EXHIBIT 5.1
SALES REPRESENTATIVE AGREEMENT
with Exhibits
Sales Representative Agreement, by and between:
GE Medical Systems, having its principal place of business at 0000 X.
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX, 00000, hereinafter called GEMS; and
Imatron Incorporated, having its principal place of business at 000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxx Xxx, Xxxxx Xxx Xxxxxxxxx, 00000 hereinafter
called Imatron.
Imatron and GEMS being individually referred to as a "Party," and
collectively referred to as the "Parties."
WHEREAS, Imatron is engaged in the manufacture, marketing, sale and
service of medical products (the "Products," as this term is hereinafter
defined) and wishes to increase the sales and service of the Products in the
"Territory," as this term is hereinafter defined;
WHEREAS, GEMS desires to promote the sale of the Products in the
Territory to "Served Market Customers" as hereinafter defined; and
WHEREAS, Imatron wishes to appoint GEMS, and GEMS is willing to accept
such appointment, as sales representative for the Products in the Territory;
NOW THEREFORE, in consideration of the premises, representations and
mutual undertakings hereinafter set forth, the Parties hereto agree as follows:
SPECIFIC TERMS
Effective Date of Agreement: July 01, 1998 Agreement ref. Number: Term of
Agreement: 24 months beginning upon the Effective Date of Agreement with 12
month extension as defined below.
ARTICLE 1 - DEFINITIONS
1.1 Products: The Imatron Electron Beam CT scanner ("EBT Scanner") as may
be updated or improved by Imatron as well as upgrades, accessories,
workstations, and software for the EBT Scanner, as specified herein.
1.2 Served Market Customers: Any of the following potential customers for
the Products in the Territory as defined below:
1.2.1 medical institutions;
1.2.2 hospitals;
1.2.3 private medical clinics;
1.2.4 consulting radiology facilities;
1.2.5 consulting cardiology facilities;
1.2.6 medical educational facilities;
1.2.7 private medical practitioners;
1.2.8 national, state, and local health authorities.
1.3 Territory: Under this Agreement, GEMS is authorized to promote the
Products in the fifty states of the United States, as well as in Canada. Leads
for the Products generated by GEMS in other areas will be forwarded to Imatron
and approved for coverage under this Agreement on a case-by-case basis.
ARTICLE 2 - APPOINTMENT
2.1 Imatron hereby appoints GEMS, and GEMS hereby accepts the appointment,
as Imatron's non-exclusive sales representative for the promotion of the
Products to Served Market Customers in the Territory. This agreement does not
constitute a licensing or transfer of any of Imatron's intellectual property to
GEMS.
2.2 GEMS shall not, without Imatron's prior written approval, appoint any
third party agent or subcontractor for the promotion of the Products in the
Territory.
2.3 Before Imatron approaches other parties to become a representative or
distributor for the promotion or sale of the Products to Served Market
Customers, Imatron agrees to notify GEMS, and provide GEMS a right of first
refusal to (a) become Imatron's exclusive representative for the promotion of
the Products to Served Market Customers in the Territory, (b) become Imatron's
exclusive or non-exclusive representative to promote the Products to Served
Market Customers in other geographic areas, or (c) become Imatron's exclusive or
non-exclusive distributor for the sale of the Products to Served Market
Customers in the Territory or in other geographic areas.
ARTICLE 3 - TERM
This Agreement shall become effective as of the date mentioned in the
Specific Terms (the "Effective Date of Agreement") and, unless terminated
earlier as provided herein, shall continue in full force and effect for the
period set forth in the Specific Terms (the "Term of Agreement"). However, GEMS
may, at its sole discretion, elect to extend this agreement for an additional 12
months under the same terms and conditions, by providing Imatron written notice
no less than 90 days prior to the end of the twenty-fourth month from the
Effective Date. This Agreement shall then automatically terminate and may be
renewed only upon the written agreement of both Parties.
ARTICLE 4 - RESPONSIBILITIES OF IMATRON
4.1 Imatron shall be responsible for:
(a) keeping GEMS informed of sales plans, sales objectives and new
prospects for the Products, in the Territory;
(b) supporting the marketing and promotion efforts of GEMS by supplying
reasonably adequate quantities of commercial and technical data and information
concerning Imatron and the Products, including the applicable published price
list for the Products, as well as any other relevant publications, including
clinical case studies, which Irnatron may have available from time to time and
which GEMS may elect to use;
(c) closing the sale of Products, at its sole discretion, on terms and
conditions which it solely accepts;
(d) providing warranty and post-warranty Product service to Served
Market Customers on terms Imatron may in its sole discretion accept, and subject
to sections 4.3 and 6.5 below;
(e) training GEMS sales personnel involved in the marketing and sale of
Products in Territory to Served Market (customers and for bearing the costs of
such training excluding the travel and living expenses of GEMS personnel which
shall be born by GEMS;
(f) making Imatron sales and application specialists available to, as
reasonably necessary, support GEMS, promotion of the Products;
(g) demonstrating the Products to Served Market Customers, as
reasonably necessary, to support GEMS' promotion of the Products;
(h) notifying GEMS (i) prior to making any material changes to the
Products and (ii) prior to any material changes which may occur in Imatron's
commercial activities, ownership, control and/or management that may affect
GEMS' promotion of the Products hereunder;
(i) supporting and funding any research agreements related to
collaboration with Served Market Customers or potential Served Market Customers
regarding the Products;
(j) providing adequate customer training after the sale of the Products;
(k) paying a commission to GEMS pursuant to Article 7 hereof for orders
for Products accepted by Imatron from Served Market Customers as a result of the
efforts of GEMS as specified herein;
(l) transferring to GEMS, at Imatron's option, any leads in the
Territory which become known to Imatron, for GEMS to assist in promoting the
Products to Imatron prospects. Any orders for Products resulting from such lead
sharing will result in a standard commission payment to GEMS as provided below;
(m) maintaining the Products and Imatron's facilities at all times in
substantial compliance with all laws and governmental rules and regulations that
apply to the manufacture, distribution by Imatron, sale, or service of the
Products, and promptly notifying GEMS in the event of any non-compliance which
could adversely affect GEMS;
(n) maintaining an adequate service force to provide installation,
warranty and post-warranty service for the Products for Served Market Customers
in the Territory, subject to Imatron's terms of warranty and terms of sale for
service;
(o) taking reasonable steps to ensure that the Products promoted by
GEMS under this Agreement will not be substantially affected by date changes,
directly communicating to Served Market Customers in the Territory regarding the
"Year 2000 Issue," and indemnifying GEMS with respect to this issue as specified
in Article 9 below; and
(p) establishing and maintaining customer show sites which are suitable
for use in promoting the sale of the Products and to which GEMS shall be allowed
to take customers.
4.2 Imatron shall accept as valid qualified leads eligible for compensation
hereunder all leads forwarded to Imatron from GEMS which meet the predefined
terms and conditions for acceptability, as documented in Exhibit A. An initial
list of leads for which GEMS will not be qualified for commissions hereunder,
unless specifically agreed by Imatron to the contrary, is attached as Exhibit B.
4.3 Imatron shall extend to GEMS the first right to purchase the entire or
any component of Imatron's service business for the Products should Imatron, at
any time during the term of this Agreement, elect, at its sole discretion, to
divest or to sell all or any part of such service business or to seek
partnership with others to provide service to the Products on Imatron's behalf.
Should Imatron elect, at its sole discretion, to outsource any of its service
obligations, Imatron shall extend to GEMS the right of first refusal to service
the Products as a sub-contractor to Imatron unless requested otherwise by the
Customer, subject to GEMS being willing and able to meet Imatron's requirements
for price, service quality, coverage and delivery as required under Imatron's
contract with its customer. This shall include service related to Products sold
by Imatron as the result of GEMS' efforts under this Agreement, Products sold by
Imatron or others on behalf of Imatron through other channels, and/or Imatron's
installed base of Products.
4.4 Imatron agrees to make available, for at least ten years after the date
of customer acceptance of Products, parts and service to end customers at
reasonable commercial terms.
ARTICLE 5 - RESPONSIBILITIES OF GEMS
GEMS shall be responsible for:
(a) maintaining a sales organization of trained personnel (GEMS cardiac
sales specialists) who are knowledgeable on the Products (subject to Imatron
performing its training obligations as specified above) to the extent required
to perform GEMS' duties under this Agreement, in order to help Imatron fulfill
sales objectives established by Imatron and communicated to GEMS from time to
time, and using reasonable efforts to assist Imatron by promoting the sale of
the Products to Served Market Customers in the Territory;
(b) using reasonable efforts to maintain active contacts with Served
Market Customers in the Territory;
(c) working with Imatron to integrate GEMS' promotion of the Products
into GEMS' overall cardiac products marketing plans consistent with this
Agreement;
(d) complying with Imatron's instructions regarding the price of the
Products to Served Market Customers and the provision of customer purchase
orders to Imatron;
(e) providing, at Imatron's request, (i) orders forecasts for the
Products, and (ii) market information on activities of Served Market Customers
in the Territory which become known to GEMS, in a mutually agreeable format;
(f) transmitting, at Imatron's request, proposals and/or technical data
to Served Market Customers, interpreting Served Market Customers' inquiries,
requirements and attitudes, and reasonably assisting in sales contract
negotiations. All proposals so transmitted will contain Imatron's standard terms
and conditions of sale or any other terms and conditions approved by Imatron;
(g) performing such reasonable liaison services with Served Market
Customers in the Territory as Imatron may from time to time request with respect
to any orders for Products from Served Market Customers, including reasonable
assistance in the resolution of any claims or complaints of said Served Market
Customers in relation therewith;
(h) making its cardiac sales specialists reasonably available, at its
expense, for initial and subsequent training including training of new
specialists by Imatron on the Products;
(i) providing incentive compensation to its sales personnel to sell
Products in Territories to Served Market Customers on a level generally
commensurate with other similarly priced products which said personnel may
otherwise be involved selling;
(j) developing, as appropriate, integrated marketing materials which
include information about the Products, where Imatron would have the opportunity
to review references to the Products and to offer comments prior to their
release; and
(k) incorporating information about the Products in GEMS sales tools
and product listings where appropriate.
ARTICLE 6 - MUTUAL RESPONSIBILITIES
6.1 The Parties will meet at regular, mutually agreed upon intervals to
review sales performance, service performance, Product quality, and other
relevant items as may be appropriate.
6.2 The Parties will agree in advance on the content and timing of all
public announcements concerning their relationship and this Agreement. Each
Party will coordinate with the other Party the announcement to its field staff
of their relationship and this Agreement.
6.3 The Parties will work together to develop one or more programs under
which GEMS would provide leasing or financing for the Products for Served Market
Customers in the Territory. Imatron agrees to forward to GEMS all leads of which
Imatron may become aware for leasing or financing of the Products to Served
Market Customers in the Territory. GEMS' decision to lease or finance the
Products in any case, or refuse to lease or finance the Products, and the terms
of such leasing or financing are solely subject to GEMS' option and discretion.
Nothing in this Agreement prohibits GEMS from offering leasing or financing for
the Products to anyone, whether in the Territory or otherwise, at its sole
option and discretion.
6.4 The Parties will work together in advance of relevant trade and
professional shows at which promotion of the Products may be appropriate to
develop mutually agreeable support for the Products at such shows. Nothing in
this paragraph is intended to bind either Party to appear or support the
Products at any show except as may be mutually agreed by the Parties as provided
above.
6.5 In any case during the term of this Agreement where GEMS, as a
multi-vendor service provider for medical equipment, enters into a contract in
the Territory to service the Products, GEMS agrees to offer Imatron a right of
first refusal to service such Products as a sub-contractor to GEMS unless
requested otherwise by the Customer, subject to Imatron being willing and able
to meet GEMS' requirements for price and service quality, coverage and delivery
as required under GEMS' contract with its customer.
ARTICLE 7 - COMMISSIONS
7.1 In consideration of the services rendered by GEMS to Imatron hereunder,
Imatron shall pay to GEMS a commission on orders for Products received from
Served Market Customers in the Territory and accepted in writing by Imatron
during the Term of this Agreement, provided that such orders have been forwarded
by GEMS, or specifically identified by GEMS and received directly by Imatron
from said Served Market Customers when such orders result from the efforts made
by GEMS.
7.2 The commission for each accepted order will be a flat * payable to GEMS
in US dollars.
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* Confidential treatment request pending.
7.3 Orders for Products forwarded or identified by GEMS and received by
Imatron from other than Served Market Customers, or from any customers located
outside of the Territory, will be considered by Imatron on a case-by-case basis
and GEMS will be eligible for the same commissions as for orders received from
Served Market Customers within the Territory.
7.4 Commissions earned by GEMS hereunder will be paid at GEMS' principal
place of business, and will be payable as follows: ten percent (10%) of the
total amount due for each transaction is payable upon acceptance by Imatron of
each order, seventy percent (70%) of the total amount due for each transaction
is payable at the time the Product is shipped from Imatron's facilities, and the
remaining twenty percent (20%) will be due upon turnover of the Product by
Imatron to the customer. In consideration of special circumstances for
government customers where Imatron may extend terms of payment in which the
customer's payment terms are unique, an alternate commission payment schedule
may be discussed and agreed to on a case-by-case basis. In those cases where
Imatron's terms to a government customer are for one hundred percent (100%)
payment upon delivery, and where GEMS and Imatron agree that an alternate
commission payment schedule is warranted, Imatron shall pay to GEMS the
commission as follows: ten percent (10%) of the total amount due for each
transaction is payable upon acceptance by Imatron of each order, and the
remaining ninety percent (90%) of the total amount due shall be payable upon
delivery to the customer.
7.5 It is understood that if an order should be rescinded, revoked or
repudiated by a customer for reasons beyond Imatron's control, or by Imatron for
breach of contract by the customer, or due to an event of force majeure as
permitted under Imatron's contract with the customer, GEMS shall not be entitled
to a commission with respect to such order, except pro rata to the extent of any
amount Imatron may have received and retained as payment for Products delivered
to said customer.
7.6 GEMS shall be responsible for the payment of all duties, taxes and/or
other administrative charges imposed on it by virtue of any commissions received
by it pursuant to this Agreement.
ARTICLE 8 - COMPLIANCE WITH LAWS
8.1 Each of the Parties' obligations hereunder shall at all times be
subject to the export administration and control laws and regulations of any
country of origin, as well as any applicable laws or regulations related to the
sale or use of any Products, software, spare parts, materials, documentation,
tools or test
equipment.
8.2 Each Party shall comply with all laws, regulations and orders made by
any government authorities which are applicable to it as a result of this
Agreement. Specifically, and without limiting the generality of the foregoing,
neither Party will, directly or indirectly, pay, offer or authorize payment of
anything of value (either in the form of compensation, gift, contribution or
otherwise) to any person or organization, contrary to the laws of the United
States (such as the Foreign Corrupt Practices Act) or any other laws of the
Territory.
ARTICLE 9 - LIMITATIONS AND EXCLUSIONS OF LIABILITY; INDEMNITY
9.1 Except as set forth in Articles 9.3 and 9.4 below, each Party's total
liability to the other, and the Parties' exclusive remedy against the other for
loss, liability or damage arising under, in connection with, or resulting from
this Agreement, shall be limited to no more than the greater of * or the amount
of commissions paid by Imatron to GEMS during the 6 month period preceding the
date of the incident which is made the basis of the Party's claim.
9.2 Neither Party shall have liability to the other (a) for incidental,
consequential or punitive damages (even if such Party has been apprised of the
possibility of such damages) except as set forth in Article 9.3 and 9.4 below,
or (b) with respect to any claims arising under, in connection with, or
resulting from this Agreement, whether in contract, tort (including negligence
and strict liability) or otherwise, except as may expressly be provided under
this Agreement.
9.3 Provided that the Party seeking indemnification gives the other Party
(the "Indemnifying Party") prompt written notice and requisite authority,
information and assistance to defend, each Party agrees to hold harmless and
indemnify the other Party and its officers, directors, and employees from and
against all claims by third parties if and to the extent such claims proximately
result from any act or omission of the Indemnifying Party or its employees
related to this Agreement, including, but not limited to (a) negligence or other
tortious conduct committed within the scope of this Agreement, (b) inaccurate or
misleading representations or statements related to the Products made by the
Indemnifying Party or its employees during the performance of their
responsibilities under this Agreement which were not approved by the other
Party, or (c) violation of any law, regulation or order by the Indemnifying
Party or its employees during the performance of or related to their
responsibilities under this Agreement.
9.4 Provided that GEMS gives Imatron prompt written notice and requisite
authority, information and assistance to defend, Imatron agrees to hold harmless
and indemnify GEMS, its officers, directors, and employees from and against all
claims by third parties which assert that any Product or other item or service
provided by Imatron has caused damage to tangible personal property or bodily
injury (including death), if and to the extent such damage or injury is
proximately caused by (a) a defect in the Product or other item or service as
defined in the Restatement 2nd of Torts, Section 402A as that Restatement may be
hereinafter amended by the American Law Institute or (b) any Product being
affected by date changes, such as but not including the date change from the
year 1999 to the year 2000.
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* Confidential treatment request pending.
ARTICLE 10 - TRADE NAME AND TRADEMARKS
10.1 Imatron acknowledges that the words "GE," "GE Medical Systems" and
"General Electric" are the trade names of GEMS and GE, and that these names are
the principal trademarks for product(s) manufactured and/or sold by GEMS or GE.
As a result thereof, Imatron agrees:
(a) that it will not in any manner use the words "General Electric," "GE,"
or "GE Medical Systems," or any variant thereof, without the prior written
consent of an authorized GEMS representative; and
(b) that it will not publish or cause to be published any advertising or
other material, nor encourage or approve any practice, which might mislead or
deceive the public or might be detrimental to the good name, trademarks, good
will or reputation of GEMS or GE.
10.2 GEMS acknowledges that the words "Imatron" and "Ultrafast CT" are the
trade names of Imatron, and that these names are the principal trademarks for
Products manufactured and sold by Imatron. As a result thereof, GEMS agrees:
(a) that it will not in any manner use the words "Imatron," "Ultrafast CT"
or any variant thereof as a part of its trade name; and
(b) that it will at all times (i) comply with rules and regulations
provided by Imatron with respect to the use of the word "Imatron" and "Ultrafast
CT," (ii) properly identify the authorized GEMS relationship with Imatron for
the Products, and (iii) not publish or cause to be published any advertising or
other material which might mislead or deceive the public or might be detrimental
to the good name, trademarks, good will or reputation of Imatron or its
Products.
ARTICLE 11 - CONFIDENTIALITY
11.1 Imatron and GEMS each acknowledge that they may receive confidential
information or trade secrets (the "Confidential Information") from the other
Party during the Term of this Agreement. Confidential Information shall be
deemed to include the contents of this Agreement and all information received by
the respective Parties in connection with this Agreement which are designated as
confidential in writing at the time of first disclosure Each Party agrees to
maintain the secrecy of the Confidential Information of the other and agrees
neither to use it (except for the purposes permitted herein) nor to disclose it
to any third party or to any of its employees who do not have a need to know it
in order to perform under this Agreement.
11.2 Confidential Information shall not include any information which is
publicly available at the time of disclosure or subsequently becomes publicly
available through no fault of either Party, or is rightfully acquired by the
receiving Party from a third party who is not in breach of an agreement to keep
such information confidential.
11.3 The obligations of this Article 11 shall remain in effect for a period
of three years following the termination or expiration of this Agreement.
ARTICLE 12 - PRODUCT CHANGES
Imatron reserves the right from time to time in its sole discretion,
without thereby incurring any liability to GEMS, to discontinue, to limit its
production of, or to alter the design of any Product or model or part thereof.
ARTICLE 13 - FORCE MAJEURE
13.1 Events of force majeure shall relieve a Party (the "Non-Performing
Party"), from obligations imposed upon it by this Agreement, for so long as such
event and its effect shall continue. For the purposes of this Agreement, an
event of force majeure shall include, without limitation, Acts of God, war,
riot, fire, explosion, accident, flood, earthquake, sabotage, strike of
employees other than those of Imatron, inability to obtain power, fuel, material
or labor, or acts of any government. The Non-Performing Party shall, as soon as
feasible, notify the other Party hereto of (a) its best reasonable assessment of
the nature and duration of the event of force majeure, and (b) the steps it is
undertaking in order to cure or reduce the effect of such event of force
majeure. The Non-Performing Party shall use its reasonable best efforts to cure
or reduce the effect of the event of force majeure. The other Party hereto shall
have no right to claim damages for any resulting non-performance, partial
performance or delay in performance by the Non-Performing Party of its
contractual obligations hereunder.
13.2 If, due to an event of force majeure, either Party is wholly unable to
perform its obligations under this Agreement for more than 60 consecutive days,
and the Parties have not agreed upon a revised basis for such obligations, then
either Party may immediately terminate the Agreement upon written notice.
ARTICLE 14 - TERMINATION
14.1 This Agreement may be terminated:
(a) by an agreement in writing between the Parties;
(b) by either Party, effective immediately upon written notice to the other
Party, if the other Party becomes the subject of any bankruptcy proceedings,
receivership, or other insolvency proceedings or makes any assignment or other
arrangement for the benefit of its creditors, or otherwise ceases to do
business;
(c) by Imatron, effective immediately upon notice, if (i) GEMS attempts to
sell, assign, delegate, or transfer any of its rights and obligations under this
Agreement without having obtained Imatron's prior approval, or (ii) a material
change occurs in the management, ownership or control of GEMS which is
reasonably unacceptable to Imatron, or (iii) GEMS serves as a representative for
other third parties which representation, in Imatron's reasonable opinion,
involves a conflict with GEMS' obligations hereunder, or (iv) GEMS acts in a
manner reasonably deemed by Imatron to be detrimental to the best interests of
Imatron
(d) by either Party if the other Party fails to fulfill its obligations
hereunder when they come due and does not cure such failure within 30 days from
receipt of written notice of such failure given by the non-defaulting Party;
(e) by GEMS, effective immediately upon notice, if (i) Imatron attempts to
sell, assign, delegate, or transfer any of its rights and obligations under this
Agreement without having obtained GEMS' prior approval, or (ii) a material
change occurs in the management, ownership or control of Imatron which is
reasonably unacceptable to GEMS, or (iii) Imatron acts in a manner reasonably
deemed by GEMS to be detrimental to the best interests of GEMS;
(f) as provided in Article 13.2 above due to an event of force majeure.
ARTICLE 15 - RIGHTS AND OBLIGATIONS ON EXPIRATION OR TERMINATION
15.1 Promptly upon expiration or termination of this Agreement, Imatron and
GEMS shall each (a) cease to use the trade name and trademarks of the other
Party and any parts thereof, (b) remove any direct or indirect reference to such
trade name and trademarks from all buildings under the control of the respective
Party and (c) ensure such cessation and removal by all persons claiming to have
received any rights to use them from the respective Party.
15.2 Orders for Products transmitted by GEMS or received by Imatron from
Served Market Customers before the expiration or termination of this Agreement
and which results in the conclusion of sales contracts not more than six months
after such expiration or termination shall entitle GEMS to a commission, subject
to Article 7 above.
ARTICLE 16 - NOTICES
16.1 All notices to be served on GEMS or Imatron pursuant to the terms
hereof shall be in writing and either personally delivered, sent by overnight
courier or certified mail, or sent by facsimile transmission of which receipt is
accurately acknowledged, to the addresses as set forth in this Agreement.
Notices to Imatron shall be sent to the attention of its Chief Executive
Officer. Notices to GEMS shall be sent to the attention of its General Manager,
Global CT Business.
16.2 All notices given pursuant hereto shall be effective upon receipt (if
personally delivered) or the date shown on the return receipt (if sent by
overnight courier, certified or facsimile).
16.3 Any change of address or recipient of notice of a Party hereto shall
be notified in writing to the other Party.
ARTICLE 17 - GOVERNING LAW - ARBITRATION
17.1 The rights and obligations of the Parties under this Agreement shall
be construed in accordance with the laws of the State of New York (excluding its
conflict of law rules).
17.2 The Parties agree that any controversy, claim or dispute between the
Parties arising out of or relating in any way to this Agreement which the
Parties are unable to resolve by mutual negotiation will be submitted to good
faith, non-binding mediation within the state of New York before a qualified
mediator. Each Party will bear its own costs to prepare for and attend the
mediation session and will equally share the costs directly associated with the
mediation. Neither Party is obligated to agree to settle any controversy, claim
or dispute as a result of such mediation, and no statements or findings of the
mediator may be used by either Party in any subsequent proceedings.
17.3 Any controversy, claim or dispute between the Parties arising out of
or relating in any way to this Agreement which the Parties are unable to resolve
as noted above will be submitted to final and binding arbitration within the
state of New York before three independent and impartial arbitrators none of
whom shall be appointed by the Parties. The arbitration shall be conducted in
accordance with the applicable rules of the Center for Public Resources Rules
for Non-Administered Arbitration for Business Disputes in effect on the date of
execution of this Agreement, as specifically modified herein, and shall be
subject to and in accord with all the provisions of this Agreement. Each Party
hereby consents to a single, consolidated arbitration of multiple claims. Each
Party shall bear its own costs and expenses of the arbitration, and the
prevailing Party shall be entitled to recover such costs and expenses, including
reasonable and actual attorneys fees, from the other party.
17.4 Notwithstanding Article 17.1, the law applicable to any and all issues
related in any way to the arbitration or these arbitration provisions of this
Agreement shall be governed solely and exclusively by the Federal Arbitration
Act, 9 U.S.C., Sections 1-16. The federal and state courts of New York shall
have exclusive jurisdiction over any action brought to enforce these arbitration
provisions, and each Party irrevocably submits to the jurisdiction of those
courts. Notwithstanding the above, either Party may apply to any court of
competent jurisdiction, wherever situated, to enforce any arbitration award.
17.5 To the fullest extent permitted by law, the arbitration panel is
specifically denied and divested of any authority to award damages in excess of
compensatory damages as provided under this Agreement.
ARTICLE 18- MISCELLANEOUS
18.1 This Agreement constitutes the entire agreement between the Parties
with respect to subject matter thereof and supersedes all prior statements,
agreements, understandings, communications, representations and/or promises,
whether in writing or oral, of the Parties relating thereto.
18.2 Neither Party shall have the right to assign, sub-contract, or
otherwise transfer any of its rights and obligations under this Agreement
without the written consent of the other Party, and any action to the contrary
of this provision shall be void.
18.3 This Agreement may not be modified except by a written instrument duly
signed by authorized representatives of both Parties.
18.4 No failure on the part of a Party hereto to exercise, and no delay in
its exercise of, any right, power or privilege hereunder shall operate as a
waiver thereof. Moreover, no single or partial exercise by a Party of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise Of any other right, power or privilege.
18.5 If one or more of the provisions of this Agreement are at any time
found to be invalid by a court, tribunal or other forum of competent
jurisdiction or otherwise rendered unenforceable, Such provision or provisions
shall be severable from this Agreement so that the validity or enforceability of
the remaining provisions of this Agreement, or the validity of the provision(s)
in question in any other jurisdiction, shall not be affected thereby.
18.6 Neither Party is granted the right or authority to assume or to create
any obligation or responsibility, express or implied, on behalf of or in the
name of the other Party. In fulfilling its obligations pursuant to this
Agreement each Party shall be acting as an independent contractor.
18.7 Nothing in this agreement shall constitute or be construed as a
technology or patent license or transfer of intellectual property from Imatron
to GEMS. Pursuant to this agreement, Imatron is not granting GEMS any license in
the field of Medical Imaging to any technology owned, co-owned or licensed by
Imatron.
IN WITNESS WHEREOF, GEMS and Imatron have each caused this Agreement to
be executed by their duly empowered representatives as of the day and year first
above written.
Imatron GEMS
By: By:
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Name: S. Xxxxx Xxxxx Name: Xxxxx Xxxx
Title: President and CEO Title: General Manager
Date: Date:
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Exhibit A
Definition - Qualified Leads
Qualified Leads for which GEMS will be eligible to receive commission
payment under this agreement are defined as those leads where: contact has been
made with responsible representative(s) of the customer, information about the
Product has been exchanged, a non-negative response to the Product has been
received, and the GEMS representative can reasonably expect to follow-up with
the customer to further discuss the potential sale of Products.
Exhibit B
Existing Imatron Leads for Products
The following list of customer leads are currently being pursued by Imatron for
sale of Products in the Territory. GEMS shall not be eligible to receive
compensation for sales to these leads unless agreed by the parties to the
contrary.
Contact Name Institution City State Zip
(* A listing of 146 names and addresses follows.)
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* Confidential treatment request pending.
