EX-10.17
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viking_10ksb-ex1017.htm
PLATINUM MEDICAL AGREEMENT
EXHIBIT
10.17
INDEPENDENT
SALES AGENT AGREEMENT
Between
Viking
Systems Inc.
And
Platinum
Medical Inc.
THIS
AGREEMENT is entered into this 21st day of November, 2006 by and between
Viking
Systems, Inc.,
a
Delaware corporation, (hereinafter “Viking” with offices at 0000 Xx Xxxxx
Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000 and Platinum Medical, Inc. (hereinafter
“Sales Representative”) a Nevada Corporation with an office at 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx Xxxxxx 00000.
WHEREAS,
Viking
is engaged in the manufacture and distribution of medical equipment and related
accessories;
WHEREAS,
Viking
desires to appoint Sales Representative, as its exclusive Independent Sales
Representative for medical equipment and related accessories, on behalf of
Viking and
in the geographical areas hereinafter described and under the terms and
conditions hereinafter set forth;
WHEREAS,
Sales
Representative desires to engage in the promotion, solicitation and sale of
certain products supplied by Viking in the geographical areas set forth in
Exhibit A of this agreement and
under the terms and conditions hereinafter set forth;
NOW
THEREFORE,
in
consideration of their mutual covenants and agreements contained herein, and
the
mutual benefits to be derived here from the parties, intending to be legally
bound, hereby covenant and agree as follows:
1. DEFINITIONS
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a)
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The
term "TERRITORY" when used herein means the territory described in
Exhibit
A, as such, territory may be amended in this Exhibit from time to
time by
mutual consent of the parties.
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b)
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The
term "PRODUCTS" when used herein means those products of Viking which
are
specifically identified in Exhibit B.
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c)
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The
term “PRICES” shall mean those prices set forth in the current price
schedule. The current price list is identified as the latest price
book
provided by Viking, which Viking may change at its sole discretion
given
at least 30 days notice.
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d)
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The
term "CONFIDENTIAL INFORMATION" when used herein means and includes
all
know how, designs, drawings, specifications, catalogs, data sheets,
sales
and technical bulletins, service manuals, customer lists, sales and
marketing programs, future products, sales strategies, price lists,
cost
data and other information, whether or not reduced to writing, including
information stored on computer, relating to the design, manufacture,
use,
marketing, sale and service of the PRODUCTS, as well as any other
information relating to the business of Viking which may be divulged
to
the Sales Representative in the course of its performance of this
Agreement and which is not generally known in the
trade.
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The
term “CUSTOMER” when used herein means the end-user physician, or medical
facility to which the PRODUCT (S) is
sold.
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2.
APPOINTMENTS
AND SCOPE. Subject
to the terms and conditions and for the term of this Agreement, Viking hereby
appoints Sales Representative as exclusive Independent Sales Representative
of
the Products in the Territory. Sales Representative hereby accepts such
appointment and agrees to devote such time, and attention to the performance
of
such duties as may be reasonably necessary to
sell
and promote the sale of the Products in the Territory during the term of this
Agreement. It is understood and agreed that Viking will retain title and risk
of
loss with respect to the equipment until title and risk of loss passes to the
Customer.
a) Sales
Representative is an independent contractor and under no circumstances will
Sales Representative commit Viking to the delivery of Viking products and
accessories or purport to legally bind Viking in any matter, or allow any
employee, officers, director or agent of Sale Representative to hold himself
or
herself out as an employee or agent with legal authority to bind Viking. All
accepted purchase orders, whether or not delivery dates are specified, shall
be
subject to delays in manufacture or delivery due to any cause beyond Viking’s
reasonable control
b)
The
detailed operations of Sales Representative under this Agreement are subject
to
the sole control and management of Sales Representative and Sales Representative
shall be responsible for all of its own expenses and agrees that it shall incur
no expense chargeable to Viking, except, as may be specifically authorized
in
this contract or made in advance in writing by a duly authorized officer or
employee of Viking.
c) No
part
of Sales Representative’s compensation will be subject to withholding by Viking
for the payment of any social security, federal, state or any other employee
payroll taxes.
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d) Sales
Representative is not restricted from the purchase or resale of any
other products
as a
covenant of this agreement except as deemed competitive to Viking 3D video
products and associated technologies.
e) Viking
is
not restricted from the solicitation, formation or contracting of any other
business relationships, including distribution agreements, where Viking products
could be added to a total solutions concept of another manufacturer.
3. Duties
of Sales Representative. The
responsibilities of Sales Representative are set forth below and Sales
Representative shall use its best efforts to promote the sale of Product to
all
existing and potential Customers within the Territory in accordance with Sales
representative sales policies.
a) Sales
Representative will act as Viking’s exclusive Independent Sales Representative,
and is
authorized to solicit orders on Vikings behalf for the Products in the Territory
from Customers (Accounts) in accordance with sales policies and practices as
outlined herein and in accordance with Vikings published Terms and Conditions
of
Sale.
b) All
Final
Quotations shall be prepared and submitted on a standardized Viking quotation
forms before submission to the Account in accordance with Vikings published
Terms and Conditions of Sale. Sales Representative shall not make
representations or guarantees other than the published technical specifications
concerning the Equipment, or accept the return of, or make any allowance for,
such Equipment without the prior written consent of Viking.
c) At
specific time intervals defined by Viking, Sales Representative shall furnish
sales reports such as a ninety-day forecast of expected product sales that
is
updated and submitted monthly. Sales Representative management shall cooperate
with Viking management by providing account strategies and market information
on
metrics gathered from Sales Representative database during the sales process
and
to attend in appropriate teleconference meetings.
d) Sales
Representative shall commit to sell a minimum number of Products in accordance
with the Territory Sales Targets set in Exhibit D. Sales Representative
acknowledges and agrees that the sales target has been mutually established
after due consideration of the market for Products in the Territory and
represent the minimum quantities or dollar volume that Sales Representative
should be able to sell in the Territory using reasonable efforts. To the extent
this Agreement is renewed, the parties shall determine future minimum sale
requirements within thirty days of the date of renewal or within thirty days
of
the beginning of Vikings accounting period. In the event that Sales
Representative fails to meet 70% of its sales target for two consecutive
quarters, Viking, at its sole discretion, may elect to, terminate this Agreement
pursuant to section 9 of this agreement or modify the Territory or the
exclusivity of any rights hereunder, or waive the sales target requirements
for
the relevant period.
e) Sales
Representative shall not, without Viking’s written consent, modify or change in
any way a feature of any Product, or modify or remove any safety device or
part
of the Product.
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g) Sales
Representative Agents will receive specific training as Viking provides and
pass
specific skills testing in order to receive authorization to represent Viking
products. At no time will Sales Representative allow any employee or sub agent
to represent Viking without such agent passing appropriate skills testing to
be
authorized as a Sales Representative Medical representative.
h) All
promotional, advertising and marketing materials prepared or used by Sales
Representative must be reviewed and approved by Viking prior to use, in
accordance with the promotion and advertising policy provided by Viking.
i)
Sales
Representative shall promptly notify Viking, of incidents, malfunction or any
injury related to the Products in accordance with Sales Representative policies.
j) Sales
Representative shall cooperate with Viking Management by providing account
information, and participating in appropriate teleconference meetings.
k) Sales
Representative will strictly comply, and ensure that all of its employees,
agents and subcontractors and their employees strictly comply with all laws,
regulations and governmental orders governing the performance of its obligations
hereunder, including but not limited to the Federal Health Care Program
Anti-Kickback Provisions of the U.S. Social Xxxxxxxx Xxx, 00, X.X.X. 0000x-0x,
as any such laws, regulations or orders may be hereinafter amended. Sales
Representative further agrees to comply with the provisions of all rules and
regulations (including those of the Secretary of Labor) and Executive Orders
(Including Nos. 11246, 11375, 11625, 11701 and 11758) applicable to this
Agreement regarding non-discrimination because of race, religion, color, sex,
age, national origin, Veteran’s status and physical or mental
handicap. With
the
exception of the customary activities associated with customer referral and
luminary sites, Sales Representative will ensure that (i) no person who is
a
practicing physician, (ii) no person affiliated with or employed by any customer
or prospective customer, and (iii) no person who may be in a position to unduly
influence the purchase of any Product or service, or financing for any Product,
promotes the Products or Sales Representative’s interests in any way.
l) Sales
Representative shall attend, all technical, sales and service training sessions
with respect to the Products as Viking and Platinum management deems necessary
in order to allow the Representative to effectively market, and sell the
Products. Viking will provide lodging and meals for the training sessions and
representative will be responsible for the travel cost to attend. Sales
Representative shall have the final approval for a representative attendance
for
such training sessions
4. Duties
of Viking. Viking
responsibilities shall be as set forth below:
a) Viking
shall provide Sales Representative with reasonable quantities of sales and
marketing information applicable to Products, including catalogs,
specifications, promotional literature and other materials.
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b) Viking
shall provide Sales Representative with access to and assistance of its
technical, sales and service personnel. Such assistance shall be without charge
to Sales Representative except as may be otherwise mutually agreed.
c) Viking
shall have responsibility for and render repair service on all Products placed
within the Territory.
d) Viking
shall conduct such technical, sales and service training sessions with respect
to the Products as Viking deems necessary in order to allow the Representative
to effectively market, and sell the Products. Viking will provide lodging and
meals for the training sessions and representative will be responsible for
the
travel cost to attend. Sales Representative shall have the final approval for
a
representative attendance for such training sessions.
e)Viking
shall be solely responsible for the design, development, supply and production
of the Product(s) and the protection of its trademarks and service marks.
f)Viking
shall immediately advise Sales Representative of any legal or regulatory notices
served which might affect the condition or prospect of the Product. Viking
will
also promptly notify Sales Representative of any recalls or modifications of
the
Product required by any government authority,
g)Viking
shall notify Sales Representative of any changes affecting the Products or
Prices, terms and conditions of sale, sales policies, projected delivery dates,
schedule changes regarding the product, which may affect the business of the
Sales Representative.
h) Viking
will furnish monthly business reports to Sales Representative in a format that
can not be altered that reflect bookings, commissions owed, unshipped equipment
and performance to plan.
i) Viking
will forward to Sales Representative any leads it receives from accounts in
the
Territory regarding the Product.
j) Viking
shall perform operator training in conjunction with the Sales Representative
in
accordance with the specified terms and conditions on quotations and order
acceptance documents.
k) Viking
shall provide Product to Sales Representative for sales demonstration, trial-use
by accounts and training; the type and volume of Product for sales
demonstration, trial-use and training is at the sole discretion of Viking.
All
such Product will remain the property of Viking and must be returned to Viking
on demand.
5. COMPENSATION.
In
consideration of the service rendered by Sales Representative under this
agreement, Viking will pay Sales Representative commissions under the terms
set
in this Agreement and at rates set in Exhibit E of this Agreement.
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a) Commission
will be paid on the Sales Price of each order booked, delivered, shipped in
the
Territory, except as outlined under paragraph 6, under EXCLUDED SALES. The
Sales
Price is defined as gross sales price listed on the agreement, less any
applicable cash discount, return of merchandise, installation, training, or
delivery costs or allowances listed on quotation not paid by the customer,
or
any federal, state and/or local taxes, insurance, turnkey costs or bad
debt.
b) At
the
request of Viking or the Sales Representative, and upon mutual agreement, either
party may assist in a sales opportunity at a Customer (Account) that is
not
in the
designated TERRITORY. In an effort by both parties to encourage such
co-operation, a Shared Commission Agreement will be developed specific
to the
Shared Commission sales opportunity. The Shared Commission Agreement will be
presented in writing by the requesting party to the other party in advance,
and
must be duly authorized by an officer or employee of the requesting party.
Upon
mutual agreement, such Shared Commission Agreement(s) will supersede Commissions
in Exhibit E of this Agreement
c) If
a
refund, rebate or allowance with respect to Product sold by Sales Representative
to any Account for any reason whatsoever, any commission paid and represented
by
such refund, rebate or allowance shall be proportionally repaid by Sales
Representative to Viking, promptly upon demand, or, at Sales Representative’s
option, credited against any monies due or to become due to Sales Representative
hereunder.
d) 50%
amount of the total Commission is due and payable not later than thirty (30)
days after order booking. Order Booking is deemed complete when Viking is in
receipt of a signed contract with at least a 10% or more down payments.
Outstanding balance of commission is due within 30 days of delivery and
installation for the product.
e) At
the
time of booking and payment to Sales Representative, Viking will send Sales
Representative a statement showing the computation of commissions earned for
the
order based on the net selling price of the order.
6. EXCLUDED
SALES. Viking
reserves the right to set special commission rates, or pay no commissions on
certain sales. Viking must identify to Sales Representative any specific
Accounts, relationships and/or orders that will be considered EXCLUDED SALES
in
advance. Viking
must provide 30 day notice to any changes in the EXCLUDED SALES.
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Clinical
luminary account customers who receive special
discounts.
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Manufacturers
of medical devices, or other companies, which purchase Product to
be used
in a clinical training program.
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Sales
of any Viking Products, Equipment and Technology to Viking Systems
OEM
Customers and/or their affiliates.
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Corporate
Accounts (including government(s)) and National Account Contracts; Viking
reserves the right to modify commission rates for Viking Corporate
Accounts and National Account Contracts providing two week notice
is given
to Sales Representative.
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Protected
Accounts: From time to time there may be transitions that involve
the
expansion or contraction of a specific TERRITORY. Under those
circumstances, there may be accounts excluded from or added to a
geographical area and considered as a Protected Account different
from an
existing geographical boundary.
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Rental
Agent Agreement(s): Viking intends to continue to offer rental
equipment/systems to the market on a broad geographic basis, through
a
number of independent agents and agreements. Viking reserves the
right to
modify and/or exclude commission from rental income but acknowledges
that
commissions will be paid subject to any modification needed on the
final
sale to the CUSTOMER.
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7. CONFIDENTIALITY
AND PROPRIETARY RIGHTS. Sales
Representative acknowledges that the Confidential Information comprises valuable
trade secrets and is proprietary to the Sales Representative and its vendors.
Sales Representative shall hold the Confidential Information in strict
confidence and shall not use or disclose the same except as required to perform
its obligations under this Agreement. The foregoing obligation shall not extend
to information which is or becomes public knowledge through no fault of Sales
Representative or which is required to be disclosed by law. Each employee or
independent contractor of Sales Representative who performs functions related
to
this Agreement shall be required to sign an agreement with the Representative
agreeing to hold such Confidential Information in strict confidence, and
agreeing not to disclose such Confidential Information except as required to
perform his or her obligations to Viking.
All
Products sold by Sales Representative for Viking shall bear trademarks of
manufacturers, and Sales Representative agrees not to remove or efface such
trademarks. Sales Representative shall not use any of the above mentioned
trademarks or trade names, or any xxxx or name confusingly similar thereto,
in
any manner, for letterhead, business cards and signs in order to identify itself
as an authorized representative of Viking, unless expressly approved in writing
by Viking. Sales Representative shall not place, or affix, any signs, placards,
labels, or stickers, other than a normal size business card to any of the
products.
8. TERMS
AND CONDITIONS OF SALE
a) All
final
sales quotations shall be prepared by Viking employees before submission to
accounts and shall include the standard terms and conditions of Viking. In
no
event shall Sales Representative offer a discount to any Customer unless it
obtains the prior approval of the Viking Senior VP of Sales, SVP of Commercial
Operations or other Officer of Viking. Sales Representative will be allowed
to
use non-binding documents for use in their sales process and in the pursuit
of
sales in Accounts.
b) Final
acceptance or rejection of all orders shall rest with Viking. Sales
Representative is not authorized to confirm any order or to assume or create
any
obligation expressed or implied on Viking’s behalf. Viking shall have the sole
right of credit approval and order acceptance in all cases and at all times
with
respect to Products. Invoices for Product sales will only be issued by Viking.
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c) Viking
may change the Product list price at any time. In the event that a valid price
quotation has not expired, the customer price quoted will remain in effect
until
the expiration date of the Quotation. Unless Viking provides specific written
consent to provide price protection beyond the quotation expiration date, all
quotations will expire not more than sixty (60) days from the date of
quotation.
9. TERM
AND TERMINATION. The
term
of this Agreement shall commence as of the Effective Date and, unless terminated
earlier as provided herein, shall continue until December 31, 2008. Thereafter,
this Agreement may be renewed for additional two (2) year terms by mutual
written agreement of the parties at least ninety (90) days prior to the
expiration date. In the event that the parties have not otherwise renewed this
Agreement in writing at the end of the initial term or any renewal term, then
the Agreement will continue on a month-to-month basis until terminated in
writing by either party, without penalty or payment of any termination fee,
upon
thirty (30) days notice or extended in writing by mutual agreement of the
parties, notwithstanding any other provision of this Agreement to the contrary.
a) It
shall
constitute a Default under the Agreement, with the corresponding right of
termination as stated below, if any of the following shall occur:
i) In
the
event both parties fails to pay any amounts due hereunder, and such failure
continues for a period of thirty (30) days after receipt of written notice
from
the other party specifying such violation, then the Agreement may be immediately
terminated by the non-defaulting party.
ii) In
the
event of a material violation by a party of any provision of this Agreement
(other than the non-payment of monies) which violation continues uncured for
a
period of thirty (30) days after written notice to the other party specifying
such violation, then the Agreement may be immediately terminated by the
non-breaching party.
iii) In
the
event a party makes an assignment for the benefit of creditors, files a
voluntary petition in bankruptcy, is adjudicated insolvent or bankrupt, a
proceeding is filed against said party to declare said party a bankrupt and
said
proceeding is not dismissed within thirty (30) days, or said party commences
any
proceeding under any reorganization, arrangement, readjustment of debt or
similar law or statute of any jurisdiction, then this Agreement may be
terminated by the other party on five (5) days written notice.
iv) Upon
the
occurrence of any change of a majority ownership with respect to Sales
Representative effected without the prior written consent of Viking (whether
such change in ownership occurs in one or a series of transactions), or in
the
event that any competitor of Viking acquires, directly or indirectly, more
than
a fifty (50%) percent ownership interest in Sales Representative, then Viking
may immediately terminate this Agreement.
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v) If
Sales
Representative solicits orders for the Products outside of the Territory (except
upon the prior written consent of Viking Medical), then Viking may immediately
terminate this Agreement.
vi) In
the
event Sales Representative fails to meet 70% of sales volume requirements for
two (2) consecutive quarters (as specified in Schedule C attached hereto or
otherwise), then Viking may immediately terminate this Agreement upon ninety
(90) days notice, unless Sales Representative cures such default within such
ninety (90) day period and unless Sales Representative meets the 70% sales
volume requirement for the quarter during which Sales Representative is
effecting the cure for the prior two (2) quarters; sales that are used to cure
the default for the prior two (2) quarters shall not also count as sales for
the
current quarter.
vii) In
the
event that Sales Representative or any of its affiliates acquires a minority
interest in a company which is involved in the manufacturing, sale or
distribution of products or any services which compete with the Product(s),
then
Viking may immediately terminate this Agreement.
b) Either
party may terminate this Agreement, without cause, at any time by giving the
other party no less than ninety (90) days prior written notice on the intent
to
terminate the contract. The effective termination date will be (90) days after
the notice. In the event Viking terminates this Agreement, without cause Sales
Representative will perform best efforts for a transition for the entire period
and receive all commission for orders during this period.
10. Rights
of Parties upon Termination. The
following provisions shall apply upon the termination or non-renewal of this
Agreement.
a) Sales
Representative shall cease all sales and other activities on behalf of Viking
and shall return to Viking immediately all Confidential Information previously
furnished by Sales Representative.
b) All
indebtedness of Viking from Sales Representative shall become immediately due
and payable without further notice or demand, which is hereby expressly waived,
and Viking shall be entitled to reimbursement for all reasonable costs of
collection, including, but not limited to any reasonable attorneys' fees that
it
may incur in collecting or enforcing payment of such obligations.
d) Sales
Representative will be paid fifty (50) percent of the full sales commissions
on
orders which have been received by Viking on or before the date of termination,
and 100% of the full sales commission for any order that is installed, shipped
an paid provided the product is shipped, installed, and paid within 120 days
of
the date of termination.
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11. Indemnification.
a) Sales
Representative shall be responsible for, and shall defend, indemnify and hold
Viking harmless from and against any and all claims, losses, liabilities, causes
of action, suits, proceedings, judgments, recoveries, damages, costs and
expenses, including reasonable attorneys fees, arising out of or resulting
from
any negligent or intentional misrepresentations made by Sales Representative.
b) Viking
shall be responsible for, and shall defend, indemnify and hold Sales
Representative harmless from and against any and all claims, losses,
liabilities, causes of action, suits, proceedings, judgments, recoveries,
damages, costs and expenses, including reasonable attorneys fees, arising out
of
any claim by a third party relating to the Product, or use of the product except
to the extent that the claim or liability arises from or is related to the
negligent or intentional acts, or omissions of the Sales Representative. Viking
shall have the exclusive right to compromise, settle or defend such claim or
lawsuit in its sole discretion.
12. Insurance.
At all
times throughout the term of this Agreement, Sales Representative shall maintain
in full force and effect, the following insurance coverage from a reputable
insurance company.
a)
Comprehensive general liability insurance (on an occurrence basis), for complete
operations coverage, with minimum coverage of $1,000,000.00 per occurrence
and
$2,000,000.00 in the annual aggregate. Sales Representative shall provide Viking
with a certificate of insurance evidencing such coverage within 30 days of
signing this Agreement and at such other times upon reasonable request of
Viking.
At
all
times during and throughout the term of this Agreement, Sales Representatives
and its agents will be named an Additional Insured for product liability claims
on Viking general liability insurance policy and Viking will deliver to Sales
Representative a certificate of insurance within 30 days of the execution of
this Agreement.
13. Debarment
Certification.
Sales
Representative represents that (i) neither it nor any of its employees or agents
has been debarred, excluded or suspended from, or otherwise determined to be
ineligible to participate in, Medicare, Medicaid or any other federal or state
health care programs, nor is Sales Representative or any of its employees or
agents the subject of any inquiry or investigation regarding participation
in
such programs which could reasonably lead to suspension, debarment or exclusion
from, or ineligibility to participate in, such programs, (ii) neither it nor
any
of its employees or agents has ever been convicted of a criminal offense related
to the provision of health care items or services, and (iii) it shall not
knowingly employ or contract with, with or without compensation, any individual
or entity listed by a federal agency as debarred. Sales Representative hereby
agrees to promptly notify Viking of any threatened, proposed, or actual
exclusion from Medicare, Medicaid or any federal or state health care programs.
Sales Representative shall make reasonable inquiry into the status of any
employee or agent by reviewing, at a minimum, the Health and Human
Services-Office of Inspector General Cumulative Sanctions Report (located at
xxx.xxxx.xxx/xxxxxxx/xxx)
and the
General Services Administration List of Parties Excluded from Federal
Procurement and Non-Procurement Programs (located at xxx.xxxxx.xxx/xxxx),
which
internet sites may be revised from time to time by the U.S. government. In
the
event that Sales Representative or any of its employees or agents is debarred,
excluded or suspended from, or otherwise determined to be ineligible to
participate in, Medicare, Medicaid or any federal or state health care programs
during the term of this Agreement, or if at any time after the effective date
of
this Agreement it is determined that Sales Representative is in breach of this
Section 12, this Agreement shall, at the option of Viking as of the effective
date of such exclusion or breach, terminate.
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14. HIPAA.
Without
limiting the obligations of Viking or Sales Representative as otherwise set
forth in this Agreement or imposed by applicable law, Viking and Sales
Representative agree to comply with all applicable requirements of the Health
Insurance Portability and Accountability Act (“HIPAA”). Without limiting the
generality of the foregoing, Viking and Sales Representative represent and
warrant that they will appropriately safeguard protected health information
(“PHI”) of customers that is made available to or obtained by either party
pursuant to this Agreement or otherwise in the course of performing services
hereunder, and that it shall indemnify and hold each other harmless from any
and
all claims, liabilities, damages, suits, causes of action, judgments, penalties,
fines, costs and expenses arising from or related to Viking’s or Sales
Representative’s breach of the foregoing unless such breach is due to an act or
omission of Viking or Sales Representative, their officers, directors,
employees. Viking and Sales Representative agree that this Agreement shall
be
amended from time to time if, and to the extent required by, the provisions
of
HIPAA and regulations promulgated hereunder, in order to assure that this
Agreement is compliant therewith. Specifically, Viking and Sales Representative
agree that they shall:
(a) not
use
or further disclose PHI other than as permitted or required by this Agreement
or
as required by law;
(b) implement
administrative, physical and technical safeguards that reasonably and
appropriately protect the confidentiality, integrity and availability of the
electronic PHI that it creates, receives, maintains or transmits on behalf
of
the Customer and that are intended to prevent the use or disclosure of PHI
other
than as provided for by this Agreement;
(c) report
to
each party (Viking and Sales Representative) and Customer any use or disclosure
of PHI not provided for by this Agreement, as well as any security incident,
of
which either party becomes aware;
(d) ensure
that any approved subcontractor who may have access to PHI agrees to the same
restrictions and conditions that apply to both parties with respect to
PHI;
(e) make
PHI
available to the customer in accordance with applicable law;
(f) make
Viking and Sales Representative internal practices, books, and records relating
to the use and disclosure of PHI received from either party or Customer
available to the Secretary of the United States Health & Human Services for
purposes of determining the customer's compliance with applicable law (in all
events, Viking and Sales Representative shall immediately notify each other
upon
receipt of any such request, and shall provide each other with copies of any
such materials);
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(g) make
available the information required to provide an accounting of disclosures
of
PHI pursuant to applicable law;
(h) at
termination of this Agreement, return or destroy all PHI that Sales
Representative still maintains in any form and retain no copies of PHI;
and
(i) use
reasonable commercial efforts to mitigate any harmful effect that is known
to
Viking and Sales Representative of a use or disclosure of PHI by either party
in
violation of the requirements of this Agreement.
15. NON-SOLICITATION
a) Unless
agreed in writing by an officer of Sales Representative, during the term of
this
Agreement and for one year after the expiration or termination of this agreement
Viking agrees not
to hire or employ, any Sales Representative employee, or agent that represented
Sales Representative during the term of this agreement, unless mutually agreed
in writing
and signed by both parties.
b) Unless
agreed in writing by an officer of Viking, during the term of this Agreement
and
for one year after the expiration or termination of this agreement Sales
Representative
agrees
not
to hire or employ, any Viking
employee, or agent that represented Viking
during the term of this agreement, unless mutually agreed in writing
and signed by both parties.
c) Unless
agreed in writing by an officer of Viking, during the term of this Agreement
and
for a period of six months after the expiration or termination of this agreement
Sales
Representative
agrees
not
to enter into a formal business relationship, in any form, with a business
establishment that supplied Products to Viking during the term of this
agreement, unless mutually agreed in writing
and signed by both parties.
16. DISPUTE
RESOLUTION
a) Conciliation:
Except as provided in Section 9, all disputes arising between the parties
concerning the validity, construction or effect of this Agreement, or the rights
and obligations created hereunder, shall be brought before conciliation
committee of executives representing both which shall, within two (2) weeks
after being informed of the dispute, attempt to work out a recommendation for
settlement of the dispute and transmit such recommendation to both parties
for
due consideration.
b) Arbitration:
Any dispute which cannot be settled amicably by conciliation as provided above
shall be resolved by arbitration in accordance with the rules of the American
Arbitration Association. Judgment upon the award rendered may be entered in
any
court with jurisdiction. Any arbitration proceeding shall take place in San
Diego,
California.
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17.
GENERAL PROVISIONS
a) Entire
Agreement:
This
Agreement, including Exhibits A.B.C, D, E attached hereto, represents the entire
agreement between the parties on the subject matter hereof and supersedes all
prior discussions, agreements and understandings of every kind and nature
between them. No modification of this Agreement will be effective unless in
writing and signed by both parties.
b) Notices:
All
notices under this Agreement shall be in writing and given by registered mail
or
electronic facsimile (acknowledged by answer back) addressed to the parties
at
the addresses immediately below their respective signatures hereto, or to such
other address of which either party may advise the other in writing. Notices
will be deemed given when sent.
c) Force
Majeure:
Neither
party shall be in default hereunder by reason of any failure or delay in the
performance of any obligation under this Agreement where such failure or delay
arises out of any cause beyond the reasonable control and without the fault
or
negligence of such party. Such causes shall include, without limitation, storms,
floods, other acts of nature, fires, explosions, riots, war or civil
disturbance, strikes or other labor unrest, embargoes and other governmental
actions or regulations which would prohibit either party from ordering or
furnishing Products or from performing any other aspects of the obligations
hereunder, delays in transportation, and liability to obtain necessary labor,
supplies or manufacturing facilities.
d) Severability:
The
illegality or un-enforceability of any provision of this Agreement shall not
affect the validity and enforceability of any legal and enforceable provisions
hereof.
e) Non-assignment:
This
Agreement shall be binding upon the successors and assigns of the business
interests of Sales Representative, and may be assigned by Sales Representative
at its sole option. Viking shall not sell, assign, delegate or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of Sales Representative.
f) Applicable
Law:
This
Agreement shall be construed, enforced and performed in accordance with the
laws
of the state of
California, County of San Diego, USA without regard to any
conflict of laws provision thereof.
g) Waiver:
Viking
agrees that the failure of Sales Representative at any time to require
performance by Viking of any of the provisions herein shall not operate as
a
waiver of the right of Sales Representative to request strict performance of
the
same or like provisions, or any other provisions hereof, at a later
time.
h)Agreement
Confidentiality:
The
terms of this Agreement will be kept confidential between Viking and Sales
Representative. Sales Representative will not disclose terms of this Agreement
to others, except as required by applicable law or for accounting purposes,
or
as permitted by the Viking in writing by an authorized corporate officer.
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This
Agreement may be executed and delivered in duplicate counterparts and will
be
binding as if one instrument.
IN
WITNESS WHEREOF, Sales Representative and Viking have caused this instrument
to
be executed by their signatures below.
|
Sales
Representative:
| |
Viking
Systems:
|
| | | |
|
By:
/s/ Xxxxx Xxxx
| |
By:
/s/ Xxxxxx X. Xxxxxx
|
| | | |
|
Title:
President
| |
Title:
President and CEO
|
| | | |
|
Date:
11/21/06
| |
Date:
11/21/06
|
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