EXHIBIT 10.29
DISTRIBUTOR AGREEMENT
This Agreement (this "Agreement") made this 17 day of SEPTEMBER, 2003,
by and between Stereotaxis, Inc., a Delaware corporation ("Stereotaxis") having
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇, ▇▇▇▇▇
▇▇▇, and [AB Medica], a INCORPORATED COMPANY organized under the laws of ITALY
having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (▇▇)
("▇▇▇▇▇▇▇▇▇▇▇"). Stereotaxis and Distributor are sometimes hereinafter referred
to individually as a "Party" and collectively as the "Parties."
I. Appointment.
A. Subject to all the terms and conditions of this Agreement,
Stereotaxis hereby appoints Distributor, and Distributor
accepts such appointment, as its distributor within the
Territory (as defined below) for resale, for use only in the
Territory, of those particular products and services (the
"Products") described in SCHEDULE ONE attached hereto.
Notwithstanding the foregoing, Products shall not include any
products or services that are subject to distribution
alliances or agreements with major manufacturers of imaging or
interventional products including, without limitation, those
products or services which are subject to the agreement dated
May 7, 2002 between Stereotaxis and Biosense ▇▇▇▇▇▇▇, Inc. The
list of Products may be enlarged or diminished in respect of
the provisions of Section V.E. at any time and from time to
time during the term of this Agreement, but only by written
notice from an authorized representative of Stereotaxis.
B. Stereotaxis and Distributor acknowledge and agree that the
foregoing appointment is exclusive, provided that Distributor
both (i) at all times and continuously achieves at least one
hundred percent (100%) of the sales quota (the "Sales Quota")
as set forth below in Section I.C. for the years ending
December 31, 2003 and December 31, 2004 and in each and every
annual Sales Quota Agreement (as defined below) between the
Parties, and (ii) is not at any time in breach of any of its
obligations under this Agreement, then Stereotaxis shall not
appoint any other distributor for distribution of the
Products, nor shall Stereotaxis itself distribute the
Products, in the Territory during the term hereof. The
preceding sentence contains additional, and not exclusive,
remedies available to Stereotaxis in the event that
Distributor breaches this Agreement. Notwithstanding the
foregoing, Stereotaxis shall be entitled to appoint other
distributors within or for the Territory for any of its
products not specified in SCHEDULE ONE, including products
identical to the Products except for the brand name, during
the term hereof, or to sell such products itself in the
Territory.
C. For the year ending December 31, 2003, the Sales Quota shall
equal [***] ordered and installed. For the year ending
December 31, 2004, the Sales Quota shall equal
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
[***] It shall be a mutual goal of the Parties that each NIOBE
System placed by Distributor hereunder shall be utilized by
Distributor's customers for an average of five procedures per
week by 12 months following installation, and any NIOBE System
which does not reach such level of customer utilization shall
not be counted toward Distributor achieving any Sales Quotas
hereunder.
II. Territory. "Territory" shall mean Italy and the following
[cantons/regions] in Switzerland, which comprise the Italian speaking
geographic region in Switzerland: [Ticino]. [DISTRIBUTOR TO CONFIRM
AND/OR COMPLETE WITH ADDITIONAL REFERENCES.]
III. Certain Covenants of Distributor. Distributor agrees during the term of
this Agreement, and at its own cost:
A. In order to ensure patient safety, not to use or permit others
to use the NIOBE System with any disposable devices, software
or other accessories except those provided by or approved in
writing by Stereotaxis or with any fluoroscopy system other
than the Siemens ▇▇▇▇▇ digital fluoroscopy system that has
been integrated by Stereotaxis and Siemens to allow use with
the NIOBE System or any other fluoroscopy system approved in
writing by Stereotaxis. Distributor further agrees that it
will not, or permit others to, modify the NIOBE System or any
of the devices or software provided by Stereotaxis for use
with the system;
B. To use its best efforts to sell, advertise and otherwise
promote the sale and use of the Products throughout the
Territory, to maintain a representative, and to fulfill such
additional goals as it may agree upon with Stereotaxis;
C. To maintain an adequate sales and service staff, as well as
adequate facilities;
D. To use its best efforts to assist end users in acquiring
replacement of defective parts, through Stereotaxis or an
approved vendor of Stereotaxis;
E. To appoint and supervise such persons as may be necessary to
provide adequate sales throughout the Territory and instruct
them as to appropriate methods of sales, advertisement,
demonstration and promotion of the Products;
F. To prepare and transmit to Stereotaxis regular, timely,
accurate and complete reports and other information pertinent
to the sale of the Products and semi-annual, annual and other
statements of its financial condition, all in form and
substance satisfactory to Stereotaxis. Such information shall
include (i) a quarterly non-binding forecast of Products to be
purchased by Distributor (which shall include projected NIOBE
System and disposable sales) from Stereotaxis during the
following year (on a quarterly basis) and (ii) a list of
customers and potential customers of Distributor, including
information describing the contacts with such potential
customer and the status of the discussions, in reasonable
detail;
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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G. To pay and perform in a timely and full manner all obligations
owing to Stereotaxis at any time. Stereotaxis reserves the
right to charge, and Distributor agrees to pay, a finance
charge in respect of any past due obligation or indebtedness
of 3 months libor $ + spread 4 points on a yearly basis,
subject to the maximum amount permitted under Delaware law;
H. To comply with any and all Stereotaxis instructions regarding
the recall of the Products. In the event Stereotaxis instructs
Distributor to recall the Products, Stereotaxis shall
reimburse Distributor for direct costs incurred by Distributor
in connection with such recall, except those direct costs that
Stereotaxis determines, in its reasonable discretion, are
outside the scope of the acts required by Distributor to
effect the recall. Notwithstanding the foregoing, Distributor
shall reimburse Stereotaxis for all costs and expenses of or
related to the recall incurred by Stereotaxis if the recall
arises in whole or in part from an act or omission of
Distributor;
I. Beginning on January 1, 2005, and annually thereafter, but in
no event later than January 30th of each calendar year, to
mutually agree in good faith with Stereotaxis the targeted
sales quota for such calendar year (a "Targeted Sales Quota
Agreement"), on reasonable commercial terms and substantially
in the form attached hereto as SCHEDULE TWO, or in such other
form as Stereotaxis may from time to time prescribe. The
Targeted Sales Quota Agreements may be amended from time to
time by the mutual written consent of the Parties;
J. Not to distribute, sell or solicit the sale of the Products
outside of the Territory, or for use outside of the Territory,
or to any Distributor within the Territory which Distributor
has reason to believe intends to use, distribute or resell any
of the Products outside of the Territory;
K. To pay from its own funds and without reimbursement from
Stereotaxis all direct selling, marketing, translation and
advertising expenses, costs of all promotional expenses and
all general and administrative expenses incurred in connection
with the discharge of its duties hereunder;
L. To promptly notify Stereotaxis of any complaints from
customers regarding the Products and to cooperate with
Stereotaxis to administer and resolve any such complaints;
M. To protect the proprietary rights of Stereotaxis as specified
in this Agreement and agrees to notify Distributor's employees
of its obligations specified and enforce their compliance
therewith; and
N. To promptly notify Stereotaxis of any infringement of the
proprietary rights of Stereotaxis that come to Stereotaxis'
attention, and to cooperate with Stereotaxis without charge,
in any action by Stereotaxis to investigate or remedy any such
infringement or said rights.
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IV. Certain Covenants of Stereotaxis.
A. Stereotaxis agrees to provide initial training for all sales,
marketing and service employees of Distributor, who are
employees of the Distributor at the time of execution of this
Agreement and who will sell and/or service the Products (the
"Initial Training"). Such training shall consist of two
sessions, one of which shall relate to the sales and marketing
of the Products and one of which shall relate to the servicing
of the Products. Distributor shall require its personnel
performing functions covered by any such training course to
attend such course. The costs of travel and related expenses
shall be borne by the Party incurring such travel. The Parties
agree that such training shall be provided at locations and
with methods that minimize the total cost of travel and
location expense. Upon completion of the Initial Training and
other than as provided in Section IV.B., Distributor agrees to
be responsible for the training of all of its sales, marketing
and service employees, including the training of any new
employees.
B. Distributor shall appoint a marketing or training coordinator
in order to supervise the training, including the Initial
Training, of such personnel. In connection with any new
advancements in technology related to the Products,
Stereotaxis agrees to provide additional training to the
marketing or training coordinator selected by the Distributor.
Distributor shall require its marketing or training
coordinator to attend such training. The costs of travel and
related expenses of such training shall be borne by the Party
incurring such travel. The Parties agree that such training
shall be provided at locations and with methods that minimize
the total cost of travel and location expense.
C. Stereotaxis agrees to provide, or cause to be provided,
clinical applications support to the customer for the [***]
NIOBE Systems sold by Distributor until the Distributor
sells its [***] NIOBE System. Upon the sale by the Distributor
of its third NIOBE System, Stereotaxis will cease providing
clinical applications support to the customers for any of the
NIOBE Systems sold by the Distributor and Distributor agrees
to become solely responsible for providing such clinical
applications support to such customers for all NIOBE Systems
sold by the Distributor. Distributor represents and warrants
to Stereotaxis that Distributor will establish and maintain an
adequate Stereotaxis trained technically competent staff to
provide all required service and support to Distributor's
customers. This representation is a material inducement for
Stereotaxis to enter into and continue this Agreement.
D. Stereotaxis shall have the right to subcontract to Siemens AG
or a designated affiliate thereof any services to be performed
by Stereotaxis in connection with any NIOBE Systems sold
hereunder by Distributor.
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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V. Sales and Terms.
A. Products will initially be sold to Distributor at such prices
and terms as set forth on SCHEDULE THREE attached hereto.
Thereafter, in November of each year during the term hereof,
Stereotaxis shall establish the prices for the Products, which
shall be equal to [***] below the net sales price in the US
(exclusive of shipping and installation charges). Such prices
shall be effective for purchase orders made by the Distributor
in the following calendar year, provided that any Products so
ordered are shipped within nine months of such order;
otherwise the effective price for Products shipped more than
nine months after the date of the purchase order shall be the
then-prevailing pricing in effect for such Products.
Distributor shall submit a written purchase order in
substantially the form provided to Distributor by Stereotaxis
from time to time, for each of the Products sold hereunder,
which shall be subject to the terms and conditions in this
Agreement.
B. Distributor shall be responsible for and shall defray all
costs and expenses pertaining to the importation of the
Products into the Territory (including all costs associated
with shipping and installation) and shall pay all taxes,
duties, fees and charges, including all value added taxes,
related to the importation of the Products into the Territory
and the conclusion and fulfillment of this Agreement (other
than as provided in Section V.G.).
C. Sales shall be governed only by this Agreement and
Stereotaxis' standard terms and conditions for the Products in
effect at the time of shipment. A current form of Stereotaxis'
standard terms and conditions is attached hereto as SCHEDULE
FOUR and is hereby incorporated by reference into this
Agreement. Resales by the Distributor shall also be made
subject to Stereotaxis' standard terms and conditions. The
terms and conditions of this Agreement take precedence over
all purchase orders, acknowledgment forms and other documents
between the Parties relating to the Products. The provisions
of this Section shall survive termination, for whatever
reason, of this Agreement.
D. Stereotaxis will endeavor to make the Products available as
ordered, but reserves the right to allocate its available
Products as it may determine in its sole and absolute
discretion, without thereby incurring any liability to
Distributor or otherwise provided that the delivery of the
ordered Products is not unreasonably delayed and that
Stereotaxis, upon written request of the Distributor, is able
to indicate an estimated date of delivery and respects such
date of delivery. Stereotaxis also reserves the right to add a
service charge, or alternatively to refuse orders for Products
for less than minimum dollar values or less than standard
quantities as established by Stereotaxis from time to time.
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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E. Stereotaxis reserves the right from time to time in its sole
and absolute discretion, without thereby incurring any
liability to Distributor or otherwise, to discontinue or to
limit its production of any Product, to alter the design or
construction of any Product, and to add new and additional
Products. In case Stereotaxis decides to discontinue or limit
the Production of any product, then Stereotaxis will need to
give the Distributor a sixty (60) day written notice, and will
be bound to deliver Distributor any Product ordered prior to
the decision to discontinue or limit the production or during
the sixty (60) day notice period in order to limit potential
liabilities of Distributor toward its Customers.
F. Distributor agrees not to sell (i) as Stereotaxis products any
merchandise or accessories that have not been made, approved
in writing, or supplied by Stereotaxis or (ii) any merchandise
or accessories for use with or incorporation onto or into the
Products that, in Stereotaxis' sole and absolute discretion,
adversely affect the operation or safety of the Products.
G. Stereotaxis shall be responsible for using all reasonable
commercial efforts to obtain the necessary regulatory approval
for the Products from the European Union and shall be
responsible for all costs and expenses associated therewith.
Distributor and Stereotaxis agree to cooperate with each other
in order to obtain such approval.
H. Distributor agrees to comply with all laws and regulations of
the Territory pertaining to the importation, distribution,
sale and marketing of the Product in the Territory and agrees
to be responsible for obtaining all necessary regulatory
approvals in the Territory (other than as provided in Section
V.G.) and agrees to be responsible for all costs and expenses
associated therewith. Stereotaxis and Distributor agree to
cooperate with each other in order to comply with such laws
and regulations. Without limiting the generality of the
foregoing, Distributor agrees not to make any incorrect or
false claims regarding the features, operations or marketing
of any Product(s); not to make any incorrect or false claims
regarding the features, operations or marketing of any
Product(s); not to employ deceptive, illegal or unethical
practices in marketing the Product(s); and to represent
Stereotaxis in a way that will protect and enhance the
reputation of Stereotaxis.
I. The ownership of the legal and beneficial title to, the risk
of loss and the right to possession and control over, all of
the Products to be distributed by Distributor hereunder shall
be F.O.B. Origin (factory).
J. Payment for the Products shall be made in U.S. dollars within
sixty (60) days following the date of Stereotaxis' invoice.
VI. Labeling
A. Stereotaxis shall provide Distributor with Product information
needed by Distributor to prepare labeling in compliance with
applicable laws and
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regulations. For jurisdictions within the Territory where
Distributor advises Stereotaxis that Stereotaxis' U.S.
labeling is acceptable, Stereotaxis shall be responsible for
preparing and attaching said labeling to the Product.
Stereotaxis warrants that the content of such labeling shall
be in compliance with any applicable U.S. governmental
regulations. When Stereotaxis' U.S. labeling is not in
compliance with applicable laws and regulations in a
particular jurisdiction in the Territory, Distributor shall be
responsible, at Distributor's sole cost and expense, for
providing Stereotaxis with "camera-ready" label art work and
content as required by applicable laws and regulations within
such Territory and as reasonably required by Stereotaxis'
production schedule, and Stereotaxis shall prepare the
labeling in accordance with Distributor's art work and attach
said labeling to the Product.
VII. Installation.
A. The installation of the Products covered shall be the
responsibility of, and at the expense of, Distributor.
Distributor will cause the Products covered hereby and to be
installed and connected in accordance with installation
specifications supplied by Stereotaxis. Distributor is
responsible for ensuring compliance with local regulations
relating to installation at its sole cost and expense.
VIII. Warranties.
A. Distributor agrees to make no warranty in respect of the
Products to its customers or otherwise in addition to,
different from or inconsistent with any warranty contained in
Stereotaxis' standard terms and conditions (or in any other
applicable Product warranty form of Stereotaxis in effect at
the date of sale). The provisions of this Section shall
survive termination, for whatever reason, of this Agreement.
B. Stereotaxis warrants that the Products manufactured by
Stereotaxis and sold hereunder will be free from defects in
material or workmanship under normal use and service for the
period a period of one year following completion of
installation in accordance with the terms hereof, which date
will be confirmed in writing by Stereotaxis. Stereotaxis makes
no warranty for any Products made by persons other than
Stereotaxis, or its affiliates, and Distributor's sole
warranty therefore, if any, is the original manufacturer's
warranty, which Stereotaxis agrees to pass on it Distributor,
as applicable.
C. No warranty extended by Stereotaxis will apply to any Products
which have been damaged by accident, misuse, abuse,
negligence, improper application or alteration or by a force
majeure occurrence or by the Distributor's failure to operate
the Products in accordance with the manufacturer's
instructions or to maintain the recommended operating
environment and line conditions; which are defective due to
unauthorized attempts to repair, relocate, maintain, service,
add to or modify the Products by the Distributor or any third
party or due to the attachment and/or use of non-Stereotaxis
supplied equipment without Stereotaxis' prior written
approval; which failed due to causes from the use of operating
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supplies or consumable parts not approved by Stereotaxis. In
addition and without limitation, no warranty extended by
Stereotaxis will apply to any failure to comply with Section
III.A or any failure due to events such as cracking from high
impact drops, cable rupture from rolling equipment over
cables, or delamination from cleaning with inappropriate
solutions. Stereotaxis' obligation under this warranty is
limited to the repair or replacement, at Stereotaxis' option,
of defective parts. Stereotaxis may effectuate such repair at
the installed site for any NIOBE System sold, delivered and
installed hereunder, provided Stereotaxis is furnished safe
and sufficient access for such repair. Repair or replacement
may be with parts or products that are new, used or
refurbished. Repairs or replacements will not interrupt,
extend or prolong the term of the warranty. Distributor will
pay Stereotaxis its normal charges for service and parts for
any inspection, repair or replacement that is not, in
Stereotaxis' sole judgment, required by noncompliance with the
warranty set forth in Section VIII.B. Stereotaxis' warranty
does not apply to consumable materials, except as specifically
stated in writing, nor to products or parts thereof supplied
by Distributor.
D. This warranty is made on condition that immediate written
notice of any noncompliance is given to Stereotaxis and
Stereotaxis' inspection reveals that the Distributor's claim
is valid under the terms of the warranty (i.e. that the
noncompliance is due to traceable defects in original
materials and/or workmanship).
E. All services performed at times outside of any standard
service package purchased by Distributor's customers shall be
at an additional charge at Stereotaxis' then current rates.
Stereotaxis may utilize sub-contractors for purposes of
carrying out warranty service.
F. STEREOTAXIS MAKES NO WARRANTY OTHER THAN THE ONE SET FORTH
HEREIN, WHICH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS
OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSES, AND SUCH CONSTITUTES THE ONLY WARRANTY
MADE WITH RESPECT TO THE PRODUCTS AND ANY PRODUCT, SERVICE OR
OTHER ITEM FURNISHED UNDER THIS AGREEMENT.
G. The Parties acknowledge that the Products available for resale
by Distributor will include Stereotaxis' standard service
maintenance, repair and service plans in effect from time to
time (which currently include the "Gold" and, where available,
"Platinum" service plans), which will be priced at [***] below
the net sales price in the US for such plans, subject to
adjustment on an annual basis each November during the term
hereof as provide in Section V.A. above.
IX. LIMITATION OF LIABILITY
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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A. In no event will Stereotaxis' liability hereunder exceed the
actual loss or damage sustained by Distributor, up to the
purchase price of the Products.
B. STEREOTAXIS SHALL NOT BE LIABLE FOR ANY LOSS OF USE, REVENUE
OR ANTICIPATED PROFITS, LOSS OF STORED, TRANSMITTED OR
RECORDED DATA, OR FOR ANY INCIDENTAL, UNFORESEEN, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE
PRODUCTS. This provision does not affect third party claims
for personal injury arising as a result of Stereotaxis'
negligence or product defect. THE FOREGOING IS A SEPARATE,
ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON
THE FAILURE OF ANY REMEDY, EXCLUSIVE OR NOT.
X. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
A. Infringement by Stereotaxis. Stereotaxis warrants that the
Products manufactured by Stereotaxis and sold hereunder do not
infringe any patent or copyright in the Territory. If
Distributor receives a claim that any such Product, or parts
thereof, infringe upon the rights of others under any U.S.
patent or copyright, Distributor will notify the Stereotaxis
in writing. As to all infringement claims relating to Products
or parts manufactured by Stereotaxis or one of its affiliates:
(1) Distributor will give Stereotaxis information,
assistance and exclusive authority to evaluate,
defend and settle such claims; and
(2) Stereotaxis will then, at its own expense, defend or
settle such claims, procure the right to use the
Products, or remove or modify them to avoid
infringement. If none of these alternatives is
available on terms reasonable to Stereotaxis, then
Distributor will return (or cause to be returned) the
Products to Stereotaxis, and Stereotaxis will refund
to Distributor the purchase price paid by the
Distributor less reasonable depreciation for
Distributor's use of the Products.
B. Infringement by Distributor. If some or all of the Products
sold hereunder are made by Stereotaxis pursuant to drawings or
specifications furnished by the Distributor or one of its
customers, or if the Distributor modifies or combines,
operates or uses the Products other than as specified by
Stereotaxis or with any product, data, software, apparatus or
program not provided or approved by Stereotaxis, then the
indemnity obligation of Stereotaxis under Section 13.1 will be
null and void and should a claim be made that such Products
infringe the rights of any third party under patent, trademark
or otherwise, then Distributor will indemnify and hold
Stereotaxis harmless against any liability or expense,
including reasonable attorneys fees, incurred by Stereotaxis
in connection therewith.
XI. DESIGNS AND TRADE SECRETS/LICENSE
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A. Any drawings, data, designs, software programs or other
technical or confidential information supplied by Stereotaxis
to Distributor in connection with the sale of the Products are
not included in the sale of the Products to Distributor, will
remain Stereotaxis' property and will at all times be held in
confidence by Distributor. Such information will not be
reproduced or disclosed to others without Stereotaxis' prior
written consent.
B. Distributor acknowledges and agrees that any and all software
incorporated into the NIOBE System, or contained or comprised
in any Products or other accessories provided by Stereotaxis
to Distributor for use with the NIOBE System remains the
property of Stereotaxis or where applicable, its licensor(s)
and is licensed to Distributor on a non-exclusive,
non-transferable basis (for the license fees described in any
purchase order), not sold. This software is the confidential
information of Stereotaxis and Distributor will not copy or
modify this software, reverse engineer, decompile or
disassemble or use this software except in conjunction with
the NIOBE System at the installation site. Notwithstanding
anything else contained in this Agreement there is no warranty
or condition of non-infringement, quiet enjoyment or
possession or title regarding such software. Distributor
acknowledges that the software is of such complexity that it
may have inherent or latent defects and agrees that its sole
remedy for any defects during the warranty period is that
Stereotaxis will correct documented software errors. There are
no licenses or rights in respect of software upgrades or
future software products implied or provided for by this
Agreement
C. Distributor agrees that it will not use the Products in a
manner that infringes any of Stereotaxis' patents.
XII. Distributor is not Agent. Distributor is an independent contractor and
this Agreement does not create the relation of principal and agent
between Stereotaxis and Distributor. Distributor shall not act or
assume to act as a representative or agent of Stereotaxis, nor will it
contract or incur debts or other obligations in the name of or on
behalf of Stereotaxis. Stereotaxis shall have no obligation to make
withholdings of any kind from amounts payable to Distributor, including
without limitation, any obligations for income tax, workers
compensation or unemployment compensation.
XIII. Term; Breach and Termination.
A. This Agreement shall be effective as of the date first written
above upon signature hereof by the Parties and shall remain in
effect through December 31, 2004, unless earlier terminated or
extended pursuant to the provisions hereof. This Agreement
shall be automatically renewed for one (1) year at the end of
the initial term hereof and for successive one-year renewal
periods thereafter, unless either Party shall provide written
notice to the other Party at least ninety (90) days prior to
the end of the initial term or any subsequent one-year renewal
thereof.
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B. Stereotaxis shall have the right in its discretion and at its
option upon the occurrence of any one or more of the following
events, to terminate this Agreement by giving notice of such
termination to Distributor, the same to become effective upon
the giving of such notice or, if so stated in such notice,
upon the termination date specified therein:
1. If the Distributor breaches or fails to perform any
term or provision hereof, or covenant or obligation
herein, or to pay promptly when due any sum owed to
Stereotaxis under this Agreement or otherwise and
fails to cure it breach or failure to perform within
thirty (30) days from reception of written notice
from Stereotaxis;
2. If the Distributor is declared insolvent (however
defined or evidenced) or commits an act of bankruptcy
or assignment for the benefit of creditors or
appoints a committee of creditors or makes or sends
notice of an intended bulk transfer or if there shall
be convened a meeting of the creditors or principal
creditors of Distributor;
3. If any petition or application to any court or
tribunal, at law or in equity, by or against
Distributor, is made for the appointment of a
custodian, receiver or trustee for Distributor or for
any substantial portion of the property or assets of
Distributor;
4. If Distributor shall cease to function as a going
concern or if the usual business of Distributor shall
be terminated or suspended; or
5. If any representation or warranty or any other
statement of fact made to Stereotaxis at any time,
whether in writing or orally, by or on behalf of
Distributor pursuant to or in connection with this
Agreement or otherwise, shall have been false or
misleading in any material respect when made.
C. Upon the giving of such notice of termination, Stereotaxis
may, at its option, with or without further notice to or
demand upon Distributor, declare all obligations of
Distributor to Stereotaxis under this Agreement or otherwise,
immediately due and payable.
D. This Agreement (except those covenants, terms and provisions
that are intended to survive termination) may be terminated at
any time by either Party hereto, in the event there is a
Change in Control of either Party, said termination to be
effective immediately. "Change in Control" shall be defined
as: (i) any merger or other business combination involving
either Party after which the former stockholders of such Party
own less than two-thirds of the outstanding stock of the
surviving company; (ii) any sale of all or substantially all
of the assets of either Party, or any similar transaction; or
(iii) any transaction or series of related transactions by a
Party in which in excess of 50% of the voting securities of
such Party are transferred; but will exclude effects on
ownership occurring pursuant to a public offering of
securities by a Party.
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E. The right of termination, as provided herein, is absolute and
the parties recognize that termination of this Agreement may
result in loss or damage to either Party, but hereby expressly
agree that neither Party shall be liable to the other by
reason of any loss or damage resulting from the termination of
this Agreement by the other for cause including, without
limitation, any loss of prospective profits, or any damage
occasioned by loss of goodwill or by reason of any
expenditures, investments leases or commitments made in
anticipation of the continuance of this Agreement. Without
limiting the generality of the foregoing reciprocal releases
of liability for loss or damage occasioned by termination,
Distributor agrees that Stereotaxis may, at any time, be at
liberty to negotiate with and appoint any other person, firm
or corporation with respect to the replacement of Distributor
in whole or in part as a distributor in the Territory, and
Stereotaxis shall not be liable or responsible to Distributor
for any loss of profits or other damage that may be suffered
by Distributor by reason of any publicity attendant upon any
such negotiation or appointment or otherwise.
F. Any notice of termination shall be deemed fully and completely
given upon the posting of the same by registered or certified
mail, return receipt requested, in an envelope properly
addressed to the other Party at the address set forth above or
to such other or further address as such other Party, by like
notice, may have theretofore designated or by personal
delivery to the office of the other Party.
XIV. Rights and Obligations of the Parties Upon Termination.
A. Upon the giving by either Party of notice of termination,
Stereotaxis shall have the following rights, each exercisable
in its sole and absolute discretion:
1. to reject, in whole or in part, any order or orders
for the Products theretofore submitted by
Distributor;
2. Upon termination of the Agreement, the Distributor
shall be entitled to receive the products that are
necessary to fill valid and binding orders received
from its customers before termination and/or to
respect contractual obligation undertaken with Public
Hospitals through tendering procedures before
termination. To this extent, within 20 days from
effective termination date, the Distributor will
provide Stereotaxis with a detailed list of the
binding orders received from its Customers and of the
contractual obligation undertaken to Public Hospital
before termination, together with an estimate of the
requested delivery dates of such products. For these
supplies, if termination is a consequence of Ab
Medica's breach of its contractual obligations,
Stereotaxis will be entitled to demand anticipated or
immediate payment of the merchandise to be delivered.
3. to purchase from Distributor at such time or times,
within the ninety day period immediately following
the termination date or such other period as
Stereotaxis in its sole discretion may determine, and
on the terms and conditions hereinafter set forth all
or any portion of Distributor's inventory
12
of the Products on the termination date, which is
defined as the date upon which this Agreement
terminates pursuant to any notice of termination
provided for by this Agreement.
B. The purchase price of such Products as are undamaged, in
original packaging and still listed in Stereotaxis' most
current price sheets as of the date of such sale by
Distributor to Stereotaxis shall be at Stereotaxis' original
invoice price to Distributor less a handling and restocking
charge in effect at the time of such purchase (which shall in
no event be less than [***] of the price as determined above).
C. If Stereotaxis elects to purchase the Products as provided
above, Distributor shall deliver to Stereotaxis, not more than
fifteen days after the termination date, an itemized listing
showing all such Products on the termination date, together
with serial numbers where appropriate. Distributor shall
immediately ship and deliver to Stereotaxis at such shipping
point as Stereotaxis may designate, the Products to be
purchased by Stereotaxis. Stereotaxis shall have the right to
inspect and approve the Products so shipped and the sale shall
be complete only upon such inspection and written approval by
Stereotaxis.
D. The provisions of this Section XI shall survive termination,
for whatever reason, of this Agreement.
E. From and after the termination of this Agreement, and such
termination notwithstanding, the parties shall remain liable
to one another for any and all indebtedness incurred prior to
the effective date of such termination and for any breach of
the Agreement occurring prior thereto, and for the performance
of all obligations hereunder that expressly or impliedly are
to survive termination of the Agreement.
F. The acceptance of any order from, or the sale of any Product
to, Distributor shall not be deemed a waiver of the effect of
such termination or renewal or extension of this Agreement.
XV. Advertising. Distributor agrees to provide Stereotaxis with sample
copies (in English) of advertisements and promotional materials
prepared by Distributor relating to the Products. Stereotaxis reserves
the right to disapprove any advertising used by Distributor in
promoting and selling Products, in which case Distributor shall not
utilize such advertising. Failure of Stereotaxis to disapprove
advertising shall not constitute any waiver of its right of approval of
such advertising.
XVI. Parts Purchases/Redemption against Warranties. The dollar value of the
replacement parts charged back to Stereotaxis annually under the
Product's warranty must not exceed the corresponding dollar value of
the parts purchased from Stereotaxis during the prior calendar year.
Distributor agrees that all costs and expenses related to any Product's
warranty shall be billed to Siemens AG, or a designated affiliate
thereof, which shall then ▇▇▇▇ Stereotaxis directly.
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
13
XVII. Compliance with Law. In performing under this Agreement and in
conducting its business, Distributor shall comply, at Distributor's
cost, with all applicable federal, state and local laws, regulations
and rules.
XVIII. Indemnity. Distributor shall indemnify, defend and hold Stereotaxis
harmless from and against any and all expenses, costs (including
reasonable attorney's fees), claims, demands, damages, liability, suits
or the like arising from or related to (a) the failure of Distributor
to perform any of its obligations hereunder; (b) breach on the part of
Distributor of any representation, warranty, covenant, term or
provision herein; (c) provision by Distributor of any services or
products (other than the Products), including by way of example and not
limitation, provision of any replacement parts not supplied by
Stereotaxis; or (d) any act or omission on the part of Distributor or
its employees, agents or representatives. The provisions of this
Section shall survive termination, for whatever reason, of this
Agreement.
XIX. Agreement Not Assignable. The rights and privileges granted herein are
personal in character and cannot be assigned or transferred by
Distributor, by operation of law or otherwise, without the consent in
writing of an authorized representative of Stereotaxis and any
purported assignment or transfer without such consent shall have no
legal effect whatsoever.
XX. Entire Agreement, etc. This Agreement constitutes the entire
understanding between the parties and shall be deemed to supersede any
and all prior agreements, verbal or written, between the parties. All
previous negotiations and representations not included herein are
hereby abrogated. Except as provided herein, this Agreement cannot be
changed, modified or varied, except by a written instrument signed by
the authorized representatives of the parties hereto. The captions of
the various sections of this Agreement shall not be construed as a
waiver of any such term and the right of Stereotaxis thereafter to
enforce such term.
XXI. Governing Law. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of Delaware, United
States of America, without giving effect to any conflict-of-law rules
requiring the application of the substantive law of any other
jurisdiction; provided, however, that the United Nations Convention on
Contracts for the International Sale of Goods shall in no way apply to
the interpretation of this Agreement.
XXII. Arbitration.
A. All disputes arising out of or in connection with this
Agreement (the "Dispute") including the arbitrability of any
Dispute, shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce (the
"ICC") in effect on the date of this Agreement (the "Rules")
by three arbitrators. In the event of a conflict between the
Rules and the provisions of this Section, the provisions of
this Section shall govern. The place of arbitration shall be
in St Louis, Missouri. The arbitration shall be governed by
Chapter 2 of the United States Arbitration Act, 9 U.S.C.
Sections 201-208. The two arbitrators appointed by the
parties shall
14
appoint the third arbitrator, who shall be neither a citizen
nor resident of either the United States or the Territory,
within thirty (30) days of the appointment of the second
arbitrator. The language of the arbitration shall be English,
and all three arbitrators must be fluent in English.
B. Each Party acknowledges and agrees that arbitration pursuant
to this Section shall be the sole and exclusive procedure for
resolving any Dispute, and that any award rendered by the
arbitral tribunal shall be final and binding upon the parties.
Judgment upon the award may be entered, and application for
judicial confirmation or enforcement of the award may be made,
in any competent court having jurisdiction thereof, and the
parties hereto submit to the jurisdiction of such court for
purposes of enforcement of this Section and any award rendered
hereunder.
C. In the event of any Dispute, the parties shall continue to
perform their respective obligations under this Agreement
during the pendency of arbitration proceedings unless and
until the arbitral tribunal otherwise orders.
D. The expenses of the arbitration, including all arbitrators'
and attorneys' fees, shall be borne by the non-prevailing
Party unless the arbitral tribunal determines that it would be
unjust or inequitable by reason of the substantive effect of
its award to have one Party bear all such expenses and fees,
in which case it shall, in its award, so divide and allocate
all such expenses on a basis which it determines to be just
and equitable in the circumstances.]
15
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED
BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers on the date set forth above.
FOR DISTRIBUTOR:
By /s/ Filippo Pacinotti
------------------------------------
Name: Filippo Pacinotti
Title: Business Manager Robotics
Company: AB Medica
FOR STEREOTAXIS:
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: COO
Company: Stereotaxis, Inc.
16
BCLLP DRAFT DATED 07/01/03
[SUBJECT TO E.U./ITALIAN COUNSEL REVIEW]
SCHEDULE ONE - PRODUCTS*
NIOBE(TM) MAGNETIC SYSTEM ▇▇▇-▇▇▇▇▇▇-▇
NAVIGANT(TM) ADVANCE USER INTERFACE ▇▇▇-▇▇▇▇▇▇-▇
ENDOCARDIAL(TM) APPSPEC
ENDOVASCULAR(TM) APPSPEC
HELIOS(TM) ABLATION CATHETER ▇▇▇-▇▇▇▇▇▇-▇
HELIOS(TM) CABLE ▇▇▇-▇▇▇▇▇▇-▇
CRONUS(TM) PROGRAMMABLE GUIDEWIRE FAMILY
ENDOVASCULAR 210CM FULL COAT 001-001096-1
ENDOVASCULAR 300CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇
ENDOVASCULAR 210CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇
ENDOVASCULAR 300CM PARTIAL COAT 001-001096-4
FLOPPY 180CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇
FLOPPY 300CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇
FLOPPY 180CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇
FLOPPY 300CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇
I WIRE 210CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇
I WIRE 210CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇
CARDIODRIVE(TM) ▇▇▇-▇▇▇▇▇▇-▇
CONNEXION(TM) VECTOR PEN ▇▇▇-▇▇▇▇▇▇-▇▇▇
* Products shall not include any products or services which are subject to
distribution alliances or agreements with other distributors, including, without
limitation, those products or services which are subject to the agreement dated
May 7, 2002 between Stereotaxis and Biosense ▇▇▇▇▇▇▇, Inc.
SCHEDULE TWO -
TARGETED SALES QUOTA AGREEMENT
Date:_____________________
DISTRIBUTOR:____________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Distributor Number:_____________________________________________________________
Territory (primary area of responsibility):_____________________________________
________________________________________________________________________________
________________________________________________________________________________
Minimum/Sales Quota:_____________________________________________
Special Notes:__________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________
By:_________________________________
Name:_______________________________
Distributor Representative
By:_________________________________
Name:_______________________________
Stereotaxis Representative
SCHEDULE THREE -
PRICES
NIOBE(TM) MAGNETIC SYSTEM ▇▇▇-▇▇▇▇▇▇-▇ [***]
NAVIGANT(TM) ADVANCE USER INTERFACE ▇▇▇-▇▇▇▇▇▇-▇
ANNUAL LICENSING FEE AFTER 1ST YEAR [***]
HELIOS(TM) ABLATION CATHETER ▇▇▇-▇▇▇▇▇▇-▇ [***]
HELIOS(TM) CABLE ▇▇▇-▇▇▇▇▇▇-▇ [***]
CRONUS(TM) PROGRAMMABLE GUIDEWIRE FAMILY
ENDOVASCULAR 210CM FULL COAT 001-001096-1 [***]
ENDOVASCULAR 300CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
ENDOVASCULAR 210CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
ENDOVASCULAR 300CM PARTIAL COAT 001-001096-4 [***]
FLOPPY 180CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
FLOPPY 300CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
FLOPPY 180CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
FLOPPY 300CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
I WIRE 210CM FULL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
I WIRE 210CM PARTIAL COAT ▇▇▇-▇▇▇▇▇▇-▇ [***]
CARDIODRIVE(TM) ▇▇▇-▇▇▇▇▇▇-▇ [***]
CONNEXION(TM) VECTOR PEN ▇▇▇-▇▇▇▇▇▇-▇▇▇ [***]
*Pricing on the Niobe Magnetic System is for systems sold through March 2004.
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
SCHEDULE FOUR -
STANDARD TERMS AND CONDITIONS
1. GENERAL
1.1 Contract Terms
These terms and conditions constitute an integral part of the quotation to which
they are attached ("the Quotation") provided by the Seller to sell products
("Products", which includes the Niobe Magnetic Navigation System) to Purchaser
and will govern the sale of the Products. Seller will not be bound by, and
specifically objects to, any term, condition or other provisions which are
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) which is proffered by Purchaser in
any purchase order, receipt, acceptance, confirmation, correspondence or
otherwise, unless Seller specifically agrees to any such provision in writing
signed by Seller. Products may contain used, reworked or refurbished parts and
components that comply with performance and reliability specifications.
Purchaser acknowledges that this is a commercial and not a consumer transaction.
1.2 Acceptance
Acceptance of an order by Seller is expressly made conditional on Purchaser's
acceptance of these terms and conditions. Purchaser will be deemed to have
assented to Purchaser's completion or execution of this Agreement and
Purchaser's acceptance of all or any part of the Products subject to this
Agreement or by issuance of a purchase order to Seller pursuant to the Quotation
("Purchase Order).
1.3 Authorized Use
In order to ensure patient safety Purchaser agrees that it will not use or
permit others to use the Niobe Magnetic Navigation System with any disposable
devices, software or other accessories except those provided by or approved in
writing by Seller or with any fluoroscopy system other than the Siemens ▇▇▇▇▇ ▇▇
digital fluoroscopy system or any other fluoroscopy system approved in writing
by Seller. Purchaser further agrees that it will not modify the Niobe Magnetic
Navigation System or any of devices or software provided by Seller for use with
the system.
2. PRICING
2.1 Quotations
Unless otherwise agreed to in writing or set forth in the quotation, all prices
quoted by Seller are based on U.S. dollars F.O.B. Seller's facility or other
shipping point and include standard and customary packaging. Domestic prices
apply only to purchasers located in, and who will use the Products in, the U.S.
International prices apply to all purchasers located outside of, or who will use
or ship or facilitate shipment of the Products outside of, the U.S. Unless
otherwise stated, the Quotation will only be valid for forty-five (45) days from
the date thereof.
2.2 Delay in Acceptance of Delivery
Should the agreed delivery date be postponed by Purchaser, Seller will have the
right to delivery to storage at Purchaser's risk and expense, and any payments
due upon delivery will become on the agreed delivery date provided Seller is
ready to deliver.
2.3 Escalation
Unless otherwise agreed to in writing, except as to goods to be delivered within
six (6) months of Seller's acceptance by Seller of Purchaser's order, Seller
reserves the right to increase its prices to those in effect at the time of
shipment.
2.4 Disposable Devices
Seller will make available to Purchaser from during the life of the Niobe
Magnetic Navigation System such disposable devices as are cleared by applicable
regulatory bodies for use with such system on reasonable commercial terms and in
a manner consistent with Seller's then general pricing and other practices in
respect of the same.
3. TAXES
Any sales, use or manufacturer's tax which may be imposed upon the sale or use
of Products, or any property tax levied after readiness to ship, or any excise
tax, license or similar fee required under this transaction, will be in addition
to the quoted prices and will be paid by Purchaser.
4. TERMS OF PAYMENT
4.1 Due Date
Unless otherwise set forth in the Quotation, Seller's payment terms are as
follows: an initial deposit of 10% of the purchase price for each Product is due
upon submission of the purchase order, an additional 80% of the purchase price
for each Product is due upon its delivery and the final 10% of purchase price is
due upon completion of installation (or in the case of Products for which no
installation is required, upon delivery of the Product). Unless otherwise
agreed, all payments other than the initial deposit are due net thirty (30) days
from the date of invoice. Unless otherwise agreed to in writing, all amounts
payable pursuant to this Agreement are denominated in United States dollars, and
Purchaser will pay all such amounts in lawful money of the United States.
Partial shipments will be billed as made, and payments for such shipments will
be made in accordance with the foregoing payment terms.
4.2 Late Payment
A service charge of 1 1/2% per month, not to exceed the maximum rate allowed by
law, will be made on any portion of Purchaser's outstanding balance which is not
paid within thirty (30) days after invoice date, which charge will be determined
and compounded on a daily basis from the due date until the date paid. Payment
of such service charge will not excuse or cure Purchaser's breach or default for
late payment. In addition, in the event that Purchaser fails to make any payment
to Seller within this thirty (30) day
period, including but not limited to any payment with Seller, then Seller will
have no obligation to continue performance under any agreement with Purchaser.
4.3 Payment of Lesser Amount
If Purchaser pays, or Seller otherwise receives, a lesser amount than the full
amount provided for under this Agreement, such payment or receipt will not
constitute or be construed other than as on account of the earliest amount due
Seller. Seller may accept any check or payment in any amount without prejudice
to Seller's right to recover the balance of the amount due or pursue any other
right or remedy. No endorsement or statement on any check or payment will
constitute or be construed as an accord or satisfaction.
4.4 Where Upon Installation or Completion
In respect of amounts payable upon completion of installation, where such
completion is delayed for any reason for which Seller is not responsible, the
Products will be deemed installed within 30 days of delivery and, if no other
terms were agreed in writing by the parties, the balance of payments will be due
no later than thirty (30) days thereafter, regardless of the actual date of
completion of installation.
4.5 Failure of Purchaser to Pay
Upon Purchaser's failure to pay when due any amount required to be paid to
Seller under this Agreement the, at Seller's election: (a) the entire amount of
any indebtedness and obligation due Seller under this Agreement and interest
thereon will become immediately due and payable without notice, demand, or
period of grace; (b) Purchaser will put Seller in possession of the Products
upon demand; (c) Seller may enter any premises where the Products are located
and take possession of the Products without notice or demand and without legal
proceedings; or (d) at the request of Seller, Purchaser will assemble the
Products and make them available to Seller at a place designated by Seller which
is reasonable and convenient to all parties. Where this Agreement is referred to
an attorney for collection or realization then Seller will be entitled to
recover amounts including, without limitation, a reasonable sum for attorneys
fees, expenses of title search, all court costs and other reasonable legal
expenses and where any partial collection is made, Purchaser will pay any
deficiency remaining after collection of or realization by Seller on the
Products.
5. EXPORT TERMS
5.1 Permits & Licenses
Purchaser will procure all necessary permits and licenses for shipment and
compliance with any governmental regulations concerning control of final
destination of Products.
5.2 Compliance With Regulations
Purchaser will not, directly or indirectly, violate any applicable law,
regulation or treaty, or any other international treaty or agreement relating to
the export or re-export of any Product or associated technical data, to which
the U.S. adheres or with which the U.S. complies. Purchaser will defend,
indemnify and hold Seller harmless from any claim, damage, liability or expense
(including but not limited to reasonable attorney fees) arising out of or in
connection with any violation of the preceding sentence. If Purchaser purchases
a Product at the domestic price and exports such Product, or transfers such
Product to a third party for export, outside of the U.S., Purchaser will pay to
Seller the difference between the domestic price and the international retail
price of such Product pursuant to the payment terms set forth herein. Purchaser
will deliver to Seller, upon Seller's request, written assurance regarding
compliance with this section in form and content reasonably acceptable to
Seller.
6. DELIVERY, RISK OF LOSS
6.1 Delivery Date
Delivery and completion schedules are approximate only and are based on
conditions at the time of acceptance of Purchaser's order by Seller. Seller will
make every reasonable effort to meet delivery date(s) quoted or acknowledged,
but will not be liable for any failure to meet such date(s). Partial shipments
may be made.
6.2 Risk of Loss, Title
Unless otherwise agreed to in writing, delivery will be complete upon transfer
of possession to common carrier, F.O.B. point of origin, whereupon title to and
all risk of loss, damage to or destruction of the Products will pass to
Purchaser. All freight charges and other transportation, packing and insurance
costs, license fees, customer duties and other similar charges will be the sole
responsibility of the Purchaser unless otherwise agreed to in writing by the
Seller. In the event of any loss or damage to any of the Products during
shipment, Purchaser should make claim against the carrier.
7. SECURITY AND INTEREST/FILING
Seller will have a purchase money security interest in the Products (and all
accessories and replacements thereto and all proceeds thereof) until payment in
full by Purchaser and satisfaction of all other obligations of Purchaser
hereunder. Purchaser authorizes Seller to file (and Purchaser will promptly
execute, if requested by Seller) and (ii) irrevocably appoints Seller its agent
and attomey-in-fact to execute in the name of Purchaser and file, with such
authorities and at such locations as Seller may deem appropriate, any financing
statements required by applicable regulation with respect to the Products and/or
this Agreement. Purchaser also agrees that an original or a photocopy of this
Agreement (including any addenda, attachments and amendments hereto) may be
filed by Seller as a Uniform Commercial Code financing statement in the U.S.
Purchaser further represents and covenants that (a) it will keep the Products in
good order and repair until the purchase price has been paid in full, (b) it
will promptly pay all taxes and assessments upon the Products or the use
thereof, (c) it will not attempt to transfer any interest in the Products until
the purchase price has been paid in full, and (d) it is solvent and financially
capable of paying the full purchase price for the Products.
8. CHANGES, CANCELLATION, AND RETURN
8.1 Orders Final
Orders accepted by Seller are not subject to change except upon written
agreement. Orders accepted by Seller are non-cancelable.
8.2 Design Updates
Seller will have the right to change the manufacture and/or design of its
Products if, in the judgment of Seller, such change does not alter the general
function of the Products.
9. FORCE MAJEURE
Seller will make every effort to complete shipment, and installation where
indicated, but will not be liable for any loss or damage for delay in delivery,
inability to install or any other failure to perform due to causes beyond its
reasonable control including, but not limited to, acts of government or
compliance with any governmental rules or regulations, acts of God or the
public, war, civil commotion, blockades, embargos, calamities, floods, fires,
earthquakes, explosions, storms, strikes, lockouts, labor disputes, or
unavailability of labor, raw materials, power or supplies. Should such a delay
occur, Seller may reasonably extend delivery or production schedules or, at its
option, cancel the order in whole or part without liability other than to return
any unearned deposit or prepayment.
10. WARRANTY
10.1 Seller warrants that the Products manufactured by Seller and sold
hereunder will be free from defects in material or workmanship under normal use
and service for the period a period of one year following completion of
installation in accordance with 12.6 hereof, which date will be confirmed in
writing by Seller. Seller makes no warranty for any Products made by persons
other than Seller, or its affiliates, and Purchaser's sole warranty therefore,
if any, is the original manufacturer's warranty, which Seller agrees to pass on
it Purchaser, as applicable.
10.2 No warranty extended by Seller will apply to any Products which have
been damaged by accident, misuse, abuse, negligence, improper application or
alteration or by a force majeure occurrence as described in Section 9 hereof or
by the Purchaser's failure to operate the Products in accordance with the
manufacturer's instructions or to maintain the recommended operating environment
and line conditions; which are defective due to unauthorized attempts to repair,
relocate, maintain, service, add to or modify the Products by the Purchaser or
any third party or due to the attachment and/or use of non-Seller supplied
equipment without Seller's prior written approval; which failed due to causes
from the use of operating supplies or consumable parts not approved by Seller.
In addition and without limitation, no warranty extended by Seller will apply to
any failure to comply with Section 1.3 or any failure due to events such as
cracking from high impact drops, cable rupture from rolling equipment over
cables, or delamination from cleaning with inappropriate solutions. Seller's
obligation under this warranty is limited to the repair or replacement, at
Seller's option, of defective parts. Seller may effectuate such repair at
Purchaser's facility, and Purchaser will furnish Seller safe and sufficient
access for such repair. Repair or replacement may be with parts or products that
are new, used or refurbished. Repairs or replacements will not interrupt, extend
or prolong the term of the warranty. Purchaser will pay seller its normal
charges for service and parts for any inspection, repair or replacement that is
not, in Seller's sole judgment, required by noncompliance with the warranty set
forth in Section 10.1. Seller's warranty does not apply to consumable materials,
except as specifically stated in writing, nor to products or parts thereof
supplied by Purchaser.
10.3 This warranty is made on condition that immediate written notice of any
noncompliance is given to Seller and Seller's inspection reveals that the
Purchaser's claim is valid under the terms of the warranty (i.e. that the
noncompliance is due to traceable defects in original materials and/or
workmanship).
10.4 Warranty service will be provided without charge during Seller's
regular working hours (8:30 - 5:00), Monday through Friday, except Seller's
recognized holidays. If Purchaser requires that service be performed other than
during these times, such service can be made available at an additional charge,
at Seller's then current rates. Seller may utilize sub-contractors for purposes
of carrying out warranty service.
SELLER MAKES NO WARRANTY OTHER THAN THE ONE SET FORTH HEREIN, WHICH WARRANTY IS
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSES, AND SUCH CONSTITUTES THE ONLY WARRANTY MADE WITH RESPECT TO THE
PRODUCTS AND ANY PRODUCT, SERVICE OR OTHER ITEM FURNISHED UNDER THIS AGREEMENT.
11. LIMITATION OF LIABILITY
11.1 In no event will Seller's liability hereunder exceed the actual loss or
damage sustained by Purchaser, up to the purchase price of the Products.
11.2 SELLER SHALL NOT BE LIABLE FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED
PROFITS, LOSS OF STORED, TRANSMITTED OR RECORDED DATA, OR FOR ANY INCIDENTAL,
UNFORESEEN, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCTS. This
provision does not affect third party claims for personal injury arising as a
result of Seller's negligence or product defect. THE FOREGOING IS A SEPARATE,
ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY
REMEDY, EXCLUSIVE OR NOT.
12. INSTALLATION
12.1 General
Unless otherwise expressly stipulated in writing, the Products covered hereby
will be installed (where applicable) by and at the expense of Seller.
12.2 Installation bv Seller.
Subject to fulfillment of the obligations set forth in 12.4 below, Seller will
install the Products covered hereby and connect same to the requisite safety
switches and power lines to be installed by Purchaser. Except as otherwise
specified below, if such installation and connection are performed by Seller's
technical personnel, prices shown include the cost thereof, provided that the
installation
and connection can be performed during normal business hours. Any overtime
charges or other special expenses will be additional charges to the prices show.
12.3 Trade Unions
If a trade union, or unions, prevents Seller from performing the above work, the
Purchaser will make all required arrangements with the trade union, or unions,
to permit Seller completion of said work. Moreover, any additional costs related
to such any such arrangements or labor disputes will be paid by the Purchaser
and Seller's obligations under such circumstances will be limited to providing
engineering supervision of installation and connection of Seller equipment to
existing wiring.
12.4 Purchaser's Obligations
Purchaser will, at its expense, provide all proper and necessary labor and
materials for plumbing service, carpentry work, conduit wiring, and other
preparations required for such installation and connection. All such labor and
materials will be completed and available at the time of delivery of the
Products by Seller. Additionally, the Purchaser will provide free access to the
premises of installation and, if necessary, safe and secure space thereon for
storage of Products and equipment prior to installation by Seller. If any
special work of any type must be performed in order to comply with requirements
of any governmental authority, including procurement of special certificates,
permits and approvals, the same will be performed or procured by Purchaser at
Purchaser's expense. Purchaser will provide a suitable environment for the
Products and will ensure, at its sole cost and expense, that its premises are
free of asbestos, hazardous conditions and any concealed dangerous conditions
and that all site requirements are met. Purchase is responsible for ensuring
compliance with local regulations relating to installation. Seller is not an
architect and all drawings furnished by Seller are not construction drawings.
12.5 Regulatory Reporting
Seller will only report activity performed by its authorized personnel and in
all other respects Purchaser will be responsible for fulfilling any and all
regulatory reporting requirements.
12.6 Completion of Installation
Installation will be complete upon the conclusion of final calibration and
checkout under Seller standard procedures to verify that the Products meet
applicable written performance specifications. Notwithstanding the foregoing,
first use of the Products by Purchaser, its agents or employees for any purpose
after delivery will constitute completion of installation.
13. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
13.1 Infringement by Seller.
Seller warrants that the Products manufactured by Seller and sold hereunder do
not infringe any patent or copyright in the country of the installation site
identified in the Quotation. If Purchaser receives a claim that any such
Product, or parts thereof, infringe upon the rights of others under any U.S.
patent or copyright Purchaser will notify the Seller in writing. As to all
infringement claims relating to Products or parts manufactured by Seller or one
of its affiliates:
(a) Purchaser will give Seller information, assistance and exclusive
authority to evaluate, defend and settle such claims; and
(b) Seller will then, at its own expense, defend or settle such claims,
procure for the Purchaser the right to use the Products, or remove or modify
them to avoid infringement. If none of these alternatives is available on terms
reasonable to Seller, then Purchaser will return the Products to Seller and
Seller will refund to Purchaser the purchase price paid by the Purchaser less
reasonable depreciation for Purchaser's use of the Products.
13.2 Infringement bv Purchaser
If some or all of the Products sold hereunder are made by Seller pursuant to
drawings or specifications furnished by the Purchaser, or if the Purchaser
modifies or combines, operates or uses the Products other than as specified by
Seller or with any product, data, software, apparatus or program not provided or
approved by Seller, then the indemnity obligation of Seller under Section 13.1
will be null and void and should a claim be made that such Products infringe the
rights of any third party under patent, trademark or otherwise, then Purchaser
will indemnify and hold Seller harmless against any liability or expense,
including reasonable attorneys fees, incurred by Seller in connection therewith.
14. DESIGNS AND TRADE SECRETS/LICENSE
14.1 Any drawings, data, designs, software programs or other technical or
confidential information supplied by Seller to Purchaser in connection with the
sale of the Products are not included in the sale of the Products to Purchaser,
will remain Seller's property and will at all times be held in confidence by
Purchaser. Such information will not be reproduced or disclosed to others
without Seller's prior written consent.
14.2 Purchaser acknowledges and agrees that any and all software
incorporated into the Niobe Magnetic Navigation System, or contained or
comprised in any Products or other accessories provided by Seller to Purchaser
for use with the Niobe Magnetic Navigation System remains the property of Seller
or where applicable, its licensor(s) and is licensed to Purchaser on a non
exclusive, non-transferable basis (for the license fees described in the
Quotation) not sold. This software is the confidential information of Seller and
Purchaser will not copy or modify this software, reverse engineer, decompile or
disassemble or use this software except in conjunction with the Niobe Magnetic
Navigation System at the installation site. Notwithstanding anything else
contained in this Agreement there is no warranty or condition of
non-infringement, quiet enjoyment or possession or title regarding such
software. Purchaser acknowledges that the software is of such complexity that it
may have inherent or latent defects and agrees that its sole remedy for any
defects during the warranty period is that Seller will correct documented
software errors. There are no licenses or rights in respect of software upgrades
or future software products implied or provided for by this Agreement
14.3 Purchaser agrees that it will not use the Products in a manner that
infringes any of Seller's patents.
15. ENGINEERING CHANGES
Seller makes no representation that engineering changes that may be announced in
the future will be suitable for use on, or in connection with, the Products.
16. ASSIGNMENT
Neither party may assign any right or obligations under this Agreement without
the written consent of the other and any attempt to do so will be void, except
that Seller may assign this Agreement without consent to any subsidiary or
affiliated company or an acquirer of all or a substantial portion of the assets
of Seller. This Agreement will inure to and be binding upon the parties and
their respective successors, permitted assigns and legal representatives.
17. DAMAGES, COSTS AND FEES
In the event that any dispute or difference is brought arising from or relating
to this Agreement or the breach, termination or validity thereof, the prevailing
party will NOT be entitled to recover from the other party any punitive damages.
The prevailing party will be entitled to recover from the other party all
reasonable attorneys fees incurred, together with other such expenses, costs and
disbursements as may be allowed by law.
18. MODIFICATION
This Agreement may not be changed, modified or amended except in writing signed
by duly authorized representatives of the parties.
19. GOVERNING LAW
This Agreement will be governed by the laws of the State of Delaware.
20. INTEGRATION
These terms and conditions, including any attachments or other documents
incorporated by reference herein, constitute the entire agreement and the
complete and exclusive statement of agreement with respect to the subject matter
hereof, and supercedes any and all prior agreements, understandings and
communications between the parties with respect to the Products.
21. SEVERABILITY; HEADINGS
No provision of this Agreement that may be deemed unenforceable will in any way
invalidate any other portion or provision of this Agreement. Section headings
are for convenience only and will have no substantive effect.
22. WAIVER
No failure and no delay in exercising, on the part of any party, any right under
this Agreement will operate as a waiver thereof, nor will any single or partial
exercise of any right preclude the further exercise of any other right.
23. NOTICES
Any notice or other communication under this Agreement will be deemed properly
given if given in writing and delivered in person or mailed, properly addressed
and stamped with the required postage, to the intended recipient at its address
specified on the face hereof. Either party may from time to time change such
address by giving the other party notice of such change in accordance with this
section.
24. RIGHTS CUMULATIVE
The rights and remedies afforded to Seller under this Agreement are in addition
to, and do not in any way limit, any other rights or remedies afforded to Seller
by any other agreement, by law or otherwise.
25. END USER CERTIFICATION
Purchaser represents, warrants and covenants that it is acquiring the Products
for its own end use and not for reselling, leasing or transferring to a third
party (except for lease back financing)
26. TRANSFER OF PRODUCTS
Purchaser grants Seller a right of first refusal on substantially equivalent
terms with respect to any proposed sale of any Products to any third part