EXHIBIT 10.55
DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT is entered into as of March 22, 2002 by and between JAMCO Medical
Inc, having its principal offices at 0000 X.XXXXXXXX Xxxxx Xxxxx 0000 XXXXX
XXXXXXX 00000 U.S.A. (hereinafter, referred to either as ""JAMCO"" or
DISTRIBUTOR) and Imaging Diagnostic Systems, Inc., a Manufacturing company whose
principal offices are located at 0000 XX 00xx Xxxxx, Xxxxxxxxxx, XX 00000
represented by its Chief Executive Officer, Xx. Xxxxx X. Xxxxxx with a Telephone
number (000) 000-0000 and fax number (000)000-0000 (hereinafter, referred to
either as "IDSI" or MANUFACTURER).
WITNESSETH
WHEREAS, DISTRIBUTOR desires to market CT Laser Mammography (CTLM(R)),
manufactured by IDSI:
IN CONSIDERATION of the mutual covenants hereinafter set forth, the parties
hereto hereby agree as follows:
1. APPOINTMENT OF DISTRIBUTOR
IDSI desires to utilize the services of DISTRIBUTOR as its exclusive marketing
and distributor resource for the entire Latin American market (the exclusive
territory) as set forth and defined in exhibit A hereto.
1.01 "IDSI" hereby appoints JAMCO Medical Inc. (DISTRIBUTOR) as its
exclusive distributor for its CT Mammography (CTLM(R)), system solely
within the Territory hereinafter specified. Said CT Laser Mammography
(CTLM(R)) and the components and contents thereof, are collectively
referred to as "PRODUCTS".
2. TERRITORY AND MINIMUM SALES REQUIREMENTS
2.01 The geographical area (hereinafter referred to as the "TERRITORY") to
which this AGREEMENT pertains is set forth in the attached Appendix A.
"IDSI" hereby grants DISTRIBUTOR exclusive distribution rights in the
TERRITORY, except that "IDSI" retains the right to make direct sales to
end-users of the PRODUCTS outside the TERRITORY and to sell the
PRODUCTS to customers outside the TERRITORY for installation and use
within the TERRITORY. If "IDSI" completes any such direct sale or sale
outside the TERRITORY for installation within the TERRITORY while this
AGREEMENT is in effect, "IDSI" shall pay to DISTRIBUTOR a commission as
set forth in paragraph 4 of the attached Appendix "A".
3. TERM OF AGREEMENT
3.01 This AGREEMENT becomes effective as of the day and year when it has
been duly executed by "IDSI" and DISTRIBUTOR, (the "effective date").
3.02 This AGREEMENT shall continue in full force and effect for a term of
two (2) years, commencing with the aforesaid effective date, and
thereafter shall be automatically renewable every two years thereafter
so long as Distributor achieves the mutually agreed upon initial
annual sales goal referred to as "SALES GOAL" as set by agreement
between IDSI and DISTRIBUTOR, 30 days prior to the end of each
anniversary of this Agreement and DISTRIBUTOR otherwise being in
compliance with the terms and conditions of this Agreement.
4. DUTIES OF DISTRIBUTOR
In addition to all other duties herein set forth, DISTRIBUTOR shall
have the following material obligations under this AGREEMENT:
1. Phases -due to enormity of exclusive territory it is anticipated
that although sales may occur time to time throughout the
exclusive territory, the efforts of JAMCO will be focused on key
markets to be developed in phases as JAMCO shall determine is
appropriate, with the initial phase being focused on the capitals
of Argentina and Brazil.
a) Initial Phase- DISTRIBUTOR will have 3 months from the
effective date of this Agreement to, establish the financing
in accordance with the standard established practices in the
territories, along with the acceptance from the MANUFACTURER
of such terms, register the product if needed in the territory
in accordance with the laws of the territories, and with the
full assistance of the MANUFACTURER, time which thereafter
JAMCO shall close on a first order.
b) JAMCO will introduce the manufacturer's system in the key
market(s), assist in obtaining needed government approvals,
and generate dealer and end user interest and awareness.
During the first 3 months of the initial phase, manufacturer
shall pay JAMCO the non-accountable sum of $10,000 (Ten
thousand) U.S per month starting with the effective date of
this Agreement to fuel the initial efforts hereunder.
c) Sub-Distributors / Dealers - JAMCO shall enter into Agreements
with both existing and where appropriate new sub-distributors
and in turn their dealers or alternatively establish some or
all of same as affiliates and / or subsidiaries of JAMCO, who
depending on their background, experience and existing
relations may presently represent distributors and / or be
dealers of other lines of medical systems and equipment.
d) Manufacturer at its expense during the term of this Agreement
shall provide JAMCO with a Physician Review Station containing
reference images.
e) Manufacturer's shall at its expense and with the assistance of JAMCO
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i. Provide or furnish the following literature in the language of
the territory into both Spanish and Portuguese bearing the
imprint of JAMCO as well as Manufacturer.
ii. Clinical specialists and physicians fluent in the language of the
territory to demonstrate and / or give seminars on the system and
its technology, including the authoring of papers for publication
in the medical journal of the exclusive territory.
iii. Will obtain space, exhibit and be present at key trade shows and
congresses that are critical to market opening and establishment
of IDSI's name and company in Latin America, in the exclusive
territory.
iv. Coordinate JAMCO participation in RSNA, ACR and major U.S.
congresses and exhibits that attract qualified parties from the
exclusive territory.
v. IDSI will train the Technicians and Physicians at IDSI's premises
or IDSI will train at facility.
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vi. Keep JAMCO advised of all corporate developments financially,
corporately, technologically etc....after IDSI has released the
information to the public.
vii. Coordinate its marketing promotional and developmental plans,
with JAMCO.
viii. Indemnify and hold JAMCO and its distributors and dealers
harmless, as to any liability, fine or penalty, including
attorney's fees arising by reason of: MANUFACTURER'S failure or
inability to perform hereunder, including not delivering Products
as sold in a timely manner; Product Liability and/or Medical
Liability relating to the demonstration, sale and training
regarding MANUFACTURE'S products an any available consequential
damages flowing from any of the foregoing Limited to the cost of
the CTLM(R).
f) JAMCO during the Term of this Agreement shall list what JAMCO's
obligated to: -
i. Provide consulting services in the area of Marketing,
translation, sales, market entry, market pricing etc....
ii. Locate coordinate and establish facilities for financing the
purchase or lease of systems and/or products in the exclusive
territory. MANUFACTURER at no expense to JAMCO shall provide such
financing institutions with such buy-back and remarketing
takeouts as shall be reasonable and customary. JAMCO shall not be
obligated to guarantee or indemnify Purchasers and/or their
financing entities with respect to such financing.
iii. Establish centers of excellence in the territory, which shall
serve as clinical and demonstration sites for future potential
clients within the territory.
iv. Establish clinical and scientific training programs in
coordination with manufacturer's program.
v. Locate and train local clinical specialists for future on site
applications within the territory.
vi. Locate and have trained at the MANUFACTURER's facility an
installation engineer fluent in Spanish Portuguese and English.
vii. Establish a parts supply depot that will facilitate in MRP's
within the territory.
4.01 Solicitation of Orders
DISTRIBUTOR shall extend its best efforts in soliciting orders for and
selling IDSI's CT Laser Mammography (CTLM(R)) for delivery to
customers within the TERRITORY. During the term of this Agreement,
including any renewals, plus 2 years thereafter, Distributor shall not
engage in the manufacture, promotion, and/or sale of any CT Laser
Mammography (CTLM(R)) or any components or contents thereof which
would be competitive with PRODUCTS covered in this AGREEMENT, and
shall not, directly or indirectly, be employed by or become associated
in any capacity with any person, firm or corporation competing with or
setting up to compete with "IDSI" in the manufacture or sale of
similar facilities or components or contents thereof within the
TERRITORY.
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4.02. Prompt Payment
DISTRIBUTOR shall promptly comply with all the terms and conditions of
sale described hereunder, including without limitation, prompt payment
of the price of the PRODUCTS and spare parts for the PRODUCTS sold to
DISTRIBUTOR by "IDSI". Unless otherwise agreed in advance in writing
by "IDSI", payment for all PRODUCTS shall be made by means and on
terms and conditions as more fully set forth in Appendix A. If "IDSI"
grants DISTRIBUTOR open account payment terms for the purchase of any
PRODUCTS or spare parts, DISTRIBUTOR shall make all payments direct to
"IDSI" in accordance with the special payment terms granted. If
DISTRIBUTOR fails to pay "IDSI" within ninety (90) days of the due
date for open account purchases, then this AGREEMENT may be terminated
by "IDSI" and any amounts owed "IDSI" hereunder shall become due and
payable immediately. "IDSI" reserves the right upon the renewal of
this contract to make reasonable changes, modifications, and/or
supplements to payment terms and conditions so as to assure that
DISTRIBUTOR makes prompt payment to "IDSI". In considering any such
changes, "IDSI" shall take into account past payment history and sales
volume within the TERRITORY. "IDSI" shall give at least sixty (60)
days notice of any such changes before the annual renewal date. If
DISTRIBUTOR does not accept such changes in payment terms and
conditions, its sole and exclusive remedy shall be to terminate this
AGREEMENT. All sums then due to "IDSI" shall become immediately due
and payable. CTLM(R) will not ship until IDSI receives cash deposit of
40%, irrevocable letter of credit or lease.
4.03 Advertising, Mailing Lists and Installation Lists
4.03.01
DISTRIBUTOR shall advertise PRODUCTS to such extent, and in such media,
as is reasonably necessary to encourage the sale of PRODUCTS in the
TERRITORY. The cost of such advertising and distribution thereof shall
be the sole expense of the DISTRIBUTOR unless otherwise agreed in
advance in writing by "IDSI
4.03.02
"IDSI" requires DISTRIBUTOR to submit all advertising to "IDSI" for
approval prior to DlSTRlBUTOR's use of the advertising and further,
reserves the right to require DISTRIBUTOR to withdraw or amend any such
materials, which inaccurately describe or misrepresent the PRODUCTS.
4.04 DISTRIBUTOR shall periodically provide "IDSI" with a listing of all
installations of the PRODUCTS within the TERRITORY including current
Software Revision levels to allow "IDSI's" Service and Technical
Support Staff to assist DISTRIBUTOR with technical problems.
4.05 Training of Sales Force and Service Personnel
DISTRIBUTOR hereby represents and warrants that it will establish,
supplement and maintain adequate facilities and personnel in the
TERRITORY to effectively market and support the PRODUCTS and agrees
that, during the term of this AGREEMENT, it will continue to maintain
adequate facilities and personnel necessary to carry out its duties
under this AGREEMENT. DISTRIBUTOR agrees that it shall fully train its
sales personnel with respect to all pertinent aspects of the PRODUCTS
and the obligations and duties of DISTRIBUTOR in accordance with this
AGREEMENT. JAMCO will bring on board an Application Specialist to be
trained by IDSI for the Latin American Region. JAMCO at its expense
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will also provide an Engineer, fluent in Spanish, Portuguese and
English, to be trained by IDSI as well.
4.06 Sales Reports
Thirty (30) days prior to the end of each calendar quarter DISTRIBUTOR
shall provide "IDSI" with a report on the expected sale and
distribution of PRODUCTS and its business activities in promotion and
distribution thereof, together with information on the market
situation in the TERRITORY, including:
(a) Name of active sales prospects,
(b) Government regulations affecting PRODUCTS,
(c) Competitive products and competitor's activities,
(d) Prices at which PRODUCTS and components are sold to end-users,
(e) Commonly experienced component failures and service problems,
(f) Sales forecasts, including product type and expected purchase
price, for the next four (4) calendar quarters,
(g) All available market data for the TERRITORY with regard to
volume of similar products purchased within the territory and
average selling price for same.
4.07 Other Duties of DISTRIBUTOR
4.07.01
DISTRIBUTOR shall at all times maintain sales data on the PRODUCTS,
including price lists, catalogues and technical bulletin files.
4.07.02
DISTRIBUTOR shall accept and service all sales inquiries with respect
to PRODUCTS relating to possible sales within the TERRITORY.
4.07.03
DISTRIBUTOR will conduct all of its activities under the AGREEMENT in
accordance with sound business practices and ethics, in a manner,
which reflects favorably upon "IDSI", the PRODUCTS, and the goodwill
associated therewith.
4.07.04
DISTRIBUTOR and its employees, officers, directors and stockholders
shall not engage in any activities or conduct which are alleged to be
illegal under the laws of the United States and / or the Territory or
which adversely affect or diminish the reputation, character,
morality, integrity, honesty, credibility and / or credit of either
IDSI and / or the Distributor or their employees, officers, directors
and stockholders; or which have an adverse affect on the reputation,
quality, reliability and / or fitness for use of any PRODUCT or
service to be distributed hereunder. A breach of any of the foregoing
shall entitle IDSI to forthwith terminate this agreement for cause.
4.07.05
DISTRIBUTOR shall be responsible to obtain end-user's execution of any
applicable license agreement(s) prior to shipment of order by "IDSI".
4.08 Alteration of PRODUCTS
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DISTRIBUTOR shall not alter PRODUCTS in any way without advance
written consent by "IDSI".
5. PRICES, TERMS AND CONDITIONS OF SALE
5.01 Shipment Terms
"IDSI" shall sell PRODUCTS to DISTRIBUTOR "Ex Works" (available to
DISTRIBUTOR at reconciliation's warehouse in Miami Florida, or any
other possible port or harbor in the USA). It is understood that
alternate shipment terms may be agreed by "IDSI" from time to time if
requested in advance by DISTRIBUTOR for particular orders.
5.02 "IDSI" shall sell PRODUCTS to DISTRIBUTOR at a prenegotiated price.
5.03 "IDSI" may, notwithstanding the above, upon written notice to
DISTRIBUTOR, change the prices. Such change to be effective thirty (30)
days after the date of said notice to DISTRIBUTOR. In the event that
DISTRIBUTOR has bona fide outstanding bids to its customers which would
be affected by the price increase, "IDSI" will honor the previous price
to DISTRIBUTOR for those bids for a period not to exceed one hundred
and twenty (120) days from the date of notice of new prices.
5.04 Additional terms and conditions of the sale shall be as set forth on
"IDSI" 's standard quotation forms, invoices and similar documents, in
effect from time to time, with respect to the PRODUCTS hereunder.
5.05 "IDSI" reserves the right to accept or reject any order submitted by
DISTRIBUTOR. "IDSI" agrees that it will not reject any order that
complies with the prices, terms, and conditions set forth in this
AGREEMENT unless such acceptance is prevented by operation of law and
/ or IDSI contractual obligations of which DISTRIBUTOR has notice.
5.06 All sales made by "IDSI" to DISTRIBUTOR shall be subject to the
provisions of this AGREEMENT, and to the extent not inconsistent
herewith, the DlSTRlBUTOR's shipping and handling instructions. Any
provision of any purchase order placed by DISTRIBUTOR which is
inconsistent herewith or in addition hereto, shall be null and void,
unless accepted by "IDSI" in writing (other than routine
acknowledgment). "IDSI" will not be liable for any penalty clause(s)
from end-users accepted by DISTRIBUTOR unless "IDSI" has agreed to
such clause(s) in writing in advance.
5.07 Where "IDSI" has given DISTRIBUTOR a delivery date for an order,
"IDSI" will not be liable for late delivery due to factors beyond its
reasonable control, which by the exercise of reasonable inquiry it did
not and could not have known when it accepted the order.
5.08 "IDSI" shall retain title to the PRODUCTS or spare parts shipped
against each DlSTRlBUTOR purchase order until payment in full for that
order has been received by "IDSI". Risk of loss for each shipment
shall pass to DISTRIBUTOR upon shipment from "IDSI" RECONCILIATOR in
Miami unless otherwise negotiated in advance prior to shipment. "IDSI"
shall be entitled to retrieve the PRODUCT(S) at its sole discretion if
and when payment of the related invoice is overdue or upon termination
of this AGREEMENT. DISTRIBUTOR shall cooperate fully and
unconditionally by allowing "IDSI" to enter premises and/or facilities
in this regard.
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6. CHANGES IN PRODUCTS
6.01 "IDSI" may, at any time prior to acceptance of any order from
DISTRIBUTOR, either add to, delete, modify or change any of the
PRODUCTS pursuant to any updating, obsolescence, or other change in
PRODUCTS occurring within the ordinary course of "IDSI" business with
or without notice to DISTRIBUTOR.
6.02 "IDSI" agrees to provide training for designated DISTRIBUTOR personnel
at mutually agreed-upon rates and at DlSTRlBUTOR's expense where this
becomes necessary due to changes made to PRODUCTS.
7. OTHER WARRANTIES BY DISTRIBUTOR
7.01 DISTRIBUTOR represents and warrants that there are no outstanding
obligations or agreements, either written, oral or implied,
inconsistent with this AGREEMENT.
8. SALES SUPPORT
8.01 "IDSI" agrees to provide DISTRIBUTOR with adequate quantities of
advertising materials and other sales and promotional materials
currently used by "IDSI" in the marketing of the PRODUCTS in the
International Market. "IDSI" will not be liable for any damages
resulting from claims by DISTRIBUTOR due to lack of PRODUCT
information or other relevant information from "IDSI".
i) MISCELLANEOUS:
i. MANUFACTURER acknowledges JAMCO is and from time to time during
the term of this agreement may be involved in activities
complimentary and /or unrelated to the subject matter of this
agreement so long as such activities are not in direct
competition with the systems of MANUFACTURER within the exclusive
territory.
ii. PRICING: should tie in with compensation. Advertised price shall
always be higher than disclosed dealer net price.
iii. Any system for product shipped to or arriving in the exclusive
territory on any service rendered in the exclusive territory of
manufacturer's systems, products or services relating thereto,
including warranty shall without regard to how it arose or
occurred be deemed a sale by JAMCO for which JAMCO shall be
entitled to full compensation
iv. MANUFACTURER shall provide full warranties, technical assistance,
training, product liability coverage, accessory and parts support
and extended warranty coverage as its obligation and
responsibility to extent JAMCO provides same it shall be fully
compensated by MANUFACTURER.
v. Neither party shall engage in any activity or conduct, which
shall materially interfere with or undermine the efforts off the
other.
9. RELATIONSHIP OF PARTIES
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9.01 INDEPENDENT CONTRACTOR: DISTRIBUTOR is an independent Contractor and
not the agent of MANUFACTURER; and other than as specifically provided
in this Agreement or as mutually agreed in writing by the parties
hereto, neither shall have the right or authority to bind or obligate
the other.
9.02 Nothing herein contained shall be deemed to create any agency, joint
venture or partnership relationship between the parties hereto. It is
understood and agreed that DISTRIBUTOR is not, by this AGREEMENT or
anything herein contained, constituted or appointed the agent or
representative of "IDSI" for any purpose whatsoever, nor shall
anything herein contained be deemed or construed as granting to
DISTRIBUTOR any right or authority to assume or create any obligation
or responsibility, expressed or implied, for, in behalf of, or in the
name of "IDSI", or to bind "IDSI" in any way or manner whatsoever.
DISTRIBUTOR shall do no act or make any statement inconsistent with
this paragraph.
10. ASSIGNMENT OF AGREEMENT
10.01 DISTRIBUTOR shall have no right or power to assign this AGREEMENT, or
any of DlSTRlBUTOR's rights, or delegate the performance of any of its
duties, under the AGREEMENT without the prior written authorization of
"IDSI". Any attempted assignment without the prior written
authorization of "IDSI" shall, at "IDSI's option, immediately
terminate and cancel this AGREEMENT and all rights of DISTRIBUTOR
hereunder. Should "IDSI" elect to terminate this AGREEMENT pursuant to
this Article, DISTRIBUTOR shall remain obligated to render any
services due to end-users of "IDSI" PRODUCTS, and all amounts due to
"IDSI" hereunder shall be immediately due and payable.
10.02 Transfer of a controlling interest in DISTRIBUTOR to a party not in
control at the time of execution of this AGREEMENT shall be deemed an
assignment of this AGREEMENT for purposes of the restrictions set
forth in Article 10.01. Should "IDSI" elect to allow DISTRIBUTOR to
reassign this AGREEMENT it should be done in writing at a mutually
agreed upon Agent within 45 to 60 days prior to said transfer of
assignment.
11. PATENTS, TRADEMARKS, TRADENAME, OWNERSHIP OF DOCUMENTS
11.01 No rights are granted hereunder to DISTRIBUTOR under any of "IDSI" 's
patents or trademarks.
11.02 The DISTRIBUTOR will acquire no rights whatsoever in "IDSI"
trademarks.
11.03 The DISTRIBUTOR will not adopt, use or register "IDSI" 's trademarks
or any marks which are substantially or confusingly similar to "IDSI"
's trademarks.
11.04 The DISTRIBUTOR will not apply or use any other trademarks to, or in
conjunction with, the PRODUCTS.
11.05 The DISTRIBUTOR will not take any other action, which might limit or
impair "IDSI's rights in the trademarks within the Territory or
elsewhere.
11.06 DISTRIBUTOR shall take all steps reasonably necessary to protect
"IDSI" patents and trademarks.
12. GOVERNMENT REGISTRATION OF PRODUCTS
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12.01 If applicable law in DlSTRlBUTOR's TERRITORY requires registration or
listing of any PRODUCTS in order to offer them for sale or to install
them within the TERRITORY, it is agreed that DISTRIBUTOR shall
cooperate and assist "IDSI" in such registration or listing. The costs
of such registration or listing shall be borne exclusively by "IDSI".
In the event applicable law requires such registration or listing to
be issued to the DISTRIBUTOR, as the local entity responsible for the
importation and distribution of the PRODUCTS within the TERRITORY,
then DISTRIBUTOR shall promptly, at DlSTRlBUTOR's expense, transfer
any such registrations and approvals to "IDSI" or to "IDSI" 's
designee, upon termination or expiration of this AGREEMENT.
13. WAIVERS AND AMENDMENTS
13.01 No failure or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial waiver thereof include any other or
further exercise thereof or the exercise of any right, power or
privilege.
13.02 Unless otherwise provided herein, this AGREEMENT may not be changed,
waived, discharged, or terminated orally, but only by a written
document signed by duly authorized officers of the parties hereto.
14. ENTIRE AGREEMENT
14.01 The making, execution and delivery of this AGREEMENT by DISTRIBUTOR
have been induced by no representations, statements, warranties, or
agreements other than those expressed herein.
14.02 This AGREEMENT is the entire agreement between the parties and
supersedes and shall be substituted for each and every agreement with
respect to distribution of "IDSI" products, whether written, oral or
otherwise in effect between DISTRIBUTOR and either "IDSI" or any
"IDSI" subsidiary.
15. APPLICABLE LAWS AND REGULATIONS
15.01 Nothing contained in this AGREEMENT shall be construed to require
either party to do, and DISTRIBUTOR shall not directly or indirectly
do, any act or thing that will or could constitute a violation of the
Export Control laws or other laws and regulations of the United States
of America.
15.02 DISTRIBUTOR shall, at all times, comply strictly with all applicable
laws, regulations and governmental orders of the TERRITORY.
15.03 DISTRIBUTOR will obtain, and will maintain in force throughout the
term of this AGREEMENT, all licenses, approvals and permits required
under the laws of the TERRITORY for the DlSTRlBUTOR's performance of
its obligations under the AGREEMENT.
15.04 Unless explicitly permitted by the Export Administration Regulations
(EAR) of the United States Department of Commerce, or prior written
authorization is given by the Office of Export Licensing, DISTRIBUTOR
will not:
(a) Export or re-export, or re-sell to any end-user either directly
or indirectly, either the PRODUCTS or any export thereof, to
anyone other than the originally-licensed end-user of the
PRODUCT,
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(b) Distribute or otherwise make available either the PRODUCTS, or
any portion thereof, to or for use by or for any military or
police or any restricted government or entity.
15.05 DISTRIBUTOR shall comply with all requirements of the EAR, the United
States Foreign Corrupt Practices Act or any other applicable law or
administrative regulation of the United States Government, as those
laws, regulations and rules are changed from time to time.
16. PRIVATE INFORMATION
16.01 The DISTRIBUTOR shall not disclose or otherwise use, without the prior
written consent of "IDSI", any information that is disclosed by "IDSI"
to the DISTRIBUTOR in confidence, whether such information is
disclosed in writing or orally and regardless of whether it is clearly
marked as confidential, except that the DISTRIBUTOR may, if required
by any applicable law, regulation or governmental order in the
TERRITORY, provide certain information regarding the PRODUCTS to
competent government authorities in order to secure all required
product approvals and registrations for the PRODUCTS, so long as IDSI
has been previously notified by DISTRIBUTOR.
16.02 All designs, renderings, schematics, elevations, site plans,
architectural plans and specifications, mechanical and electrical
plans and specifications developed and / or provided or arising under
this Agreement shall be deemed proprietary to and the sole property of
IDSI and shall not be reproduced or reused by DISTRIBUTOR, its
customers or any unrelated third parties for any purpose, other than
the purpose for which it was originally intended.
16.03 The obligations of this Article 16 shall survive the termination of
this AGREEMENT, regardless of the reason for termination.
17. FORCE MAJEURE
17.01 In the event that either party hereto shall be rendered wholly or
partly unable to carry out its obligations under this AGREEMENT by
reason of causes beyond its control, including but not limited, to,
fire, flood, explosion, action of the elements, acts of God,
accidents, epidemics, strikes, lockouts, or other labor trouble or
shortage, inability to obtain or shortage of material, equipment or
transportation, insurrections, riots or other civil commotion, war,
enemy action, acts, demands or requirements of the governments in any
state or by other causes which it could not reasonably be expected to
avoid, then the performance of the obligations of either party or both
as they are affected by such causes shall be excused during the
continuance of any inability so caused but such inability shall as far
as possible be remedied with all dispatch. MANUFACTURER at its expense
shall obtain political (credit) risk insurance, should MANUFACTURER
directly finance the sale.. In no event, shall DISTRIBUTOR be excused
from the duty to pay all amounts due "IDSI" for the purchase of
PRODUCTS and parts hereunder, even though an event of force majeure
prevents DISTRIBUTOR from actually making such payment, unless
otherwise insured.
17.02 In the event that DISTRIBUTOR is prevented from performing substantial
portions of its obligations under this AGREEMENT for a period of
ninety (90) days or more by an event of force majeure, then "IDSI"
reserves the right to terminate this AGREEMENT, upon sixty (60) days
advance written notice to DISTRIBUTOR.
18. TERMINATION
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18.01 This AGREEMENT may be terminated by either party upon sixty (60) days
advance written notice in the event of the occurrence of any of the
following defaults by the other party, if such default has not been
cured prior to the end of the thirty (30) day notice period:
(a) Such other party's voluntary or involuntary bankruptcy or
insolvency,
(b) Such other party's making an assignment for the benefit of
creditors,
(c) A petition has been filed against such other party under a
bankruptcy law, any other law for relief of debtors, or other law
similar in purpose or effect, the effect of which is to cause
such other party to have its business effectively discontinued,
(d) The liquidation of such other party,
(e) Failure by such other party to pay its obligations hereunder when
due,
(f) Any violation or suspected violation by such other party of the
applicable laws, regulations and governmental orders of the
United States of America or the TERRITORY,
(g) Any violation or suspected violation of the trademark(s),
copyright(s), proprietary data, intellectual property right(s)
or software license(s) pursuant to the PRODUCTS hereunder,
(h) any disclosure or unauthorized use of confidential information
provided hereunder,
(i) Failure by such other party to comply with any material
obligation hereunder.
19. DUTIES OF PARTIES UPON TERMINATION
19.01 Upon termination of this AGREEMENT each party shall perform all
obligations incurred prior to the effective date of such termination,
except that "IDSI" shall have no obligation to fill pending purchase
orders if the AGREEMENT is terminated due to an event of default on
the part of DISTRIBUTOR.
19.02 All amounts due "IDSI" hereunder shall be immediately due and payable.
19.03 "IDSI" shall have the option to repurchase all PRODUCTS, or any
portion thereof, owned by DISTRIBUTOR at the effective date of
termination, excluding only those PRODUCTS needed to fill orders
received by DISTRIBUTOR prior to the date of notice of termination,
and at prices not to exceed the purchase price paid by DISTRIBUTOR to
"IDSI" for such products and if not purchased, DISTRIBUTOR shall be
free to sell same for any price obtainable deducting the negative
difference from the price it owes MANUFACTURER.
19.04 "IDSI" shall not be liable to the DISTRIBUTOR for damages of any kind
resulting from, or caused by, said termination including, but not
limited to, termination damages, damages related to losses through
commitments on obligations or leases, loss of investment, loss of
present or prospective profits, inability to meet obligations, or any
other causes or reasons whatsoever.
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19.05 All confidential documents and materials that contain or embody any of
"IDSI" 's confidential information shall be returned by DISTRIBUTOR to
"IDSI", at DlSTRlBUTOR's expense, immediately upon termination of the
AGREEMENT.
20. NOTICES
20.01 Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been effectively
given only if written and either when delivered to an officer of the
other party hereto at such party's address set forth above or at such
other address as shall hereafter be designated in writing by such
party, or when sent to such address by registered mail, postpaid, or
when transmitted by telex, telegraph or facsimile to the other party's
address set forth above. Either party may change its address by giving
notice to the other party. When a notice is given by any other means
it shall be effective only upon actual receipt by an officer of the
party hereto for which it is intended.
21. GOVERNING LAW
21.01 Except as altered or expanded by this AGREEMENT, the laws of the
United States and the State of Florida, shall govern in all respects
the validity, interpretation, construction and enforcement of this
AGREEMENT. Any dispute arising out of or in connection with this
AGREEMENT shall be decided by binding arbitration in Miami, Florida,
in accordance with the rules and under the auspices of the American
Arbitration Association then in effect. Any arbitration award issued
thereunder shall be final and binding upon the parties, and may be
enforced in any court of competent jurisdiction. The American
Arbitration Association shall be advised that DISTRIBUTOR knowingly
and voluntarily waives any law of any country, state or city,
inconsistent with this Article. The prevailing party in any dispute
shall be entitled to collect reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have signed this AGREEMENT.
Imaging Diagnostic Systems, Inc. JAMCO Medical Inc.
-------------------------------- --------------
MANUFACTURER DISTRIBUTOR
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx-Xxxx Xxxxxx
------------------- --------------------
Xxxxx X. Xxxxxx Xxxx-Xxxx Xxxxxx
CEO / Chairman of the Board President / CEO
Date: 3/22/02 Date: 3/22/02
12
"Appendix A"
1. GEOGRAPHICAL AREA:
The geographical area designated is
>> All of Latin America (Central & South America), including the Caribbean.
2. SERVICES TO BE PERFORMED:
Promote and solicit orders for the Company's CT Laser Mammography (CTLM(R))
manufactured and/or sold by "IDSI": (the "Products") within the
territories.
Procure sales contracts in the prescribed form from customers in the
Territories for at least that number of Products as are agreed by the
parties to be the sales goal for 2002-2004. The sales goals for the
2002-2004 periods are as follows:
>> 3 months after the signature of this agreement JAMCO shall provide a
detailed market analysis and information regarding the yearly business
prospect.
Distributor will set the in country final selling price.
In addition to Distributor promoting and / or selling the Products and
services of Appointing Party, Distributor should also be responsible for
assisting Appointing Party in:
1. Providing in-territory data and / or documentation to assist
Appointing Party.
2. Assist Buyer in obtaining financing.
3. Provide training to Buyer.
4. Respond to customer inquiries.
5. Act as liaison between IDSI and Buyer for
a. Customs clearance
b. Inland transport
c. Storage
d. Security
e. Warranty Service.
6. Provide assistance in coordinating all local matters; if requested.
Promptly notify the DISTRIBUTOR of any inquiry about the Products that the
Company may receive from customers. For each customer desiring to order
Products, complete and transmit to the Company purchase documentation in
the prescribed form duly executed by the customer. No order will be deemed
accepted until the Company verifies the order and communicates its
acceptance to the customer. The Company may accept or reject any
documentation or purchase order at its discretion. In no event will
DISTRIBUTOR accept an order or execute agreements on the Company's behalf.
Any attempt to do so will be void.
3. INITIAL TERM: TWO YEARS FROM THE EFFECTIVE DATE
4. SALES GOAL: First order to be placed within ninety (90) from the effective
date of this Agreement. Three additional systems to be sold within first
year.
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5. DISTRIBUTOR COMMISSION:
The parties acknowledge that MANUFACTURE'S list prices are for the U.S.
sales and do not include many of the costs/expenses that relate to foreign
sales, which are the subject of the Agreement. Accordingly, DISTRIBUTOR for
each country of the exclusive territory will establish a "DISTRIBUTOR LIST
PRICE" that DISTRIBUTOR will quote to the customer. The MANUFACTURER will
upon collecting the DISTRIBUTOR quoted price remit to DISTRIBUTOR the total
difference (the "difference") between the Dealer Net ex-works established
in Appendix A., paragraph 4(J) of this Agreement and the DISTRIBUTOR quoted
price insofar as MANUFACTURER is concerned. DISTRIBUTOR will be responsible
for all freight, insurance, customs, duty and commissions expenses without
regard to whether DISTRIBUTOR or its customer is paying same. DISTRIBUTOR
shall not be obligated to account to MANUFACTURER regarding the disposition
of the "difference."
j) COMPENSATION:
Manufacturer shall sell said system to JAMCO at a pre-agreed Master
Distributor net of (US Established List Price - a minimum discount of
25% In addition to the first three monthly non-accountable expense
allowance payable by manufacturer to JAMCO irrespective to each system,
product or service sold, or lease within the exclusive territory after
the effective date, MANUFACTURER shall pay, JAMCO, either
o A 12% of the sales prices CIF point of installation, if "IDSI"
completes any such direct sale or sale outside the TERRITORY for
installation within the TERRITORY when "IDSI" makes direct sales
to end-users of the PRODUCTS outside the TERRITORY and sells the
PRODUCTS to customers outside the TERRITORY for installation and
use within the TERRITORY.
o or the commission of Selling Price (-) minus dealer net cost in
event of a lease,
From time to time JAMCO shall request MANUFACTURER to lower its
pre-established Dealer Net Price to accommodate a certain preferential
pricing for first in-country unit to help promote market penetration.
JAMCO shall resell such equipment at such price and upon such terms, as
it shall deem appropriate.
Imaging Diagnostic Systems, Inc. JAMCO Medical Inc.
-------------------------------- --------------
MANUFACTURER DISTRIBUTOR
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx-Xxxx Xxxxxx
------------------- --------------------
Xxxxx X. Xxxxxx Xxxx-Xxxx Xxxxxx
CEO / Chairman of the Board President / CEO
Date: 3/22/02 Date: 3/22/02
14
