BSD MEDICAL CORPORATION EXCLUSIVE DISTRIBUTION AGREEMENT
Exhibit
10.1
BSD
MEDICAL CORPORATION
This
Exclusive Distribution Agreement is made and entered into this 13th day of May
2009 by and between ▇▇▇▇▇▇▇▇▇/Medizin-Technik
GmbH, hereinafter referred to as "DISTRIBUTOR"), a company
organized and existing under the laws of the Federal Republic of Germany and
having a principal place of business at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and BSD Medical
Corporation, a Delaware Corporation, (hereinafter referred to as
"MANUFACTURER") having a principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ U.S.A.
Recitals
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A.
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The
MANUFACTURER is the sole owner of all rights, title, and interest in and
to certain inventions, technology, and know-how relating to its
hyperthermia cancer therapy products, namely the BSD 2000 and BSD 500 as
well as the tumor ablation products (MicroThermX) to be introduced to the
market (hereinafter referred to as "PRODUCTS") and other applications, and
MANUFACTURER has the right to grant exclusive distributorships
thereunder.
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B.
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DISTRIBUTOR
is now desirous of acquiring from MANUFACTURER an exclusive
distributorship to market and sell the
PRODUCTS.
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C.
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The
MANUFACTURER is willing to grant an exclusive distributorship based upon
the terms and conditions hereafter set
forth.
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NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein, and for good and valuable consideration, the parties hereto intending to
be legally bound, agree as follows:
Exclusive
Distributorship Agreement - Page 2
Terms of
Agreement
Section
1--Definitions
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1.1
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The
term "TECHNOLOGY" related to hyperthermia and ablation cancer therapy
products as used in this Agreement, shall mean any confidential or
proprietary technical information, know-how, trade secrets, written
documentation, machine readable documentation, detailed drawings, data,
methods, processes, specifications, quality and inspections standards,
sales literature, advertising and marketing materials, reports and
training materials.
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1.2
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The
term "PRODUCTS" as used in this Agreement, shall mean all products, and
by-products produced by or resulting from the use of any portion of the
TECHNOLOGY. The term "PRODUCTS" shall specifically include all models of
the PRODUCTS.
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Section
2--Grant of PRODUCTS exclusive distributorship
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2.1
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Subject
to the other terms and conditions set forth herein, MANUFACTURER hereby
grants to DISTRIBUTOR the right to sell, and otherwise to commercialize
the Hyperthermia
PRODUCTS for sales in Russia as well as all European Countries
(with the exception of
Poland) ( all hereinafter referred to as "TERRITORY").
DISTRIBUTOR agrees that it will not make sales of these products except in
the TERRITORY unless prior authorization is granted on specific projects
in writing from MANUFACTURER.
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2.2
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Subject
to the other terms and conditions set forth herein, MANUFACTURER hereby
grants to DISTRIBUTOR the right to sell, and otherwise to commercialize
it’s Tumor Ablation
PRODUCTS for sales in Germany, Switzerland and
Austria. DISTRIBUTOR agrees that it will not make sales of this
product except in the TERRITORY unless prior authorization is granted on
specific projects in writing from
MANUFACTURER.
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Section
3--Performance
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3.1
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DISTRIBUTOR
covenants that it will in good faith commit itself to a thorough,
vigorous, and diligent program of exploiting the PRODUCTS hereof in
accordance with the best business customs of the industry, exerting its
best efforts, so that full utilization of the PRODUCTS will
result. This shall include exposure of PRODUCTS to hospitals,
medical clinics, individual medical practitioners, and appropriate medical
equipment sub-dealers, outlets and markets throughout the country(s) in
section 2.
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BSD
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3.2
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DISTRIBUTOR
further agrees to commit to annual sales projections established in
writing by mutual agreement by the two parties. In the event
that DISTRIBUTOR does not, at any future date, fulfill its projected sales
or shows lack of progress to that end, MANUFACTURER shall have the right,
at it’s option to terminate this Agreement pursuant to section
6. Failure to reach agreement on sales projections may also be
cause for termination.
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3.3
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DISTRIBUTOR
further agrees to provide technical service and support for the PRODUCTS
sold in the TERRITORY. To this end, DISTRIBUTOR will comply
with the training requirements outlined in section 12 and further agrees
to order and keep in stock sufficient spare parts to be able to service
equipment in a timely manner. Failure to provide this
support and/or comply with the training requirements shall be cause for
termination.
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3.4
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DISTRIBUTOR
further agrees to obtain, at its expense all necessary and relevant
government approvals and permission to market, sell and operate the
PRODUCT in the TERRITORY. Failure to obtain these approvals
shall be cause for termination.
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Section
4-- PRODUCTS pricing.
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4.1
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Current
pricing as of this contract to the DISTRIBUTOR shall be per quotation from
MANUFACTURER or via published price lists from
MANUFACTURER. DISTRIBUTOR shall receive 25% discount off list
prices at time of purchase order. See attachment for current
MANUFACTURER list pricing.
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4.2
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From
time to time MANUFACTURER shall have the right to change prices of
PRODUCTS. Unless otherwise specified by MANUFACTURER,
in writing, new published pricing shall be effective 90
days from the date of issue of new price
lists.
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4.3
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DISTRIBUTOR
shall purchase all spare and replacement parts directly from
MANUFACTURER
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Section
5-- Payments
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5.1
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DISTRIBUTOR
agrees that all purchase orders for PRODUCTS shall be purchased with a 50%
payment at time of placement of purchase order and 50% payment at time of
shipment of product, according to the terms set forth in MANUFACTURER's
quotation as agreed by both parties unless other terms or conditions are
agreed upon in writing by DISTRIBUTOR and MANUFACTURER prior to new orders
being placed. Spare parts orders shall be payable net 45 days
after shipment.
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5.2
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All
moneys payable hereunder shall be paid in United States Dollars at such
locations in the United States of America as MANUFACTURER may from time to
time designate; unless, any payments due and payable in the United States
is not at that time permitted by law or by reason of the decision of any
competent authority in the country involved, then, in such event,
DISTRIBUTOR shall discharge its obligation for payment in such other
currency and at such place as may be permitted and agreed to by
MANUFACTURER.
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Section
6--Term and Termination
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6.1
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With
respect to the DISTRIBUTOR and rights granted hereby, this Agreement shall
commence upon the executing hereof and, unless terminated earlier, shall
continue year to year with automatic 12 (twelve) month extensions if all
conditions of this Agreement have been met, subject to new sales
projections which will serve as minimum purchase volume targeted amounts
(as mutually agreed) as described in Subparagraph 3.1 and
3.2.
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6.2
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If
any payment to MANUFACTURER is in arrears for thirty (30) days after the
due date, or if DISTRIBUTOR fails to achieve minimum sales performance or
defaults in performing any of the other terms of this Agreement, and
continues in default for a period of fifteen (15) days after written
notification as provided herein, or if DISTRIBUTOR becomes insolvent or
files for bankruptcy or enters into an agreement with creditors, or if a
receiver is appointed for it, MANUFACTURER shall have the right to
terminate this Agreement upon giving a fifteen (15) day notice to
DISTRIBUTOR.
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6.3
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As
a course of normal business, the MANUFACTURER has reasonable expectations
in regards to performance, communications, promotions, etc. If,
at any time during this agreement, the DISTRIBUTOR fails to meet these
expectations, the MANUFACTURER shall promptly notify the DISTRIBUTOR in
writing. Failure by the DISTRIBUTOR to remedy the situation
within 30 days to the satisfaction of the MANUFACTURER shall be sufficient
grounds for immediate termination of this
agreement
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BSD
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6.4
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Subsequent
to the termination of this Agreement as provided for in Subsection 6.1 -
6.3, DISTRIBUTOR agrees that it will not engage in the use, sale or other
commercialization or in any other manner for it's own benefit or any
person, firm, corporation, association, or other entity of the TECHNOLOGY
for a period of five (5) years and that it will not sell the PRODUCTS or
competitive products during that period. This excludes any
PRODUCTS that the DISTRIBUTOR currently manufactures, or subsequent
developments of this technology that is not derived from technology
offered by the MANUFACTURER. DISTRIBUTOR agrees that it will not use its
knowledge of the MANUFACTURER’S systems to build or develop competing
products that use phased–array technology to treat deep tumors or any
other software or hardware technology utilized by the MANUFACTURER of
which the DISTRIBUTOR becomes aware because of its activities associated
with this agreement. At the termination of this agreement, any
items remaining in stock may be returned to the MANUFACTURER at a mutually
agreed upon price.
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6.4
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Upon
termination of this Agreement for any reason, nothing herein shall be
construed to release either party of any obligation that matured prior to
the effective date of such termination, and any unpaid payments under this
Agreement shall become immediately due and
payable.
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6.5
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Notwithstanding
the above, DISTRIBUTOR shall have no obligation to purchase the minimum
purchase requirements herein for any period after the day of notification
of termination by DISTRIBUTOR or notification of default by MANUFACTURER,
unless such default is remedied as contained
herein. DISTRIBUTOR shall not be liable to purchase any units
beyond those already ordered and paid for in the event of termination or
default.
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Section
7-- Third party Infringement of Patent or Future Patent
Applications
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7.1
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Should
MANUFACTURER or DISTRIBUTOR become aware of any infringement or alleged
infringement in the country in paragraph 2, that party shall immediately
notify the other party in writing of the name and address of the alleged
infringer, the alleged acts of infringement, and any available evidence of
infringement. MANUFACTURER and DISTRIBUTOR agree to work
jointly (on a best efforts basis) to prevent any infringement and defend
the patent or any additional patent MANUFACTURER may apply for in the
future upon which the TECHNOLOGY is based. The intent of this
paragraph is that DISTRIBUTOR shall defend the patent or patents applied
for in the future in the country in paragraph
2.
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7.2
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DISTRIBUTOR
and MANUFACTURER hereby agree to cooperate with each other in the
prosecution of any legal infringement action or settlement discussions
undertaken pursuant to this section and that each will provide the other
with all pertinent data and evidence of which it may have the knowledge or
which may be in its possession and which may be helpful in the prosecution
of such action.
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7.3
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If,
at any time during the term of this Agreement, MANUFACTURER or DISTRIBUTOR
shall be unable to uphold the validity of any patents against any alleged
infringer, DISTRIBUTOR shall not have a damage claim or a claim for refund
or reimbursement against
MANUFACTURER.
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Section
8-- Taxes, Governmental Approvals and Liability
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8.1
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DISTRIBUTOR
shall be solely responsible for the payment and discharge of any taxes,
duties, or withholdings relating to any transaction of DISTRIBUTOR in
connection with the sale, or lease of the PRODUCTS in its
TERRITORY. In the event that MANUFACTURER is assessed any tax,
duty, or other governmental withholding by the Chinese government with
respect to any payment under this DISTRIBUTOR Agreement, DISTRIBUTOR shall
pay such tax, duty, or other governmental withholding on behalf of
MANUFACTURER or reimburse MANUFACTURER for any such tax, duty, or
withholding it shall make.
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8.2
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DISTRIBUTOR
shall, at its own expense, be responsible for applying for and obtaining
any approvals, authorizations, or validations relative to this Agreement
under the laws of the country in paragraph 2 or otherwise, including
authorization for the remittances hereunder from the appropriate
governmental authorities.
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8.3
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DISTRIBUTOR
shall be responsible for all product liability, and product warranty for
any PRODUCTS sold by DISTRIBUTOR under this Agreement and shall carry
whatever insurance is necessary to provide such liability or warranty
protection.
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Section
9--Independence of the Parties
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9.1This
Agreement shall not constitute the designation of either party as the
representative or agent of the other, nor shall either party by this
Agreement have the right or authority to make any promise, guarantee,
warranty, or representation, or to assume, create, or incur any liability
or other obligation of any kind, express or implied, against or in the
name of, or on behalf of, the
other.
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Section
10--Assignment
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10.1
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DISTRIBUTOR
shall not have the right to assign or otherwise transfer this Agreement
and the rights of distributorship granted hereby and the rights acquired
by DISTRIBUTOR hereunder, without the prior, written consent of
MANUFACTURER (such consent will not be unreasonably
withheld). If such written consent is given, such assignment or
transfer shall not be deemed effective unless such assignee or transferee
has agreed in writing to be bound by the terms and provisions of this
Agreement. DISTRIBUTOR shall have the right to utilize third parties to
market and acquire sales, including but not limited to appointing local
sub distributors. These third parties are also subject to the
terms and limitations of the
agreement.
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10.2
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Upon
termination of this agreement DISTRIBUTOR shall assign all rights to any
import licenses it holds for the MANUFACTURER'S PRODUCTS to the
MANUFACTURER.
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10.3
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MANUFACTURER
shall have the right to assign its right herein, including rights to
receive payments to any third party without the prior written consent of
DISTRIBUTOR. Assignment of payments due must be in accordance with the
laws, rules and regulations of
Germany.
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Section
11--Notices
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11.1
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All
notices, demands, and other communications under this Agreement shall be
deemed to have been duly given and delivered one (1) day after sending, if
sent by telegram, telex, or telefax, and thirty-five (35) days after
posting, if sent by registered airmail, postage prepaid to the parties at
the following locations:
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A. MANUFACTURER:
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BSD
Medical Corporation
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▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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Telefax
▇▇▇-▇▇▇-▇▇▇▇
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| B. DISTRIBUTOR: |
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▇▇.
▇▇▇▇▇▇▇▇▇ Medizintechnik GmbH
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▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
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Telefax
49-89 54 21 43-30
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11.2
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The
parties hereto may give written notice of change of address, and after
such notice has been received, any notice or request shall thereafter be
given to such party at the changed
address.
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Section
12—Training
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12.1
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MANUFACTURER
and DISTRIBUTOR shall fulfill the Medical Devices Act
(Medizinproduktegesetz) MPG, paragraph 31, requirements which state that
all sales representatives of DISTRIBUTOR are adequately trained and
updated. Documentation of training shall be
maintained.
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12.2
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DISTRIBUTOR
shall send, at DISTRIBUTOR'S expense, appropriate employee(s) to locations
designated by MANUFACTURER for the purpose of receiving adequate training,
specified by MANUFACTURER, to properly represent MANUFACTURER in the
TERRITORY.
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Section
13--Demonstration Systems
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13.1
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DISTRIBUTOR
agrees to purchase adequate BSD demonstration systems from MANUFACTURER,
to be mutually determined by both parties, as described
by the attached quotation and sales
agreement.
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Section
14--Applicable Law
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14.1
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All
disputes in connection with this agreement shall be settled with good
faith
negotiation. In case no settlement can be reached, the case may
be submitted to arbitration as agreed upon by both
parties. This Agreement is entered into pursuant to the laws of
the State of Delaware, United States of America, and the validity and
interpretation of this Agreement shall be governed by and in accordance
with the laws of the state and country as such law shall from time to time
be in effect. If attempts at negotiation and arbitration fail,
both parties agree to the jurisdiction of the courts of the States of Utah
or Delaware and agree to be bound by their
rulings.
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Section
15--Attorneys Fees
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15.1
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In
the event there is a default under this Agreement and it becomes
reasonably necessary for any party to employ the services of an attorney,
either to enforce or terminate this Agreement, with or without
arbitration, the losing party or parties to the controversy arising out of
the default shall pay to the prevailing party or parties reasonable
attorneys fees and, in addition, such costs and expenses as are incurred
in enforcing or in terminating this
Agreement.
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Section
16--Identification of TECHNOLOGY and PRODUCTS
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16.1
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DISTRIBUTOR
agrees to ▇▇▇▇ PRODUCTS, all brochures and documents describing the
PRODUCTS with all applicable United States and foreign patent numbers, in
conformity with the patent laws and practices of the respective
country.
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Section
17--Limited Product Warranty
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17.1
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From
the date of shipment to the DISTRIBUTOR, MANUFACTURER warrants, for
eighteen months or twelve months from the date of installation, whichever
occurs first, all specifically covered parts of the system including labor
which is performed at BSD's facility in Salt Lake City,
Utah.
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17.2
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Limitations
regarding quantity of probes and applicators as well as all other items
covered by this warranty shall be governed by MANUFACTURER'S signed
PRODUCTS quotation.
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Section
18--Confidential Disclosure
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18.1
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The
parties acknowledge that from time to time they have or will be required
to disclose to each other TECHNOLOGY that is confidential, proprietary or
secret, in the furtherance of the objects and covenant of this
Agreement. The parties acknowledge that the provisions of this
Agreement are necessary to protect the confidentiality, value and secrecy
thereof.
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18.2
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The
parties agree that they shall take reasonable precautions to preserve the
confidential, proprietary or secret status of any such TECHNOLOGY
disclosure. Each party shall require that its employees and
agents understand and agree in writing to treat and hold such TECHNOLOGY
in confidence consistent with the provisions herein. The
parties further agree that they shall utilize all such TECHNOLOGY solely
for furthering the objectives of this Agreement and they will not, either
during or at any time subsequent to this Agreement, otherwise use such
TECHNOLOGY for their own benefit or for the benefit of others; nor will
either party publish or otherwise disclose such TECHNOLOGY to any other
individual, firm or corporation without first obtaining written consent
from the other party to this
Agreement.
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18.3
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The
obligations of this section shall survive termination of this Agreement,
provided, however, that such obligations shall not apply
to:
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(a) any information which was disclosed to the DISTRIBUTOR by a third
party who is under no obligation of confidentiality to the MANUFACTURER or
a to party in private or to the DISTRIBUTOR;
or,
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(b) any information that DISTRIBUTOR can reasonably demonstrate through
documentation has become generally known through no fault of the
MANUFACTURER to the trade or to public prior to or subsequent to the
disclosure by DISTRIBUTOR.
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18.4
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Within
thirty (30) days from the date of termination of this Agreement as
provided in section 6, DISTRIBUTOR shall furnish MANUFACTURER with written
notice specifying that through reasonable care and to the best of its
knowledge:
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(a) all TECHNOLOGY embodied in all printed documents and machine readable
documentation and copies thereof, including any materials, documents,
books, drawings, memoranda, files, blue prints, diagrams, customer lists,
manufacturing procedures, know-how, testing data, studies, reports,
evaluations, and any other materials or things of any value which
constitute or embody any confidential, proprietary or secret TECHNOLOGY
has been returned to MANUFACTURER;
and
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(b) the originals and all copies of any machine-readable documentation
containing any portion of the TECHNOLOGY of the MANUFACTURER have been
destroyed or returned to
MANUFACTURER.
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Section
19--Non-Competition
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19.1
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The
DISTRIBUTOR further agrees that at no time during this Agreement or for
five (5) years immediately following the termination of this Agreement,
whether said termination is occasioned by the MANUFACTURER or the
DISTRIBUTOR or the mutual agreement of the parties, will the DISTRIBUTOR
for itself, or in behalf of any other person, persons, firm, partnership,
corporation, or company, engage in directly or indirectly, solicit or
attempt to solicit the business or patronage of any person, persons, firm,
partnership, corporation, or company for the purpose of carrying on
competitive business similar to that of the MANUFACTURER or perform such
other incidental product sales, manufacturing or business services as is
now engaged by the MANUFACTURER, nor will the said DISTRIBUTOR disclose to
any person whomsoever any of the confidential information as contained in
Section 18 used by the MANUFACTURER in or about its
business.
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19.2
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The
DISTRIBUTOR shall purchase PRODUCT only from
MANUFACTURER. DISTRIBUTOR shall not purchase new or used
PRODUCT or competitive products for resale into TERRITORY from
MANUFACTURER’S previous customers or distributors outside of
TERRITORY. DISTRIBUTOR shall not remanufacture used PRODUCT
taken in trade from its customers.
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Section
20--General Provisions
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20.1
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The
parties hereto have read this Agreement and agree to be bound by all its
terms. The parties further agree that this Agreement shall
constitute the complete and exclusive statement of the Agreement between
them and supersedes all proposals, oral or written, and all other
communications between them relating to the TECHNOLOGY, including but not
limited to; the inventions, technology, and know-how which are the subject
matter of this Agreement.
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20.2
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No
agreement changing, modifying, amending, extending, superseding,
discharging, or terminating this Agreement or any provisions hereof shall
be valid unless it is in writing and is dated and signed by duly
authorized representatives of the party or parties to be
charged.
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20.3
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The
provisions of this Agreement are several, and in the event that any
provision of this Agreement shall be held to be invalid, illegal, or
unenforceable, the validity, legality, and the enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
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20.4
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Failure
of any of the parties hereto to enforce any of the provisions of this
Agreement or any rights with respect thereto or to exercise any election
provided for herein, shall in no way be considered a waiver of such
provisions, rights, or elections or in any way affect the validity of this
Agreement. No term provision hereof shall be deemed waived and
no breach excused, unless such waiver or consent shall be in writing and
signed by the party claimed to have waived or consented. The
failure by any of the parties hereto to enforce any of said provisions,
rights, or elections shall not preclude or prejudice such party from later
enforcing or exercising the same or in any other provisions, rights, or
elections which it may have under this Agreement. Any consent
by any party to, or waiver of, a breach by the other, whether express or
implied, shall not constitute a consent or waiver of, or excuse for any
other, different or subsequent breach. All remedies herein
conferred upon any party shall be cumulative and no one shall be exclusive
of any other remedy conferred herein by law or
equity.
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20.5
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This
Agreement shall be binding not only upon the parties hereto, but also
upon, without limitation thereto, their successors, heirs, devisees,
divisions, subsidiaries, officers, directors, employees, and agents and
any and all persons or entities in private with them or having notice of
this Agreement.
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20.6
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Time
is of the essence in the performance of each and every obligation and
covenant imposed by this Agreement.
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20.7
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There
shall be no liability on either party on account of any loss, damage, or
delay occasioned or caused by strikes, riots, fires, insurrection, or the
elements, embargoes, failure of carriers, acts of God or of the public
enemy, compliance with any law, regulation, or other governmental order,
or any other causes beyond the control of either party, whether or not
similar to the foregoing.
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20.8
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Except
as provided elsewhere in this Agreement, all of the legal, accounting, and
other miscellaneous expenses incurred in connection with this Agreement
and the performance of the various provisions of this Agreement shall be
paid by the party who incurred the
expense.
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20.9
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All
covenants, agreements, representations, and warranties made herein in
writing in connection with this transaction shall survive after the
closing date.
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20.10
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Headings
used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
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20.11
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This
Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, all of which constitute one and the same
agreement.
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20.12
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This
Agreement is the entire agreement between the parties and supersedes and
shall be substituted for each and every agreement with respect to
distribution of MANUFACTURERS products, whether written, oral or otherwise
in effect between DISTRIBTUOR and
MANUFACTURER.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first mentioned above.
BSD
Medical Corporation
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By /s/ ▇▇▇▇▇▇
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Date
May 13,
2009
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Date
May 13,
2009
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BSD
Medical Corporation - Confidential Document - Initials
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