.00
(international).
Imatron shall be provided with a purchase order prior to the
commencement of any services. Payment for services will be due
upon completion.
Where a Siemens FSE participates in the installation and/or
training, and/or in site review prior to installation, and
performs services and assistance associated with installation,
training, testing, acceptance by customer/end-user: the total
price (in addition to the fees for pre-installation site planning
as provided above) for such services to be paid by Siemens to
Imatron with respect to each such C-150 unit shall be the sum of
the following:
US$25,000 (including all travel and other out-of-pocket costs and
expenses) (pre-Application).
US$8,000 (Application - at least two full weeks) plus actual
travel costs not to exceed the cost of coach air travel and per
diem expenses of $200.00 (domestic) and $300.00 (international).
US$4,000 (Application one full week follow-up within six months)
plus actual travel costs not to exceed the cost of coach air
travel and per diem expenses of $200.00 (domestic) and $300.00
(international).
Imatron shall be provided with a purchase order prior to the
commencement of any services. Payment for services will be due
upon completion
TRAINING.
Imatron will make available in scheduled C-150 training classes a
minimum of one position in classes meeting a minimum size
of two students.
A charge of $2,000 per week or portion of a week per student.
Minimum of five (5) weeks. Cancellations accepted for four (4)
weeks in advance of start date without penalty. Fifty percent
(50%) of tuition shall be paid if any student cancels with less
than four (4) weeks notice. Imatron shall be provided with a
purchase order prior to the commencement of any services. Payment
for services will be due upon completion
If Imatron enters into a maintenance agreement for warranty
and/or annual maintenance within 12 months from the completion of
the training, Imatron will rebate the tuition to the contracting
organization on the service agreement.
TRAINED AND QUALIFIED PERSONNEL.
Imatron represents and warrants to each of the respective Siemens
Companies that all Imatron services to be provided to it in
accordance with this Agreement shall be provided by fully
trained, experienced and technically qualified personnel of
Imatron who are familiar with the Imatron C-150 product, and who
are qualified to carry out the service, repair, support, and
maintenance thereof in accordance with the highest standards
observed in the industry with respect to comparable medical
imaging products.
SIEMENS CUSTOMER RELATIONSHIP.
At the point Imatron is successful in obtaining a 90 percent
penetration of eligible sites for maintenance agreements, Imatron
will reduce the cost associated with the Help Desk "Hot Line" to
$6,000 per machine, per year for hotline support.
Imatron represents and warrants to each of the respective Siemens
Companies that it will promptly notify it of any complaints
received from its customers/end-users with respect to any
products or services described in this Agreement. Imatron
personnel will refrain from any acts which may adversely affect
the business relationship between such Siemens Company and its
customers/end users.
CONFIDENTIAL AND PROPRIETARY INFORMATION.
No right or license is granted by this Agreement to Imatron with
respect to any confidential or proprietary information of Siemens
Companies. The Siemens Companies respectively retain all right,
title and interest in and to all of their respective confidential
and proprietary information.
No right or license is granted to Imatron by this Agreement under
any patents, copyrights, other intellectual property rights, or
trademarks of the Siemens Companies. Imatron shall not make any
use of any trademarks (including tradenames or service marks) of
the Siemens Companies in any manner, without the prior written
consent of the Siemens Companies.
Any news release, public announcement, advertisement, or
publicity proposed to be released by any party with respect to
this Agreement or the discussions and pursuits of the parties
pursuant to this Agreement shall be subject to reasonable
opportunity to review by the other parties prior to release. All
matters discussed between the parties including their discussions
and progress shall be maintained in confidence by the parties.
Imatron agrees to receive and maintain in confidence for three
years after first receipt thereof pursuant to this Agreement, any
and all confidential information disclosed by the Siemens
Companies to Imatron; provided that such confidential information
shall be so identified in advance as such by the Siemens
Companies, and provided further that Imatron's obligations shall
not apply to any information that: (i)-Is in the public domain
through no act or omission by Imatron, its employees, agents or
others working on its behalf; (ii)-Is demonstrated by Imatron to
have been independently developed by Imatron (or by a third party
and lawfully disclosed to Imatron); or (iii)-Is rightfully
received by Imatron from third parties who were entitled to
receive and transfer the information.
TERM AND TERMINATION.
The initial term of this Agreement shall commence on April 1,
1997 (the "Effective Date"), and shall continue thereafter until
March 31, 1998. This Agreement may be renewed by mutual
agreement, for an additional renewal term of 12 months, by
delivery of written notice of Siemens' intentions to Imatron, no
later than 3 months prior to the expiration of the initial term.
Any party to this Agreement shall have the right to terminate
this Agreement as follows:
Upon any material breach of this Agreement or any purchase order
pursuant to this Agreement, the non-breaching party may elect to
terminate this Agreement by delivery of ninety days notice
specifying such breach and giving notice of intent to terminate;
if such breach is cured within the ninety days, such notice shall
expire and have no further effect; if such breach is not cured
within the ninety days, this Agreement shall expire and terminate
at the end of the ninety days;
Upon any filing in bankruptcy or insolvency by or inability of
Siemens Medical Systems or Imatron to meet its liability and
obligations to its creditors; commencement by any of these
parties of any proceedings or any decision by it to wind up,
liquidate, and/or dissolve or indefinitely suspend or discontinue
its conduct of the business which is the subject of this
Agreement, or the appointment of a trustee or receiver over the
assets or business of any of these parties, then the other party
may elect to terminate this Agreement by delivery of written
notice to the other parties; or
Upon any change in ownership or control of Siemens Medical
Systems or Imatron by merger with or acquisition by a third party
of a substantial portion of the voting shares of such party or
the assets of such party, then the other party may elect to
terminate this Agreement by delivery of written notice.
Companies terminating or renewing this Agreement.
INDEMNIFICATION.
Imatron agrees to defend the Siemens Companies against any third
party claims and indemnify and hold the Siemens Companies
harmless from any costs, expenses, losses or damages resulting
therefrom, alleging injury to tangible personal property, real
property, or personal injury as a result of any acts or omissions
of Imatron in the performance of the support, service,
installation, repair, warranties and maintenance of the Imatron
C-150 product pursuant to this Agreement.
Imatron agrees to indemnify and hold the Siemens Companies
harmless from any damages or losses to Imatron C-150 units owned
by the Siemens Companies, resulting from any acts or omissions of
Imatron in the performance of the support, service, repairs,
warranty and maintenance pursuant to this Agreement.
Siemens agrees to defend Imatron against any third party claims
and indemnify and hold Imatron harmless from any costs, expenses,
losses or damages resulting therefrom, alleging injury to
tangible personal property, real property, or personal injury
(i) as a result of any acts or omissions of Siemens in the
performance of the support, service, installation, repair,
warranties and maintenance of the Imatron C-150 product prior to
the commencement of Imatron service pursuant to this Agreement,
or (ii) as a result of any obligations incurred by Siemens to
customers or end users beyond those specifically assumed by
Imatron pursuant to this Agreement.
Any and all notices required to be given hereunder shall be in
writing and shall be deemed made or given if (a) delivered
personally in hand, (b) sent first class mail postage prepaid, or
(c) sent by international commercial courier for next day
delivery, addressed as follows:
If to Siemens Medical Systems: Siemens Medical Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxx
If to Imatron: Imatron Inc.
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attention: President
or to such other addresses as a party may determine from time to
time, by notice given in the same manner.
MISCELLANEOUS.
The parties are independent contractors. None of the parties is
the agent or representative of the other party. None of the
parties is authorized to enter into any agreement on behalf of or
to bind the other party to any obligation or agreement. None of
the parties shall attempt to enter into any obligation on behalf
of the other party or to bind it to any agreement or undertaking
APPLICABLE LAW; ARBITRATION.
This Agreement shall be interpreted and construed in accordance
with the laws of the State of New York, U.S.A.
This Agreement may not be modified or amended except in writing
by a document setting forth the intent of the parties to amend
this Agreement. Rights and obligations under this Agreement may
not be waived or released except in writing by mutual agreement
of the parties.
In the event any purchase order, acceptance, or other document
pursuant to this Agreement contains preprinted terms and
conditions, such preprinted terms and conditions shall be
disregarded and shall be deemed excluded.
This Agreement supersedes all prior discussions, negotiations,
understandings, and agreements, written or oral, with respect to
the subject matter hereof.
Any and all claims, disputes and controversies which may arise at
any time relating to this Agreement, including without limitation
its interpretation, enforceability, or breach, or with respect to
any confidential information disclosed pursuant to this Agreement
or breach of confidentiality, which are not resolved by an
amicable effort of the parties, shall be finally resolved by
binding arbitration to be conducted pursuant to a strict
confidentiality agreement in Denver, Colorado, in accordance with
the International Arbitration Rules of the American Arbitration
Association, by the American Arbitration Association ("AAA"), by
three impartial arbitrators, one appointed by Siemens
Aktiengesellschaft, one appointed by Imatron, and the third by
the two so appointed. Any vacancy unfilled within thirty days
shall be filled by the AAA. The parties agree to use their best
reasonable efforts to expedite the conduct and conclusion of the
arbitration proceedings. The award of a majority of the
arbitration tribunal shall be final and binding, and judgment on
the award may be entered or filed for enforcement purposes by or
against a party in any court having proper jurisdiction. The
arbitration tribunal may not award and no party shall seek to
recover or be obligated to pay an award of consequential,
incidental, special, punitive or exemplary damages or attorneys
fees and costs related to the same. With respect to any and all
claims, disputes and controversies which may arise under this
Agreement, Imatron waives any and all rights or claims it may
have or make that Siemens Aktiengesellschaft, Siemens AG
Osterreich, Siemens Nederland N.V., or Siemens S.A. (France) is
subject to the jurisdiction of the courts of the United States of
America or any of the states, countries or local jurisdictions
within the United States of America.
This Agreement and any agreement entered into pursuant to this
Agreement, including any purchase order for service, repair,
support and maintenance, may not be assigned or transferred to a
third party in whole or in part without the prior written consent
of all of the parties hereto and any attempted assignment or
transfer contrary to these provisions shall be null and void.
Imatron may not delegate or transfer the performance of its
obligations hereunder or under any purchase order or other
agreement pursuant to this Agreement to any third party without
the prior written consent of Siemens, any assignment, transfer or
delegation shall not operate to release Imatron from any
liability for the performance thereof in accordance with the
terms and conditions hereof and thereof, and Imatron shall
continue to remain liable therefor. Any and all monies required
to be paid hereunder shall be paid in U.S. dollars and remitted
to such bank accounts, persons and addresses, as may be indicated
by the payee party from time to time in writing.
IN WITNESS WHEREOF, the parties have entered into this Agreement
on the dates set forth below, intending to be bound.
SIEMENS MEDICAL SYSTEMS, INC. IMATRON INC.
By: ___________________________ By: ______________________
Date: ___________________________ Date: ______________________
ATTACHMENT A
Customer/ Country, Customer
Siemens Company Customer/End-User Address (Site) Type(s) of Service
