EXHIBIT 10.7
INTERNATIONAL DISTRIBUTION AGREEMENT
THIS INTERNATIONAL DISTRIBUTION AGREEMENT (the "Agreement"), effective this 20th
day of September, 1994, is entered into by and between AMERICAN SURGICAL
TECHNOLOGIES CORPORATION, a Delaware corporation with a principal place of
business located at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, U.S.A.,
hereinafter referred to as "ASTC" and
AMCO, Inc.
* * *
* * *
* * *
hereinafter referred to as "DISTRIBUTOR".
WHEREBY ASTC desires to appoint DISTRIBUTOR to promote, sell, distribute, and
service ASTC products in and within the Territory (as defined hereinafter) in
accordance with the terms and conditions stated herein; and
WHEREBY DISTRIBUTOR represents that it has the capability and resources to
promote, sell, distribute, and service ASTC products in and within the Japan
(hereinafter referred to as "the Territory"), to fulfill the needs and
requirements of customers for ASTC products in such Territory;
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING, it is mutually agreed by and
between the parties as follows:
1. EXCLUSIVE RIGHTS: ASTC hereby grants to DISTRIBUTOR the exclusive right to
purchase from ASTC those products set forth in Exhibit "B" annexed hereto
("3DSCOPE International Distributor Product/Price List"), for the sole
purpose of reselling such products in the Territory to hospitals, clinics,
physicians, and other medical and surgical entities, institutions, and
personnel (the "Medical Market"). ASTC appoints DISTRIBUTOR as its
exclusive representative to promote, sell, distribute, and service ASTC
Products only in the Territory and only to the Medical Market. The
Distributor shall have no right to promote, sell, or distribute ASTC
Products directly or indirectly, in any other Territory or to any person or
entity other than the Medical Market. For purposes of this Agreement, the
meaning of the term "sell" shall also include "lease" or "rent".
2. TERMS AND CONDITIONS: DISTRIBUTOR hereby accepts the said appointment and
agrees to the conditions set forth herein and in accordance with the
Standard Terms and Conditions for International Distribution Agreements
annexed hereto as Exhibit "A" and incorporated herein by reference and made
a part hereof.
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3. AVAILABILITY: ASTC shall make available for purchase by DISTRIBUTOR
sufficient quantities of ASTC Products to meet DISTRIBUTOR's reasonable
needs and requirements in order to fulfill the terms and conditions of this
Agreement.
4. INITIAL ORDER: Upon execution of this Agreement, and as a condition
precedent to the validity hereof, DISTRIBUTOR shall submit a Purchase Order
(as defined in Paragraph 9 to ASTC for an Initial Order of ASTC Products at
the prices set forth on Exhibit "B" annexed hereto except that the first
unit ordered will reflect a * * *% discount, units * * * will reflect a
* * *% discount, and all future orders will reflect a * * *% as shown on
Exhibit B. The said Initial Order is set forth as Exhibit "C" annexed
hereto.
5. ANNUAL PURCHASE COMMITMENT:
5.1. DISTRIBUTOR and ASTC agree the quantity of ASTC Products to be
purchased by DISTRIBUTOR will total * * * in year one, * * *
in year two and * * * in year three, year one commences with
grant of government registration. The products to be purchased are
the products listed in Exhibit B inclusive of any new products and
accessories to be added to Exhibit B hereafter.
5.2. No later than thirty (30) days following the last day of any
subsequent year of the term of this Agreement, if the term of this
Agreement shall have been extended in accordance with the terms of
this Agreement) DISTRIBUTOR and ASTC shall mutually agree in
writing on the Annual Purchase Commitment for the following year.
Failure to do so will result in a probationary ninety (90) day
period. Upon expiration of the probationary period, DISTRIBUTOR's
rights hereunder shall terminate, unless prior to the expiration of
said probationary period, ASTC notifies DISTRIBUTOR in writing that
DISTRIBUTOR's rights hereunder shall continue according to the
terms and conditions hereof.
5.3. Failure on the part of the DISTRIBUTOR in any consecutive two (2)
quarters in any given year of this Agreement, to purchase an
aggregate total of * * * of the Annual Purchase
Commitment shall result in a sixty (60) day probationary period,
which probationary period shall be followed by immediate
termination of DISTRIBUTOR's rights hereunder, unless prior to the
expiration of said probationary period, ASTC notifies DISTRIBUTOR
in writing that DISTRIBUTOR'S rights hereunder shall continue
according to terms and conditions hereof.
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5.4. Any failure by the DISTRIBUTOR to meet its Annual Purchase
Commitment resulting from delayed delivery by ASTC of the ASTC
Products covered by this Agreement shall be documented at the time
of any such delay. Such failure shall not constitute a breach of
this Agreement so long as the quantity of ASTC Products subject to
such delay would, had DISTRIBUTOR been able to purchase such ASTC
Products during such period of delay, been equivalent to the
quantity of ASTC Products necessary to meet the Annual Purchase
Commitment for the relevant period.
6. MARKET DEVELOPMENT AND INFORMATION:
6.1. DISTRIBUTOR agrees to use its best efforts to develop a market for
ASTC Products and to enhance ASTC's image in the market place as a
provider of quality products. At the beginning of each calendar
year, DISTRIBUTOR shall provide to ASTC its business plan for the
coming year for the sale and promotion of ASTC Products in the
Territory, and ASTC and DISTRIBUTOR shall mutually agree in writing
on the sales promotion activities and performance criteria to be
met by DISTRIBUTOR for that calendar year.
6.2. DISTRIBUTOR shall annually provide ASTC a written analysis of the
market within the Territory, including total market size, market
share data and competitive activities, including, if reasonably
available to DISTRIBUTOR, information concerning competitors'
products, prices, and marketing programs and strategies, sales
reports, an account of its ASTC Products inventory, its key
accounts, and such other information as may be reasonably obtained
by DISTRIBUTOR relating to ASTC Products and competitors' products
so as to enable ASTC to assist DISTRIBUTOR in fully developing the
market demand for ASTC products and in developing appropriate
marketing and business plans for the mutual advantage of
DISTRIBUTOR and ASTC.
7. NEW PRODUCTS:
7.1. If ASTC in its sole discretion, decides to make a new product
available for sale * * * and in the
Territory (such new product being defined as product not listed on
Exhibit "B" annexed hereto), ASTC shall discuss with DISTRIBUTOR
the addition of such new product to this Agreement.
7.2. ASTC will grant DISTRIBUTOR right of first refusal if ASTC decides
to add new product(s) to this Agreement. If DISTRIBUTOR decides
that it does not want to add new product(s) to this Agreement, then
ASTC shall have the right to have the said new product distributed
by another representative within the Territory.
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8. PRICES:
8.1. Prices to DISTRIBUTOR shall be in United States dollars and shall
be, initially, the prices set forth on Exhibit "B" annexed hereto
along with additional discounts as described in Section 4. Changes
in price may be made by ASTC, subject to ninety (90) days written
notice in advance to DISTRIBUTOR. Within such ninety day period,
DISTRIBUTOR may place reasonable orders for purchase of ASTC
Products, but ASTC explicitly retains the right to reasonably limit
the quantity of such orders.
8.2. All prices are calculated for delivery FOB ASTC's plant, currently
located in Chelmsford, Massachusetts, U.S.A. Customs duties and
charges, if any, shall be borne by DISTRIBUTOR. Any export
licenses in the United States shall be obtained and paid for by
ASTC. All other import or export licenses, approvals or both shall
be obtained by DISTRIBUTOR at its cost. Prices to DISTRIBUTOR do
not include any federal, state or local taxes that may be
applicable to the ASTC Products. When ASTC has the legal
obligation to collect such taxes, the appropriate amount shall be
added to DISTRIBUTOR's invoice and paid by DISTRIBUTOR unless
DISTRIBUTOR provides ASTC with a valid tax exemption certificate
authorized by the appropriate taxing authority.
9. PURCHASES:
9.1. Pursuant to this Agreement the DISTRIBUTOR shall submit purchase
orders for the ASTC Products ("Purchase Order"). Such Purchase
Orders shall be subject to the Standard Terms and Conditions for
International Distribution as set forth in Exhibit "A" annexed
hereto.
9.2. ASTC shall have the right to modify its Standard Terms and
Conditions for International Distribution upon mutual written
agreement between ASTC and DISTRIBUTOR, following which all future
Purchase Orders will be subject to such modified Terms and
Conditions.
9.3. DISTRIBUTOR may cancel without charge any outstanding Purchase
Order within seven (7) days of receipt of such Purchase Order by
ASTC, but only by written (or FAX) notice of cancellation, orders
canceled after the seven day period without sufficient reason are
subject to penalties mutually agreed to by ASTC and DISTRIBUTOR.
10. PAYMENT: Full payment to ASTC of DISTRIBUTOR's purchase price (including
any freight, taxes, or other applicable costs) shall be made in the United
States in United States dollars 60 days after shipment of order.
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11. TERM OF AGREEMENT:
11.1. Except as otherwise provided in this Section 11, this Agreement
shall have an initial terms of three (3) years from the effective
date hereof and automatically renew for one year periods unless
terminated by 90 days written notice before expiration of each term
by either party.
12. CANCELLATION AND TERMINATION:
12.1. This Agreement may be canceled by either party for any reason upon
ninety (90) days prior written notice to the other party.
12.2. Either party shall have the right to terminate this Agreement
immediately for just cause should either party breach any provision
of for this Agreement, including any of the following:
12.2.1. failure by DISTRIBUTOR to make payment for ASTC
Products purchased in accordance with ASTC's
established policy for this Agreement;
12.2.2. failure to establish and maintain a sales and service
organization of sufficient size to adequately and
effectively sell, service, and support ASTC Products in
the Territory;
12.2.3. failure to honor warranties;
12.2.4. failure to maintain adequate books and records with
respect to the names and addresses of customers, and
the sale and distribution of ASTC Products;
12.2.5. failure to comply with local law applicable in the
Territory, including by way of explanation but not
limitation, compliance with any local currency
restrictions or restrictions on payment of local
commissions to sales representatives;
12.2.6. violation of any of the obligations of DISTRIBUTOR with
respect to ASTC's patents, trademarks, copyrights,
labeling, products registrations, interest, know how,
trade names or ASTC's proprietary information;
12.2.7. violation of the commitments of DISTRIBUTOR with
respect to approvals and compliance with laws and
regulations or violation of the prohibition against
assignment contained within;
12.2.8. any event, action or failure that constitutes cause for
termination under applicable law; or
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12.2.9. any change of ownership of DISTRIBUTOR that in the sole
determination of ASTC is in any way detrimental or
prejudicial to the interests of ASTC.
12.3. DISTRIBUTOR shall have twenty (20) days after written notice
specifying a breach of this Agreement to cure such breach. If,
under the circumstances then current, it would appear that any
breach is final, or cannot be cured, ASTC may terminate the
Agreement immediately for cause by giving notice to this effect.
12.4. Either ASTC or DISTRIBUTOR may terminate this Agreement in the
event that the other is dissolved, becomes insolvent, files a
petition in bankruptcy, or is declared bankrupt, or makes an
assignment for benefit of creditors, or there is reasonable
evidence indicating the possibility of such filing or assignment
during the term this Agreement is in effect. Termination under
this provision shall be effective twenty (20) days following
written notice to that effect.
12.5. DISTRIBUTOR may terminate this Agreement immediately for just cause
should ASTC breach any provision of this Agreement, provided that
any such termination shall not take effect if ASTC has cured such
breach within twenty (20) days following written notice of
DISTRIBUTOR's intention to terminate on account of such breach.
12.6. Upon termination of this Agreement for whatever reason, any claims
for money owed that either party may have against other party under
this Agreement shall immediately become due, whatever the nature of
such claims.
12.7. Both DISTRIBUTOR and ASTC shall be entitled to cancel all Purchase
Orders which are outstanding at the time of notice of termination,
so long as products have not been delivered to DISTRIBUTOR pursuant
to such Purchase Orders. Provided however, that subject to payment
in advance to ASTC, DISTRIBUTOR shall be entitled to receive ASTC
Products necessary to fulfill valid and binding Purchase Orders
accepted by DISTRIBUTOR prior to notification of termination of
this Agreement. Prior to filling orders for such products ASTC
shall be entitled to request and receive documentary evidence of
all such outstanding Purchase Orders and an accounting of
DISTRIBUTOR's then current inventory of ASTC Products.
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12.8.
12.8.1. Upon termination of this Agreement DISTRIBUTOR shall
refrain from use of any signs, equipment, advertising
matter, or material which refer to or are related to
ASTC and from acts and omissions that indicate or
suggest a relationship with ASTC. DISTRIBUTOR shall
promptly return to ASTC all ASTC property, promotional
material and proprietary information.
12.8.2. Upon termination of the Agreement DISTRIBUTOR shall not
be entitled to any termination compensation,
consequential damages, indemnity, or other payment for
goodwill, lost profits, costs of re-establishment or
replacement of the business, or any other expenses, or
for loss of rights relating to the business established
by DISTRIBUTOR or rights relating to terminating to
this Agreement.
12.8.3. DISTRIBUTOR recognizes that prices charged by ASTC to
DISTRIBUTOR allow DISTRIBUTOR to obtain a reasonable
return for its entire services and profit on resale,
including costs of establishing and maintaining its
organization. DISTRIBUTOR expressly acknowledges any
rights to such indemnity afforded to it by law or
custom, and to the extent permissible under applicable
law, expressly and completely waives all its rights to
such indemnity benefits, if any.
12.8.4. DISTRIBUTOR agrees to indemnify and hold ASTC harmless
from all losses, damages, amounts, costs, and expenses
incurred by ASTC as a result of claims or actions
brought by employees, agents, or representatives of
DISTRIBUTOR for any severance pay, compensations,
disability payment or social security payment or
compensation.
12.9. Upon any termination of this Agreement, ASTC shall buy back any
unsold inventory that DISTRIBUTOR, will have at the time
termination per the following schedule:
Products unused and less than * * * after shipment - * * *
of buying cost.
Products used and less than * * * after shipment - * * *
of buyer cost.
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Products use and between * * * and * * * years after
shipment - * * * of buying cost.
12.10. The aggregate amount to be paid to be paid to DISTRIBUTOR under the
preceding subparagraph 12.9 may be offset by ASTC against any
claims it has against DISTRIBUTOR, including claims for payment of
goods supplied under this Agreement.
12.11. At the time of termination, ASTC shall take responsibility for all
transactions relative to ASTC products including service of
products.
13. SUB-DISTRIBUTORS: Nothing herein shall prohibit DISTRIBUTOR from
appointing one or more sub-distributors within the Territory, provided
however, that with respect to each such sub-distributor:
13.1. such appointment or appointments (including the sub-Territory to be
assigned to any such sub-distributor) shall be consented to in
writing by ASTC.
13.2. such sub-distributor shall purchase ASTC products only from
DISTRIBUTOR and not from ASTC;
13.3. such sub-distributor shall not sell any ASTC products outside its
sub-Territory;
13.4. such sub-distributor shall enter into and execute a sub-
distribution agreement with DISTRIBUTOR (in form and content
acceptable to ASTC) by the terms of which the sub-distributor
agrees to be bound by all the terms of this Agreement; and
13.5. such sub-distributor shall agree in writing that nothing in this
paragraph 13 shall be deemed to create the relationship of
principal and agent, master and servant, partner, joint venturer,
or any similar relationship between ASTC and any such sub-
distributor.
14. NOTICES:
14.1. All notices given under this Agreement and the provisions contained
herein shall be sent by first class registered airmail, postage
prepaid and return receipt requested, by Federal Express, or by
Telecopier, or Facsimile as directed below:
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AMCO, Inc.
* * *
* * *
* * *
when directed to DISTRIBUTOR, and to:
American Surgical Technologies Corporation
Attn: Vice President Sales
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 X.X.X.
Phone: (000) 000-0000
Fax: (000) 000-0000
when directed by ASTC.
14.2. Notices shall be considered delivered when mailed or sent by
Telecopier or Facsimile in accordance with the provisions of
subparagraph 14.1 above subject to proof of receipt by Telecopier
or Facsimile confirmation or by mail receipt.
Executed this 20th day of September, 1994 by and on behalf of
DISTRIBUTOR
By: /s/ * * * , DULY AUTHORIZED
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Title: President
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Executed this 20th days of September, 1994 by and on behalf of
AMERICAN SURGICAL TECHNOLOGIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxx, Xx. , DULY AUTHORIZED
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Title: President
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EXHIBIT A
Standard Terms and Conditions
for
INTERNATIONAL DISTRIBUTION AGREEMENT
by and between
AMERICAN SURGICAL TECHNOLOGIES CORPORATION
and
AMCO, Inc., DISTRIBUTOR
1. INCORPORATION OF TERMS AND CONDITIONS: These Standard Terms and Conditions
are incorporated into and are a part of the International Distribution
Agreement by and between AMERICAN SURGICAL TECHNOLOGIES CORPORATION
("ASTC") and the above named DISTRIBUTOR ("the Agreement"). Unless
otherwise noted hereinafter, all definitions and defined terms appearing in
the aforesaid Agreement shall bear the same meanings as such definition and
defined terms bear in the aforesaid Agreement whenever such definitions and
defined terms shall appear hereinafter.
2. DILIGENCE AND CONFLICTS OF INTEREST: DISTRIBUTOR shall exercise due
diligence and its best efforts in promoting and selling ASTC Products
within the Territory. DISTRIBUTOR shall promote the products of other
companies only if such promotion will not prejudice ASTC business interests
or create a conflict of interest in handling ASTC's confidential or
proprietary information.
3. CAPABILITY TO PERFORM: DISTRIBUTOR shall maintain the financial capability
to perform the Distribution Agreement and shall, at its own expense,
establish and maintain a sales, marketing and distribution, and service
organization, and employ personnel in sufficient number of adequately and
effectively sell ASTC Products in the Territory, including the appointment
of a Product Manager who shall be responsible for the sale and promotion of
ASTC products, as well as for training of DISTRIBUTOR's sales
representatives in the sale and promotion of ASTC Products.
4. BOOKS AND RECORDS: Not applicable
5. TRAINING:
5.1. DISTRIBUTOR shall provide in-service training for personnel of
customers acquiring ASTC Products and shall provide necessary user
education for such personnel. ASTC shall provide DISTRIBUTOR with
marketing and technical information concerning the ASTC Products as
well as reasonable quantities of brochures, instructional
materials, advertising literature, and other product data, provided
that all such material will be printed in the English language.
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EXHIBIT A
5.2. Upon mutual agreement, DISTRIBUTOR shall participate in training
programs offered by ASTC by sending its sale, service, and support
personnel, as applicable, to such training sessions for such
personnel as ASTC may from time to time make available at
reasonable intervals. Such training sessions shall be conducted in
the English language at locations to be designed by ASTC.
DISTRIBUTOR shall bear all costs associated with the travel to and
attendance of its personnel at such training sessions. Should it
be required that ASTC conduct training sessions specifically for
the benefit of DISTRIBUTOR within the Territory, all costs
therefore shall be borne by DISTRIBUTOR, including the reasonable
costs of travel to and attendance at such special training sessions
by ASTC personnel.
6. REPUTATION: Both ASTC and DISTRIBUTOR understand, acknowledge and agree
that the continued maintenance of an image of excellence and a reputation
for high level, ethical marketing of ASTC Products is essential to the
continued success of both parties. DISTRIBUTOR agrees that its sales,
marketing, distribution, or advertising will not reflect unfavorably on, or
dilute in any way, such image of excellence and reputation for high level
ethical marketing. DISTRIBUTOR agrees that it shall not do anything,
directly, or impair the current image or to lower the prestige or quality
of ASTC Products, or to impair the reputation of ASTC.
7. DELIVERY, TITLE, RISK OF LOSS, AND RETURNS:
7.1. Firm Purchase Orders are to be placed by DISTRIBUTOR at least
ninety (90) days prior to the required delivery date. Forecasts of
anticipated requirements of ASTC Products for each successive six-
month period shall be supplied by DISTRIBUTOR semi-annually at
least thirty (30) days prior to the end of each six (6) month
period. Products shall be shipped at DISTRIBUTOR's expense in such
manner as ASTC shall deem appropriate or as otherwise directed.
Title and risk of loss for ASTC Products shall remain with ASTC
until delivery, FOB Chelmsford, Massachusetts, at which point title
and risk of loss shall shift to DISTRIBUTOR. DISTRIBUTOR shall
obtain insurance sufficient to cover the value of each shipment or
shall instruct ASTC to obtain such insurance and to xxxx
DISTRIBUTOR therefor.
7.2. DISTRIBUTOR shall inspect all ASTC Products promptly upon receipt
thereof and may reject any ASTC Product that fails in any material
way to meet the specifications set forth in ASTC's current brochure
for such ASTC Product. Any ASTC Product not properly rejected
within forty-five (45) days of receipt of such ASTC Product by
DISTRIBUTOR (the "Rejection Period") shall be deemed accepted.
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EXHIBIT A
7.3. To reject an ASTC Product, DISTRIBUTOR shall, within the Rejection
Period, notify ASTC in writing of its rejection and in sufficient
detail, the reasons for such rejection, and request a Return Goods
Authorization ("RGA") number. ASTC shall provide the RGA number to
DISTRIBUTOR within seven (7) days of receipt of the request unless,
in ASTC's reasonable determination, return of the ASTC Products is
inappropriate or unnecessary; the grounds for which shall be
provided in writing to DISTRIBUTOR within such seven day period.
7.4. Within seven (7) days of receipt of the RGA number DISTRIBUTOR
shall ship to ASTC the rejected products, freight prepaid, in its
original shipping carton with the RGA number displayed on the
outside of the carton. ASTC reserves the right to refuse to accept
any rejected products that do not bear an RGA number on the outside
of the carton. As promptly as possible but no later than forty
five (45) working days after receipt of properly rejected products
ASTC shall at its sole option and expense either repair or replace
the rejected ASTC Products. ASTC shall pay the shipping charges
back to DISTRIBUTOR for properly rejected products; otherwise
DISTRIBUTOR shall be responsible for the shipping charges.
7.5. Subsequent to the Rejection Period, DISTRIBUTOR may not return any
ASTC Product to ASTC for any reason without ASTC's prior written
consent. For any ASTC product for which such consent has been
given, ASTC shall levy a return charge amounting to twenty percent
(20%) of DISTRIBUTOR'S purchase price for such ASTC Product, and
shall credit the balance of the purchase price to DISTRIBUTOR's
account within forty five (45) days upon receipt of such returned
ASTC Product. DISTRIBUTOR shall be responsible for all shipping
charges.
8. WARRANTY:
8.1. DISTRIBUTOR shall pass on to its customers ASTC's standard Limited
Warranty as set forth here, including the limitations set forth in
subsections 8.2 and 8.3 immediately below.
3DSCOPE-TM- products are warranted for a period of one year from
the date of shipment, with exceptions as noted, to be free from
defects in material and workmanship. A three (3) month warranty
exists for the Light Guide, video peripherals and Replacement Lamp.
No warranty
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EXHIBIT A
exists for Stereo Eyewear. The Warranty is limited to the repair
or replacement of the product, at the discretion American Surgical
Technology Corporation, without charge when returned to the
appropriate service facility.
American Surgical Technologies Corporation warrants that the
equipment is fit for the purposes and indications described in the
labeling when used in accordance with the directions for use.
Unless the equipment is used in accordance with such instructions
this warranty is void and of no effect. NO OTHER EXPRESSED OR
IMPLIED WARRANTY EXISTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY WILL NOT BE
LIABLE FOR PROXIMATE, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
This warranty does not cover abnormal wear and tear or damage
caused by misuse modifications, recalibrations, abuse or service by
other than an authorized Company representative.
8.2. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, ASTC GRANTS NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE
REGARDING THE ASTC PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR
QUALITY, THEIR MERCHANTABILITY OR OTHERWISE.
8.3. ASTC LIABILITY UNDER THE AFORESAID WARRANTY SHALL BE LIMITED TO A
REFUND OF THE CUSTOMER'S PURCHASE PRICE. IN NO EVENT SHALL ASTC BE
LIABLE FOR THE COST OF PROCUREMENT OF SUBSTANTIVE GOODS BY THE
CUSTOMER OR FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES
FOR BREACH OF WARRANTY.
8.4. NOTWITHSTANDING ANY OF THE ABOVE PROVISIONS, ASTC SHALL BE
RESPONSIBLE FOR CLAIMS OF THIRD PARTIES OR DAMAGES ALLEGED TO BE
SUFFERED BY REASON OF THEIR USE OF PRODUCTS, PROVIDED THE DAMAGES
ARE NOT DUE TO ANY DEFAULT, NEGLIGENCE, MISREPRESENTATION, OR ANY
ACT OR MISSION OF DISTRIBUTOR PROVIDED THAT DISTRIBUTOR HAS GIVEN
ASTC PROMPT NOTICE OF ANY SUCH CLAIM.
9. REPAIR AND REPORTING OF PRODUCT MALFUNCTION:
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EXHIBIT A
9.1. DISTRIBUTOR shall
9.1.1. establish and maintain to the satisfaction of ASTC the
facility and capability within its own organization, or
9.1.2. shall by contract have constant and ready access to such
facility and capability outside its own organization, to the
satisfaction of ASTC, to undertake and perform reasonably
foreseeable repairs and service with respect to ASTC
Products, including attendance by DISTRIBUTOR's own
personnel, or the appropriate personnel of DISTRIBUTOR's
contract service and repair organization at applicable
training sessions as set forth in Paragraph 5.2 above.
9.2. During the term of this Agreement, DISTRIBUTOR shall promptly
perform or cause to be performed all necessary repair and service
with respect to any ASTC Product, including any repair or service
during the Warranty period applicable to such ASTC Product, unless
ASTC expressly directs that such Warranty repair or service shall
be performed by ASTC. The reasonable cost of Warranty repair and
service made or performed by or on behalf of DISTRIBUTOR shall be
borne by ASTC. DISTRIBUTOR shall
9.2.1. promptly notify ASTC of each instance of Warranty repair or
service prior to undertaking such repair or service, and
9.2.2. with respect to all repairs and service, use its best
efforts to conform with ASTC's published Service Policies,
copies of which shall be furnished to DISTRIBUTOR, as the
same shall be promulgated by ASTC from time to time.
9.3. DISTRIBUTOR shall promptly report to ASTC in writing any complaint
with respect to, or malfunction of any ASTC Product within or
without the Warranty period.
9.4. In accordance with the requirements and regulations established by
the United States Food and Drug Administration, to which
requirements and regulations ASTC is bound in all respects,
DISTRIBUTOR shall immediately (but in no event more than five days
following the date of any such occurrence) report to ASTC in
writing the details and circumstances of any occurrence involving
the malfunction of any ASTC product resulting in or involved with
injury to or the death of any person. FAILURE TO COMPLY WITH THE
PROVISIONS OF THIS SUBSECTION 9.4
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EXHIBIT A
SHALL CONSTITUTE CAUSE FOR THE IMMEDIATE TERMINATION OF THIS
AGREEMENT.
10. PROTECTION OF RIGHTS:
10.1. DISTRIBUTOR shall not dispute or contest the validity of any of
ASTC's rights to letters patents, trademarks, copyrights, product
registrations and approvals, know-how or other intangible property
interests with respect to ASTC Products.
10.2. DISTRIBUTOR shall not omit or alter patent numbers, trade names or
trademarks, numbers of series, or any other ASTC marking affixed on
the ASTC Products or alter any other product labeling. DISTRIBUTOR
shall, however, be entitled to xxxx the products with its trademark
or trade name in a prominent place, subject to ASTC prior written
consent. DISTRIBUTOR is not authorized to use the trademark and
trade name AMERICAN SURGICAL TECHNOLOGIES CORPORATION, ASTC, OR
3DSCOPE (or any other trade name, or trademark used by ASTC) in any
manner except to indicate, during the term of this Agreement, that
it is an independent authorized DISTRIBUTOR for ASTC and is selling
ASTC products. DISTRIBUTOR shall acquire no rights in the ASTC or
3DSCOPE trademark and trade names, or any other trademark owned by
ASTC.
10.3. DISTRIBUTOR understands and agrees that it is not authorized to use
the name American Surgical Technologies Corporation in connection
with its general business or to imply to third parties that it
relationship with ASTC is other than as a sales DISTRIBUTOR under
this Agreement.
10.4. DISTRIBUTOR shall hold ASTC harmless and indemnify it against
liability, including attorneys' fees and other costs of defense
resulting from actions of third parties claiming injury or loss as
a result of the failure by DISTRIBUTOR to honor the provisions of
this paragraph 10.
10.5. DISTRIBUTOR agrees to protect ASTC products against imitations and
unfair competition by others, and will promptly provide ASTC
written notice of any such conduct. DISTRIBUTOR agrees to
cooperate with ASTC at ASTC's request and expense, and to promptly
take whatever action is required to cause the termination of such
conduct. ASTC reserves the right to take whatever action it deems
appropriate to protect its trademarks and trade names.
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EXHIBIT A
11. INDEPENDENT CONTRACTOR RELATIONSHIP: It is understood that both parties
hereto are independent contractors and engaged in the operation of their
own respective businesses. Neither party hereto is to be considered the
agent of the other party of any purpose whatsoever, and neither party has
any authority, express or implied, to enter into any contracts or assume
any obligations for the other party, to pledge the credit, or make any
warranties or representations on behalf of the other party except where
expressly authorized in writing to do so. Nothing in this Agreement or in
the activities of either party hereto shall be deemed to create an agency,
partnership, or joint venture relationship.
12. INDEMNITY, LEGAL ACTIONS AND PRODUCT CONDITION:
12.1. DISTRIBUTOR agrees to save and hold ASTC harmless from any and all
claims, costs, liabilities and responsibilities, regardless of the
claimant or his place of filing a claim, resulting from or in any
way associated with the functioning or performance of DISTRIBUTOR
as a distributor, supplier and seller, or other related descriptive
classifications, for ASTC Products supplied to DISTRIBUTOR by ASTC.
DISTRIBUTOR shall be the sole warrantor or guarantor of the safety,
operation and performance of the ASTC Products covered by this
Agreement to whatever extent such a warranty or guarantee is made
by DISTRIBUTOR. ASTC shall be responsible for any of its products
that fail to meet label specifications at the time of shipment to
DISTRIBUTOR, and shall indemnify and hold DISTRIBUTOR harmless with
respect to any and all claims resulting from use of such products.
12.2. DISTRIBUTOR agrees not to join ASTC or any ASTC employee as a party
defendant or plaintiff or any interest thereof, in any action at
law or in equity or in any other proceeding, regardless of the
descriptive classification, arising out of the liabilities, duties
and responsibilities above described which DISTRIBUTOR assumes or
performs. DISTRIBUTOR shall promptly notify ASTC of any and all
actions at law or equity or claims or governmental administrative
proceedings arising out of the operation or performance of this
Agreement.
12.3. ASTC warrants that all ASTC Products are in operating condition as
of the time of shipment. Nothing herein shall relieve ASTC of any
obligation or liability existing under applicable law regarding
claimed defects in the products supplied to DISTRIBUTOR by ASTC
provided that
12.3.1. such defect existed as of the time the product was
shipped by ASTC;
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EXHIBIT A
12.3.2. ASTC has given DISTRIBUTOR reasonable notice of any
change in the specifications to any such ASTC Product;
12.3.3. no modifications to the said ASTC Product have been
made by or with the approval of DISTRIBUTOR or by the
customer;
12.3.4. the said ASTC Product has not been subject to misuse,
negligence, or accident;
12.3.5. the said ASTC Product has not had its serial or lot
number altered, effaced, or removed; and
12.3.6. the said ASTC Product has at all times been used in
accordance with its instructions for use.
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EXHIBIT A
13. FORCE MAJEURE:
13.1. If due to industrial conflicts, mobilization, requisition, embargo,
currency restriction, insurrection, general shortage of transport,
material or power supply, fire, explosion, stroke of lightning,
force majeure and similar casualties or other events beyond ASTC
control, as well as default in deliveries from subcontractors due
to such circumstances as defined in the clause, it is impossible
for ASTC to deliver purchased products, DISTRIBUTOR shall not be
entitled to any damages during such period of impossibility and
ASTC shall not be considered in breach or default under this
Agreement.
13.2. If the performance of this Agreement by either party is made
commercially impracticable
13.2.1. by the occurrence of an economic contingency the non-
occurrence of which was a basic assumption on which
this Agreement was made, or
13.2.2. by compliance in good faith with any applicable foreign
or domestic governmental law, regulation, or order,
then this Agreement shall terminate immediately. For
purposes of this Agreement, currency devaluation,
currency restrictions, currency and exchange controls,
and other monetary controls, restrictions and
restraints shall not be considered to render the
performance of this Agreement by DISTRIBUTOR
commercially impracticable or otherwise be considered
force majeure with respect to DISTRIBUTOR.
14. CHANGES AND ADDITIONS TO AGREEMENT: The International Distribution
Agreement, including these Standard Terms and conditions
incorporated therein, constitutes the entire and final agreement
between the parties and supersedes all prior agreements and
understandings, oral or written, all of which are deemed to have
been merged herein. No modification, assignment, or any future
representation, promise, or agreement in connection with the
subject matter of this International Distribution Agreement shall
be binding on ASTC and DISTRIBUTOR unless made in writing and
signed by a duly authorized officer of each.
15. GOVERNING LAW AND JURISDICTION:
15.1. This Distribution Agreement shall be deemed to have been executed
and delivered in Chelmsford, Massachusetts, United States of
America, and all
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EXHIBIT A
questions arising out of or under this Agreement shall be governed
by the laws of the Commonwealth of Massachusetts and the United
States of America.
15.2. Any and all claims, actions, and lawsuits seeking damages for
personal injuries or death resulting from the use of an ASTC
Product shall be subject to, and governed by the laws of the
jurisdiction where the injury or death is alleged to have occurred.
In case of any litigation arising out of any dispute between the
parties concerning the interpretation or the compliance with this
Agreement the parties hereby expressly declare to accept the
jurisdiction of the Massachusetts Courts. Notwithstanding the
foregoing however, ASTC shall be entitled at its discretion to seek
relief in a court of competent jurisdiction in the district in
which DISTRIBUTOR is domiciled.
16. PROPRIETARY INFORMATION:
16.1. DISTRIBUTOR acknowledges that it has access to valuable proprietary
information including but not limited to technical data and
customer and marketing information, all of which are the property
of ASTC, have been maintained confidential and are used in the
course of ASTC business.
16.2. DISTRIBUTOR shall not, either during the term of this Agreement or
thereafter, disclose such ASTC proprietary information to anyone
other than those of its employees having a need to know and shall
refrain from use of such information other than in the performance
of this Agreement. In addition, DISTRIBUTOR shall take all
reasonable precautions to protect the value and confidentiality of
such information to ASTC. All records, files, notes, drawings,
prints, samples, advertising material and the like relating to the
business, products, or projects of ASTC and all copies made from
such documents shall remain the sole and exclusive property of ASTC
and shall be returned to ASTC immediately upon written request by
ASTC.
16.3. Neither party shall be obligated or required to maintain in
confidence any information with respect to which it can demonstrate
with written records
16.3.1. is in the public domain or known to the receiving party
prior to disclosure by the disclosing party; or
16.3.2. becomes known to the public after disclosure by the
disclosing party, other than through breach of this
Agreement; or
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EXHIBIT A
16.3.3. becomes known to the receiving party from a source
other than the disclosing party without breach of any
obligation of confidence; or
16.3.4. is or has been furnished to a third party by the
disclosing party without restriction on the third
party's right to disclose such information.
17. GOVERNMENT REGULATIONS:
17.1. DISTRIBUTOR agrees that it will secure and maintain any and all
required approvals by any government other than the United States
of America and all required product and public health registrations
for the implementation, execution and performance of the
Distribution Agreement.
17.2. Upon any expiration, cancellation, or termination of this
Agreement, such approvals and registrations shall be transferred
and delivered to, and shall inure to the benefit of ASTC, to the
extent that this is permissible under applicable law, to ASTC other
than lawfully imposed transfer fees. The cost of said transfer
will not exceed $10,000. DISTRIBUTOR shall obtain all necessary
documents or licenses and shall comply with all applicable laws and
regulations, including, if required, registration of this
International Distribution Agreement.
17.3. DISTRIBUTOR shall notify ASTC of all permits, approvals and
registrations obtained by it, and shall further notify ASTC of any
other regulatory requirements with respect to DISTRIBUTOR's sale,
distribution, or service of ASTC Products within the Territory, as
such regulatory requirements may be in effect from time to time.
17.4. DISTRIBUTOR agrees that it shall not allow either the products
supplied to it by ASTC, ASTC's trademarks, any proprietary data of
ASTC, or any direct product of such data, to be knowingly made
available, either directly or indirectly, or in any way to be
knowingly given, transferred, sold or re-exported to any country in
violation of its laws and export control regulations or applicable
laws of any country (or the European Economic Community).
17.5. United States laws and export control regulations governing the
exportability of technical data and products to nations are subject
to change. If any country included within DISTRIBUTOR's Primary
Area of Responsibility shall, at the time of execution of the
Distribution Agreement, or at any time during the life of the
Distribution Agreement,
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EXHIBIT A
be placed in an excluded category by the United States government
for the receipt of either technical data or the manufacture or sale
of products of a type such as the ASTC Products, then the
DISTRIBUTOR agrees that it shall take all appropriate and necessary
actions so as to cease business activities, selling, and promoting
such ASTC Products in and within such excluded country.
18. UNFAIR COMPETITION AND PATENT INFRINGEMENT:
18.1. DISTRIBUTOR shall promptly advise ASTC of any infringement or
potential infringement by third parties of which DISTRIBUTOR
becomes aware, or of any issued patents relating to the ASTC
Products supplied by ASTC under this Agreement. ASTC shall have
the right, but not the obligation, to xxx alleged infringers.
18.2. If suit is brought by ASTC, ASTC shall control the prosecution
thereof and be entitled to retain any amounts recovered in full by
reason of such infringement. DISTRIBUTOR agrees to cooperate with
and assist ASTC in any such suit. ASTC shall reimburse distributor
for reasonable costs related to such assistance if such costs were
incurred at the request of ASTC. ASTC shall have the exclusive
right to negotiate and approve any settlement of such suits.
18.3. In the event that DISTRIBUTOR joins ASTC by mutual agreement in
litigation relating to such infringement, DISTRIBUTOR shall bear an
agreed proportion of the legal costs. Should any damages or costs
in such litigation be awarded to ASTC and DISTRIBUTOR, DISTRIBUTOR
shall be entitled to recover the same proportion thereof as its
contribution to expenses.
18.4. ASTC represents that it has no knowledge of any patent rights in
the Territory that would be infringed by use or sale of ASTC
products therein, or by use of ASTC's proprietary information.
ASTC does not warrant that the manufacture, use or sale of any of
its products, or utilization of any of its proprietary information
is free of liability for infringement or charges of infringement of
patent rights owned by third parties. In the event that ASTC is
enjoined from making and selling and/or DISTRIBUTOR is enjoined
from selling ASTC Products as a result of charges of infringement
of patent rights, such injunction shall not constitute a breach of
this Agreement.
19. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
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EXHIBIT A
and assigns, provided, however, that neither party shall have the
right to assign or otherwise transfer its rights hereunder without
the express prior written consent of the other party. Any other
assignment without such consent shall be null and void. ASTC shall
have the right at its sole option to terminate this International
Distribution Agreement upon the making of any such purported
assignment by DISTRIBUTOR. Provided, however, by its execution of
this Agreement, DISTRIBUTOR expressly consents to the assignment by
ASTC of this Agreement to a successor to ASTC's business, in the
event of any such assignment by ASTC.
20. MISCELLANEOUS PROVISIONS:
20.1. ASTC shall have the right to manufacture ASTC Products in the
Territory. DISTRIBUTOR expressly acknowledges that it is granted
no rights under this Agreement to manufacture any ASTC Product.
20.2. Each of the parties hereto represents and warrants that it has not
employed any broker or finder in connection with this Agreement or
the transactions contemplated herein.
20.3. If any provision or provisions of this International Distribution
Agreement, including these Standard Terms and Conditions, shall be
held by a court of competent jurisdiction to be contrary to law,
such provision or provisions shall be deemed to be null and void
and the remainder of the Distribution Agreement and these Standard
Terms and conditions shall nonetheless remain in full force and
effect.
20.4. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed to be an
original, and all of which when taken together shall constitute one
and the same instrument.
20.5. Headings and captions are included herein solely for convenience
and reference, and do not constitute a part of this Agreement for
any other purpose.
20.6. The English language version of this Agreement shall be definitive
and shall control over any translation hereof.
21. RESOLUTION OF DISPUTES:
21.1. Any dispute arising out of or with respect to this Agreement shall
be referred to an arbitration proceeding to be conducted in Boston,
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EXHIBIT A
Massachusetts, U.S.A. by the American Arbitration Association or
its designee. Except as otherwise determined by the duly appointed
Arbitrator, the rules of procedure to be followed with respect to
such arbitration shall be the then effective rules of the American
Arbitration Association.
21.2. Any award rendered in such arbitration shall be final and binding
upon the parties, and may be enforced in any court of competent
jurisdiction. Any monetary award shall be made and paid in United
States dollars. The arbitration shall be conducted in the English
language, and all evidence submitted to such arbitration shall be
submitted in the English language.
21.3. ASTC and DISTRIBUTOR expressly agree that the Arbitrator shall have
the power to, at the request of ASTC,
21.3.1. issue an interim order or award requiring DISTRIBUTOR
to cease sale and distribution of ASTC Products pending
final outcome of the arbitration, and
21.3.2. grant injunctive relief.
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EXHIBIT B
3DSCOPE-TM- INTERNATIONAL DISTRIBUTOR PRODUCT/PRICE LIST
All prices in U.S. Dollars Effective November 1, 1993
INTERNATIONAL DISTRIBUTOR PRICING
The prices on the International Distributor Price List reflect a * * * discount
from the U.S. Hospital Price List.
ADDITIONAL INTERNATIONAL DISTRIBUTOR DISCOUNTS
Initial Distributor System Purchases (applies to complete system configurations
only):
Initial system (one only) * * * from International Distributor Price
Other system(s) (limit two) * * * from International Distributor Price
* * * Confidential Treatment Requested
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EXHIBIT B
3DSCOPE-TM- INTERNATIONAL DISTRIBUTOR PRODUCT/PRICE LIST
All prices in U.S. Dollars Effective November 1, 1993
Price
Cat # Description Each
----- ----------- -----
* * *
* * * Confidential Treatment Requested
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EXHIBIT B
3DSCOPE-TM- INTERNATIONAL DISTRIBUTOR PRODUCT/PRICE LIST
All prices in U.S. Dollars Effective November 1, 1993
SYSTEM COMPONENTS:
Price Each
Cat # Description ----------
----- -----------
* * *
* * * Confidential Treatment Requested
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EXHIBIT B
3DSCOPE-TM- INTERNATIONAL DISTRIBUTOR PRODUCT/PRICE LIST
All prices in U.S. Dollars Effective November 1, 1993
* * * System Price: * * *
Qty Cat # Description
--- ----- -----------
* * *
* * * Confidential Treatment Requested
-27-
EXHIBIT B
3DSCOPE-TM- INTERNATIONAL DISTRIBUTOR PRODUCT/PRICE LIST
All prices in U.S. Dollars Effective November 1, 1993
* * * System Price: * * *
Qty Cat # Description
--- ----- -----------
* * *
* * * Confidential Treatment Requested
-28-
EXHIBIT B
* * * System Price: * * *
Qty Cat # Description
--- ----- -----------
* * *
* * * Confidential Treatment Requested
-29-
EXHIBIT B
3DSCOPE-TM- INTERNATIONAL DISTRIBUTOR PRODUCT/PRICE LIST
All prices in U.S. Dollars Effective November 1, 1993
* * * System Price: * * *
Qty Cat # Description
--- ----- -----------
* * *
* * * Confidential Treatment Requested
-30-
EXHIBIT B
* * * System Price: * * *
Qty Cat # Description
--- ----- -----------
* * *
* * * Confidential Treatment Requested
-31-
EXHIBIT C
ORDERING INSTRUCTIONS
When placing an order please ensure the Purchase Order is made out to: American
Surgical Technologies Corp. and has the following information:
- Purchase Order Number
- Shipping Address
- Billing Address
- Itemized list of all components needed
- Price Specified
- Contact name and phone number
- Signed by an authorized individual
- Power Plug Type MUST be Specified
The Purchase Order should be sent to:
American Surgical Technologies Corporation
Attn: Customer Service
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 X.X.X.
Freight will be charged F.O.B., ASTC plant. All insurance, taxes, custom duties
and charges will be prepaid and added to invoice.
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