Common use of Distribution Terms Clause in Contracts

Distribution Terms. a. EPMD shall have, and Biosense hereby grants to EPMD, the right to distribute (and to perform any required installation of) the Interface Kit throughout the world. EPMD shall have the sole and exclusive right to determine the price charged for the Interface Kit. EPMD shall have the right to distribute the Interface Kit through distributors and sub-distributors, provided, with respect to any country, such distributors or sub-distributors shall not include third parties that sell in such country mapping systems competitive with Biosense mapping systems such as Medtronic (LocaLisa) and St. Jude (EnSite and NavX). Distributors or sub-distributors that distribute the Boston Scientific (RPM) system are acceptable. The terms of any agreement concerning the distribution of the Interface Kit will be between the End User and EPMD or its distributor or sub-distributor and shall not create any contractual obligations between Biosense and the End User. EPMD shall have the sole right to set the terms of the agreement it reaches with End Users. EPMD may distribute the Interface Kit to End Users, subsidiaries, and distributors only and may not delegate, sublicense, assign or otherwise sell its right to distribute the Interface Kit to any other person or entity without the written consent of Biosense. EPMD shall be responsible for the development, assembly, packaging and maintenance of the Interface Kit. EPMD shall sell a minimum of 15 Interface Kits per year. b. The parties understand that this Agreement affects only the distribution of the Interface Kit and the components thereof and does not create or bestow any distribution or other rights with respect to the WorkMate System, Biosense Module or the CARTO™ XP System. EPMD will be the party responsible for the distribution of its WorkMate System, including any related software, and Biosense will be the party responsible for the distribution its Biosense Module and CARTO™ XP System, including any related software. This Agreement in no way affects each Party’s right to determine the price and other terms reached with their respective customers concerning the distribution of their respective systems and modules. c. Biosense will provide to EPMD the Software Script in Object Code, including any revisions, upgrades or updates, under the license described in Section 3.a. below, for distribution with the EPMD Module. Biosense warrants to EPMD the reasonable, commercial performance of the Software Script in accordance with the specifications set forth in Appendix A for twelve months from the first commercial sale of the EMPD Module by EPMD or a distributor or sub-distributor to an End User with the exclusive remedy for any breach of the warranty being repair or replacement of the Software Script at Biosense’s discretion. BIOSENSE DISCLAIMS ANY AND ALL OTHER WARRANTIES, IMPLIED OR EXPRESS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL BIOSENSE’S LIABILITY INCLUDE ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF BIOSENSE HAS KNOWLEDGE OF THE POTENTIAL LOSS OR DAMAGE. d. If the CARTO™ XP System of an End User lacks necessary hardware (i.e. Ethernet card in the CARTO™ XP computer) beyond the Interface Kit, Biosense, at its own expense, shall provide and install the hardware in the End User’s CARTO™ XP System. e. Biosense shall have the right to sell the Interface Hardware and the Connecting Cables to End Users during post sales service calls. EPMD shall use commercially reasonable efforts to sell such cables to Biosense at its cost + 30%, or to arrange for Biosense to purchase such cables directly from EPMD’ supplier of such cables at EPMD’ negotiated price.