DEVELOPMENT, LICENSING AND
MANUFACTURING AGREEMENT
This Development, Licensing and Manufacturing Agreement ("Agreement") is
made as of the 10th day of May, 2001, by INMEDICA DEVELOPMENT CORPORATION, a
Utah corporation ("InMedica"), and XXX XXX TECHNOLOGY CO., LTD., a corporation
duly organized and existing under the laws of the Republic of China ("Xxx Xxx").
RECITALS
The parties are executing this Agreement is connection with their
execution of a Stock Purchase Agreement dated the 10th day of May 2001 (the
"Stock Purchase Agreement"), by which Xxx Xxx is purchasing from InMedica and
InMedica is issuing to Xxx Xxx stock in InMedica and MicroCor. The execution of
this Agreement is a condition precedent to the parties' obligations under the
Stock Purchase Agreement.
InMedica is a medical products research and development company. It has
developed a method for measuring hematocrit non-invasively (without drawing
blood) and has applied for and/or received three (3) patents from the U.S.
Patent and Trademark Office. As of February 15, 1995, InMedica's application for
a patent entitled "Method and Apparatus for Non-invasively Determining
Hematocrit " was allowed by the U.S. Patent and Trademark Office, and such
patent issued on June 18, 1996, as Patent No. 5526808 with term of 17 years.
InMedica filed an application for an additional patent, which claims priority
from October 4, 1990, the date of the first patent's filing. The second patent
was issued on July 1 1997 as patent No. 5,642,734, Method and Apparatus for
Noninvasively Determining Hematocrit As of December 21, 1999, InMedica received
a first office action notice of allowance on a third patent, "System and Method
for Invivo Hematocrit Measurement Using Impedance and Pressure Plethysmography."
On October 3, 2000 this patent was issued as patent No. 6,128,518. On May 16,
2000 InMedica filled for a fourth patent System and Method for In-Vivo
Hematocrit Measurement Using Impedance and Pressure Plethysmography. This patent
application is currently pending. The methods and procedures to measure
hematocrit non-invasively, including without limitation, the patents and
technologies incorporated in the three patents and patent applications described
above, are collectively referred to herein as the "InMedica Hematocrit
Technology".
Xxx Xxx is a manufacturing company. It has access to researchers and
engineers to develop products for manufacture. It has the financial and
managerial assets and experience to be capable of developing and manufacturing
medical products.
The parties desire to enter into this Agreement for the joint development
of products based on the InMedica Hematocrit Technology, for the manufacture of
such products, and for the distribution and sale of such products. The parties
anticipate that they will develop (I) a product that performs the basic
functions and delivers the results of the hematocrit measurement (the "Primary
Product"), (II) a product that is used in conjunction with the Primary Product
in the hematocrit measurement process on one patient and then disposed of (the
"Disposable Product"), and (III) other products using the InMedica Hematocrit
Technology or supporting the functions of the Primary Product and the Disposable
Product (the "Secondary Product"). The Primary Product, the Disposable Product
and any Secondary Product are collectively referred to herein as the "
Products". This Agreement is intended to cover the development, licensing,
manufacture, distribution and sale of the Products.
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AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEVELOPMENT
1.1 PRODUCT SPECIFICATIONS
InMedica and Xxx Xxx shall cooperate to develop product specifications that will
incorporate the InMedica Hematocrit Technology into the Products. The
specifications shall include all aspects of such Products, including, but not
limited to, size, materials, color, style, design, components, and functionality
and must be approved in writing by both Xxx Xxx and InMedica. Prior to mass
production of the Products to be sold to InMedica, InMedica and Xxx Xxx shall
have a production agreement in written form as to the specifications and as to
the proposed and estimated product costs and prices as further detailed in
Section 3.3 for Products to be sold to InMedica. The production agreement shall
be reviewed and updated by both parties yearly and as needed.
1.2 CONTRACTS WITH THIRD PARTIES
Xxx Xxx shall have the right to contract, at its expense, with the Medical
Physics, Inc., Salt Lake City, Utah and Biomedical Engineering Center of the
Industrial Technology Research Institute, Taiwan, or any other party
(collectively, the "Research Partners") for assistance with the engineering of
the Products and the development of the final specifications.
1.3 REGULATORY APPROVALS
The parties acknowledge that, for both legal and marketing purposes, regulatory
approvals and certifications from various governmental agencies (the "Regulatory
Approvals") of the Products will be required, including, without limitation,
approval of the U.S. Food & Drug Administration, "ISO" certification, and
approval for a "CE" xxxx.
In areas outside of the Licensed Areas (as defined in Section 3.1 (a)), InMedica
shall determine which Regulatory Approvals are necessary (the "Necessary
Approvals") for its plans to market, distribute and sell the Products. InMedica
shall arrange for and perform, at its expense, all necessary clinical testing of
the performance of the Product reasonably necessary to obtain the Necessary
Approvals. Xxx Xxx shall obtain the Necessary Approvals to the extent that they
relate to the Products' design, development and manufacture processes.
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In areas within the Licensed Areas, Xxx Xxx shall determine which are necessary
for its plans to market, distribute and sell the Products. Xxx Xxx shall be
responsible for obtaining such Regulatory Approvals within the Licensed Areas.
The parties shall have the right to contract, at their separate expense, with
third parties for assistance in performing their obligations to obtain the
Necessary Approvals. The parties shall cooperate with each other in the
performance of their obligations under this Section to facilitate obtaining the
Necessary Approvals.
1.4 MANUFACTURE LICENSE OF THE INMEDICA HEMATOCRIT TECHNOLOGY
InMedica hereby grants to Xxx Xxx, pursuant to the terms of this Agreement, a
worldwide license to the InMedica Hematocrit Technology, including any future
addition and enhancement to it by InMedica or its contracted Research Partners,
to develop and manufacture the Products (the "Manufacture License"). Except as
described in the licenses and other agreements attached hereto as Schedule 1.4,
the Manufacture License shall be exclusive, and during the term of the
Manufacture License, Xxx Xxx shall be the sole manufacture of the Products. Xxx
Xxx shall have the right to contract any third contractor(s) to manufacture the
Products.
1.5 DISCLOSURE OF THE INMEDICA HEMATOCRIT TECHNOLOGY
InMedica shall disclose to Xxx Xxx all aspects of its research and findings with
respect to the InMedica Hematocrit Technology, including any future addition and
enhancement to it by InMedica or its contracted Research Partners. Xxx Xxx shall
have the right to use such information as set forth in this Agreement. Xxx Xxx
shall keep all such information confidential and shall not disclose any of such
information to third parties except to the extent allowed hereunder.
1.6 TECHNOLOGY OWNERSHIP
This development agreement does not constitute the transfer of the ownership of
the InMedica Hematocrit Technology by InMedica to Xxx Xxx. InMedica retains the
ownership of the InMedica Hematocrit Technology, including any future addition
and enhancement to it by InMedica or its contracted Research Partners, with Xxx
Xxx acquiring only the licenses described herein to use the InMedica Hematocrit
Technology. InMedica has the right to use such technology in other applications
if the practice will not in any way create a competition in any potential market
of the Products.
Any future additions, enhancements, or improvements jointly developed or
discovered by InMedica and Xxx Xxx, with or without contracted Research
Partners, for the purpose of developing and manufacturing the Products shall
become the shared property of both parties. No royalty shall be collected by
either party from the other for using such information to develop and
manufacture the Products. Both parties shall not disclose any of such
information to third parties or use any of such information for other purposes
without first obtaining a written approval from the other party except where
contractually obligated by prior licenses attached hereto as Schedule 1.4.
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Xxx Xxx retains the ownership of the development findings that are obtained by
Xxx Xxx alone, with or without contracted research partners. No royalty shall be
collected by Xxx Xxx from InMedica for its use of such information to develop
and manufacture the Products. Xxx Xxx has the right to use such developments in
other applications if the practice will not in any way create a competition in
any potential market of the Products. InMedica shall not disclose any of such
information to third parties or use any of such information for other purposes
without obtaining a written approval or license from Xxx Xxx.
2. MANUFACTURING
2.1 APPROVAL; XXX XXX TO MANUFACTURE
Upon the completion of the final specifications of the Products, Xxx Xxx shall
promptly begin manufacture such approved Products as set forth in this Section
2. All costs of manufacturing shall be the responsibility of Xxx Xxx and the
manufactured Products shall be the property of Xxx Xxx, subject to the
limitations of the Distribution License described below.
2.2 FORECASTS
InMedica shall deliver to Xxx Xxx at least thirty (30) days before the
commencement of manufacturing of a Product, and at least thirty (30) days before
each calendar quarter thereafter, a written estimate of the number of units of
each Product InMedica in good faith believes it will purchase from Xxx Xxx
during such quarter (the "Forecast"). Xxx Xxx shall be obligated to manufacture
and/or to make available from Xxx Xxx'x inventory at least the Forecast number
of Products for delivery to InMedica during such quarter. InMedica shall be
obligated to purchase at least seventy-five percent (75%) of the Forecast number
of Products during such quarter. Xxx Xxx shall use its best efforts to
manufacture and /or to make available from its inventory and deliver to InMedica
such number of Products that InMedica may order in excess of the Forecast
number. The first Forecast shall be included in the product agreement as stated
in Section 3.3 and the following Forecasts shall be reasonably acceptable to Xxx
Xxx.
3. SALE AND DISTRIBUTION
3.1 DISTRIBUTION LICENSE
(a) License. InMedica hereby grants to Xxx Xxx, pursuant to the terms of
this Agreement, an exclusive license to sell and distribute the Products (the
"Distribution License") only within the following geographical areas (the
"License Areas"): Australia, New Zealand and the countries of Asia (including
without limitation, Indonesia, Malaysia and the island countries of the Western
Pacific Rim; but excluding Russia, Turkey and the countries of the Middle East
from Iran and to the west). During the term of this Agreement, Xxx Xxx shall
have the exclusive right to sell and distribute or to further license to other
parties the right to sell and distribute, the Products only in the License
Areas. InMedica shall not grant any license to any third party to sell or
distribute the Products in the License Areas nor shall Xxx Xxx sell or
distribute the Products outside of the License Areas (other than through
InMedica as set forth herein) during the term hereof. InMedica expressly
reserves the exclusive right for itself to sell and distribute, or to further
license to other parties the right to sell and distribute, the Products outside
of the License Areas.
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(b) Royalty. During the term hereof Xxx Xxx shall pay to InMedica a
royalty for each Product sold or distributed within the License Areas pursuant
to the Distribution License. The royalty for the Primary Product shall be 4% of
the net selling price sold per unit. No royalty shall be collected for the
Disposable Product. Net selling price used in this Section 3.1(b) shall be the
amount paid to Xxx Xxx for the Product less any freight, insurance, tariffs and
duties. The royalty for the Secondary Products shall be determined by good-faith
negotiations between the parties after developing but before beginning the
manufacture of each new Secondary Product. Within sixty (60) days following the
end of each calendar quarter, Xxx Xxx shall deliver to InMedica a report listing
the number of sales of each Product during the quarter then ending, and shall at
the same time send payment to InMedica of the royalties due hereunder for such
quarter.
3.2 SUPPLY TO INMEDICA
In the event Xxx Xxx is unable to manufacture enough Products to meet worldwide
demand, Xxx Xxx shall fill orders placed by InMedica first before supplying
Products to other distributors or to itself for distribution and sale. Xxx Xxx
shall manufacture and/or make available from its inventory to InMedica, on a
priority basis, the Products ordered by InMedica pursuant to the Forecasts and
the provisions of Section 2.2.
3.3 PRODUCT COST and PRICING OF PRODUCTS
Xxx Xxx shall sell the Products to InMedica at the prices to be determined in
this Section.
It is recognized by both InMedica and Xxx Xxx (i) that the investment on
manufacturing facilities represent a significant portion of the overall
manufacturing cost, (ii) that, to maintain the competition edge and to meet the
need of different market sectors, it is the intention of both parties to
continuously improve and expand their product line, and (iii) that the product
prices will affect market acceptance and sales volume, and, hence, it may not be
practical to generate profit from some of the initial operations and (iv)
InMedica has made a substantial investment in the Hematocrit Technology over the
past 12 years and is entitled to a fair and reasonable profit margin on its sale
of the Products.
Costs and pricing shall be determined by InMedica and Xxx Xxx together based on
the market strategy, Product costs and reasonable profit margin requirements
shall be reviewed by both parties not less frequently than quarterly. It is the
responsibility of Xxx Xxx to devote its every effort to lower the production
cost and, hence, the product sales prices to InMedica by continuously improving
its production methods, operational efficiency, quality control, and taking
advantage of changing costs of electronic parts and other materials. And it is
the responsibility of InMedica to help Xxx Xxx with its efforts by continuously
conducting necessary market analysis and provide its best, most updated market
and technology information to Xxx Xxx.
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Prior to the mass production of each Product, InMedica and Xxx Xxx shall have a
production agreement as also stated in Section 1.1. Included in the agreement
shall be the Product cost to InMedica agreed upon by both parties. Hereafter,
quarterly, Xxx Xxx shall notify InMedica in writing of the updated new price of
the Products at least thirty (30) days prior to it taking effect. If the price
set for the immediate past quarter proves to have been too high or too low, then
Xxx Xxx shall adjust the price for the next quarter to equalize such
discrepancy.
3.4 PAYMENT
InMedica shall pay to Xxx Xxx the purchase price for the Products as set forth
herein within sixty (60) days of the receipt of such Products for the first year
after the first shipment of the Product. One year after the first shipment of
the Product the InMedica shall pay Xxx Xxx the purchase price of the Products
within thirty (30) days of the receipt to such Products. InMedica shall have the
right to apply any unpaid royalties under Section 3.1(b) to offset payments due
under this Section 3.5.
3.5 MANUFACTURING COST CONTROLS
(a) Competitive Bids. Beginning five (5) years after the date the first
Product is manufactured and sold to InMedica, InMedica shall have the right
annually to present the Product specifications, without disclosure of technology
shared by both parties or solely owned by Xxx Xxx as defined in Section 1.6, to
third parties for the purpose of obtaining bids (the " Competitive Bids.") to
manufacture the Products for sale to InMedica. Such third parties must be
responsible, financially capable, experienced and reasonably likely to be able
to manufacture the Product(s) in the same country or area wherein Xxx Xxx
manufacture the Products, according to the specifications, in the same quantity
and within the same time frame as Xxx Xxx reasonably proposes to manufacture the
Product(s) in the year to come. InMedica shall give Xxx Xxx written notice if a
Competitive Bid shall present an offer to manufacture any Product(s) for less
than ninety percent (90%) of the selling price of the Product(s) as determined
under this Agreement. Such notice shall contain all relevant information to
enable Xxx Xxx to evaluate the basis of the third party's offer. Within thirty
(30) days of receipt of such notice, Xxx Xxx shall give InMedica a written
notice either:
(i) stating the Xxx Xxx is willing to reduce the price to a price not
exceeding 11% of the Competitive Bid Price, in which case such price shall be
effective immediately and shall supersede for one (1) year the provisions
contained in this Agreement with respect to calculating the price of the
relevant Product. At least ninety (90) days prior to the end of each successive
one-year period, Xxx Xxx shall notify InMedica in writing of the price at which
it is willing to sell such Product to InMedica for the next one-year period.
InMedica shall then have the right to seek Competitive Bid again pursuant to the
same procedure as described in Section 3.5(a).
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or
(ii) reasonably describing and justifying the reasons why Xxx Xxx cannot
or is not willing to reduce the price, it being understood that Xxx Xxx is
entitled to a reasonable profit margin, and that the allowed discrepancy between
Xxx Xxx'x price and the Competitive Bid is intended to allow Xxx Xxx to
recapture a reasonable portion of its research and development expenses. If the
reasons given by Xxx Xxx under this clause (ii) of Section 3.5(a) are deemed, in
InMedica's sole discretion, to be unreasonable, then the parties shall submit
this dispute to an arbitrator whose decision thereon shall be final. The
arbitrator shall be a person experienced in manufacturing, agreed by InMedica
and Xxx Xxx. The costs of the arbitration shall be borne equally by both
parties. The purpose of the arbitration shall be to determine whether Xxx Xxx
has taken all reasonable steps to reduce its Product prices to as low as is
possible. The parties shall act in good faith to resolve this dispute as quickly
as possible, with the arbitrator being instructed that a presumption of
unreasonableness is appropriate against a party who is delaying the resolution
of the dispute.
(A) If the arbitrator determines that Xxx Xxx'x price is
unreasonably high, then InMedica shall have the right to move the
manufacture of the relevant Product(s) to the third party making the
relevant Competitive Bid, which right it shall exercise by giving
Xxx Xxx sixty (60) days prior written notice thereof. At the end of
such sixty-day period, (i) the Manufacture License granted to Xxx
Xxx hereunder shall cease to be an exclusive license with respect to
the Product(s) to be manufactured by the third party, (ii) InMedica
shall have no obligation to purchase such Product(s) from Xxx Xxx,
and (iii) nothing herein shall prohibit InMedica from contracting
with the third party for the manufacture and sale of the Product(s).
(B) If the arbitrator determines that Xxx Xxx'x Product pricing is
reasonable, then InMedica shall have no right to move the
manufacture of the relevant Product(s) to the third party pursuant
to this Section 3.5(a).
(b) Audit of Financial Records. InMedica shall have the right, at its
expense, at all reasonable times and from time to time, to review, or engage an
independent auditor to review, the accounting and operational records of Xxx Xxx
to determine the accuracy of the sales under the Distribution License for which
royalties are payable, the accuracy and reasonableness of the operating cost and
production estimates, and to verify actual results as well as other data
relevant to the operation of Xxx Xxx and to the provisions of this Agreement.
Xxx Xxx shall keep and maintain accurate records of its accounting data that
shall reasonably and accurately reflect its operations and shall maintain such
records for at least three (3) years following the close of each relevant
period. Xxx Xxx shall make all such information available to InMedica upon
InMedica's written request either by providing access thereto at Xxx Xxx'x
offices, or by copying all such information and delivering it to InMedica.
Whether to review such information by visiting Xxx Xxx'x Offices or by requiring
the delivery of copies shall be at the election of InMedica. InMedica shall have
the right to terminate this Agreement if Xxx Xxx (i) fails to perform its
obligations under this Section, (ii) provides inaccurate or false records under
this Section, or (iii) provides false or unreasonably inaccurate cost or
production estimates or other information upon which the pricing of the Products
is based.
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3.6 NO OBLIGATION TO PURCHASE
Notwithstanding anything to the contrary contained in this Agreement, nothing
herein shall be construed to require InMedica to purchase any number of Products
beyond the amounts set forth in Section 2.2, or to repay any portion of Xxx
Xxx'x research and development expenses.
3.7 MARKETING
(a) InMedica and Xxx Xxx shall develop marketing and sales materials or
programs to promote the Products. Both parties shall use their best efforts to
market, generate demand for, and sell the Products in the areas as defined in
Section 3.1, provided however, that if, in each party's sole discretion, it is
determines that distributing or selling the Products in any particular country
would be unprofitable or not profitable enough, then the party in question shall
have no obligation to distribute or sell the Products in such country.
(b) Examples of any marketing or promotional materials or programs
developed by InMedica or Xxx Xxx shall be provided to the other party without
charge. Both parties reserve the right to require the other party to change or
stop using such materials if any of the two parties, in its reasonable
discretion, finds the materials to contain inaccurate or misleading information,
to portray any of the parties in an inappropriate manner, or to be otherwise
objectionable. Both parties agree that they shall immediately change or stop
using such materials upon written notice received from the other party.
3.8 ACCEPTANCE OF PRODUCTS
The receipt of any Products by InMedica shall be deemed conditional and not an
acceptance thereof. Acceptance shall be deemed to occur only after InMedica
shall have had a reasonable period (which shall be not less than three (3)
business days) to review the Products to assure conformity with specifications
and that such Products have not been damaged or are functioning. Any
nonconforming, damaged or non-functioning Products may, at InMedica's option, be
returned to Xxx Xxx at Xxx Xxx'x expense, and the price thereof shall be
credited against the purchase price InMedica would otherwise have paid for such
shipment of Products.
3.9 WARRANTIES
Xxx Xxx represents and warrants that each Product shipped shall (i) for the
period of the specified shelf life from the date of delivery to InMedica,
conform to the specifications approved by InMedica, and be free of any defect in
material or workmanship, and (ii) for the useful life of the Product, be free of
any liens, and adverse claims of ownership.
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3.10 INDENIFICATION
Xxx Xxx shall indemnify and hold InMedica harmless from all claims for damages
arising from any third party's use of a Product based on faulty manufacturing of
the Product, unless such claim is determined to be caused by InMedica's own
gross negligence or flawed Product specifications supplied by InMedica. Damages
indemnified hereby shall include, without limitation, all costs of defending and
appealing such claims including attorney fees, court costs, arbitrator and
mediator fees, judgments, awards, penalties, fines, investigation fees, expert
fees, and similar costs.
3.11 PROUDCT LIABILITY INSURANCE
From the date on which it first manufactures a Product hereunder, Xxx Xxx shall
procure and maintain in force at all times until the termination hereof, a
policy of insurance covering product liability claims with coverage in such
commercially reasonable amounts as the parties may mutually agree, but in no
event shall limits of such coverage be less than $2,000,000 per occurrence or
claim. Such policy shall list InMedica as an additional insured and shall
provide that it cannot be terminated without giving InMedica at least thirty
(30) days prior written notice. Xxx Xxx shall deliver a certificate of insurance
for such policy to InMedica prior to delivering the first Product manufacture
hereunder.
4. TERMINATON
This Agreement and the Manufactures License and Distribution License granted
hereunder shall terminate (i) upon the date that is ten (10) years from the date
of the first commercial invoice of the Primary Product sold to InMedica,, (ii)
at InMedica's option, if no Primary Product or Disposable Product as agreed on a
production agreement according to Section 3.3 has been developed, manufactured
and delivered to InMedica within two (2) years from the date of the closing of
the Stock Purchase Agreement,, (iii) at InMedica 's option, if Xxx Xxx is unable
to manufacture or make available out of its inventory for two consecutive
quarters any Product in the quarterly quantities set forth in any Forecast, to
the extent ordered by InMedica up to and including the Forecast number, (iv) at
either InMedica's or Xxx Xxx'x option, if measurements based on InMedica
Hematocrit Technology are not accurate enough to meet the needs of the targeted
applications, (v) at Xxx Xxx'x option, if InMedica fails to make any payment for
Products delivered hereunder within thirty (30) days of the date such payment is
due, (vi) at either party's option, if the other party has materially breached
any provision of this Agreement and such breach has not been cured within thirty
(30) days after written notice thereof has been delivered to the breaching
party, or (vii) upon the mutual agreement of the Parties. Upon the termination
of this Agreement Xxx Xxx shall deliver to InMedica all Product specifications
and other documents describing the development and engineering of the Product
from the InMedica Hematocrit Technology, and shall cease manufacturing all
Product. Xxx Xxx shall have the right to continue to sell and distribute in the
License Areas any Products it still has in inventory for a period of ninety (90)
days following termination. If this Agreement is terminated by a party because
of a breach of the Agreement by the other party, the terminating party's right
to pursue all legal remedies will survive such termination unimpaired.
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5. GENERAL PROVISIONS
5.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to this
Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the transactions
contemplated hereby, including all fees and expenses of agents, representatives,
counsel, and accountants.
5.3 CONDITIONS PRECEDENT
The obligations pursuant to this Agreement of both parties shall be conditioned
upon the closing of the Stock Purchase Agreement as set forth therein..
5.4 NOTICES
All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier, provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if sent
by a nationally recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a party may designate by notice to the other
parties):
InMedica
Xx. Xxxxx Xxxxxx, President
InMedica Development Corporation 000 Xxxxx 000 Xxxx Xxxx Xxxx Xxxx,
Xxxx 00000 U.S.A.
Facsimile No.: (000) 000-0000
Xxx Xxx:
Xx. Xxxxxxx Xxxxx, President
Xxx Xxx Technology Co. Ltd.
Xx. 00, Xx Xxx Xxxx,
Xxx Xx Xxxxx, Xxxxxx Xxxxxx,
Xxxxxx, the Republic of China
Facsimile No.: (00) 000-0000
5.5 JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based on any
right arising out of, this Agreement by Xxx Xxx against InMedica shall be
brought in the courts of the State of Utah, County of Salt Lake, or, if it has
or can acquire jurisdiction, in the United States District Court for the Central
District of Utah, and each of the parties consents to the jurisdiction of such
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courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Any action or
proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement by InMedica against Xxx Xxx shall be brought in the
district court of Tainan, Taiwan, Republic of China, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
5.6 FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such further
information (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the
documents referred to in this Agreement. Both parties agree to use their best
efforts to fulfill their obligations hereunder in timely and efficient manner,
including without limitation, the development and design of the Products and
obtaining the necessary FDA Approvals.
5.7 WAIVER
The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
5.8 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreement between the parties with respect
to its subject matter (including the Proposal of Joint Venture between Buyer and
the Company dated April 27, 2000) and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
5.9 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
Neither party may assign any of its rights under this Agreement without the
prior written consent of the other party. Subject to the preceding sentence,
this Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.
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5.10 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
5.11 SECTION HEADINGS,CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this Agreement.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
5.12 TIME OF ESSENCE
With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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5.14 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. Execution and
delivery of this Agreement by facsimile machine shall be deemed as effective as
delivery of an original, signed document.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
InMedica Development Corporation, a
Utah corporation
By: /s/ Xxxxx Xxxxxx
--------------------
Name: Xxxxx Xxxxxx
Title : President
Xxx Xxx Technology Co., Ltd., a
corporation organized and existing under
the laws of the Republic of China
By: /s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title : President
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title : Vice President
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ATTACHMENTS
Schedule 1.4
1. Wantagh - License and Royalty Agreement
2. Wantagh - Joint Development Agreement
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