Exhibit 10.25
PRODUCT INTEGRATION AGREEMENT
This PRODUCT INTEGRATION AGREEMENT ("Agreement") is made effective November
1, 1996 by and between Intelligent Medical Imaging, Inc. with offices at 0000
Xxxxxxxxx Xxxx., Xxxxx 000, Xxxx Xxxxx Xxxxxxx, Xxxxxxx, together with its
subsidiaries and affiliates (collectively "IMI") and DiaSys Corporation, with
offices at 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx, together with its
subsidiaries and affiliates (collectively "DSC").
WHEREAS, DSC designs, develops, manufactures and markets proprietary
diagnostic equipment and workstations used in routine microscopic analysis of
fluids;
WHEREAS, DSC currently manufactures and distributes two such workstations
under the brand names R/S 2003 and FE-2 (collectively, and as each is further
described in Schedule 1 hereof), and including all object code form software
utilized by or contained in the foregoing (the "Software"), and as the same may
be enhanced and/or functionally improved from time to time the "Products");
WHEREAS, IMI designs, develops, manufactures and markets a large scale
diagnostic workstation which automates and standardizes routine microscopic
analysis of white blood cells under the brand name Micro 21;
WHEREAS, IMI wishes to physically integrate the Product into IMI's Micro 21
workstation such that the Product becomes mechanically and/or electronically
integrated with the Micro 21 workstation, and controlled remotely through IMI's
mechanical and electronic interfaces ("Integrated Systems");
AND WHEREAS, DSC and IMI wish to enter into a relationship whereby IMI may
purchase Product from DSC, use such Product to create Integrated Systems and to
market, distribute, and service such Integrated Systems under the IMI name and
logo.
NOW THEREFORE, in consideration of their mutual promises and covenants, the
value of which each party deems sufficient, the parties hereto agree as follows:
1. NATURE OF RELATIONSHIP
1.1 USE OF TECHNOLOGY. IMI is hereby granted, subject to the terms of this
Agreement, a non-exclusive, personal, nontransferable, non-assignable license
(the "License") to (i) combine the Products with the Micro 21 in order to
produce Integrated Systems for resale to IMI's customers; and (ii) make any
additions, alterations, changes and/or modifications to the Products that IMI
deems to be necessary or desirable in order to combine and/or integrate the
Products with the Micro21 to produce Integrated Systems (collectively, the
"Integration Modifications"). In connection with the License, DSC will, by the
date of the Delivery of the Products required by the "First Purchase Order" (as
such terms are defined below), equip the DSC R/S 2003 with an RS 232
communication port. In addition, by such date, the parties will agree upon a
"command and status format" software protocol which will enable the electronic
exchange of data between the DSC R/S 2003 Product and the Micro 21 workstation.
Notwithstanding anything to the contrary contained in this Agreement, this
License expressly excludes the right of IMI to, and IMI expressly covenants that
it will not, modify or enhance the Software. Notwithstanding any other term or
provision of this Agreement to the contrary, all Integration Modifications and
all rights therein or appurtenant thereto (including without limitation patent
rights, trade secret rights and other proprietary rights) will be and at all
times remain the sole and exclusive property of IMI, and DSC will have no rights
therein or thereto.
1.2 INDEPENDENT CONTRACTORS. IMI and DSC are independent contractors to and
of one another, and each agrees that neither may make agreements on behalf of or
so obligate the other to any third party, except as provided in this Agreement,
unless so expressly and previously authorized in writing.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
1.3 SOLE SOURCE CONTRACT. The parties agree that this Agreement establishes
a "sole source" relationship between IMI and DSC regarding the technology
included and/or resident in the Product, its sub-assembles and/or replacement
parts ("Spares"). Accordingly, IMI agrees that for the term of the Agreement and
any extension thereof, IMI will purchase Spares from DSC only. Nothing contained
in this Agreement is intended to restrict IMI's right to manufacture, cause to
manufacture or acquire from any third party any equipment and/or sub-assemblies
and/or replacement parts which perform functions similar to those of Product,
subject to the provisions of this Agreement.
1.4 PROMOTION AND DISTRIBUTION. Subject to Section 1.7 below, neither party
shall be restricted or prohibited from distributing its products in any market
or to any customer by virtue of this Agreement.
1.5 USE OF TRADE NAMES; ADVERTISING. Other than as required by state and
Federal law, neither party shall use any trade name or logo of the other in any
way whatsoever without the express prior written approval of the owner of such
trade name, xxxx or logo in each instance; provided that DSC hereby grants to
IMI the right to use DSC's names, marks and logos in connection with the sale of
the Integrated Systems.
1.6 GOVERNMENTAL APPROVAL. IMI, at its sole cost and expense, shall obtain
any government or agency approval or certifications for the Integrated Systems
which IMI in its sole discretion deems necessary or advisable. DSC, at its sole
cost and expense, shall obtain and maintain any governmental or agency approval
or certification for the Product and the Spares required by law, rule or
regulation.
1.7 RESTRICTION. During the term of this Agreement, IMI agrees that it will
not, directly or indirectly through any person, firm or entity, manufacture,
procure, promote, distribute and/or sell, on a stand-alone basis, the Products,
or any equipment substantially similar to the Products; provided, however, (i)
that IMI shall have the right to sell Products or Spares to IMI customers which
currently own Micro 21 workstations provided such Products or Spares are used
only for purposes of creating Integrated Systems for such customers, and (ii)
IMI shall have the right to sell Products and Spares to IMI customers which own
Integrated Systems for purposes of replacing Products or Spares in such
Integrated Systems.
2. TRAINING AND SUPPORT
2.1 TECHNICAL INFORMATION AND MARKETING MATERIALS. DSC shall provide IMI
with any reasonable number of copies of technical, advisory and marketing
materials developed by DSC with respect to the Products (collectively the
"Materials") which shall be requested by IMI from time to time. All such
materials shall be printed in the English language. IMI may copy, distribute,
incorporate, reformat and/or translate any and all materials which IMI deems
appropriate for promotion and distribution of the Integrated Systems. IMI shall
defend, indemnify and hold DSC harmless from any damages or claims arising from
errors or misrepresentations caused by such reformation and/or translation. The
Materials will be kept current and up to date by DSC according to the standard
practices of DSC.
2.2 INITIAL TRAINING. DSC shall provide, at no charge to IMI, a two-day
training course in the promotion, installation and service of the Product. The
course shall be held for any number of IMI employees at any IMI facility in the
continental United States. The training course will be held in the English
language, supported by an IMI provided interpreter if necessary. All reading
materials and manuals will be printed in the English language, supported by IMI
provided translations also if necessary.
2.3 ON-GOING SUPPORT. DSC wishes to support IMI to the fullest extent that
it can. Accordingly, DSC shall provide IMI with on-going and continuous training
and instruction by telephone and telefax free of charge. On site support shall
be provided to IMI by DSC at mutually acceptable times and upon mutually
acceptable terms.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
2.4 AVAILABILITY OF SPARES. DSC shall provide and make Spares available to
IMI for a period of three (3) years following IMI's last order for Spares. In
addition to the foregoing, in the event DSC discontinues the production of any
Spares, DSC agrees to (a) make Spares available to IMI for a period of three (3)
years from the date of such discontinuation; and (b) after such three-year
period to: (i) provide IMI with documentation in reasonable detail necessary to
enable IMI to fabricate, or to engage a third party to fabricate, such Spares
for use solely in order to replace parts in Products previously purchased from
DSC; and (ii) grant to IMI a perpetual, royalty-free, non-transferable,
non-assignable license to fabricate such Spares solely in order to replace parts
in Products previously purchased from DSC.
2.5 RELEASES, UPDATES AND BULLETINS. IMI acknowledges that DSC may make
changes to the hardware, software and/or firmware of the Product or Spares to
increase performance and/or manufacturability and/or reliability which do not
change the form, fit or function of such Product or Spares ("Engineering
Updates"). For a period of three (3) years following IMI's last purchase of
Product or Spares, DSC shall provide IMI with any such Engineering Updates for
each such unit of Product or Spares purchased by IMI, free of charge as such
Engineering Updates becomes available. DSC shall notify IMI of such Engineering
Updates as and when put into effect. Notwithstanding anything to the contrary
contained herein, Engineering Updates expressly do not include new products or
new features which from time to time may be announced by DSC.
3. PRODUCT PRICE, PURCHASE ORDERS, DELIVERY AND PAYMENT
3.1 PRODUCT AND SPARES PRICING. The prices for Product and Spares are set
out at Schedule 2 hereof (the "Product Prices"). The Product Prices are quoted
in United States Dollars, FOB DiaSys.
3.1.1 The Product Prices may not be increased during the term of this
Agreement.
3.1.2 Notwithstanding any other term or provision of this Agreement to
the contrary, IMI will at all times be entitled to pricing on the Products and
Spares equal to or less than the prices paid by any other customer of DSC for an
equivalent purpose, and equivalent amount of Products and Spares on similar
terms and conditions.
3.2 PURCHASE ORDERS.
3.2.1 IMI shall order units of Product and/or Spares by issuing IMI's
standard order form, or telefax, or other written communication which is
reasonably identified as a request to purchase units of Product or Spares (with
each such order being hereafter referred to as a "Purchase Order"). Any such
Purchase Order shall specify: (i) the model or part number(s) of units of
Product or Spares; (ii) the quantity of each such Product or Spares; (iii) the
price of each such Product or Spares ordered; (iv) the desired Delivery date for
such units of Product or Spares ordered; (v) special handling or shipping
instructions if any; (vi) to whom the units of Product or Spares are to be
shipped; and, (vii) to whom the invoice for such shipment(s) shall be addressed.
In accordance with Section 6.19 of this Agreement, in the event that any term or
condition of any Purchase Order conflicts with this Agreement, or adds
obligations to, or bestows additional rights on, any party, such term or
condition of such Purchase Order shall be null and void, and the terms and
conditions of this Agreement shall prevail.
3.2.2 So long as this Agreement is in effect and IMI is not in breach or
default of any provision, DSC shall accept any Purchase Order properly issued
under this Section 3.2. Once issued, a Purchase Order may not be canceled;
provided, however, that the date of Delivery (as defined below) specified in the
Purchase Order may be delayed by IMI upon written notice to DSC for up to six
months from the date of the Purchase Order.
3.3 DELIVERY. Delivery shall mean the date upon which DSC delivers Product
or Spares to the FOB point ("Delivery"). Upon Delivery of the Product and/or
Spares, all risk of loss or damage shall pass to IMI.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
3.4 PAYMENT TERMS. IMI shall pay each DSC invoice within sixty (60) days
following Delivery of Product and/or Spares. IMI may deduct an additional two
(2) percent of the invoice amount for making payment of such invoice within ten
(10) days following receipt. All such payments shall be made by wire transfer to
the account designated by DSC. In the event that IMI fails to pay for units of
Product or Spares within said sixty (60) days, then in addition to other
remedies available to DSC, DSC may suspend further Delivery of Product and
Spares on order and reject subsequent Purchase Orders. DSC reserves the right to
apply and accrue the maximum legal rate of interest on the balance of any
overdue payments and to receive all reasonable costs and expenses incidental to
the collection of any account, including counsel fees.
3.5 MINIMUM ORDER. Simultaneous with the signing of this Agreement, IMI
shall issue a Purchase Order to DSC for [ * ] units of Product, model R/S 2003
(the "First Purchase Order"). The parties agree that the date of Delivery of the
Product set forth in the First Purchase Order shall be on or before December 31,
1996 and that IMI shall not have the option to delay such date of Delivery (as
set forth in Section 3.2.2). IMI shall order [ * ] additional units of Product
for Delivery prior to June 30, 1997. IMI may order additional Products and
Spares as it deems appropriate during the term of this Agreement, all of which
orders DSC shall accept as provided in Section 3.2.2 above.
3.6 MANUFACTURING; COMPLIANCE. DSC agrees that all Products and Spares shall
be manufactured and shipped in strict compliance with (i) the requirements of
each Purchase Order, (ii) all specifications relating to the Products and/or the
Spares, (iii) all Good Manufacturing Practices required or promulgated by the
Food and Drug Administration as in effect at the time of manufacture and (iv)
all applicable laws, rules, regulations and orders in effect at the time of
manufacture. In addition, DSC's manufacturing facility shall be equipped with a
quality assurance system, product standard documentation, product quality
standard documentation, documented work procedure instructions, work operations
records files and all other procedures required by applicable laws, rules,
regulations and orders. DSC represents and covenants that each Product and Spare
shall not, as of the date of Delivery thereof, (i) be adulterated or misbranded
within the meaning of the Federal Food, Drug and Cosmetic Act, as amended (the
"Act"), or (ii) be an article or item that is prohibited by the Act from being
introduced into interstate commerce.
3.7 INSPECTION; REJECTION. All Products and Spares shall be subject to
inspection by IMI after Delivery to determine conformity with, among other
things, the applicable Purchase Order and Section 3.6, above. IMI shall have the
right to reject any non-conforming Product(s) or Spare(s). IMI shall not waive
any warranty or other rights under this Agreement by inspecting or failing to
inspect any Products or Spares.
4. PRODUCT WARRANTIES
4.1 PRODUCT WARRANTY BY DSC.
4.1.1 SCOPE OF WARRANTY. DSC represents and warrants that the Product and
Spares will conform to and perform in accordance with their published
specifications and be free from defects in material and workmanship under normal
use and service for a period of twelve (12) months from the date of Delivery.
DSC's sole responsibility under this warranty is limited to the repair or
replacement of any defective part of such Product or Spare which repair may, in
the discretion of DSC, be performed at DSC's or IMI's premises. The cost of such
repair or replacement, including labor and parts and shipping by UPS ground, is
the responsibility of DSC.
4.1.2 LIMITATIONS ON WARRANTY. This warranty is void if IMI fails to
maintain electrical power and environmental conditions described in DSC's
published specifications or instructions, or if the Product, Spares, or any part
thereof, have been subject to any unauthorized modification, use with any
unauthorized attachment, device or feature, accident, neglect, misuse, use of
unauthorized software or media, tampering, or any event other than ordinary
and/or authorized use.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
4.1.3 EXCLUSION OF OTHER WARRANTIES. DSC'S REPRESENTATIONS AND WARRANTIES
UNDER SUBSECTION 4.1.1, SECTION 4.2 AND SECTION 6.1 ARE EXPRESSLY IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.2 ADDITIONAL WARRANTIES.
4.2.1 AUTHORITY. DSC represents and warrants (i) that DSC has the full
right, power and authority to grant the License and the other rights granted
herein to IMI, and (ii) upon payment in full of the Product Prices set forth in
this Agreement, that IMI shall receive good and marketable title to all Products
and Spares free and clear of all liens, charges or encumbrances of any kind.
4.2.2 PROPRIETARY RIGHTS.
4.2.2.1 DSC represents, warrants and covenants that, to the best of its
knowledge, neither the Products nor the Spares, nor the use thereof, infringes
or will infringe any patent, copyright, trademark, trade name, trade secret,
license or other proprietary or similar right of any person or entity.
4.2.2.2 IMI represents, warrants and covenants that, to the best of its
knowledge, neither the Integrated Systems (excluding Products and Spares), nor
the use thereof, infringes or will infringe any patent, copyright, trademark,
trade name, trade secret, license or other proprietary or similar right of any
person or entity.
4.2.3 NO VIRUSES. DSC represents, warrants and covenants that it will run
its standard virus scan on the Products and Spares and hereby represents,
warrants and covenants that, to the best of its knowledge, the Products and the
Spares do not, and in the future shall not, contain any program or programs
designed to cause any damage or loss to the Products, the Spares or the
Software, the data utilized by the Products, the Spares or the Software or any
software, data or equipment with which the Products, the Spares or the Software
may directly or indirectly come into contact.
4.2.4 DSC makes no warranties or representations about Product or Spares
other than those expressly set forth in this Article 4.
4.3 ALTERATIONS. IMI shall not make any alterations to the Product and/or
Spares other than alterations which are authorized or permitted by this
Agreement or which are from time to time authorized by DSC in writing.
4.4 SERVICE AND REPAIR.
4.4.1 IN-WARRANTY. If the Product(s) and/or Spares Delivered to IMI
hereunder are found in need of repair or replacement, IMI shall notify DSC
thereof. Upon receipt by DSC of such notice from IMI, DSC shall promptly issue
to IMI a Return Merchandise Authorization number. IMI will return the unit of
Product in need of repair or replacement with the following information: (i)
IMI's name and address; (ii) name and telefax number of IMI's employee(s) to
contact with questions concerning Product; (iii) a description of the defect in
Product if known; and, (iv) a description of any remedial measures taken in the
field to repair such Product. If the Product fails to conform to the Warranty
and is returned within the Warranty period, DSC shall bear all costs associated
with the repair or replacement, at DSC's options, of the defective unit and all
shipping by UPS ground from and to IMI's facility any place in the continental
United States.
4.4.2 OUT-OF-WARRANTY. If IMI requests DSC to repair or replace any unit
of Product after the Warranty Period as set forth in paragraph 4.1, IMI shall
pay all costs for such services including but not limited to
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
all shipping costs from and to IMI's facility wheresoever located. IMI may elect
to repair Product which is out-of-warranty or to provide for such service
through an independent third party. Upon such election, DSC will provide IMI
with assembly and service drawings for the Products and Spares. All such Spares
required by IMI for repair of Product shall be purchased from DSC.
Notwithstanding anything to the contrary contained herein, any repair or
replacement performed by IMI or such third party shall be effected by replacing
Spares only and shall expressly exclude repairs or replacement of "chips" and/or
"board-level" components.
4.5 PRODUCTS LIABILITY.
4.5.1 INDEMNIFICATION BY DSC. DSC hereby agrees to indemnify, defend and
hold IMI harmless from and against any and all claims, demands, actions, suits,
proceedings, costs, expenses (including reasonable attorneys' fees and
expenses), liabilities, losses and/or damages arising from, out of or in
connection with any actual or alleged injury to person(s) or property caused by
a Product and/or any Spare(s), provided that: (i) IMI notifies DSC in writing of
any actual or threatened claim promptly after IMI receives actual notice of such
claim; and (ii) IMI grants to DSC the exclusive right to defend such claim at
DSC's sole cost and expense. The foregoing notwithstanding, (a) IMI shall have
the right to participate in such defense and to retain, at IMI's expense,
counsel of IMI's choosing in connection therewith, and (b) DSC shall have no
authority to settle any such claim without the prior written consent of IMI,
which consent shall not be unreasonably withheld.
4.5.2 INDEMNIFICATION BY IMI. IMI hereby agrees to indemnify, defend and
hold DSC harmless from and against any and all claims, demands, actions, suits,
proceedings, costs, expenses (including reasonable attorneys' fees and
expenses), liabilities, losses and/or damages arising from, out of or in
connection with any actual or alleged injury to person(s) or property caused by
the Integrated Systems (excluding any of the foregoing to the extent caused by
any Products and/or Spares), provided that: (i) DSC notifies IMI in writing of
any actual or threatened claim promptly after DSC receives actual notice of such
claim; and (ii) DSC grants to IMI the exclusive right to defend such claim at
IMI's sole cost and expense. The foregoing notwithstanding, (a) DSC shall have
the right to participate in such defense and to retain, at DSC's expense,
counsel of DSC's choosing in connection therewith, and (b) IMI shall have no
authority to settle any such claim without the prior written consent of DSC,
which consent shall not be unreasonably withheld.
5. PATENTS
5.1 INDEMNIFICATION BY DSC. DSC hereby agrees to indemnify, defend and hold
harmless IMI from and against any and all claims, demands, actions, suits,
proceedings, costs, expenses (including reasonable attorneys' fees and
expenses), liabilities, losses and/or damages arising from, out of or in
connection with any actual or alleged infringement by a Product and/or any
Spare(s) of any patent, copyright, trademark, trade name, trade secret, license
or other proprietary or similar right of any person or entity, provided that:
(i) IMI notifies DSC in writing of any actual or threatened claim promptly after
IMI receives actual notice of such claim; and (ii) IMI grants to DSC the
exclusive right to defend such claim at DSC's sole cost and expense. The
foregoing notwithstanding, (a) IMI shall have the right to participate in such
defense and to retain, at IMI's expense, counsel of IMI's choosing In connection
therewith, and (b) DSC shall have no authority to settle any such claim without
the prior written consent of IMI, which consent shall not be unreasonably
withheld.
5.2 INDEMNIFICATION BY IMI. IMI hereby agrees to indemnify, defend and hold
harmless DSC from and against any and all claims, demands, actions, suits,
proceedings, costs, expenses (including reasonable attorneys' fees and
expenses), liabilities, losses and/or damages arising from, out of or in
connection with any actual or alleged infringement by the Integrated Systems
(excluding any of the foregoing to the extent caused by any Products and/or
Spares) of any patent, copyright, trademark, trade name, trade secret, license
or other proprietary or similar right of any person or entity, provided that:
(i) DSC notifies IMI in writing of any actual or threatened claim promptly after
DSC receives actual notice of such claim; and (ii) DSC grants to IMI the
exclusive right to defend such claim at IMI's sole cost and expense. The
foregoing notwithstanding, (a) DSC shall have the right to
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
participate in such defense and to retain, at DSC's expense, counsel of
DSC's choosing In connection therewith, and (b) IMI shall have no authority to
settle any such claim without the prior written consent of DSC, which consent
shall not be unreasonably withheld.
6. GENERAL TERMS
6.1 AUTHORITY AND OTHER GENERAL WARRANTIES. Each party represents and
warrants (the "Warranting Party") to the other that, except as may be expressly
stated otherwise in this Agreement:
6.1.1 the Warranting Party, if a corporation, partnership, limited
partnership, or other nonnatural person, is duly organized and subsisting under
the laws of the jurisdiction of its incorporation or existence;
6.1.2 the Warranting Party has full power and authority to enter into
this Agreement;
6.1.3 the execution and/or performance of this Agreement does not and
will not violate or interfere with any other agreement of the Warranting Party,
which violation or interference would have a material adverse effect on the
Warranting Party;
6.1.4 the Warranting Party will not enter into any agreement the
execution and/or performance of which would violate or frustrate the purpose of
this Agreement;
6.1.5 the Warranting Party is not presently the subject of a voluntary or
involuntary petition in bankruptcy, does not presently contemplate filing any
such voluntary petition, and is not aware of any intention on the part of any
other person to file such an involuntary petition against it;
6.1.6 the Warranting Party is not presently the subject of, nor the
proponent of, any claim that would have a material adverse effect on the other
party; and
6.1.7 any person executing this Agreement on behalf of the Warranting
Party has actual authority to bind the Warranting Party to this Agreement.
6.2 CONFIDENTIAL INFORMATION. IMI and DSC may find it useful or necessary to
exchange and/or discuss certain aspects of each others' business which involves
disclosure by one party to the other of certain confidential, proprietary and/or
trade secret information including but not limited to announced and unannounced
products, business plans, marketing strategies, customer lists, pricing
strategies, financial data, technical "know-how", source and object code,
firmware, manufacturing procedures or processes and sources for raw materials
and all other such information concerning a party ("Confidential Information").
Such Confidential Information, whether oral or written, in whatever form
provided shall remain the property of the party making such disclosure (the
"Disclosing Party") to the other party (the "Receiving Party"). The Receiving
Party shall use the Confidential Information of the Disclosing Party only for
the benefit of the Disclosing Party and only in accordance with the terms of
this Agreement. Each party expressly warrants that it will disclose the
Confidential Information of the other to those persons within their respective
organization on a "need to know" basis only. Each party also agrees that it will
not disclose any Confidential Information of the other to any third party or use
such Confidential Information for its own benefit or for the benefit of a third
party whether or not the Receiving Party receives a pecuniary benefit for making
such disclosure. The promises contained in this Section 6.2 shall survive any
termination or expiration of this Agreement for a period of five (5) years
following the effective date of such termination or expiration. Notwithstanding
the foregoing, no information shall be deemed Confidential Information which:
6.2.1 is in the public domain at time of disclosure; or,
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
6.2.2 becomes part of the public domain after disclosure but through no
breach of this Agreement; or,
6.2.3 is developed by the Receiving Party independently from and without
knowledge of the disclosures made by the Disclosing Party under this Agreement.
Confidential Information furnished in written and/or tangible form shall not be
duplicated by the Receiving Party except for the purposes of this Agreement.
Upon the Disclosing Party's request, the Receiving Party shall, within five (5)
business days after notification, return all Confidential Information to the
Disclosing Party including originals, copies, and work notes containing
Confidential Information. Each party acknowledges and agrees that money damages
would be an inadequate remedy for the injuries and damage that would be suffered
by the Disclosing Party in the case of the Receiving Party's breach of its
duties and obligations under this Section 6.2. Therefore, the Disclosing Party,
besides any other remedies it may have at law or in equity, shall be entitled to
injunctive and other equitable relief to enforce the provisions of this Section
6.2.
6.3 EXCUSED NON-PERFORMANCE. No party hereto shall be liable to the other
for any delay in performance or failure to perform any term or condition of this
Agreement caused directly or indirectly by: fire, explosion, accident, storm,
flood or earthquake; any third party's labor strike, any transportation embargo
or delay; any judicial action, regulation, rule or act of any Government or
governmental body or authorized agency; or any act of God; any armed conflict or
civil commotion, or, any other cause of similar in character which is beyond the
reasonable control of the aggrieving party.
6.4 LIMITATIONS OF DAMAGE. In no event shall any party to this Agreement be
liable to any other party to this Agreement for indirect, special, incidental,
punitive or consequential damages, including, but not limited to, loss of
anticipated profits or other economic loss, whether arising in contract, tort,
strict liability, negligence or otherwise.
6.5 TERM. This Agreement shall expire on October 31, 1998 unless earlier
terminated by the happening of any of the following events:
6.5.1 Either party becomes insolvent or files a voluntary petition of
bankruptcy; or,
6.5.2 A Receiver or Trustee is appointed for either party; or,
6.5.3 Either party falls under the direct or indirect control of any
company or individual which is then a substantial trade competitor of the other;
or,
6.5.4 Either party assigns, sells or disposes of all or any substantial
part of its business or assets or effects any substantial change in its business
or conduct thereof; or,
6.5.5 The written notice of termination by IMI following the Delivery by
DSC of at least, in the aggregate, [ * ] units of Products during the term of
this Agreement.
Unless this Agreement has been terminated as provided above, this Agreement
shall automatically renew for a period of two (2) years in the event that: (i)
neither party is in breach of the Agreement; (ii) the Agreement is in effect on
October 31, 1998; and, (iii) neither party has given written notice of its
intention not to renew prior to October 31, 1998.
6.6 Survival. The following Sections shall survive any expiration or
termination of this Agreement: 1.1 Use Of Technology; 1.4 Promotion And
Distribution; 1.5 Use of Trade Names; Advertising; 2.1 Technical Information and
Marketing Materials; 2.3 On-going Support; 2.4 Availability Of Spares; 2.5
Releases, Updates and Bulletins; 3.1 Product And Spares Pricing; 3.3 Delivery;
3.4 Payment Terms; 3.5 Minimum Order; 3.6 Manufacturing; Compliance; 3.7
Inspection; Rejection; 4.1 Product Warranty; 4.2 Additional Warranties; 4.4
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
Service and Repair; 4.5 Products Liability; 5.1 Indemnification By DSC; 5.2
Indemnification By IMI; 6.2 Confidential Information; 6.4 Limitations Of Damage;
6.6 Survival; 6.16 Dispute Resolution; 6.17 Compliance With Law; 6.19 Conflict
with Purchase Order, and 6.20 Public Announcements.
6.7 SEVERABILITY. If, for whatever reason, any part, provision or paragraph
of this Agreement is adjudicated illegal or in conflict with any pertinent and
applicable law by a court having competent jurisdiction, then to the extent that
either party will not be deprived of a material benefit intended to be provided
by this Agreement, that part, provision or paragraph shall be severed from this
Agreement and the Parties shall be bound under all remaining parts, provisions
and paragraphs herein.
6.8 NOTICES. (a) Any notice, demand, consent, order or request required or
permitted to be given under or sent pursuant to this Agreement to either party
shall be in writing. If sent by telefax, the same shall be deemed effective when
transmitted; provided that, all telefaxes so transmitted shall be followed by
copies thereof sent forthwith by certified or registered mail.
6.8.1 All such communications shall be sent to the following addresses as
and if required:
6.8.1.1 Xxxx Xxxxxxxxxx
President
Intelligent Medical Imaging, Inc.
0000 Xxxxxxxxx XXXX, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx
6.8.1.2 Xxxx X. XxXxxxxx
President
DiaSys Corporation
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
6.8.1.3 or, to such address(es) as each party may from time to time
designate in writing.
6.9 PARAGRAPH HEADINGS. Paragraph headings are included for convenience
only and are not to be used to construe or interpret this Agreement.
6.10 WAIVER. All rights available to either party under this Agreement or
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, are and shall be cumulative and may be exercised separately or
concurrently and from time to time without waiver of any other remedies. No
party hereto shall be deemed to have waived any right, power or privilege under
this Agreement unless such waiver shall have been expressed in a written
instrument signed by the waiving party. No delay or failure of either Party in
exercising any right hereunder shall be deemed to constitute a waiver of such
right.
6.11 MODIFICATIONS. No modification, amendment, rescission or other change
shall be binding on either party unless and until made in a single writing and
signed by both parties.
6.12 SCHEDULES. All schedules attached hereto are incorporated herein and
made a part hereof as if fully set forth herein.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
6.13 ASSIGNMENT. This Agreement may not be assigned without the express
written approval of each party hereto.
6.14 BINDING EFFECT. This Agreement shall be binding upon the heirs,
successors, and beneficiaries of each party.
6.15 ENTIRE AGREEMENT. This Agreement supersedes and replaces all previous
Agreements and commitments, if any, whether written or oral, between the parties
except for the terms of a certain Mutual Confidentiality Agreement dated October
24, 1996 between the parties which Agreement shall remain in effect for the
Confidential Information disclosed between the parties prior to the effective
date of this Agreement. This Agreement represents the entire agreement of the
Parties with respect to the subject matter hereof.
6.16 DISPUTE RESOLUTION.
6.16.1 Any dispute, disagreement, controversy or claim arising out of or
with respect to this Agreement (each a "Dispute"), that is not resolved by the
agreement of the parties must be resolved exclusively as set forth below:
6.16.2 The parties shall attempt in good faith to resolve any Dispute
arising out of and/or relating to this Agreement promptly by negotiation between
executives who have authority to settle the controversy. In the event the
parties are unable to resolve the Dispute on an informal basis, either party may
give the other party a formal written notice of the Dispute (each a "Dispute
Notice"). Within 15 days after receiving a Dispute Notice, the receiving party
shall submit to the other a written response. The Dispute Notice and the
response shall include: (a) a statement of each party's position and a summary
of arguments supporting that position; and (b) the name and title of the
executive who will represent that party in connection with the Dispute. Within
30 days after receipt of the Dispute Notice by the other party, the executives
of both parties shall meet at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary, to attempt to resolve the
Dispute. All negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence and state rules of evidence.
6.16.3 If the Dispute has not been resolved within ninety (90) days after
receipt of the Dispute Notice by the receiving party or if the parties fail to
meet within thirty (30) days after the receipt of the Disupute Notice by the
receiving party, then any party may submit the Dispute to final and binding
arbitration (without appeal or review) in Palm Beach, Dade or Broward Counties,
Florida, if submitted by DSC, or in Hartford, Connecticut if submitted by IMI,
administered by and in accordance with the commercial arbitration rules of the
American Arbitration Association ("AAA"). IMI will appoint one (1) arbitrator
and DSC will appoint one (1) arbitrator, and the two (2) arbitrators so selected
shall appoint a third arbitrator. Each arbitrator must be appointed in
accordance with the rules of the AAA, and must not have any conflict of
interest. The decision of a majority of the three arbitrators with respect to
any Dispute shall be binding and conclusive upon the parties to this Agreement.
Such decision shall be written and shall be supported by written findings of
fact and conclusions, and shall set forth the award, judgment, decree or order
awarded by the arbitrators. The judgment and any award rendered by the
arbitrators may be enforced under applicable judicial procedures, including
procedures for the entry and enforcement of arbitration awards by any federal or
state court having jurisdiction.
6.16.4 The parties will share equally the costs, including fees, of any
mediator or arbitrator selected or appointed hereunder, but each party will
otherwise be responsible for its own fees, costs and expenses in connection with
any Dispute.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
6.16.5 The provisions of this Section 6.16 shall not prevent or restrict
either party from seeking or obtaining injunctive relief against the other party
from any judicial or administrative authority pending the resolution of a
Dispute as provided above.
6.16.6 Each party is required to continue to perform its obligations
under this contract pending final resolution of any Dispute arising out of or
relating to this contract.
6.17 COMPLIANCE WITH LAW. In the parties' performance and completion of
their respective duties and obligations under this Agreement, the parties shall
at all times fully comply with all applicable federal, state and local laws,
statutes, ordinances, rules, regulations and orders.
6.18 CONSTRUCTION. Unless the context of this Agreement otherwise clearly
requires, (i) references in this Agreement to the plural include the singular,
the singular the plural, the masculine the feminine, the feminine the masculine
and the part the whole and (ii) the word "or" will not be construed as exclusive
and the word "including" will not be construed as limiting.
6.19 CONFLICT WITH PURCHASE ORDER. In the event that any term or condition
of any Purchase Order conflicts with this Agreement, or adds obligations to, or
bestows additional rights on, any party, such term or condition of such Purchase
Order shall be null and void, and the terms and conditions of this Agreement
shall prevail.
6.20 PUBLIC ANNOUNCEMENTS. Each party agrees that, prior to disseminating
any announcement related to the subject matter of this Agreement, it shall seek
the approval of such announcement from the other party.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have
hereunto set their hands and seals as of the day and year above first written.
Intelligent Medical Imaging DiaSys Corporation
Inc.
By: /s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxx X. XxXxxxxx
----------------------------- ---------------------------
Xxxx X. Xxxxxxxxxx, President Xxxx X. XxXxxxxx, President
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
SCHEDULE 1 - PRODUCT
Product shall mean the R/S 2003 and FE-2 as further described by the attached
published specification.
-----------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
SCHEDULE 2 - PRODUCT PRICE
So long as IMI is not otherwise in breach of the Agreement, IMI may purchase
Product and Spares from DSC as follows:
------------------------------------------------------------------------------
PRODUCT: MODEL R/S 2003
------------------------------------------------------------------------------
ITEM: R/S 2003
PART NUMBER: RS-2003
PRICE: USD [ * ]
INCLUDES: [ * ] Control Console; [ * ] Automatic Aspirator; [ * ] Optical
Slide Assembly; Connective Tubing; [ * ] Xxxxx Wrenches ([ * ]
each); [ * ] 24-Tube Rack; [ * ] Purge Tanks; [ * ] Wall Mounted
Power Supply; [ * ] Instruction Manual; and [ * ] Shipping
Container and Packing Material.
------------------------------------------------------------------------------
SPARES: MODEL R/S 2003
------------------------------------------------------------------------------
ITEM: Enclosure and Wire Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: [ * ] Pump Controller P.C.B.; Cycle Time Indicator P.C.B.;
Finished Metal Enclosure with Overlay; Push Button Switch Cable
Assemblies ([ * ]); P.C.B. Mounting Hardware; P.C.B. Interconnect
Cable Assembly; and Diagnostic and Power Indication LED Cable
Assemblies.
ITEM: Motor Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: Unipolar Stepper Motor w/Molex Connector; Pump Mounting Block;
Pump Mounting "L" Bracket; and Compliant Isolation Mounts ([ * ]).
ITEM: Hydraulic Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: Hydraulics Mounting Bracket; 3-Way Valve and Cable Assemblies
([ * ]); Pressure Sensor and Cable Assembly; Valve Mounting
Brackets ([ * ]); Rear Enclosure Cover; Tubing Assembly; Pump
Roller; and Plexiglass Panel.
ITEM: R/S 2003 Automatic Aspirator
PART NUMBER: RS300A
PRICE: USD [ * ]
INCLUDES: [ * ] Units
---------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
ITEM: R/S 2003 Optical Slide Assembly Kit
PART NUMBER: RS300K
PRICE: USD [ * ]
INCLUDES: [ * ] Units, each of which include: [ * ] Glass Flow Cell; [ * ]
Carrier; Connective Tubing; and Terminated with Luer Lock on Panel
Slide of Carrier.
ITEM: R/S 2003 Connective Tubing Kit
PART NUMBER: RS300T
PRICE: USD [ * ]
INCLUDES: [ * ] Units, each of which includes: [*] each Pre-Cut Tubing
Lengths for Peristaltic Pump, Tubing between Aspirator and Optical
Slide Assembly; and Tubing between Optical Slide Assembly and the
Control Console.
ITEM: R/S 2003 Xxxxx Wrenches
PART NUMBER: RS300W
PRICE: USD [ * ]
INCLUDES: [ * ] Units of each Type
ITEM: R/S 2003 24 Position Tube Rack
PART NUMBER: RS300R
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: R/S 2003 Purge Tank
PART NUMBER: RS300PT
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: R/S 2003 Wall Mounted Power Adapter
PART NUMBER: RS300PS
PRICE: USD [ * ]
INCLUDES: [ * ] Units
* * *
------------------------------------------------------------------------------
PRODUCT: MODEL FE-2
------------------------------------------------------------------------------
ITEM: FE-2
PART NUMBER: FE2
PRICE: USD [ * ]
INCLUDES: [ * ] Control Console; [ * ] Stain Delivery Unit; [ * ] Dual
Automatic Aspirator; [ * ] Dual Optical Slide Assembly; Connective
Tubing; [ * ] Xxxxx Wrenches ([ * ] each); [ * ] 15mL or 50 mL
Tube Rack; [ * ] Purge Tank; [ * ] Stain Delivery Tank; [ * ] Wall
Mounted Power Supply; [ * ] Instruction Manual; and [ * ] Shipping
Container and Packing Material.
---------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
------------------------------------------------------------------------------
SPARES: MODEL FE-2
------------------------------------------------------------------------------
ITEM: Main Console Enclosure and Wire Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: Finished Metal Enclosure with Overlay; [ * ] Pump Controller P.C.
Board; Cycle Time Indicator P.C. Board; Push Button Switch
Cable Assemblies ([ * ]); Cable Assembly Diagnostic (Stained);
Cable Assembly Stain Delivery Unit Power Receptacle; Cable
Assembly Power Indicator; Cable Assembly Cycle Time Indicator
Board; and Connective Tubing.
ITEM: Stain Delivery Enclosure and Wire Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: Base Welding Assembly with Overlay; Top Cover; Isolation Valve;
Power Cable Sub-Assembly; and Connective Tubing.
ITEM: Motor Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: Unipolar Stepper Motor w/Molex Connector; Pump Mounting Block;
Pump Mounting "L" Bracket; Pump Roller Assembly; and Vibration
Mount Square Double Stud ([ * ]).
ITEM: Hydraulic Assembly
PART NUMBER: 0000-0000-000
PRICE: USD [ * ]
INCLUDES: Hydraulic Mounting Bracket; Power Values with DC Mounting Xxxx;
Fuse Holder and Power Switch Cable Assembly; Mounting Clip; Pinch
Values ([ * ]); Assembly Pressure Sensor; Cable Assembly Pressure
Sensor and Pinch Valves; Color Coded Connective Tubing; Valve
Mounting Brackets ([ * ]); Rear Enclosure Cover; Tubing Assembly;
and Plexiglass Panel.
ITEM: FE-2 Dual Automatic Aspirator
PART NUMBER: FE2A
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: FE-2 Dual Optical Slide Assembly Kit
PART NUMBER: FE2K
PRICE: USD [ * ]
INCLUDES: [ * ] Units, each of which include: [ * ] Glass Flow Cells; [ * ]
Carrier; Connective Tubing; and Terminated with Luer Locks on
Panel Slide of Carrier.
ITEM: FE-2 Pump Tubing
PART NUMBER: FE2T
PRICE: USD [ * ]
INCLUDES: [ * ] Units, each of which includes [ * ] each Pre-Cut Tubing
Length for Peristaltic Pump, Terminated with Color Coded
Connectors.
---------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
ITEM: FE-2 Xxxxx Wrenches
PART NUMBER: FE2W
PRICE: USD [ * ]
INCLUDES: [ * ] Units of each Type
ITEM: FE-2 15mL Tube Rack
PART NUMBER: FE2RS
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: FE-2 50mL Tube Rack
PART NUMBER: FE2RL
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: FE-2 Purge Tank
PART NUMBER: FE2W
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: FE-2 Iodine Tank
PART NUMBER: FE2I
PRICE: USD [ * ]
INCLUDES: [ * ] Units
ITEM: FE-2 Wall Mounted Power Adapter
PART NUMBER: FEPS
PRICE: USD [ * ]
INCLUDES: [ * ] Units
---------
* Denotes confidential material omitted and filed separately with the
Securities and Exchange Commission.
