EXHIBIT 10.8
OEM PURCHASE AGREEMENT FOR
PRODUCTS, ACCESSORIES, SPARE PARTS,
AND SERVICE AGREEMENTS
This OEM Purchase Agreement is between IMATION ENTERPRISES CORP, a Delaware
corporation, located at 0 Xxxxxxx Xxxxx, Xxxxxx XxXxxxx-0X-00. Xxxxxxx, XX 00000
("Imation"), and IMAGING DIAGNOSTICS SYSTEMS, INC., a Florida corporation
located at 0000 XX 00xx Xxxxx. Xxxxxxxxxx, XX 00000 ("IDS").
BACKGROUND
IDS desires to purchase from Imation and Imation desires to sell to IDS certain
Imation medical diagnostic imaging equipment and products, and related
accessories, spare parts, and service agreements destined for non-exclusive
resale, all in combination with IDS's established medical imaging business,
Imation will grant a non'exclusive license (the "License") permitting IDS to use
any software (the "Imation Software") furnished by Imation to IDS pursuant to
this Agreement. IDS agrees to actively promote sales of the Products in
conjunction with each safe of its own products. Specifically, IDS will train its
sales and marketing force regarding the features, advantages and benefits of the
Products, list the Products in its price pages, and distribute Product sales
literature throughout its sales organization and to its customers.
AGREEMENT
1. PRODUCTS. ACCESSORIES. SPARE PARTS AND SERVICE AGREEMENTS.
1.1 Sale and Purchase. Imation agrees to sell to IDS and IDS agrees to purchase
and pay for such of the Imation products specified in Exhibit A (the
"Products"), related accessories specified in Exhibit B (the "Accessories"),
spare parts specified in Exhibit C (the "Spare Parts") and service agreements
specified In Exhibit D (the "Service Agreements") as IDS may order during the
term of this Agreement.
1.2 Changes. Imation may make any change which does not affect form, fit or
function of the Products, Accessories, Spare Parts and/or Service, Imation may
make any change which affects form. fit or function, but does not affect any
interface hardware or software, by giving IDS sixty (60) days advance written
notice of each change, and one hundred twenty (120) days advance written notice
where IDS must reconfigure its product Any change will apply only to purchase
orders placed by IDS pursuant to Section 3.2 after the effective date of
Imation's notice.
1.3 Discontinuation. Imation may discontinue its production or sale of any
Products, Accessories or Service Agreements at any time during the term of this
Agreement, with at least sixty (60) days advance notice, provided, however, that
Spare Parts and service tools and Service Agreements shall be made available for
at least seven (7) years after the last shipping date of each Product or for
such longer period as may be required by applicable law.
1.4 Compliance. IDS acknowledges that Products, Accessories and Spare Parts
packaging, labeling. Material Safety Data Sheets and product literature have
been produced and prepared in compliance with the laws of the United States.
Canada and Mexico and product standards designed for the North American market.
If Products, Accessories or Spare Parts are sold elsewhere, IDS is responsible
for compliance with all applicable laws, regulations and standards.
1.5 Non-Exclusive, IDS shall not be obligated to purchase all or any set amount
of its requirements from Imation.
PRICES AND DISCOUNTS.
2.1 Product Prices. The suggested list price applicable to each Product is set
forth in Exhibit A imation may increase the prices for Products at any time but
not more frequently than once In each calendar year following sixty (60) day
written notice. Any change will apply only to purchase orders placed by IDS
pursuant to Section 3,2 after the effective date of imation's notice.
2.2 Discounts. The price for each Product (but not any related installation
charges) shall be discounted by a percentage tied to the aggregate number of
laser imagers ordered by IDS from Imation in the prior calendar year Such number
shall be determined by mutual agreement of the parties each December for
implementation on the following January 1. For orders placed prior to the dose
of business on December 31, 1998, the discounts are agreed to be thirty percent
(30%) for each Product Thereafter, the discount percentages shall be determined
as follows:
NUMBER ORDERED IN PRIOR CALENDAR YEAR DISCOUNT PERCENTAGE
1-10 30
11+ 32
2.3 Other Prices. List prices for Accessories are listed In Exhibit B and shall
be discounted by thirty percent (30%) for purchases made hereunder Prices for
Spare Parts are listed in Exhibit C and prices for Service Agreements in Exhibit
D. Imation may change the prices in Exhibits B, C or D at any time on written
notice at feast (i) sixty (60) days for changes to Exhibits B or C and (ii)
thirty (30) days for changes to D. Any change wiH apply only to purchase orders
placed by IDS pursuant to Section 3.2 after the effective date of Imation's
notice.
2.4 Purchases. Outside the United States. The prices set forth In Exhibits A, B
and C apply only to orders placed in the United States or through Imation Export
at 1 Imation Place, Endeavor-1 W-30, Xxxxxxx, XX 00000. Purchases from Imation
subsidiaries are as established by the selling subsidiary.
FORECASTS. ORDERS AND PAYMENT
3.1 Forecasts. During the term of this Agreement, IDS will provide to Imation in
writing and on a quarterly basis, a one (1) year rolling non-binding Itemized
forecast by month of the orders it anticipates placing for Products hereunder.
IDS's initial forecast for Product purchases is attached as Exhibit E.
3.2 Purchase Orders. IDS will order Products, Accessories, Spare Parts and
Service Agreements only by purchase orders submitted to Imation. The parties
will cooperate in developing, at Imation's expense, a site plan to accompany
each Product purchase order IDS may use IDS's standard purchase order or other
purchasing/acknowledgment form. Acceptance of orders placed on IDS's purchasing
forms does not constitute acceptance by Imation of any of the terms and
conditions appearing thereon, except as to identification and quantity of
Products, Accessories, Spare Parts or Service Agreements Involved. All orders
are governed by the provisions of this Agreements
3.3 Delivery. Title and risK of loss will transfer to IDS at F,0,B. Imation's
point of shipment. Imation will plan to ship the forecasted number of Products
and will make reasonable commercial efforts to ship Products, Accessories and
Spare Parts within four (4) weeks from receipt of an order In the event Products
are being allocated, Imation will notify IDS in writing of the allocation status
and provide a fair allocation of Products to IDS. All Products, Accessories and
Spare Parts will be packaged for international shipment Imation will select the
earner unless otherwise specified by IDS. Shipping expenses will be prepaid by
imation and charged to IDS.
3.4 Invoices and Payment. Imation will Invoice IDS for Products, Accessories and
Spare Parts when shipped and for Service Agreements when ordered. IDS will pay
imation within thirty (30) days from the date of Imation's invoice. All payments
will be made in US Dollars, unless otherwise agreed to in writing by Imation.
3.5 Credit Balance. Imation, at its sole discretion, may change or limit the
amount or duration of credit to be allowed IDS. Imation may cancel any orders it
previously had accepted or delay the shipment of an order if IDS fails to meet
the payment schedule or other credit or financial requirements established by
Imation.
4. WARRANTY. LIMITATION OF REMEDIES AND INDEMNIFICATION.
4.1 Seller's Warranty. Imation warrants to IDS that each Product and the Imation
Software will be free from defects In material and manufacture for a period of
one (1) year from the date of installation or fifteen (15) months from the date
of delivery pursuant to Section 3.3. Imation warrants to IDS that Accessories
and Spare Parts will be free from defects in material and manufacture for a
period of ninety (90) days from the date of delivery pursuant to Section 3.3.
Imation will provide IDS with free replacement parts and labor (during normal
business hours) to replace warranty covered items.
4.2 Limitation. THIS WARRANTY IS MADE IN LIEU OP ALL OTHER PRODUCT WARRANTIES,
EXPRESSED AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS,
AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. The express
warranty does not apply to the following: expendable parts, defects or damage
Incurred in transportation to the end user, defects or damage due to accidents,
neglect, misuse, operator error, improper installation or alterations of the
Products, Imation Software, Accessories and Spare Parts, or operation of the
Products. Imation Software Accessories and Spare Parts out of specification.
4.3 Indemnification. Imation shall be responsible for and shall defend,
indemnify and hold harmless IDS from and against any direct losses, expenses and
liabilities to third parties for any and ail claims of personal injuries, death
and/or property damages arising out of the use of Products, imation Software,
Accessories and Spare Parts to the extent caused by the negligence or strict
liability of Imation in the manufacture or design of the Products, Imation
Software, Accessories or Spare Parts delivered hereunder under normal intended
usage and maintenance procedures, recommended In writing by Imation. In
connection with this obligation, it shall be IDS's responsibility that imatton
is promptly notified of any and all claims against it or any of its customers
for any such Injuries and/or property damages alleged to be the result of
defective Products, Imation Software. Accessories, Spare Parts or Service
Support delivered by Imation as well as to investigate jointly whether such
personal injuries and/or property damages are attributable to any part of the
items supplied to IDS under normal intended usage and IDS will use its best
efforts to mitigate such damages.
5. LICENSE GRANT AND PATENT INDEMNITY
5.1 License. Imation hereby grants to IDS a limited, worldwide, non-exclusive,
non-transferable (except as provided in Section 5.1.1). royalty-free license to
use the Imation Software only in conjunction with its use of Products,
Accessories and Spare Parts purchased hereunder.
5.1.1 IDS shall not copy, reproduce, sublicenee, transfer, assign or disclose
the Imation Software to any third party, imation agrees that resale of a
Product, Accessory or Spare Part containing any imatlon Software will not
constitute a violation of the prohibitions contained in the foregoing sentence
and in such case IDS's customer shall have the same license as IDS to use the
Imation Software in conjunction with the use of the Product, Accessory or Spare
Part sold to the customer.
5.1.2 Title to any imation Software shall remain vested in Imation, or in
Imation's licensor from whom imation has obtained marketing rights, at all times
before, during and after the term of the License.
5.1.3 IDS will Itself not attempt to, nor will it allow any third party over
which it has any influence to attempt to, debug, reverse engineer, decompile,
disassemble, decrypt or analyze the Imation Software.
5.2 Patents. imation agrees to indemnify, defend, and hold harmless IDS against
all claims, damages, liabilities and suits, including responsible attorney's
fees, alleging that any Products, imation Software Accessories and Spare Parts
Infringe any United States patent, copyright or other intellectual property,
provided that IDS gives Imation prompt notice and imation is given full control
over the defense and settlement of such claims and disputes and provided further
that the alleged infringement Is not due to modifications or special designs
required by IDS or due to IDS's trade dress or trade name.
6. LIMITATION OF LIABILITY
Except for Imation's warranty obligations stated In Section 4. NEITHER PARTY
WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND. INCLUDING WITHOUT
LIMITATION, DIRECT. INDIRECT. INCIDENTAL. SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR BUSINESS) RESULTING
FROM OR IN ANY WAY RELATED TO PRODUCTS. IMATION SOFTWARE, ACCESSORIES, SPARE
PARTS, SERVICE AGREEMENTS. ANY OF IDS'S PURCHASE ORDERS, OR THIS AGREEMENT This
limitation Includes, but is not limited to, loss of and damage to equipment,
software or stored data. This limitation applies regardless of whether the
damages or other relief are sought based on breach of warranty, breach of
contract, negligence, strict liability in tort or any other legal or equitable
theory.
7. APPROVALS AND REGISTRATIONS
7.1 Products, Accessories and Spare Parts supplied under this Agreement will
have the agency listings and approvals stated in applicable imation product
literature.
7.2 Imation will. at its expense, maintain any required PDA registration, and
assure that the Products, Imation Software, Accessories and Spare Parts meet all
applicable requirements for marketing distribution and use as medical devices in
the United States, Canada and Mexico.
8. TRAINING FOR APPLICATION SPECIALISTS
During the term of this Agreement, Imation will provide, at mutually convenient
times at one of Imation's established training centers, free training for IDS's
application specialists. IDS shall be responsible for all expenses incurred by
its employees other than tuition.
9. CONFIDENTIAL INFORMATION
9.1 Each party may, during the course of this Agreement, have access to or will
have disclosed to it information of the other party which is identified as
confidential including, specifically IDS's forecast as described in Section 3.1,
Each party agrees not to use such information for its own benefit except to
perform this Agreement, to keep such information confidential and not to
disclose to third parties without the other party's prior written consent. Each
party will protect the disclosed information by using the same degree of care,
but no less than a reasonable degree of care, to prevent the unauthorized
disclosure of the Information, as that party uses to protect its own
confidential information of a like nature.
9.2 The foregoing obligations will not apply to Information which:
is or becomes generally known to the general public or is
Independently developed by each other; or
either party can show was known at the time of disclosure; or
either party can show it rightfully learned from a third party
without an obligation of confidence: or
is required to be disclosed by law or pursuant to a court order
following prompt notice to the other party and reasonable
opportunity to participate In the decision to disclose and/or
proceeding leading to the order to disclose.
9.3 Each party agrees to maintain the other party's confidential information as
confidential for a period of three (3) years after the termination or expiration
of this Agreement.
10. TERM AND TERMINATION
10.1 The Initial term of this Agreement will be from the date of execution by
Imation and continue through December 31. 1998. Thereafter, this Agreement will
automatically renew for successive periods of one (1) year. subject to
termination by either party at any time upon thirty (30) days advance written
notice to the other party.
10.2 imation may terminate this Agreement on thirty (30) days written notice to
IDS should IDS acquire any interest in a medical imaging competitor of Imation
or should a medical imaging competitor of imation's acquire any Interest in IDS.
10.3 Either party may terminate this Agreement if the other materially breaches
this Agreement by giving at least thirty (30) days prior written notice and
opportunity to cure.
10.4 Even after termination or expiration, the terms of this Agreement
continue to apply to charges incurred, payments made, events occurring and
obligations arising before the date of termination or expiration.
11. DISPUTE RESOLUTION
11.1 The parties agree to attempt in good faith to resolve any dispute arising
out of or relating to this Agreement promptly by negotiations.
11.1.1 Either party may give the other party written notice of any dispute not
resolved in the normal course of business. Executives of both parties at levels
one step above the project personnel who have previously been involved in the
dispute will meet at a mutually acceptable time and place within ten (10) days
after delivery of the notice, and thereafter as often as they reasonably deem
necessary to exchange relevant information and to attempt to resolve the
dispute.
11.1.2 If the matter has not been resolved by the executives within thirty (30)
days of the notice, or If the parties fail to meet within the ten (10) day
period, the dispute will be referred to the CFO or other senior financial
executive of each party who shall have authority to settle.
11.1.3 If the matter has not been resolved within thirty (30) days from the
referral to the senior financial executives, or if no meeting has taken place
within fifteen (15) days after such referral, either party may initiate
mediation (or, if mutually agreed, arbitration) pursuant to the applicable
procedures established by the National Arbitration Forum, XX Xxx 00000.
Xxxxxxxxxxx, XX 00000, telephone (000) 000-0000.
11.1.4 If the dispute has not been resolved for whatever reason within ninety
(90) days of the initial notice of dispute, either party may pursue such
judicial relief as it deems appropriate,
11.2 The procedures stated in Section 11.1 are the sole and exclusive procedure
for the resolution of disputes between the parties arising out of or relating to
this Agreement, A party, however, may seek a preliminary injunction or other
provisional judicial relief if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo. Despite such action the
parties will continue to participate in good faith in the procedures specified
in this Section 11.
11.3 Each party irrevocably waives any right to a jury trial with respect to any
claims or disputes arising out of or relating to this Agreement or the
negotiation of this Agreement.
11.4 Any questions, claims, disputes or litigation arising from or related to
this Agreement are governed by the law of the state of Minnesota, without regard
to conflicts of law.
12. GENERAL TERMS
12.1 Neither party is liable to the other for damages caused by delays in
delivery or performance due to acts of God or other causes beyond its control.
12.2 The relationship of the parties under this Agreement is that of independent
contractors. Nothing In this Agreement authorizes either party to act for the
other as an agent.
12.3 Neither party may assign any of its rights or delegate or subcontract any
of its duties under this Agreement without first getting the other party's
permission in writing.
12.4 Nothing in this Agreement shall be construed as granting to either party
any rights in any trademarks, wordmarks, service marks or similar intellectual
property of the other. Any use by a party of the other's name, trade or wordmark
for the purposes of this Agreement or any other purpose shall be subject to the
other party's prior, written consent.
12.5 If Imation accepts a purchase order under this Agreement for Products,
Accessories, Spare Parts or Service Agreements to be provided to any state or
federal agency in the United States and if any provisions, representations,
agreements or contract clauses are required, either expressly or by reference or
by operation of law, to be Incorporated in subcontracts for those goods or
services which are issued under IDS's contract with such agency, Imation shall
also comply with such of those provisions, representations, agreements or
contract clauses related to Equal Employment Opportunity, Employment of
Veterans, Employment of the Handicapped, Employment Discrimination because of
Age and Utilization of Oisadvantaged Business Enterprises. Other clauses
required by such agency must be presented to Imation for acceptance In writing
prior to imation being bound thereby.
12.6 This Agreement states the complete Agreement between Imation and IDS on
this subject and replaces any previous understandings, representations or
communications, whether oral or written, regarding the subject matter of this
Agreement. THIS AGREEMENT IS INTENDED BY THE PARTIES TO BE THE FINAL, COMPLETE
AND EXCLUSIVE STATEMENT OF ALL TERMS AND CONDITIONS OF THE AGREEMENT. This
Agreement can be amended only by a writing signed by both parties. No oral
modification is possible. A party's failure to exercise a right in one or many
instances does not waive that right as to any later instance. A course of
dealing or performance does not effect a modification or a waiver unless
ratified in writing by the party to be bound.
12.7 Any notice required to be given under this Agreement shall be hand
delivered or sent by overnight delivery service or by facsimile followed by mail
to the address indicated on the front page of this Agreement and shall be deemed
to be effective on the date first received.
12.6 This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument. The execution of this Agreement may be by actual or
facsimile signature.
12.9 In the event that there is any controversy or claim arising out of or
relating to this Agreement, or to the Interpretation, breach or enforcement
thereof, and any action or proceeding is commenced to enforce the provisions of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs and expenses,
ACCEPTED AND AGREED:
IMATION ENTERPRISES CORP. ("Imation") IMAGING
By: _________________________________ By: __________________
J. Xxxxxxx XxXxxxx Xxxxxxx X. Xxxxxx
General Manager Chief Executive Officer
Date: _______________________________ Date:______________________
Exhibit A - Products and Prices
Exhibit B - Accessories and Prices
Exhibit C - Spare Parts and Prices
Exhibit D - Service Agreements and Prices
Exhibit E - IDS's Initial Forecast
