Exhibit 10(l)
Portions of this document indicated by an ++ have been omitted and filed
separately with the Securities and Exchange Commission pursuant to
a request for confidential treatment of such information
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS EXCLUSIVE DISTRIBUTION AGREEMENT (this "Agreement") is made and
entered into as of August 15, 2001 (the "Effective Date"), by and between
INTELLIGENT SYSTEMS SOFTWARE, INC., a Florida corporation ("Manufacturer"), and
INSTRUMENTARIUM IMAGING INC., a Delaware corporation ("Distributor").
WITNESSETH:
In consideration of the mutual covenants and conditions herein
contained, and intending to be legally bound hereby, the parties mutually agree
as follows:
1. Products and Territory.
1.1 Manufacturer hereby appoints Distributor as its exclusive
authorized distributor in the United States, during the term of this Agreement,
for the sale of Manufacturer's MammoReader system (the "MammoReader") and the
other products described on Schedule A attached hereto (the "Products"), as
revised and updated from time to time upon the mutual agreement of Manufacturer
and Distributor. Distributor shall not, without the prior written consent of
Manufacturer, sell, market or distribute any version of any Product other than
the version Manufacturer shall designate from time to time as its most current
version.
1.2 Distributor shall use its commercially reasonable best efforts to
promote and sell the Products to the maximum number of customers for
installation in the United States. Distributor agrees not to knowingly sell any
Products for installation outside of the United States. In the event Distributor
receives an inquiry from a potential purchaser of Products for installation
outside of the United States, Distributor agrees to promptly forward the inquiry
to Manufacturer.
1.3 Distributor hereby represents and warrants to Manufacturer that
Distributor has sufficient financial resources, experience and qualified
personnel to perform in full all of its financial, sales and operational
obligations contained in this Agreement.
1.4 Distributor shall supply to Manufacturer, on a monthly basis, a
12-month rolling forecast of sales of Products (the "Forecast"). The first
Forecast shall be delivered upon commencement of the first 12-Month Period and
shall be for the period of the next three full calendar months following such
date. Commencing on the first day of the calendar month following such
commencement date, the Distributor shall provide a Forecast on the first day of
each month for the third month thereafter. Each Forecast shall not be considered
to constitute firm orders but rather non-binding forecasts based on
Distributor's commercially reasonable estimates.
2. Period Definitions.
As used herein, "6-Month Period" and "9-Month Period" shall mean the 6
months and 9 months, respectively, following the date of U.S. Food and Drug
Administration ("FDA") approval of the sale of the MammoReader in the United
States (the "Approval Date"). As used herein, "12-Month Period" shall mean the
12 months following the date of such approval and the subsequent 12-month
periods following such initial 12-month period. "Second Year 6-Month Period" and
"Third Year 6-Month Period" shall mean the 6 months periods beginning on the
commencement date of the second 12-Month Period and the third 12-Month Period,
respectively.
3. Prices and Payment.
3.1 Distributor shall order Products from Manufacturer by submitting a
written purchase order identifying the type and number of units of Products
ordered, requested delivery dates and any export/import information required to
enable Manufacturer to fill the order (the "Purchase Order"). All orders for
Products are subject to acceptance by Manufacturer at Manufacturer's office at
0000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000. Manufacturer shall have no
liability to Distributor with respect to purchase orders which are not accepted.
3.2 The price of each Product sold to Distributor shall be the list
price therefor set forth on Schedule A, less ++. Such list price may be
decreased from time to time by Manufacturer in its sole discretion upon 30 days
prior written notice to Distributor. Such list prices may be increased from time
to time by mutual agreement of Manufacturer and Distributor.
3.3 In consideration of the exclusive distributorship granted hereby,
Distributor agrees to resell the Products for the list prices set forth on
Schedule A.
3.4 The ultimate shipment of orders to Distributor shall be subject to
the right and ability of Manufacturer to make such sales and obtain required
licenses and permits, under all applicable statutes, rules and regulations of
the United States and agencies or instrumentalities thereof, including the FDA,
presently in effect or which may be in effect hereafter.
3.5 (a) Distributor hereby agrees (i) to comply with decrees, statutes,
rules and regulations of the United States and agencies or instrumentalities
thereof in the performance of its duties under this Agreement; (ii) to maintain
the necessary records to comply with such statutes, rules and regulations; and
(iii) to indemnify and hold harmless Manufacturer from any and all fines,
damages, losses, costs and expenses (including reasonable attorneys' fees)
incurred by Manufacturer as a result of any breach of this subsection by
Distributor.
(b) Manufacturer hereby agrees (i) to comply with decrees,
statutes, rules and regulations of the United States and agencies or
instrumentalities thereof in connection with the manufacture and sale of the
Products and in the performance of its duties under this Agreement, (ii) to
maintain the necessary records to comply with such statutes, rules and
regulations; and (iii) to indemnify and hold harmless Distributor from any and
all fines, damages, losses, costs and expenses (including reasonable attorneys'
fees) incurred by Distributor as a result of any breach of this subsection by
Manufacturer.
[++ represents confidential treatment request]
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3.6 Unless Distributor requests otherwise and Manufacturer agrees in
writing, all Products ordered by Distributor shall be packed for shipment and
storage in accordance with Manufacturer's standard commercial practices, either
for shipment to Distributor or for direct drop shipment directly to purchasers
from Manufacturer. Manufacturer shall deliver the Products into the possession
of a common carrier designated by Distributor and reasonably acceptable to
Manufacturer, no later than the date specified for such delivery on the relevant
purchase order for such Products. Risk of loss and damage to a Product shall
pass to Distributor upon the delivery of such Product to the common carrier
F.O.B. Manufacturer's Boca Raton, Florida shipping facility. All claims for
non-conforming shipments must be made in writing to Manufacturer within 10 days
of the completion of the installation of the Products, but in no instance later
than 21 days after such delivery of the Product to the common carrier.
3.7 All amounts due and payable with respect to Products delivered by
Manufacturer shall be paid in full within 30 days after the date of
Manufacturer's invoice covering such Products. All such amounts shall be paid in
United States dollars by wire transfer, to such bank or account as Manufacturer
may from time to time designate in writing to Distributor, or by corporate
check. No part of any amount payable to Manufacturer hereunder may be reduced
due to any counterclaim, set-off, adjustment or other right which Distributor
might have against Manufacturer, any other party or otherwise. Any payments not
paid by Distributor within the 30-day period shall bear interest at the rate of
one percent per month commencing on the close of business the day immediately
following the day on which the payment is due.
3.8 In the event of any discrepancy between any purchase order accepted
by Manufacturer and this Agreement, the terms of this Agreement shall govern.
3.9 Distributor shall be responsible for all expenses of sale and
shipment of Products, including freight, insurance, sales taxes and customs
duties. Distributor shall reimburse Manufacturer for any such expenses paid by
Manufacturer upon receipt of Manufacturer's invoices therefor.
3.10 Manufacturer agrees to be responsible to pay any rebates payable
to group purchasing organizations with respect to resales of Products made by
Distributor, provided, that Manufacturer is provided a copy of the group
purchasing organization's invoice at the time Manufacturer accepts the purchase
order for such Products.
4. Other Obligations of Distributor.
4.1 Distributor shall employ competent and experienced personnel to
market the Products.
4.2 Distributor shall, at its own expense, install and set up all of
the Products sold by it at its customers' premises and train the customers'
personnel in the proper operation of the Products.
4.3 Distributor shall advertise and otherwise promote the sale of the
Products, including, without limitation, the establishment of promotional
campaigns, advertisement of the Products in trade journals and attendance at
trade shows, and shall, within 30 days of the commencement of each 12-Month
Period, provide Manufacturer with Distributor's promotional strategic plan (and
any amendments thereto) for Manufacturer's review.
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4.4 Distributor shall be required to use the brand name of the Product,
as chosen solely in the discretion of Manufacturer (the "Brand Name"), on all
packaging, promotional materials, advertising materials, press releases,
articles and any other written materials in which the Product appears or is
mentioned. Anytime the Brand Name is required to appear, Manufacturer's name
shall also appear clearly indicating that Manufacturer is the manufacturer of
the Product.
5. Manufacturer's Obligations.
Manufacturer shall provide Distributor, without charge, with such
marketing, technical and sales assistance as Manufacturer may in its reasonable
discretion consider necessary to assist with the promotion of the Products.
Manufacturer shall also provide Distributor with such amount of Product training
as Manufacturer determines is reasonably necessary to assist Distributor in
effectively carrying out its obligations under this Agreement. Manufacturer
shall be responsible for developing and printing sales and marketing literature
for the Products and shall provide Distributor with reasonable quantities of
such literature to facilitate Distributor's sales efforts.
6. Relationship of the Parties.
6.1 Distributor shall be considered to be an independent contractor of
Manufacturer. The relationship between Manufacturer and Distributor shall not be
construed to be that of employer and employee, nor to constitute a partnership,
joint venture or agency of any kind.
6.2 Distributor shall pay all of its expenses, including without
limitation all travel, lodging and entertainment expenses incurred in connection
with its services hereunder and all training provided hereunder. Manufacturer
shall not reimburse Distributor for any expenses.
6.3 Neither party shall have the right to enter into any contracts or
commitments in the name of, or on behalf of, the other party, or to bind the
other party in any respect whatsoever.
7. Trademarks, Service Marks and Trade Names.
Distributor may use Manufacturer's trademarks, trade names and service
marks (the "Trademarks") on a non-exclusive basis only for the duration of this
Agreement and solely for display or advertising purposes in connection with
selling and distributing the Products in accordance with this Agreement. In the
event Distributor becomes aware of any action proposed to be taken by a third
party which may, in Distributor's judgment, in any way impair the rights of
Manufacturer in Manufacturer's Intellectual Property (as defined below),
Distributor agrees to promptly notify Manufacturer of such proposed action.
Distributor shall promptly and completely apprise Manufacturer of any actual,
threatened or suspected infringement of any Intellectual Property rights of
Manufacturer of which Distributor becomes aware. Except as provided above,
Distributor has no rights in the Intellectual Property relating to the Products
or of any goodwill associated therewith and Distributor agrees that, except as
expressly provided in this Agreement, it shall not acquire any rights in respect
thereof and that all such rights and goodwill are, and shall remain, vested in
Manufacturer. "Intellectual Property" shall mean all intellectual property
rights of Manufacturer from time to time, including the Trademarks, any patents,
design rights or registered design and any applications throughout the world or
the right to apply for any of the foregoing. Intellectual Property further
includes copyright, know-how, confidential information, any business name,
trading name or style or brand name, and any merchandising rights. Distributor
hereby agrees not to register or cause to be registered any Trademarks in
Distributor's name. Without prejudice to the right of Distributor or any third
party to challenge the validity of any Intellectual Property of Manufacturer,
Distributor shall not otherwise do or authorize any third party to do any act
which would or might invalidate or be inconsistent with any Intellectual
Property of Manufacturer and shall not omit or authorize any third party to omit
or do any act which, by its omission, would have such effect or character.
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8. Covenant Not to Compete.
Commencing on the Approval Date and continuing for the term of this
Agreement, Distributor shall not market, directly or indirectly, products which
are competitive with the Products.
9. Limited Warranty.
9.1 Manufacturer warrants that the Products will be free from material
defects for a period of one year from the date of shipment and will meet
Manufacturer's written specifications. Manufacturer's sole responsibility under
this warranty shall be, at Manufacturer's option, to replace defective Products
or parts thereof.
9.2 Distributor shall not obligate or purport to obligate Manufacturer
by issuing or making any affirmations, representations, warranties or guaranties
with respect to the Products to any third party, other than the foregoing
standard warranty, which warranty shall be extended to all purchasers of
Products from Distributor. At Distributor's request, Manufacturer shall provide
Distributor with copies of Manufacturer's standard warranty for distribution by
Distributor to purchasers of the Products.
9.3 Under no circumstances shall the warranty set forth in Section 9.1
above apply to any Product which has been used outside the field of use or in
violation of this Agreement or to any Product which has been customized or
modified, damaged, misused or improperly installed or applied. Notwithstanding
any other provision in this Agreement, Manufacturer shall not be held
responsible for any damage which may result from a defective Product except for
the repair or replacement of such Products.
9.4 THE PROVISIONS OF THE FOREGOING WARRANTY ARE IN LIEU OF ANY OTHER
WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
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10. Limitation on Liability.
IN NO EVENT SHALL MANUFACTURER BE LIABLE TO DISTRIBUTOR OR ANY OTHER
PERSON OR ENTITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES)
ARISING OUT OF THE MANUFACTURE, SALE OR USE OF THE PRODUCTS, EVEN IF
MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
11. Indemnification.
11.1 Distributor hereby agrees to indemnify, defend and hold harmless
Manufacturer, its affiliates and all officers, directors, employees and agents
thereof from all liabilities, claims, damages, losses, costs, expenses, demands,
suits and actions (including without limitation attorneys' fees, expenses and
settlement costs) arising out of or related to (i) any failure by Distributor to
perform its obligations hereunder, and (ii) any other act or omission of
Distributor and/or its agents, employees or others for which it is responsible.
11.2 Manufacturer hereby agrees to indemnify, defend and hold harmless
Distributor, its affiliates and all officers, directors, employees and agents
thereof, from all liabilities, claims, damages, losses, costs, expenses,
demands, suits and actions (including without limitation attorneys' fees,
expenses and settlement costs) arising out of or related to (i) any defects in
the Products, (ii) any breach of warranty, (iii) any product liability claims
and similar matters, (iv) any failure by Manufacturer to perform its obligations
hereunder, (v) any other act or omission of Manufacturer and/or its agents,
employees or others for which it is in law responsible, and (vi) infringement of
Intellectual Property rights of others or Manufacturer's Trademarks resulting
from Distributor's sale of the Products. During the term hereof from and after
the Approval Date, Manufacturer shall maintain a policy of general public and
product liability insurance, including contractual liability for its
indemnification obligations hereunder, protecting it and Distributor in an
amount of not less than $2,000,000 single limit coverage and naming Distributor
as an additional insured. Upon request of Distributor, Manufacturer shall
provide Distributor with copies of such insurance certificates establishing the
existence thereof.
12. Term and Termination.
12.1 Term. The term of this Agreement shall commence on the Effective
Date and shall terminate at the end of the third 12-Month Period unless
terminated earlier pursuant to the terms of this Section 12. Within 10 days
after any termination of this Agreement, Distributor shall return to
Manufacturer all unused sales materials, product literature and other material
pertaining to Manufacturer or the Products, which were paid for or provided by
Manufacturer.
12.2 ++
12.3 Termination. This Agreement may be terminated:
(a) ++
[++ represents confidential treatment request]
6
(b) by Manufacturer, in the event that Distributor fails to make
any payment within 30 days from the date of Manufacturer's invoice for shipped
Products;
(c) by Manufacturer, upon the occurrence of a change in control or
management personnel of Distributor, which has or, in the reasonable opinion of
Manufacturer, could have, a material adverse effect on the business, prospects
or operations of Distributor and the failure of Distributor to promptly pursue
(within 60 days after receiving written notice thereof from Manufacturer) a
remedy designed to cure (in the sole and absolute judgment of Manufacturer)
Manufacturer's objections to such change;
(d) by Manufacturer, upon an attempted assignment, delegation,
sublicense or transfer, whether by operation of law, merger, sale of any
substantial portion of Distributor's assets or business or otherwise, of this
Agreement by Distributor without the prior written consent of Manufacturer;
(e) by Distributor, in the event it is determined by final
judgment of a court of competent jurisdiction in the United States that the
MammoReader materially infringes one or more U.S. patents held by others;
(f) by Distributor, in the event the FDA has not granted approval
of the sale of the MammoReader in the United States within 12 months after the
Effective Date;
(g) by Distributor, in the event the FDA issues an order or decree
prohibiting the sale or use of the MammoReader in the United States;
(h) by Distributor, in the event of substantial and continuing
failure of the MammoReader (generally, not particular units) to work in the
manner described in literature regarding the system prepared by Manufacturer;
(i) by the non-breaching party, upon the occurrence of a material
breach of this Agreement by the other party and the failure of the other party
to cure such breach within 30 days of receipt of written notice thereof from the
non-breaching party; and
(j) by the other party, in the event of the filing of a petition
in bankruptcy, insolvency or reorganization against or by a party which is not
dismissed within 30 days of filing.
12.4 In the event of a termination of this Agreement or upon the
expiration of this Agreement pursuant to Section 12.1 above, Manufacturer shall
not have any obligation to Distributor, or to any employee of Distributor, for
compensation or for damages of any kind, whether on account of the loss by
Distributor or such employee of present or prospective sales, investments,
compensation or goodwill.
12.5 Termination of this Agreement shall not affect the obligation of
Distributor to pay Manufacturer all amounts owing or to become owing as a result
of Products tendered or delivered to Distributor on or before the date of such
termination, as well as interest thereon to the extent any such amounts are paid
after the date they became or will become due pursuant to this Agreement.
7
12.6 Notwithstanding anything else in this Agreement to the contrary,
the parties agree that Sections 9, 10, 11, 12, 16 and 17 shall survive the
termination or expiration of this Agreement, as the case may be, to the extent
required thereby for the full observation and performance by any or all of the
parties hereto.
13. Assignment.
Distributor may not assign, delegate, sublicense or transfer, whether
by operation of law, merger, sale of any substantial portion of Distributor's
assets or business or otherwise, this Agreement without the prior written
consent of Manufacturer, and any attempted assignment, delegation, sublicense or
transfer by Distributor without such written consent shall be void and of no
effect. Manufacturer may fully assign, delegate, sublicense or transfer, whether
by operation of law or otherwise, this Agreement without Distributor's consent.
This Agreement shall inure to the benefit of the successors and assigns of
Manufacturer.
14. Notice.
All notices given under this Agreement shall be in writing and shall be
addressed to the parties at their respective addresses set forth below:
If to Manufacturer:
Intelligent Systems Software, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: W. Xxx Xxxxxx, President
Telecopy Number: 000-000-0000
If to Distributor:
Instrumentarium Imaging Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, President
Telecopy Number: 000-000-0000
All notices shall be given in person, by overnight courier or by telecopy. All
notices shall be deemed given on the date received by the addressee.
15. Waiver.
None of the conditions or provisions of this Agreement shall be held to
have been waived by any act or knowledge on the part of either party, except by
an instrument in writing signed by a duly authorized officer or representative
of such party. Further, the waiver by either party of any right hereunder or the
failure to enforce at any time any of the provisions of this Agreement, or any
rights with respect thereto, shall not be deemed to be a waiver of any other
rights hereunder or any breach or failure of performance of the other party.
8
16. Construction of Agreement and Resolution of Disputes.
16.1 This Agreement, and the performance of the parties hereto shall be
construed and governed according to the laws of Florida, applicable to contracts
made and to be fully performed therein. Any dispute, controversy or claim
arising out of or relating to this Agreement or to a breach hereof, including
its interpretation, performance or termination, shall be finally resolved by
arbitration. The arbitration shall be conducted by three arbitrators, one to be
appointed by Manufacturer, one to be appointed by Distributor and a third being
nominated by the two arbitrators so selected or, if they cannot agree on a third
arbitrator, by the President of the American Arbitration Association. In the
event any such dispute, controversy or claim involves a claim of damages for
$100,000 or less, the arbitration shall be conducted by one arbitrator appointed
by Manufacturer and Distributor or, if they cannot agree on an arbitrator, by
the President of the American Arbitration Association.
16.2 The arbitration shall be in accordance with the rules of the
American Arbitration Association, which shall administer the arbitration and act
as appointing authority. The arbitration, including the rendering of the award,
shall take place in Palm Beach County, Florida, and shall be the exclusive forum
for resolving such dispute, controversy or claim. For the purposes of this
arbitration, the provisions of this Agreement and all rights and obligations
thereunder shall be governed and construed in accordance with the laws of the
State of Florida. The decision of the arbitrators shall be binding upon the
parties hereto, and the expense of the arbitration (including without limitation
the award of attorneys' fees to the prevailing party) shall be paid as the
arbitrators determine. The decision of the arbitrators shall be executory, and
judgment thereon may be entered by any court of competent jurisdiction.
16.3 Notwithstanding anything contained in this Section to the
contrary, each party shall have the right to institute judicial proceedings
against the other party or anyone acting by, through or under such other party,
in order to enforce the instituting party's rights hereunder through reformation
of contract, specific performance, injunction or similar equitable relief.
17. Confidentiality Maintained.
17.1 Distributor agrees that Manufacturer has a proprietary interest in
any information provided to Distributor by Manufacturer, whether in connection
with this Agreement or otherwise, whether in written or oral form, which is (i)
a trade secret, confidential or proprietary information; and (ii) not publicly
known (hereinafter referred to as "Proprietary Information"). Distributor shall
disclose the Proprietary Information only to those of its agents and employees
to whom it is necessary in order properly to carry out their duties as limited
by the terms and conditions hereof. Both during and after the term of this
Agreement, all disclosures by Distributor to its agents and employees shall be
held in strict confidence by such agents and employees. During and after the
term of this Agreement, Distributor, its agents and employees shall not use the
Proprietary Information for any purpose other than in connection with
Distributor's sale and distribution of the Products pursuant to this Agreement.
Distributor shall, at its expense, return to Manufacturer the Proprietary
Information as soon as practicable after the termination or expiration of this
Agreement. All such Proprietary Information shall remain the exclusive property
of Manufacturer during the term of this Agreement and thereafter.
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17.2 Notwithstanding anything contained in this Agreement to the
contrary, Distributor shall not be liable for a disclosure of the Proprietary
Information of Manufacturer, if the information so disclosed: (i) was in the
public domain at the time of disclosure without breach of this Agreement; or
(ii) was known to or contained in the records of Distributor from a source other
than Manufacturer at the time of disclosure by Manufacturer to Distributor and
can be so demonstrated; or (iii) was independently developed and is so
demonstrated promptly upon receipt of the documentation and technology by
Distributor; or (iv) becomes known to Distributor from a source other than
Manufacturer without breach of this Agreement by Distributor and can be so
demonstrated; or (v) must be disclosed pursuant to a contract or subcontract
with a governmental agency in order to obtain/retain a procurement contract; or
(vi) was disclosed pursuant to court order or as otherwise compelled by law.
18. No Rights by Implication.
No rights or licenses with respect to the Products or the Trademarks
are granted or deemed granted hereunder or in connection herewith, other than
those rights expressly granted in this Agreement.
19. Responsibility for Taxes.
Taxes now or hereafter imposed with respect to the transactions
contemplated hereunder (with the exception of income taxes or other taxes
imposed upon Manufacturer and measured by the gross or net income of
Manufacturer) shall be the responsibility of Distributor, and if paid or
required to be paid by Manufacturer, the amount thereof shall be added to and
become a part of the amounts payable by Distributor hereunder.
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20. Modification of Products.
Distributor may not customize, modify or have customized or modified
any Product unless it obtains the prior written consent of Manufacturer, which
consent may be withheld in the sole and absolute discretion of Manufacturer. Any
unauthorized customizing or modification of any Product by Distributor or any
third party shall fully relieve Manufacturer from any obligation it would
otherwise have had with respect to such Product under the warranties described
in Section 9 herein. Distributor may not incorporate any of the Products in its
own products.
21. Force Majeure.
21.1 Neither Manufacturer nor Distributor shall be liable in damages,
or shall be subject to termination of this Agreement by the other party, for any
delay or default in performing any obligation hereunder if that delay or default
is due to any cause beyond the reasonable control and without fault or
negligence of that party; provided that, in order to excuse its delay or default
hereunder, a party shall notify the other of the occurrence or the cause,
specifying the nature and particulars thereof and the expected duration thereof.
All obligations of both parties shall return to being in full force and effect
upon the termination of such occurrence or cause (including without limitation
any payments which became due and payable hereunder prior to the termination of
such occurrence or cause).
21.2 For the purposes of this Section, a "cause beyond the reasonable
control" of a party shall include, without limiting the generality of the
phrase, any act of God, act of any government or other authority or statutory
undertaking, industrial dispute, hurricane, fire, explosion, accident, power
failure, flood, riot or war (declared or undeclared).
22. Compliance with Laws.
Each of Distributor and Manufacturer covenants that all of its
activities under or pursuant to this Agreement shall comply with all applicable
laws, rules and regulations.
23. Severability.
If any provision of this Agreement is declared invalid or unenforceable
by a court having competent jurisdiction, it is mutually agreed that this
Agreement shall endure except for the part declared invalid or unenforceable by
order of such court. The parties shall consult and use their best efforts to
agree upon a valid and enforceable provision which shall be a reasonable
substitute for such invalid or unenforceable provision in light of the intent of
this Agreement.
24. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
25. Entire Agreement.
This Agreement supersedes and cancels any previous agreements or
understandings, whether oral, written or implied, heretofore in effect and sets
forth the entire agreement between Manufacturer and Distributor with respect to
the subject matter hereof.
26. Amendment.
This Agreement may be amended only by written agreement referred to
this Agreement executed by Manufacturer and Distributor.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
MANUFACTURER:
INTELLIGENT SYSTEMS SOFTWARE, INC.
By: \s\ W. Xxx Xxxxxx
-----------------------------
Name: W. Xxx Xxxxxx
Title: President
DISTRIBUTOR:
INSTRUMENTARIUM IMAGING INC.
By: \s\ Xxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
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Schedule A
Product Description List Price
------------------- ----------
1. MammoReader $99,500
2. MammoReader (dual scanner model) $149,500
