IMAGING DIAGNOSTIC SYSTEMS, INC.
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is made and entered into as
of November 29, 1999, by and between Cycle of Life Technologies, Inc., a
division of 1384141 Ontario Inc., a corporation duly incorporated under the laws
of the Province of Ontario, Canada "Distributor"), and Imaging Diagnostic
Systems, Inc., a corporation organized and existing under the laws of the State
of Florida ("IDSI").
WITNESSETH:
RECITALS
WHEREAS, IDSI is the owner, and manufacturer of a state of the art laser
imaging system for detection and analysis of masses in the breast, and ancillary
equipment as more fully described on Exhibit A hereto and incorporated herein
(the "Equipment").
WHEREAS, IDSI is the owner of a certain Patent, Patents pending and Patent
applications, trade secrets and other proprietary information in connection with
the Equipment and represents that it has the legal right to manufacture, sell
and distribute the Equipment, either individually or through others;
WHEREAS, IDSI wishes to grant to Distributor and Distributor wishes to
obtain the exclusive right to be supplied with, sell, distribute and market the
Equipment, individually or through others, in the territory defined in paragraph
1(b) below.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the parties
hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement the following terms shall have
the definition set forth below.
(a) Equipment. The term "Equipment" shall mean and include only those
products listed on Exhibit A, as amended from time to time. IDSI may add to,
upgrade or change the Equipment from time to time by providing written notice
not less than thirty (30) days prior to any such change. If the nature or type
of equipment changes, the distributor has the option to terminate the agreement
forthwith.
(b) Territory. The term "Territory" shall mean Canada, Slovakia, Bulgaria,
Greece, Hungary, Slovenia, Croatia, Bosnia, Macedonia, Serbia, Benelux, Denmark,
France, Trinidad & Tobago, Barbados, South America (except Ecuador), Ukraine,
Romania, South Africa, South Arabia, Kuwait, Kirghistan, Tajikistan, Uzbekistan,
and Kazakhstan.
(c) Territory Exclusions. In the event that a country listed in (b)
Territory becomes restricted from trade by the United States government, that
country shall automatically be removed from the Distributor's territory until
such time that the U.S. government lifts the trade restriction.
(d) In the event that USA government lifts the trade embargo with Iran,
Cycle of Life shall have the right of first refusal for that territory.
2. TERM. This Agreement shall be for a term of three years from the date of its
execution by Distributor. This Agreement will automatically renew for an
additional two years term provided that Distributor meets the Performance
Standards set forth in Section 5. and, provided that Distributor satisfactorily
fulfills all other terms and conditions of this Agreement.
3. RIGHT TO SELL, DISTRIBUTE AND MARKET. During the term of this Agreement and
any renewal hereof, IDSI hereby grants to Distributor, as its exclusive agent,
the right to sell, distribute, individually or through outside distributors, and
market the Equipment in the Territory. Distributor shall also have the right to
use the trade names, and trademarks associated with the Equipment in connection
with the promotion, sale, marketing and distribution of the Equipment.
Distributor hereby acknowledges and agrees that all trade names and trademarks
associated with the Equipment are the property of and proprietary to IDSI.
4. DISTRIBUTOR'S DUTIES, REPRESENTATIONS AND WARRANTIES. Distributor agrees to
use its best efforts to sell, market and/or distribute the Equipment in the
Territory. Distributor agrees that it will perform at its expense the following
duties to IDSI's reasonable satisfaction. It is understood that Cycle of Life
Technologies Inc. will adhere to the stipulation of this contract. It is further
understood that Cycle of Life Technologies Inc. has the right to assign these
stipulation to the designated Dealer/Distributor and act as an Agent.
(a) Promotion and Marketing.
(i) Distributor will maintain a qualified sales and
distribution organization which will provide sales personnel, advertisement,
marketing and distribution support for the solicitation of customers and
potential customers in the Territory for the sale of the Equipment.
(ii) Any sales promotion, promotional activities, marketing or
advertising strategies, pamphlets, advertisements, brochures or other
promotional materials, other than those provided by IDSI, must have the prior
written approval of IDSI. At least one copy of all Distributor's advertising and
sales promotion materials in which the Equipment of IDSI is mentioned, must be
provided for IDSI's review and approval prior to the time of first use. All
advertisements, pamphlets, brochures or other promotional materials, other than
those provided by IDSI shall be at the sole cost of the Distributor. The
Distributor shall have the continuing right to use any promotional materials
produced by IDSI while this Agreement is in effect.
(iii) The Distributor cost on RSNA show shall be limited on
the travel and accommodation. The Distributor representative shall be present in
the IDSI booth for 4 hours each day of the RSNA.
(b) Quarterly Reports. Distributor shall promptly prepare and deliver to
IDSI, within 21 days of the end of each quarter, reports identifying each
purchaser of Equipment by name, address and designation of type of business and
the date of sale, model and serial number for each unit of Equipment sold during
the preceding three months and a forecast of requirements for Equipment for the
following six months, as well as a description of all training, support, and
advertising and sales promotional activities undertaken during such period. In
addition, such Report shall contain a statement of the Distributor then current
inventory of spare parts and technical literature available for customer
service, maintenance and support of the Equipment. An officer of the Distributor
shall certify the Report.
(c) General Conduct. Distributor shall at all times conduct its business in
a manner that reflects favorably on IDSI and its Equipment and will not engage
in any deceptive, misleading, illegal or unethical business practices.
(d) Service and Support. Distributor's personnel will be required to be
trained at IDSI headquarter facilities in sales and support techniques for all
of the Equipment and services. IDSI will not charge for such training, however
Distributor shall be responsible for all travel, accommodation and other
expenses. Distributor will provide adequate installation, customer service, and
maintenance and support for the Equipment in the Territory. Distributor will
provide a schedule of service and support representatives in each country listed
under (b) Territory. Distributor will establish and maintain a staff of trained
technicians and purchase and maintain stock of spare parts and technical
literature necessary in order to provide adequate installation, customer
service, maintenance and support of the Equipment in the Territory. Distributor
hereby agrees to provide such service and support in a prompt and workmanlike
manner to any user of the Equipment in the Territory. The time frame for such
service in Canada shall be 12 Months from the first delivery of the first
Equipment. For services outside Canada the conditions remain unchanged
(e) Competitive Products. Distributor will do everything within its power
to feature, promote, and advertise, as part of its merchandising and sales
policy, the Equipment and use its best efforts to stimulate and increase
interest in IDSI's Equipment. IDSI understands that some existing and some new
customers may request competitors' products. Distributor will use its best
efforts to sell, market and distribute the IDSI Equipment to such customers.
Distributor will give IDSI the opportunity to assist with these accounts.
(f) Customer Requirements. With a view to maximizing the potential market
for the Equipment within the Territory, Distributor will report to IDSI on a
quarterly basis, and assist IDSI in the assessment of the needs and requirements
of the potential customer base in the Territory with respect to the Equipment,
including, but not limited to: (i) a rolling twelve-month quantity forecast,
(ii) quality of the Equipment, (iii) design, functional capability and
additional features of the Equipment and related modifications, improvements and
enhancements, and (iv) general market conditions of the Territory.
(g) Co-marketing Protection. Distributor will maintain confidentiality of
IDSI supplied prospective customers and not conduct any direct efforts to
persuade such clients toward competitive equipment or services.
(h) Purchase Orders. Distributor shall forward all orders promptly to IDSI.
The orders shall state clearly the name of the purchaser, the quantity
purchased, and the time and place of delivery.
(i) Delivery. Distributor shall give IDSI at least 120 days prior
written notice before each shipment is required.
(j) Expenses and Taxes. Distributor is an independent contractor, and as
such shall pay all expenses, including compensation of salesmen, rentals,
travel, and all taxes, including assessments, which may be made against the
salary or wages of those directly employed by Distributor.
(k) Relationship of Parties. Except as set forth herein, Distributor shall
have no right or authority to create any obligation on the part of IDSI or bind
IDSI to any agreement.
(1) Offices. Distributor shall maintain a suitable office in Toronto,
Ontario, Canada with a telephone and facsimile line suitable for use for the
sale of the Equipment. The office shall contain a suitable display area where
the Equipment shall be prominently displayed at all times. This display area or
another area shall be suitable for and used for the demonstration of and
training in the use of, the Equipment. The office shall be staffed from 9:00
a.m. to 5:00 p.m., Monday through Friday, subject to recognized national
holidays.
5. PERFORMANCE STANDARDS.
If the following performance standards (the "Minimum Performance Standards") are
not met, IDSI will notify Distributor, in writing, that it is in default of this
Agreement. If Distributor does not cure the deficiency within 30 days from
receipt of the notice, IDSI, at its sole option, may: (i) continue this
Agreement on a nonexclusive basis; (ii) continue this Agreement on a
nonexclusive basis and limit the Territory; or (iii) terminate this Agreement.
Any such action taken by IDSI shall be without prejudice to the rights of the
parties with respect to Equipment already ordered, sold or delivered.
For the purpose of this agreement one year shall begin upon PMA/FDA acceptance.
This is mandatory only where FDA is applicable by country.
YEAR. NUMBER OF CTLM(TM)UNITS
In 2 Years 50
Quantity breakdown per country refer to "Schedule C"
6. PURCHASE OF EQUIPMENT.
(a) Orders. Orders from Distributor for equipment shall be made by delivery
of a purchase order to IDSI. As soon as practicable after receipt of such
purchase order, IDSI will: (i) if such order is accepted, return to Distributor
IDSI's standard form of Sales Acknowledgment (the "Acknowledgment") setting
forth dates on which delivery will be made, or (ii) notify Distributor in
writing that such order is rejected. IDSI will use its best efforts to make
prompt delivery of the Equipment accepted by IDSI on the delivery dates
specified in the Acknowledgment, F.O.B. Fort Lauderdale, at the time and to the
entities and destinations listed in the purchase orders. IDSI shall not be
liable for any failure to deliver, if such failure has been occasioned by fire,
embargo, strike, failure to secure materials from a usual source of supply, or
any circumstance beyond IDSI's control, which shall prevent IDSI from making
deliveries in the normal course of its business. IDSI shall not, however, be
relieved from making delivery when the causes interfering with deliveries shall
have been removed. In particular, the Parties acknowledge that IDSI is reliant
on outside suppliers, which supply the components for its Equipment. Should
these suppliers fail to produce the required components in a timely manner, than
IDSI shall be excused from the delivery obligations under this Agreement until
such time as the components can be manufactured, delivered and installed in the
Equipment. In no event shall IDSI be responsible for any loss or liability
suffered by Distributor as a result of delay in delivery of any order. An order
could be rejected if the Distributor fails to meet the commitments of the
Agreement within the territory or otherwise acts inappropriately with respect to
distribution of the equipment.
(b) Cancellation of Orders. Distributor may cancel any order (or any part
thereof) for Equipment by giving IDSI written notice of such cancellation at
least 91 days prior to the shipping date. If an order is cancelled, the charge
to the Distributor is 15% of the amount of the purchase order.
(c) Rescheduling Orders. Distributor may at any time, upon not less than
thirty (30) days written notice to IDSI, reschedule and/or postpone the delivery
date relating to an order (or any part thereof) for up to thirty (30) days. The
postponement of delivery to a date more than thirty (30) days from the delivery
date specified in the initial order shall be deemed a cancellation of such
order. DISTRIBUTOR MAY NOT POSTPONE THE DELIVERY DATE MORE THAN ONCE WITH
RESPECT TO ANY ORDER. If Distributor cancels a previously rescheduled delivery
of Equipment, the applicable cancellation charges shall be based on the delivery
date specified in the initial order submitted by Distributor for such delivery.
7. PRICE.
(a) Purchase Price. The purchase price for the Equipment to be sold
hereunder shall initially be as set forth on IDSI's Price List attached hereto
as Exhibit A, which may be discounted at the sole discretion of IDSI based on
the cumulative quantities of such Equipment purchased by Distributor during the
term hereof or any Additional Term. Discounts shall not apply retroactively to
prior purchases of Equipment. IDSI shall have the sole right to set the price
and other terms of the sales of the Equipment. IDSI, at its sole discretion,
reserves the right to change prices, materials used, Equipment line and the
components of the Equipment. IDSI will provide reasonable notice of any price or
other changes to Distributor as to not disrupt the sales and distribution of the
Equipment. IDSI reserves the right to amend Exhibit A with respect to any
Additional Term.
(b) Price Changes. IDSI may change the prices to be charged for Equipment
sold hereunder by amending its published Price List and giving Distributor sixty
(60) days prior notice. All orders received and accepted by IDSI prior to the
effective date of the price increase for shipment within thirty (30) days of
such effective date will be billed at the prices in effect at the time of
acceptance of the order; provided, however, that if Distributor notifies IDSI in
writing prior to the effective date of such price increase that it quoted the
original price in an outstanding bid submitted prior to receipt of IDSI's
amended Price Lists, any order relating to such bid accepted by IDSI prior to
the effective date of such price increase for shipment within ninety (90) days
of such effective date will be billed at the prices in effect at the time of
acceptance. All other shipments after thirty (30) days (or ninety days, if
applicable) of such effective date shall be billed at the prices set forth in
the amended Price List.
(c) Payment. All payments hereunder shall be in United States dollars and
shall be effected by means of confirmed, irrevocable letters of credit opened by
the Distributor 90 days prior to shipping date on a United States bank
established, to IDSI's satisfaction. All exchange, interest, banking, collection
and other charges outside U.S.A. shall be the sole expense of the Distributor.
There will be a collaborative terms for both parties.
Distributor shall have the option to wire transfer funds ninety (90) days in
advance of shipment to IDSI as follows:
First Union National Bank of Florida, Jacksonville, Florida
ABA Number 063000021
Account of Imaging Diagnostic Systems, Inc.
Account Number 2090000431548
Shipment will be made upon either receipt of the letter of credit approved by
IDSI or confirmation that a wire transfer has been received.
8. TERMS AND CONDITIONS OF SALE. This Agreement and all sales of Equipment
hereunder by IDSI to Distributor shall be subject to IDSI's standard terms and
conditions of sale as set forth on the applicable Acknowledgment. A copy of
IDSI's current Standard Terms and Conditions of Sale is attached hereto as
Exhibit D and incorporated herein. To the extent that IDSI's standard terms and
conditions are inconsistent with express provisions of this Agreement, the
provisions of this Agreement shall prevail. Distributor agrees that although it
may use its standard forms for others or other notices hereunder, said standard
forms will be governed by the terms and conditions of this Agreement and any
applicable Acknowledgment shall have no force and effect. Distributor agrees to
place the following legend on its standard forms submitted to IDSI hereunder:
"NOTWITHSTANDING ANY OTHER TERMS AND CONDITIONS APPEARING HEREON, THIS PURCHASE
SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF SALE SET FORTH IN THE IDSI
DISTRIBUTION AGREEMENT."
9. PRODUCT WARRANTY.
LIMITED WARRANTY
With respect to Equipment for which Company is the original Company,
Company warrants to Distributor that, for a period of twelve (12) months from
installation each item of Equipment will conform in all materials and
workmanship. Company's obligation under this warranty is limited to, at
Company's option, repairing or replacing, at Company's facility or at the
location of the Equipment, any Equipment or parts thereof that do not conform to
this warranty. Distributor shall promptly notify Company in writing of any
alleged defects in the Equipment and specifically describe the problem. Company
shall have no obligations under this warranty with respect to any defect unless
it receives notice and a description of such defect no later than ten (10)
working days following the expiration of the warranty period. Upon receipt of
such notice, Company shall either advise Distributor that warranty service shall
be provided at the location of the Equipment or shall instruct Distributor as to
the part or parts of the Equipment that Distributor shall ship back to Company
for repair or replacement. Company will pay the costs of transporting Equipment
to Company which to have been defective; otherwise, Distributor shall pay all
costs of transportation in both directions.
With respect to Equipment for which Company is the original Company,
Company warrants to Distributor that the Programs provided to Distributor in
connection with such Equipment will conform to and perform in accordance with
the then existing Equipment documentation for a period of one (1) year from
shipment of the last item of Equipment in conjunction with which the Programs
are to be used if properly used on the Equipment. Company's obligation under
this warranty is limited to, at Company's option, correcting, repairing or
replacing, at Company's option, at Company's facility or the location of the
Programs, any Program or parts thereof that do not conform to this warranty.
With respect to Equipment for which Company is not the original Company and
the Programs provided to Distributor in connection with such Equipment, the sole
warranties provided by Company to Distributor shall be equivalent to the sole
warranties provided by the original Company to Company (current original Company
warranties and the identification of Equipment to which they pertain shall be
provided to Distributor upon request).
The foregoing warranties shall not apply to any Equipment or Programs which
have been (i) used or operated in a manner inconsistent with the license granted
by Company, (ii) modified or repaired by anyone other than Company personnel or
Company's authorized service representatives in a manner which adversely affects
their operations or reliability, or (iii) damaged because of accident, neglect
or misuse by anyone other than Company personnel, failure or surge of electrical
power, air conditioning or humidity control, transportation, or other than
ordinary use.
THE FOREGOING WARRANTIES APPLY ONLY TO THE ORIGINAL PURCHASER AND ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY UPON THE RIGHTFUL CLAIM
OF ANY THIRD PERSON.
10. SUBLICENSES.
(a) Programs Sublicense. Distributor is authorized to grant restrictive,
nonexclusive, nontransferable sublicenses to customers to use the Programs or
any portion thereof, provided that each such Customer (sublicensee) enters into
an agreement with Distributor pursuant to which the sublicensee expressly
accepts and agrees to the terms and conditions of the license set forth in the
Acknowledgment. In addition to any other remedy IDSI may have, IDSI reserves the
right to terminate any sublicensee's sublicense if said sublicensee fails to
comply with any term or condition of any such sublicense. Any sublicense granted
by Distributor to a sublicense hereunder shall also terminate and such
sublicense shall cease to use and return the Programs.
(b) Proprietary Technical Materials Sublicense. Distributor is authorized
to grant restrictive, nonexclusive, nontransferable sublicenses to customers to
use the Proprietary Technical Materials or any portion thereof, provided that
each such customer (sublicensee) enters into an agreement with Distributor
pursuant to which the sublicensee expressly accepts and agrees to the terms and
conditions of the license set forth in the Acknowledgment. In addition to any
other remedy IDSI may have, IDSI reserves the right to terminate any
sublicensee's sublicense if said sublicensee fails to comply with any term or
condition of any such sublicense. Any sublicense granted by Distributor to a
sublicense hereunder shall also terminate and such sublicense shall cease to use
and return the Proprietary Technical Materials.
11. MAINTENANCE.
(a) Distributor's Obligation to Provide Service. Distributor agrees that
IDSI shall have no obligation to maintain the Equipment except for the warranty
obligations specified in Section 9. Distributor acknowledges and agrees that it
will perform, at no expense to IDSI, maintenance and repair of Equipment sold or
leased to the Distributors customers
(b) Spares Parts. Distributor shall purchase a basic spare parts kit to
support warranty repair service in Distributor's Territory. In the event that
spare parts are used to support warranty repair, IDSI shall replace said parts
at no charge upon receipt of a copy of the field service report and the
defective part. Distributor will provide IDSI with a monthly report, not later
than 15 days after the first day of each month, which will indicate the
Customers name, address and phone number, the work performed, the parts used and
whether the repair was under warranty. The report shall also include a total
dollar amount for parts used for non-warranty repair. IDSI shall sell to
Distributor spare parts for use in connection with the Products. IDSI shall
supply Distributor with a price list for spare parts, which prices may be
increased at any time or from time to time by IDSI. Distributor shall pay IDSI
for such parts in accordance with Section7 (c). Distributor shall pay all
shipping costs to send spare parts to Distributor or to the Customer. IDSI shall
not pay any shipping costs. Unused, uninstalled spare parts, which are returned
undamaged to IDSI, may be subject to a restocking charge equal to twenty-five
percent (25%) of the then current price therefore.
12. TERMINATION.
(a) Either party may, by written notice to the other party, terminate this
Agreement upon the occurrence of any one or more of the following events:
(i) Upon the failure of the other party to pay any monies when
due hereunder, if such default continues for five (5) business days or more
after written notice to the defaulting party;
(ii) Upon material failure of a party to observe, keep or
perform any of the covenants, terms or conditions herein, if such default
continues for thirty (30) business days or more after written notice to the
defaulting party;
(iii) In the event: (A) a party makes a general assignment for
the benefit of creditors or transfers all or a substantial portion of its
assets; (B) a receiver is appointed and not discharged within 30 days of
appointment, or (C) the other party has become insolvent.
(b) IDSI may, by written notice to Distributor, terminate this Agreement
upon occurrence of any one more of the following events:
(i) In the event that Distributor solicits orders for Equipment
outside its Territory;
(ii) In the event of any dispute, disagreement or controversy
between or among the owners, partners, managers, officers or
stockholders of Distributor which in the opinion of IDSI
adversely affects the ownership, operation, management, business
or interests of Distributor, or in the event of a change in
control or majority ownership of Distributor;
(iii) If Distributor ceases to function as a going concern or to
conduct its operations in the normal course of business, or
(c) If Distributor fails to meet the Minimum Performance Standards set
forth in Section 5, IDSI shall have the right, upon 30 days written notice to
the Distributor, to terminate this Agreement. Distributor shall have the right
to cure the deficiency within such 30-day period. If Distributor does not cure
the Deficiency within such 30-day period, IDSI may terminate this Agreement on
the 30th day.
(d) Upon termination or expiration of this Agreement, for any reason
Distributor shall discontinue the use of IDSI's name, trademarks, trade names,
labels, copyrights, and other advertising media and shall remove all signs and
displays relating thereto: and will no longer identify itself as a distributor
of IDSI or indicate, in any way, that it is associated with IDSI. Distributor
shall promptly return to IDSI all marketing and selling materials, all manuals,
all technical data, all other documents and copies thereof previously supplied
by IDSI and all spare parts consigned to Distributor by IDSI.
(e) Upon termination or expiration of this Agreement, for any reason, IDSI
shall have the option to repurchase its Equipment and spare parts then in
possession of the Distributor, at prices originally billed to the Distributor if
the Equipment and spare parts are new and at an adjusted price if the Equipment
is used, and with deductions for money due or to become due to IDSI under this
Agreement. As to any of the IDSI's Equipment or spare parts not repurchased by
IDSI, Distributor shall have the right to dispose of them in the regular course
of its business and for this purpose only, the restrictions of preceding sub
paragraph shall be deferred until three months after the termination of this
Agreement.
(f) It is expressly understood and agreed that the rights of
termination as provided in this Agreement are absolute and that both parties
hereto have considered the costs and expenditures associated with the
preparation and performance of this Agreement and the possible losses and
damages which may be incurred by both parties in the event of its termination.
The parties hereto acknowledge and agree, by execution hereof that they have
entered into this Agreement with full knowledge of such possibilities, and
except as provided herein neither party hereto shall be responsible to the other
for compensation, damages, losses, or otherwise, for termination of this
Agreement as set forth above.
13. TRADEMARKS: MARKINGS.
(a) Trademarks and Names. Distributor is hereby granted permission to use
during the term of this Agreement, and any renewal hereof, the trademarks and
trade names used by IDSI in connection with the Equipment. Such permission is
expressly limited to uses by Distributor necessary to performance of
Distributor's obligations under this Agreement, and Distributor hereby admits
and recognizes IDSI's exclusive ownership of such marks and names and the renown
of IDSI's marks and names, both worldwide and specifically in the Territory.
Distributor agrees not to take any action, inconsistent with such ownership and
further agrees to take any action, including without limitation the conduct of
legal proceedings, which IDSI deems necessary to establish and preserve IDSI's
exclusive rights in and to its trademarks and trade names. Reproductions of
IDSI'S trademarks, logos, symbols, etc. shall be true reproductions and shall be
done photographically or digitally in a manner, which enhances the reputation
and status of IDSI.
(b) Markings. Distributor will not remove or make or permit any alterations
in any labels or other identifying markings placed by IDSI on any of the
Equipment without written consent by IDSI.
(c) No Additional Rights. No rights to manufacture, alter, or use the
Equipment for purposes other than those contained herein are granted by this
Agreement. Moreover, no licenses are granted or implied by this Agreement under
any patents owned or controlled by IDSI or under which IDSI has a right, excep
the right to sell, market and distribute IDSI's Equipment, as contemplated
herein, during the term of this Agreement.
14. INDEMNIFICATION. Distributor shall indemnify and hold harmless IDSI, its
officers, directors, employees, or agents (collectively referred to in this
Section 14 as "IDSI") for damages or expenses resulting from any claim, suit or
proceeding brought against IDSI, with regard to any untrue statement or alleged
untrue statement, misrepresentation or alleged misrepresentations, promise or
agreements made or allegedly made by Distributor or its subdistributors or
arising from the marketing, sale or distribution of the Product by Distributor
or its sub-distributors. This provision shall not apply to Distributor or any
person controlling Distributor in respect of any losses, claims, damages,
liabilities or actions arising out of or based upon any untrue statement or
alleged untrue statement, misrepresentation or alleged misrepresentations,
promise or agreement made or allegedly made by Distributor or arising from the
marketing, sale or distribution of the Product by Distributor, if such untrue
statement or alleged untrue statement, misrepresentation or alleged
misrepresentations, promise or agreement was made in reliance upon information
furnished in writing to Distributor by IDSI specifically for use in connection
with the sale, marketing or distribution of the Equipment. IDSI agrees that
Distributor has the right to defend, or at its option to settle, and Distributor
agrees, at its own expense, to defend or at its option to settle, any claim,
suit or proceeding brought against IDSI. Distributor agrees to pay any costs of
litigation, investigation or defense incurred by IDSI, including reasonable
attorney fees, and final judgment, entered against IDSI on such issue in any
such suit or proceeding. Distributor shall be relieved of the foregoing
obligations unless IDSI notifies Distributor in writing, within fifteen days of
receipt of notification of such suit, claim or proceeding, and gives Distributor
authority to proceed as contemplated herein.
15. RISK OF LOSS. Title to the Equipment shipped shall pass upon shipping,
subject to full payment. Distributor assumes the risk of loss and damage of the
Equipment in transit from IDSI's shipping point to the point of destination.
16. COMPLIANCE WITH LAWS. Distributor shall comply with all material applicable
present and future federal, state, county, local and foreign laws, ordinances
and regulations relating to the importation and sale of the Equipment.
Distributor will take all steps necessary to obtain the proper import licenses,
if applicable and Distributor shall be solely responsible for any excise tax,
duties or other costs for the importation of the Equipment.
17. NON-CIRCUMVENTION AGREEMENT. The respective Parties involved in this
Agreement, agree not to circumvent each other. The Parties agree that they will
not make any contact, directly or indirectly, written, oral, electronic or by
any medium of contact whatsoever, with any Sources without the express written
consent of the other introducing Party. Each of the listed Parties hereto,
accepts and understands that any overt or covert action of circumvention, or
unauthorized disclosure shall constitute a breach of trust and shall be
considered a breach of the terms and conditions of this agreement. Such action
shall be subject to judicial action, and recompense.
If either Party shall bring an action to recover payment or other compensation
pursuant to the terms of this Agreement, the prevailing Party shall be entitled
to reasonable attorney's fees and expenses as may be awarded, including legal
fees and costs, and recovery for liquidated damages and punitive damages as may
be awarded by and through any legal process or jurisdiction.
For the purposes of this Section 17, the term "Party" or "Parties" shall be
considered to include and be binding upon the parties to this Agreement, any
individual, entity or entities, including but not limited to, associates,
partners, assigns, spouses, employees, agents, principals, clients,
corporations, companies, subsidiaries, divisions, affiliated, associations,
collateral providers or the like, which the Parties hereto may now or in the
future be associated with during the term of this Agreement and any renewal
thereof.
For the purposes of this Section 17, the term "Sources" shall be considered to
include any business opportunity, principal, individual, entity or entities,
including but not limited to, customers and distributors, their associates,
partners, assigns, spouses, employees, agents, principals, clients,
corporations, companies, subsidiaries, divisions, affiliated partnerships,
associations or the like, introduced to or brought to the attention of a Party
to the other Party during the term of this Agreement or any renewal thereof.
Distributor acknowledges and agrees that no separate or additional payment will
be required to be made to it in consideration of its undertakings in this
Section 17.
18. NO COPYING. Without the prior written consent of IDSI, Distributor shall
refrain from copying, reverse engineering, disassembling, translating or
modifying the Equipment for its benefit, or granting any other person or entity
the right to do so.
19. NOTICES. Any notice required or permitted by this Agreement shall be in
writing and shall be delivered by U.S. Certified Mail, return receipt requested,
or by special messenger service with receipt (such as Federal Express), by
facsimile delivery or by hand, to the parties at the following addresses or such
substitute person or address of which notice is given in like manner:
Imaging Diagnostics Systems, Inc.
6531 NW 18 Court
Plantation, Florida 33313
Phone (954) 581-9800
Fax (954) 581-0555
Distributor:
Cycle of Life Technologies, Inc.
20 Queen Street West, Suite 3208
Toronto, Ontario M5H3R3 Canada
Phone (416) 408-1200
Fax (416) 408-2268
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
20. GOVERNING LAW. VENUE AND ARBITRATION. This Agreement shall be deemed to be
executed in the State of Florida and governed by the laws of the State of
Florida. Any controversy or claim arising out of or relating to this Agreement
or to the interpretation, breach or enforcement thereof, except a claim for
injunctive relief, shall be submitted to an arbitrator and settled by
arbitration in Broward County, Florida, in accordance with the rules then
obtaining of the American Arbitration Association. Any award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof. Nothing contained herein shall serve to prohibit the parties from
seeking injunctive relief in a court of competent jurisdiction.
21. GENERAL.
(a) Independent Contractor. Distributor will act as an independent
contractor under the terms of this Agreement and not an agent or legal
representative of IDSI for any purpose, whatsoever, and, except for the
extension of the warranty set forth in Section 9, Distributor has no right or
authority to assume or create any obligation of any kind, express or implied, on
behalf of IDSI to Distributor's customers or to any other person.
(b) Product Changes. IDSI reserves the right to make design and other
modifications in the Equipment at any time but shall not be obligated to
implement such modifications in Equipment that has previously been delivered.
(c) Confidential Information. Distributor agrees not to disclose to any
person outside of its employ, and not to use for any purpose other than to
fulfill its obligations under this Agreement, any information which is disclosed
to Distributor by IDSI and which is not otherwise publicly available.
Distributor agrees to take all preventative measures and precautions to guard
against and prevent any use or disclosure of such confidential information by
its partners, employees, agents, or other persons consistent with the intent of
this paragraph. Distributor further agrees not to disclose to IDSI any
information, which Distributor deems to be confidential, and it is understood
that any information received by IDSI will not be of a confidential nature.
(d) Waiver and Amendment. Any party shall not construe the waiver by any
party to this Agreement of a breach of any provision hereof by any other party
as a waiver of any subsequent breach. The failure by either party at any time to
enforce the provisions of this Agreement, or to exercise any election or option
provided herein, shall in no way be construed as a waiver of such provisions or
options, nor in any way to affect the validity of this Agreement or any part
thereof, or the right of either party thereafter to enforce each and every such
provision. No provision of this Agreement may be terminated, amended,
supplemented, waived or modified other than by an instrument in writing signed
by the party against whom the enforcement of the termination, amendment,
supplement, waiver or modification is sought.
(e) No Other Warranty or Representation. Distributor hereby
acknowledges that it has not entered into this Agreement in reliance upon any
warranty or representation by any person or entity except for the warranties or
representations specifically set forth herein.
(f) Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall be for accommodation only and shall not be binding upon the
parties hereto. All communications and materials made or given pursuant to this
Agreement, including without limitation any operations and maintenance manuals,
shall be in the English language. IDSI shall have no obligations or liabilities
to Distributor or any other person for loss of profits, loss of use or
incidental, special or consequential damages, even if IDSI has been advised of
the possibility thereof, arising out of or in connection with the translation
from English into any other language of any materials made or given pursuant to
this Agreement, including without limitation any operations and maintenance
manuals.
(g) Licenses and Permits. IDSI will use its best efforts to secure all
export licenses and permits required by the United States government, and
Distributor will secure all import licenses and permits required in connection
with the importation, marketing, sale and distribution of the Equipment. Each
party will furnish any information and assistance reasonably required by the
other party in connection with securing any such licenses and permits.
(h) Import/Export Controls. IDSI's obligations hereunder shall be at all
times subject to the export administration and control laws and regulations of
the United States Government, and any amendments thereof and the import
administration and control laws and regulations of the Territory, and any
amendments thereof. Distributor shall provide IDSI with any written assurances
it may reasonably request with respect to Distributor's compliance with such
laws or regulations. Distributor agrees that, with respect to the import, resale
or any other disposition of Equipment and any printed commercial and technical
data and information supplied by IDSI, Distributor will comply fully with the
import/export administration and control laws and regulations of the United
States of America and the Territory, and any amendments of such laws and
regulations.
(i) Compliance with Laws. IDSI represents that, with respect to the
production of Equipment to be furnished hereunder, IDSI will fully comply with
all applicable laws of the United States and the State of Florida. Distributor
represents that, with respect to the purchase, marketing, sale and distribution
of the Equipment furnished hereunder, Distributor will comply with all
applicable laws of the Territory.
(j) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties concerning the subject matter hereof and
supersedes all prior agreements, negotiations and understandings of the parties
with respect thereto. No representation, promise, modification or amendments
shall be binding upon either party as a warranty or otherwise, unless in writing
and signed on behalf of each party by a duly authorized representative. Although
Distributor may use its standard purchase order form to give any order or other
notice provided for hereunder, said order or notice will be governed by the
terms and conditions of this Agreement any applicable Acknowledgment, and any
term or condition set forth in any such standard form which is inconsistent with
or in addition to the terms and conditions of this Agreement and any applicable
Acknowledgment shall have no force or effort.
(k) Attorney's Fees. In the event any action is commenced with regard to
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and expenses.
(l) Severability Clause. In the event any parts of this Agreement are found
to be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
(m) Successors. Subject to the provisions of this Agreement, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
(n) Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature, provided however that
original signatures must be provided within ten days from the date of signing.
(p) Further Assurances. The Parties hereto agree to execute and deliver
from time to time at the other Party's request, without further consideration,
such additional documents and to take such other action necessary to consummate
the transactions contemplated herein.
(q) Assignment. This Agreement may be assigned by IDSI. Distributor will
not be permitted to assign this Agreement with out the prior written consent of
IDSI.
(r) U.N. Convention. The parties hereby agree to opt out of the coverage of
the United Nations Convention on Contracts for the International Sale of Goods,
to the extent that such convention might by its terms apply to this Agreement.
(s) Foreign Corrupt Practices Act. Under U.S. law it is a criminal offense
for IDSI to make payments directly or indirectly to foreign governmental
officials or political parties to influence any act or decision of such
officials or parties and thereby obtain or retain business. In order to avoid
criminal sanctions under this act, ETC agrees (i) to not give or offer anything
of value to any governmental official, political party, or candidate for
governmental office in connection with the sale of Products; (ii) to comply with
all laws and regulations of the United States, including, without limitation,
those regarding corrupt payments and anti-boycott laws; (iii) that there is and
will be no employment of, or beneficial ownership of ETC by any governmental or
political officials in connection with the sale of Products; (iv) to IDSI's
right to terminate the agreement immediately upon violation by ETC of these
obligations; and (v) to indemnify IDSI for losses and damages due to breach of
the above obligations.
(t) Anti-Boycott Laws. U.S. law prohibits IDSI from taking or knowingly
agreeing to take certain specified actions, which support unauthorized boycotts
against Israel. Distributor agrees to not participate in or support any such
boycott in connection with the sale of Products.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year set forth below.
Dated: November 29, 1999
In the presence of: Imaging Diagnostic Systems, Inc.
/s/ Allan L. Schwartz BY: /s/ Linda B. Grable
- --------------------- -------------------
Allan L. Schwartz Linda B. Grable, President
Dated: November 29, 1999
In the presence of: Cycle of Life Technologies, Inc.
/s/ Kassahun A. Tiku BY: /s/ Lee Anne Gibbs
- ------------------------------- ------------------
Kassahun A. Tiku Lee Anne Gibbs, President
SCHEDULE A
EQUIPMENT
Computed Tomography Laser Mammography (CTLM(TM)) Device
SCHEDULE B
PURCHASE PRICE
$250,000. U.S.
SCHEDULE C
TERRITORY
Canada -10
Slovakia -1
Bulgaria -1
Greece -2
Hungary -1
Slovenia -1
Croatia -1
Bosnia -1
Macedonia -1
Serbia -1
Benelux -3
Denmark -1
France -3
Trinidad & Tobago -1
Barbados -1
South America (except Ecuador) -3
Venezuela on a non-exclusive basis
Ukraine -1
Romania -1
South Africa -2
Saudi Arabia -4
Kuwait -2
Kirghistan -1
Tajikistan -1
Uzbekistan -1
Kazakhstan -1
China on a non-exclusive basis from November 10, 1999 to September 30, 2000
and further subject to a waiver by Syncor Overseas Ltd.
dated October 1, 1999. -5