Exhibit 10.29
DISTRIBUTION AND FIELD SERVICE AGREEMENT
THIS DISTRIBUTION AND FIELD SERVICE AGREEMENT, effective as of December 1,
1998 (hereinafter "Agreement") is made by and between Intelligent Medical
Imaging, Inc., a Florida corporation with its principal offices at 0000
Xxxxxxxxx Xxxx. Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 (hereinafter "IMI") and
Xxxxxxx Xxxxxxx Inc., a Delaware corporation having its principal office at 0000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000 (hereinafter "BCI").
PREMISES
WHEREAS, IMI has designed, developed and intends to manufacture an
automated, stand-alone instrument for making and staining blood slides, such
instrument being designated by IMI as its Hematology Slide Master (HSM)
Instrument ; and
WHEREAS, IMI desires to sell its HSM Instrument and related software and
hardware accessories (hereinafter collectively referred to as "HSM Products")
through non-exclusive distributors that are capable of both selling and
servicing such instruments and accessories; and
WHEREAS, BCI and its Affiliates, as defined herein, are in the business of
manufacturing, selling and servicing hematology and related instruments; and
WHEREAS, IMI desires to have BCI and its Affiliates sell and service its
HSM Products in accordance with the terms and conditions provided herein, and
BCI and its Affiliates are willing to provide such services to IMI;
NOW THEREFORE, in consideration of the promises and mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby mutually acknowledged, the parties
hereto agree as follows:
GENERAL
It is understood that this Agreement inures to the benefit of and is
binding upon the respective Parties to this Agreement and their respective
Affiliates. An "Affiliate" of a Party refers to a corporation or other legal
entity which, directly or indirectly, controls, is controlled by or is under
common control with, that Party. A corporation or other entity shall be regarded
as in control of another corporation or entity if it owns or directly or
indirectly controls more than fifty percent (50%) of the voting stock or other
ownership interest of the other corporation or entity, or if it possesses,
directly or indirectly, the power to cause the direction of the management and
policies of the corporation or other entity. Thus, hereinafter, when the rights
or obligations of either Party, IMI or BCI, are referenced, such rights or
obligations can be exercised or fulfilled either (a) directly by the Party
referenced, or (b) indirectly through the respective Affiliates of such Party.
ARTICLE I
APPOINTMENT OF DISTRIBUTOR
1.1 Appointment. As of the effective date hereof and continuing throughout
the term of this Agreement, IMI hereby appoints BCI as a non-exclusive
distributor of its HSM Products and grants BCI the right to market and sell the
HSM Products in all countries of the world. IMI reserves the right to sell its
HSM Products in all countries, either directly, or through other distributors,
dealers, representatives or agents.
1.2 Relationship. It is understood that BCI is acting hereunder as an
independent contractor and, hence, is not subject to the direct control of IMI.
Except as provided in this Agreement, neither party has the authority to legally
bind the other party for any purpose.
ARTICLE II
DISTRIBUTION OF HSM PRODUCTS
2.1 Distribution. IMI will sell HSM Products to BCI and BCI will resell
such Products to BCI's end users or to BCI's sub-dealers, or third party
distributors utilized by BCI in the normal course of business and upon terms and
conditions consistent with this Agreement.
2.2 Inventory Requirements. IMI will maintain an inventory of HSM Products
sufficient to fill forecasted orders from BCI, as provided by Section 3.4 below,
and to actively promote firm orders for HSM Products.
2.3 Consumables. BCI agrees to recommend the purchase of HSM reagents and
other consumables (the "HSM Consumables") exclusively from IMI for the HSM
product.
ARTICLE III
ACCEPTANCE/PRICING/FORECASTING/ORDERING/
BILLING/INSPECTING
3.0 Acceptance. The rights and obligations of the parties to this agreement
are subject to the acceptance of the HSM Product by BCI. Acceptance of the HSM
Product by BCI for the purposes of this agreement will be based on compliance
with HSM System Specifications as determined by BCI test results. HSM System
Specifications are shown in Exhibit A.
3.1 Product Pricing. Pursuant to a Purchase Order Contract (defined in
Section 3.4 below), BCI shall purchase each HSM Product at the pricing set forth
in the attached Exhibit B. Such pricing is subject to semi-annual price
adjustments, not to exceed the annual U.S. inflation rate for the preceding
year. The price of HSM Products shall be reduced to the Projected Price in
Exhibit B by July 1, 1999, unless there have been design enhancements to the HSM
Product, in which case the price of the design-enhanced HSM Product will be
adjusted upwards to reflect such design enhancement and the Projected Price as
reflected on Exhibit B will not be applicable. IMI will provide BCI most favored
pricing for the HSM Product, such that the price paid by BCI to IMI for each HSM
Product is equal to the lowest price at which IMI sells the HSM Product to any
other Distributor at comparable volume levels. BCI has the right to audit(s) to
verify such favored pricing.
3.2 Spare Parts. IMI agrees to offer functionally equivalent replacement
and repair parts/components for sale to BCI, throughout the period during which
the HSM Products are manufactured by IMI and for five (5) years after the HSM
Instrument has been discontinued or this Agreement is terminated, whichever is
later. Spare parts will be supplied by IMI to BCI at IMI's standard
manufacturing cost (material, labor and overhead, plus 20% profit). IMI will
maintain a three months supply of the spare parts, based on the previous six
months sales.
3.3 Demonstrator Units. At such time as BCI has purchased five (5) HSM
Instruments in accordance with the price schedule set forth in Exhibit B, BCI
shall be entitled to purchase three Demonstrator HSM Instruments at a price of
$23,500.00 each. Thereafter, for every five (5) HSM Instruments purchased in
accordance with the price schedule set forth in Exhibit B, BCI is entitled to
purchase one (1) additional Demonstrator HSM Instrument at a price of (i)
$23,500.00 per instrument if purchased prior to July 1, 1999, or (ii) $18,000.00
per instrument if purchased on or after July 1, 1999, provided, however, that
BCI shall be entitled to purchase no more than five (5) Demonstrator HSM
Instruments pursuant to this Section 3.3. The number of Demonstrator instruments
which may be purchased by BCI from IMI will be reviewed within the first six (6)
months of this agreement. If mutually agreed to by both IMI and BCI, BCI shall
be entitled to purchase additional Demonstrator HSM instruments at a price of
(i) $23,500.00 per instrument if purchased prior to July 1, 1999, or (ii)
$18,000.00 per instrument if purchased on or after July 1, 1999.
3.3.1 If BCI sells or leases any Demonstrator HSM
Instrument(s) to end users, such Instrument(s) shall no longer be
considered Demonstrator HSM Instrument(s), and the balance of the
instrument price will be paid promptly by BCI to IMI based on the
highest discounted pricing (25%) in Exhibit B.
3.3.2. If IMI fails to provide to BCI a Multi-Rack Loader by
April 1, 1999, BCI will be entitled to return any and all Demonstrator
HSM Instruments to IMI that have not been sold and receive a refund
equal to the purchase price, provided there is no extraordinary damage,
in which case the cost of repair will be deducted. A Multi-Rack Loader
is an apparatus by which up to twelve (12) BCI GENoS/STKS cassettes at
a time can be presented to an HSM instrument for processing. The
requirements for the Multi-Rack Loader will be as mutually-agreed to by
BCI and IMI.
3.4 Forecasting. On the fifteenth day of each month during the term of this
Agreement, BCI shall deliver to IMI a rolling forecast of BCI's monthly
requirements for HSM Instruments for the twelve-month period commencing on the
first day of the following month. See example forecast in Exhibit C. BCI's
forecasted requirements for the first three months of each twelve-month period
shall constitute a firm purchase order (hereinafter referred to as a "Firm
Purchase Order") (i.e., will constitute a firm BCI obligation to purchase the
forecasted requirements for such three-month period), provided, however, that
IMI's obligation to deliver BCI's forecasted requirements under a Firm Purchase
Order from time to time during the term of this Agreement (the "Minimum Delivery
Requirement") shall be limited as follows, (a) for the initial Firm Purchase
Order under this Agreement IMI's Minimum Delivery Requirement shall be limited
to the lower of BCI's forecasted requirements under such initial Firm Purchase
Order or ten (10) HSM Instruments and (b) for each Firm Purchase Order
thereafter IMI's Minimum Delivery Requirement shall be limited to the lower of
(i) BCI's forecasted requirements under such Firm Purchase Order, (ii) 130% of
IMI's Minimum Delivery Requirement for the preceding three-month period, or
(iii) ten (10) HSM Instruments in the event IMI is unable to factor or otherwise
borrow against the Firm Purchase Order an amount equal to 75% of the total
Direct Material Costs and Direct Labor Costs required to fulfill such Firm
Purchase Order.
3.5 Ordering. A Purchase Order Contract refers to the documentation of
individual purchases of HSM Product from IMI by BCI pursuant to this Agreement.
The Purchase Order Contract consists of two parts, (a) a purchase order issued
by BCI to IMI, which describes the HSM Product, quantity, price, delivery date,
and "ship to" address and (b) an acknowledgment of the purchase order, issued by
IMI to BCI within ten (10) working days after receiving the purchase order.
Additional or different terms and conditions appearing on the face or reverse
side of any BCI purchase order shall become part of the terms and conditions of
the purchase, provided that this Agreement shall supersede any inconsistent
terms and conditions in the purchase order. No additional or different terms and
conditions appearing on the face or reverse side of IMI's invoice or
acknowledgment shall become part of such purchase order without BCI's approval.
3.6 Billing. Billing will be generated by IMI at the time of shipment of
HSM Product by IMI. Payment by BCI to IMI will be due no later than sixty (60)
days after the invoice date. However, if either BCI or IMI wishes to change
billing and payment dates for any reason, the prior written agreement of both
parties is necessary.
3.7 Inspecting. HSM Products ordered by BCI pursuant to this Agreement
shall be subject to inspection by BCI after delivery, to determine conformity
with Product Specifications and BCI's purchase order. BCI shall have the right
to reject non-conforming Products by written notice to IMI of such
non-conformity within thirty (30) working days following the arrival of the
Product at the delivery destination. BCI shall not waive any warranty rights
under this Agreement by inspecting or failing to inspect the Product.
ARTICLE IV
WARRANTY; INDEMNITY; LIABILITY
4.1 Product Warranty. IMI warrants that all HSM Products sold to BCI will
be free from defects in materials and workmanship at the time of the
installation and for one (1) year thereafter, or until the expiration of fifteen
(15) months from the date of delivery of the HSM Product to BCI or its designee,
whichever occurs first. This warranty shall inure to the benefit of BCI's
customers, third party distributors and sub-dealers. To the extent permitted by
law or contractual obligations, IMI assigns any warranties and indemnities it
receives from IMI's component vendors to BCI. BCI, BCI's sub-dealers, or
third-party distributors of BCI may convey the foregoing IMI warranties and
indemnities to the HSM Product end users. BCI shall in any event convey the
warranty disclaimers set forth in Section 4.3 and 4.4 to the HSM Product end
users and to any BCI third party distributor or sub-dealer.
4.2 Warranty Action. If a defect in a HSM Product or component thereof is
found and IMI receives notice from BCI within thirty days of BCI's actual
knowledge of such defect, IMI shall at its cost, cure such defect either by
repairing the defective HSM Product or component thereof at IMI's facility or,
at its option, by sending a replacement part.
4.3 No Other Warranties. The Warranty and the remedy provided for in
Sections 4.1 and 4.2 above supersede and are in lieu of all other warranties or
conditions, expressed or implied, and all other obligations or liabilities of
IMI, including any warranty of merchantability and fitness for a particular
purpose. BCI is not authorized to make any warranties on behalf of or in the
name of IMI or to assume for IMI any other liability in connection with the HSM
Products. IMI makes no representations or warranties as to performance of
products or as to service to BCI or to any other person, except as set forth
above.
4.4 Limitation on Liability. With regard to the sale or use of any HSM
Products, in no event shall IMI be liable for any indirect, incidental,
consequential, or special damages, including lost profits, sustained or incurred
in connection with the products, or caused by defects in the products,
regardless of the form of action, whether in contract, tort (including, without
limitation, negligence and strict liability), or otherwise, and whether or not
such damages were unforeseen.
4.5 Reciprocal Limitation on Liability. BCI and IMI may be liable to each
other for damages resulting from a breach of the obligations of such party under
this Agreement including reasonable attorney fees and costs incurred in
connection with litigation involving a dispute under this Agreement; provided
that in no event will BCI or IMI be liable to the other for any indirect,
incidental consequential or special damages, including lost profits, as a result
of a breach of such obligations.
4.6 Liability to Third Party. If a HSM Product causes injury to person or
property and such injury results from design or manufacture of the HSM Product,
IMI shall assume the responsibility for such injury, unless BCI has manufactured
the defective HSM Product pursuant to Section 6.1 hereof, in which case BCI
shall be responsible for such injury. IMI will purchase and maintain product
liability insurance sufficient to cover potential compensation for injuries to
life, health or damage to the property of a third party in the minimum amount of
$5,000,000 per incident. IMI will provide BCI with a certificate of insurance
evidencing such coverage and naming BCI as additional insured party as its
interest may appear. If injury to person or property results from the
intentional or negligent acts or omissions of BCI or its employees, contractors,
agents or representatives, BCI shall assume the responsibility for such injury.
BCI will purchase and maintain appropriate liability insurance relating to its
activities in product support, servicing, training, installation, maintenance,
sales and other services, sufficient to cover potential compensation for
injuries to life, health or damage to the property of a third party. BCI will
provide IMI with a certificate of insurance evidencing such coverage and naming
IMI as additional insured party as its interest may appear.
ARTICLE V
TERM AND TERMINATION
5.1 Term. The term of this Agreement shall be for a period of ten (10)
years from the date hereof and shall be renewed automatically thereafter for
consecutive one (1) year renewal terms unless and until this Agreement is
terminated pursuant to this Article V.
5.2 Termination for Cause. Any material breach of this Agreement by either
party shall constitute a default if not cured within 30 days after written
notice of such breach is given. Upon default by one party, then the
non-defaulting party can terminate this Agreement on ten (10) days written
notice, during which time the defaulting party can cure the outstanding breach.
BCI and IMI agree that for purposes of this Agreement a "Material Breach" shall
be defined as a breach of any obligation under Section 3.1, 3.3, 3.4, 3.6, 4.1,
4.2, 6.1, 8.1, 8.2, 11.2, 11.4 or 11.7 hereof.
5.3 Unilateral Termination. After the initial ten-year term, either party
can unilaterally terminate this Agreement at any time without cause upon at
least 180 days written notice to the other party.
5.4 Effect of Termination or Expiration. IMI and BCI agree that in the
event of any termination or expiration of this Agreement they will continue to
cooperate in good faith and work together during the transition period following
such termination or expiration for the purpose of providing continuing service
and ensuring customer satisfaction among all the end users. Within sixty (60)
days after termination of this Agreement by BCI pursuant to Section 5.2 hereof,
IMI agrees to repurchase any and all inventory, including spare parts,
demonstrator instruments, and rental instruments, at a price equal to the book
value of such items, which book value shall include appropriate reserves which
reflect excess and obsolete inventory items in accordance with generally
accepted accounting principles.
ARTICLE VI
FAILURE TO MANUFACTURE
6.1 Failure to Manufacture. If for any reason other than a Force Majeur
Event as defined in Section 12.8 hereof, IMI is unable or unwilling, for two (2)
consecutive three-month periods during the term of this Agreement, to
manufacture or supply a quantity of HSM Instruments equal to the IMI Minimum
Delivery Requirement for each such three-month period, BCI may elect, in a
written notice to IMI, to manufacture the HSM Instrument itself, or to have
another party manufacture the HSM Instrument for BCI's sale and distribution.
IMI shall be entitled to a royalty for BCI's right to use IMI's proprietary
technology as reflected in Exhibit D and to manufacture the HSM Instrument or
any derivative instrument in an amount equal to $10,000 per HSM Instrument
manufactured by BCI pursuant to this Section 6.1 until the earlier to occur of
(i) BCI's manufacture of or purchase from IMI of 400 HSM Instruments or (ii) the
expiration of five (5) years since the date on which BCI manufactured the first
HSM Instrument pursuant to this Section 6.1. In the event BCI elects to
manufacture the HSM Instrument pursuant to Section 6.1, BCI will be credited
with an amount equal to its start-up costs, but not to exceed $1,000,000, which
shall be applied against 75% of each royalty payment due IMI hereunder, until
such time as BCI's start-up costs or the $1,000,000, as the case may be, is
recovered. In the event BCI elects to manufacture the HSM Instrument pursuant to
this Section 6.1, IMI will provide BCI with detailed manufacturing drawings,
specifications and other information necessary for BCI to manufacture the HSM
Products or have the HSM Products manufactured by a third party; provided, that
such third party shall agree to be bound by the confidentiality provisions
contained herein. Notwithstanding the above, Section 2.3 hereof shall remain in
full force and effect provided IMI is in a position to manufacture and supply
the HSM Consumables.
6.2 Vaulted Documents. In order to further protect IMI's and BCI's interest
in maintaining a reliable supply in case of a "Force Majeur Event" or IMI's
failure or unwillingness to manufacture the HSM Products, IMI agrees to secure a
set of documentation at an agreed upon location by both IMI and BCI required to
manufacture the HSM Products. Release of this documentation will require mutual
agreement and authorization by an officer of both IMI and BCI. In the event that
IMI and BCI do not mutually agree to release these documents, it will be deemed
an immediate dispute and handled pursuant to Article 12.9.
ARTICLE VII
SHIPPING/RISK OF LOSS/GOVERNMENT COMPLIANCE
7.1 Shipping. Shipments of HSM Product to BCI or BCI's sub-dealers,
third-party distributors or end users in the United States will be made F.O.B.
Palm Beach Gardens, Florida, USA (or another shipping point as determined from
time to time by BCI). If BCI requests IMI to arrange the transportation for any
HSM Product to a BCI customer outside the U.S.A., IMI shall ship HSM Product in
accordance with the instructions in BCI's purchase order and IMI shall be
reimbursed for any shipping fees or costs incurred in shipping the HSM Product.
7.2 Product Ownership and Risk of Loss. Product ownership and risk of loss
transfers from IMI to BCI upon delivery to the common carrier at the IMI
Shipping Point.
7.3 Governmental Compliance. Except as provided in Article VIII, BCI shall
be responsible for current and ongoing familiarity and compliance with
governmental laws, regulations and other requirements applicable to the
marketing, sale, shipment and support of the HSM Product.
ARTICLE VIII
INSTALLATION, TRAINING, CUSTOMER SUPPORT AND FIELD SERVICE
FOR UNITED STATES AND CANADIAN CUSTOMERS
8.1 Installation and Training. BCI is responsible for the installation of
the HSM Products at BCI customer's site in accordance with IMI's specifications,
for customer training on the proper use of the HSM Products, and for obtaining
acceptance of HSM Products by the customer. As consideration for performing
these services, BCI shall be entitled to the fees set forth in Exhibit E from
time to time. When requested, BCI will provide installation services to those
IMI customers who have purchased HSM Products directly from IMI and shall be
compensated for such services in accordance with the fee schedule set forth in
Exhibit E from time to time.
8.2 Customer Support and Field Service. IMI will be primarily responsible
for U.S. and Canadian customer support. IMI Customer Support will receive
customer warranty service and maintenance service telephone calls and will
provide first line customer intervention for the HSM Products. In the event that
resolution cannot be obtained through telephone contact, IMI will request
assistance from BCI's field service specialists. BCI's field service specialists
will obtain service call numbers upon dispatch and will be required to close out
service calls with IMI Customer Support upon completion. IMI's Technical Support
staff will provide telephone support to BCI's field service representatives. As
consideration for these services BCI shall be entitled to the fees set forth in
Exhibit E from time to time.
8.3 Replacement Parts. IMI will provide a sufficient car stock to BCI field
service specialists to enable these specialists to perform the warranty service
and maintenance service at a customer site. The initial car stock will be
determined by IMI and will be consigned to BCI. This car stock will be
replenished by IMI as necessary to promptly serve the customers. There will be
no charge to BCI for replacement parts for field service.
8.4 Training. IMI Training Services shall provide BCI field service
specialists with the technical training required to perform field servicing of
the HSM Products. The training sessions performed pursuant to this Section 8.4
as well as the training sessions to be performed pursuant to Section 9.3 hereof
(the "Training Sessions") shall be conducted at IMI's Palm Beach Gardens,
Florida facility or at such other location as IMI shall designate from time to
time. While IMI will not be compensated for its time and expense incurred in
conducting the Training Sessions, BCI shall be responsible for all
transportation, meals, lodging and other expenses incurred by BCI or its
employees in connection with BCI employees' or representatives' attendance at
the Training Sessions. In the event BCI requests that the Training Sessions be
conducted at a location other than IMI's Palm Beach Gardens, Florida facility,
IMI will use its best efforts to accommodate such request, provided, however,
that if IMI does accommodate such request, BCI shall reimburse IMI for all
transportation, meals, lodging and other expenses incurred by IMI as a result of
conducting the Training Session at such other location.
8.5 Billing. Billing will be generated by BCI at the time service is
performed. Payment will be due no later than sixty (60) days after the invoice
date. However, if either BCI or IMI wishes to change billing and payment dates
for any reason, the prior written agreement of both parties is necessary.
8.6 Adjustment of Exhibit E Installation and Service Fee Schedule. During
the first 18 months following BCI's initial sale of an HSM Instrument which was
purchased from IMI pursuant to this Agreement, the fee schedule for services
performed by BCI pursuant to this Article VIII, as reflected on Exhibit E, shall
be adjusted by mutual agreement of BCI and IMI at each six-month interval during
this 18-month period.
ARTICLE IX
INSTALLATION, TRAINING, CUSTOMER SUPPORT AND FIELD SERVICE
FOR FOREIGN CUSTOMERS (NOT INCLUDING CANADA)
9.1 Installation, Training, Support, and Field Services. BCI shall be
responsible for providing HSM Product customers outside the United States with
installation service, customer training, customer support service and field
service. BCI shall xxxx the customer directly for any such services outside the
warranty period and, during the warranty period, shall be entitled to the fees
set forth in Exhibit E. BCI shall be entitled to provide maintenance service
agreements to any Product purchaser located outside the United States.
9.2 Replacement Parts. IMI will provide a sufficient depo stock for BCI
field service specialists to enable these specialists to perform the warranty
service and maintenance service at a customer site. The initial depo stock will
be recommended by IMI and will be purchased by BCI. This depo stock will be
replenished by IMI as necessary to promptly serve the customers. There will be
no charge to BCI for replacement of warranty parts if BCI has accepted IMI's
recommendation with respect to such parts.
9.3 Training. IMI Training Services shall provide BCI field service
specialists with the technical training required to perform field servicing of
the HSM Products. The parties' responsibilities with regard to the expenses
incurred in connection with the training performed by IMI pursuant to this
Section 9.3 shall be as set forth in Section 8.4 hereof.
9.4 Billing. Billing will be generated by BCI at the time service is
performed. Payment will be due no later than sixty (60) days after the invoice
date. However, if either BCI or IMI wishes to change billing and payment dates
for any reason, the prior written agreement of both parties is necessary.
9.5 Adjustment of Exhibit E Installation and Service Fee Schedule. During
the first 18 months following BCI's initial sale of an HSM Instrument which was
purchased from IMI pursuant to this Agreement, the fee schedule for services
performed by BCI pursuant to this Article IX, as reflected on Exhibit E, shall
be adjusted by mutual agreement of BCI and IMI at each six-month interval during
this 18-month period.
ARTICLE X
PRODUCT QUALITY ASSURANCE
10.1 FDA and FY 2000 Compliance Representation. Each HSM System component
is hereby guaranteed by IMI as of the date of shipment or delivery, to be, on
such date, not adulterated or misbranded within the meaning of the Federal Food,
Drug and Cosmetic Act, and not an article which may not, under the provisions of
Section 510(k) or 515 of the act, be introduced into interstate commerce and
shall be FY 2000 compliant.
10.2 Product Quality Control and Management. IMI will manufacture, manage
quality, and ship HSM Products according to GMPs and ISO 9000 practices for
medical devices in effect at the time the Product was manufactured. In addition,
IMI's manufacturing facility shall be equipped with a quality assurance system,
product standard documentation, product quality standard documentation,
documented work procedure instruction, work operations record file, and other
procedures required under GMP and other applicable regulations. Responsibility
for FDA compliance applicable is with IMI.
10.3 Product Recall and its Costs. If there is a concern for possible loss
or injury to the life, health and property of a third party due to a cause
attributable to a HSM Product, as determined by mutual agreement of IMI and BCI,
IMI will promptly notify the FDA and all BCI customers. IMI will be responsible
for the expense of such action unless the recall is necessary because of actions
or omissions of BCI, its sub-dealers, or third party distributors.
ARTICLE XI
INTELLECTUAL PROPERTY
11.1 Intellectual Property Rights. IMI represents and warrants to BCI that
IMI owns or has licensed all intellectual property rights relating to the
making, using, selling and servicing of all HSM Product, including, without
limitation the hardware design, including electrical and mechanical, software,
ideas, drawings, source code, data, patents pending, patentable rights or
inventions. During the term of this Agreement, BCI can gain access to certain
aspects of IMI's HSM intellectual property rights, as deemed necessary by IMI,
solely for the purpose of enabling BCI to provide Field Service.
11.2 Trademark License. IMI hereby grants to BCI the right to use IMI's
trade name and trademark in connection with the sale of HSM Products hereunder.
11.3 Private Label. If requested by BCI, IMI will arrange for BCI's name,
logo and/or trademark to be placed on the HSM Product purchased by BCI. BCI
agrees that IMI retains the right to place the words "by IMI" or similar
language and the IMI logo and/or trademark on the Product.
11.4 Advertising Materials. BCI will not publish, cause to be published, or
distribute any advertising or other materials which describe or pertain to the
Product, or refer to IMI unless the materials are furnished or approved by IMI.
IMI's logo, name and trademarks will be prominently displayed on all advertising
materials and on the Product itself.
11.5 Protection of Intellectual Property Rights. If a third party violates
IMI's intellectual property rights, IMI must resolve the problem at its own cost
and expense.
11.6 Infringement Claim by a Third Party. IMI shall protect, defend and
indemnify BCI, at IMI's sole cost and expense, from and against any claim, suit
or other action by a third party alleging that IMI products subject to the
Agreement have infringed such third party's intellectual property right(s),
except that BCI shall bear proportionate responsibility for any infringement
caused by actions or omissions of BCI. If BCI is prevented from selling a HSM
Product because of such alleged infringement, IMI shall either:
a. Replace or modify such Product so that it becomes non-infringing;
b. Procure for BCI the right to continue using such Product; or
c. Permit BCI to terminate this Agreement.
11.7 Protection of Proprietary Information. Both BCI and IMI will protect
the confidentiality of product information, technical know-how and other
information concerning corporate business management which is obtained through
this Agreement and through the negotiations leading to this Agreement with the
same degree that is used to protect their own similar confidential information.
For a period of five (5) years from the date of disclosure, neither party will
share any such proprietary information with any third party. It is expressly
understood by both parties that this Agreement of confidentiality shall not
apply to:
a. information which, at time of disclosure, was already in the public
domain; or
b. information which, at the time of disclosure, was rightfully
possessed by recipient, as evidenced by written records of recipient; or
c. information which, after disclosure, becomes part of the public
domain through no act or omission on the part of recipient; or
d. information which, after disclosure, was rightfully acquired by
recipient, either by way of its own independent development, or by
acquiring it from others who did not obtain it under any pledge of secrecy
to the disclosing party.
ARTICLE XII
MISCELLANEOUS
12.1 Notices. Any notices required or permitted by this Agreement or given
in connection herewith, shall be in writing and shall be made by certified mail
return receipt requested or by overnight carrier. Notices sent in such manner
shall be deemed as received on the next business day after mailing. Notices
shall be addressed as follows:
If to BCI:
Attention: Office of the President
Xxxxxxx Corporation
00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
If to IMI:
Attention: Office of the President
Intelligent Medical Imaging, Inc.
0000 Xxxxxxxxx XXXX
Xxxx xxxxx Xxxxxxx, Xxxxxxx 00000
12.2 Waiver. No waiver of any right or remedy with respect to any
occurrence or event on one occasion, will be deemed a waiver of such right or
remedy with respect to such an occurrence or event on any other occasion.
12.3 Prior Agreements. This Agreement contains the entire understanding of
the parties and cancels all prior agreements, oral or written, related to the
subject matter hereof. This Agreement may not be modified except by an
instrument in writing, executed by both parties.
12.4 Severability. If any provision of this agreement is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
12.5 Transfer or Assignment. This Agreement, including all of its rights
and obligations, in total or in part, shall not be transferred or assigned to a
third party without previous written consent by the non-assigning party, which
shall not be unreasonably withheld. Consent will not be required for an
assignment or transfer of this Agreement as part of the transfer of all or
substantially all of a party's assets to a third party.
12.6 Controlling Law. All questions concerning the validity and operation
of this Agreement and the performance of the obligations imposed upon the
parties under this Agreement will be governed by the laws of the State of
Florida.
12.7 Compliance with Laws. The parties hereto shall comply with all
applicable federal, state, county and local laws in their respective performance
hereunder.
12.8 Force Majeur. If either BCI or IMI fails to perform its responsibility
or must delay completion of duties and obligations by reason of any event beyond
its reasonable control, including an Act of God, embargo, hostilities,
governmental action or inaction, blockage, riot, revolution, insurrection,
accidents, strikes, sabotage or other labor trouble, fire, flood, earthquake,
difficulty of communication or transport, inability to manufacture or procure
from third-party sources or shortage of HSM Instrument, HSM Products or other
materials or equipment, or any other similar causes, but excluding a hostile
takeover of its respective assets by a third party (a "Force Majeur Event"), it
will not be held liable for the incomplete work or delay, nor will the party be
found in violation of this Agreement. If any such Force Majeur Event shall
continue in such a manner as to make impossible performance by either party for
a period of more than three (3) months in any consecutive six-month period,
either party may terminate this Agreement upon written notification to the other
party.
12.9 Arbitration. In the event of any dispute relating to this Agreement,
BCI and IMI shall meet promptly to discuss the matter in good faith. Any dispute
that cannot be resolved in the above fashion within thirty (30) days after the
dispute was raised, shall be submitted to binding arbitration before a panel of
three (3) arbitrators, one of whom shall be chosen by BCI, another of whom shall
be selected by IMI, and the third of whom shall be chosen by the two arbitrators
already selected and all of whom shall possess sufficient business acumen and
experience as determined by mutual agreement of BCI and IMI. The panel shall
convene in Miami, Florida and shall observe the Commercial Arbitration Rules of
the American Arbitration Association then in effect. The decision of the panel
shall be binding and may be enforced by any court having competent jurisdiction
thereof. The parties hereby agree that jurisdiction for enforcement of any
decision of the arbitration panel shall lie in the Circuit Court for Palm Beach
County or the U.S. District Court for the Southern District, in the event the
dispute qualifies for federal jurisdiction.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first set forth above.
XXXXXXX XXXXXXX, INC.
By:/s/ Xxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxx
-------------------------------------- ---------------------------
Witness
Title: President December 15, 1998
---------------------------------- ---------------------------
Date
INTELLIGENT MEDICAL IMAGING, INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxx
-------------------------------------- ---------------------------
Witness
Title: President December 18, 1998
----------------------------------- ---------------------------
Date
Exhibit A
HSM SYSTEM SPECIFICATIONS
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Exhibit B
HSM PRICING SCHEDULE
[GRAPHIC OMITTED][GRAPHIC OMITTED]
500
500
