CNS, INC.
NON-EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT is made and entered into as of the 8th day of May, 1995
between CNS, Inc., a Delaware corporation ("Manufacturer"), and Aequitron
Medical, Inc., a Minnesota corporation ("Distributor").
B A C K G R O U N D
Manufacturer is in the business of manufacturing and marketing a device
known as the Breathe Right(R) nasal strip, which improves nasal breathing by
reducing nasal airflow resistance. Distributor has established sales channels to
the professional health care market. Manufacturer desires to enter into a
distribution agreement with Distributor for the purpose of developing
distribution channels for the Breathe Right nasal strip to the professional
health care market, on the terms and conditions set forth in this Agreement.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. NON-EXCLUSIVE DISTRIBUTORSHIP.
1.1 Subject to the terms and conditions contained herein,
Manufacturer grants to the Distributor, and the Distributor hereby
accepts, the rights and responsibilities of a non-exclusive distributor
of the products described in Exhibit A (the "Products") in the
Professional Health Care Market in the United States and all of its
possessions and territories (the "Territory"). The "Professional Health
Care Market" shall mean (i) hospitals, medical clinics and other health
care facilities, including accute and sub-accute health care facilities
and freestanding sleeplabs, and (ii) those persons or entities commonly
referred to as home health care dealers that purchase medical devices
for the purpose of providing in-home health care services. Distributor
is prohibited from selling the Products to any customer who is not in
the Professional Health Care Market or who is not in the Territory.
1.2 Nothing contained herein shall in any manner restrict or
limit Manufacturer in regard to appointing another distributor for the
Products in the Territory or in regard to selling directly or through
other outlets.
2. DISTRIBUTOR NOT MADE AN AGENT. Each of the parties is an independent
contractor and nothing contained herein shall be deemed or construed to create
the relationship of an agency, partnership, joint venture, franchise or any
other association or relationship between the parties except that of an
exclusive distributor relationship. Distributor is not granted any right or
authority to assume or create any obligations or responsibilities, express or
implied, on behalf, or in the name of, Manufacturer or to bind Manufacturer in
any manner or thing whatsoever, without the prior written approval and
acceptance by Manufacturer in each instance. Distributor acknowledges that it
has paid no fee or other consideration for any right under this Agreement. It is
the express intent of the parties, pursuant to their right to freedom to
contract, that this Agreement shall govern the obligations of each to the other
and the right of each resulting from such relationship and that no federal or
state franchise law or any other law purporting to alter the relationship
between Manufacturer and Distributor, presently in force or hereinafter enacted,
may apply to the rights and obligations of and between the parties of this
Agreement. The rights and obligations of the parties in the event of termination
of this Agreement have been separately bargained for and are intended by both
parties to be in lieu of any rights or obligations arising under any state or
federal franchise law, or any other law purporting to alter the relationship
between the parties.
3. PURCHASE ORDERS.
3.1 No purchase orders of Distributor shall be binding upon
Manufacturer until accepted by Manufacturer in writing at its general
office in Chanhassen, Minnesota. Except as otherwise agreed in writing
by Manufacturer, an order may not be cancelled by Distributor after it
has been accepted.
3.2 All sales of Products by Manufacturer to Distributor
hereunder shall be subject to the provisions of this Agreement and
shall not be subject to the terms and conditions contained in any
purchase order of Distributor or confirmation of Manufacturer, except
insofar as any such purchase order or confirmation establishes (a) the
quantity of Products to be sold or (b) the shipment date of Products.
3.3 If Distributor shall default in any payment due
Manufacturer or if its financial condition shall at any time seem to
Manufacturer inadequate to warrant further shipments, Manufacturer
shall have the right to cancel any orders, delay any shipments to
Distributor until payment is made or assurances required by
Manufacturer are received, or terminate this Agreement in accordance
with Section 11.
3.4 All orders of Distributor for Products shall be subject to
such reasonable allocation as, in the sole judgment of Manufacturer,
may be necessary or equitable in the event of any shortages of the
Products at any time.
3.5 In the event either Distributor or Manufacturer sends a
notice of termination of this Agreement pursuant to Section 11, all
subsequent purchases by Distributor of Products from Manufacturer shall
be C.O.D.
4. SHIPMENT OF THE PRODUCTS.
4.1 Subject to delay due to force majeure, Manufacturer will
endeavor to ship Products on the date indicated in Manufacturer's
written acceptance of Distributor's purchase order. Manufacturer
reserves the right to extend any such delivery period due to business
circumstances.
4.2 All Products sold by Manufacturer to Distributor hereunder
will be shipped by Manufacturer F.0.B. Manufacturer's loading dock at
Chanhassen, Minnesota ("Shipping Point").
4.3 Distributor shall assume all risk of loss for Products
upon delivery by Manufacturer of the Products to the Shipping Point.
4.4 Distributor will pay all loading, freight, shipping,
insurance, forwarding and handling charges, taxes, storage, and all
other charges applicable to the Products after they are delivered by
Manufacturer to the Shipping Point.
4.5 All Products will be shipped in bulk quantities.
5. PRICE AND PAYMENT.
5.1 Manufacturer agrees to sell the Product to Distributor
F.O.B. Shipping Point at the prices set forth on Exhibit A, which
prices may be changed by Manufacturer at any time and from time to
time. Distributor shall be given ninety (90) days' prior written notice
prior to the effective date of any change in the price of the Products.
5.2 Except as otherwise provided in this Agreement,
Distributor shall pay Manufacturer for each shipment of Products within
thirty (30) days of the date of the invoice issued by Manufacturer in
conjunction with such shipment. Any payment received more than thirty
(30) days after invoice date will be subject to a service charge of two
percent (2%) per month.
6. RETURNED GOODS POLICY.
6.1 All returns must be authorized in writing by Manufacturer
prior to the return of the Products, freight prepaid.
6.2 Products are not returnable unless Manufacturer determines
upon inspection that such Products deviated from its standards when
shipped.
6.3 Complaints concerning package conditions of any Products
must be made within fifteen (15) days of receipt by Distributor of such
Products.
7. DISTRIBUTOR SALES SUPPORT BY MANUFACTURER. In support of
Distributor's sales efforts to promote Products in the Territory, Manufacturer
will furnish, at no cost to Distributor, (i) medical literature, including
abstracts of clinical studies and medical journal articles, (ii) sales and
promotional materials as may be developed by Manufacturer, such as technical
data, instructional manuals, films, slides and technical journal reprints, and
(iii) samples of Products in reasonable quantities, as determined by
Manufacturer acting in good faith.
8. NO COMPETING PRODUCTS. Distributor agrees that during the term of
this Agreement, Distributor shall not, either directly or indirectly, promote,
arrange for the sale of, or sell, within the Territory, any product which is
similar in purpose or function to, or otherwise competitive with, the Products,
without the prior written consent of Manufacturer. For purposes of this
Agreement, competing products shall be defined as other non-electrical or
electro-mechanical nasal dilators or drug-free decongestants. The performance of
any of the activities described in this Section 8 by an affiliate of Distributor
shall be deemed to be the performance of those activities by Distributor. An
"affiliate of Distributor" shall include any person, corporation, partnership,
or other legal entity which is in control of, is controlled by, or is under
common control with Distributor, directly or indirectly.
9. DISTRIBUTOR RESPONSIBILITIES. In addition to the duties and
responsibilities outlined elsewhere in this Agreement, Distributor agrees as
follows:
9.1 Distributor shall devote its best efforts to promote, and
will vigorously promote, the sale and acceptance of Products to the
Professional Health Care Market throughout the Territory. Distributor
shall provide its customers with all necessary and appropriate training
and support regarding the use of the Products. Manufacturer will
furnish information to aid in the orientation and training of
Distributor's service and sales personnel.
9.2 Distributor shall promptly furnish to Manufacturer any
information which Manufacturer may determine necessary or appropriate
(in such detail as Manufacturer may request) to ascertain current or
potential sales of the Products in the Territory, including (i) a
written six-month rolling forecast for the Products by model number,
which forecast shall be given to Manufacturer on or before the 10th day
of each month, and (ii) a written three-month historical report listing
sales made by customer, which report shall be given to Manufacturer
within 30 days after the end of a calendar quarter. Distributor further
agrees to inform Manufacturer promptly of any change in market
conditions in the Territory which might affect current or potential
sales of Products in the Territory.
9.3 Distributor shall maintain at least a thirty (30) day
inventory of the Products and shall provide suitable storage facilities
for such inventory, said facilities to be properly maintained free of
contamination.
9.4 Distributor shall furnish customers and potential
customers with such advertising, promotional and informational
materials as Manufacturer may request. All advertising or promotional
materials utilized by Distributor, its agents or employees in
conjunction with the sale of Products, other than such sales literature
as is furnished to Distributor by Manufacturer, shall be approved, in
writing, by Manufacturer prior to their use or dissemination.
Distributor shall publicize all of the Products in Distributor's
advertising and literature.
9.5 Distributor shall cooperate fully with Manufacturer in
dealing with customer complaints concerning the Products and shall take
such action to resolve such complaints as may be requested by
Manufacturer.
9.6 Distributor agrees, during the term of this Agreement, to
comply with all FDA regulations applicable to the Products. Distributor
shall not, in any way, misrepresent the nature or indications for use
of the Products or alter Products, except by prior written approval of
Manufacturer.
9.7 All costs, including salaries, contributions to Social
Security, severance pay and other expenses incurred by Distributor in
connection with its performance under this Agreement shall be borne
solely by Distributor and Distributor agrees to indemnify and hold
Manufacturer harmless from any and all liability under laws relating to
liabilities of employers with respect to their employees.
9.8 If so requested by Manufacturer, Distributor shall provide
adequate financial information on a confidential basis, or in the
alternative, credit references satisfactory to Manufacturer to assure
Manufacturer of Distributor's financial capability to conduct its
ongoing business.
10. MINIMUM PURCHASE OBLIGATIONS.
10.1 During the original term of this Agreement, there shall
be no minimum purchase obligations. Upon any renewal of this Agreement,
minimum purchase obligations shall be as agreed by the parties.
10.2 In the event Distributor shall fail to meet any minimum
purchase requirements as set forth in Section 10.1 upon any renewal of
this Agreement, Distributor shall have defaulted under this Agreement,
and Manufacturer may terminate this Agreement pursuant to Section 11.
11. TERM OF AGREEMENT; TERMINATION.
11.1 This Agreement shall commence on the date of the closing
of the transactions contemplated in the Asset Purchase Agreement dated
the date hereof and by and between the parties hereto and shall
continue for a term of one (1) year (the "Initial Term"). This
Agreement will be null and void in the event such closing does not
occur on or before June 15, 1995. The term will be automatically
renewed for one-year periods ("Renewal Terms") unless either party
provides the other party with written notice, no later than sixty (60)
days prior to the expiration of the Initial Term or a Renewal Term, of
such party's intention of not renewing this Agreement. In the event
that on the expiration of the Initial Term or a Renewal Term of this
Agreement neither party has served notice of their intent to not renew
the Agreement and the parties have not agreed upon minimum purchase
requirements, but a distributor arrangement nonetheless continues, that
arrangement shall be subject to the provisions of this Agreement, with
the most recent agreed upon minimum purchase requirements, and the
Agreement may be terminated by either party at any time, with or
without cause, by a written notice of thirty (30) days.
11.2 Either party may terminate this Agreement by giving
thirty (30) days' written notice to the other party of any material
breach (including without limitation Distributor's failure to pay for
Products in accordance with Section 5, or purchase minimum requirements
in accordance with Section 10.1) of this Agreement, provided that as of
the expiration of said thirty (30) day period such breach remains
uncured (other than a breach by Distributor of Section 10.1).
11.3 Either party may terminate this Agreement immediately
upon written notice to the other party if the other party shall: (i)
file a voluntary petition in bankruptcy or be the subject of an
involuntary petition in bankruptcy which is not dismissed within thirty
(30) days of the date of filing; (ii) be voluntarily or involuntarily
dissolved; or (iii) have a receiver, trustee or other court officer
appointed for its property in connection with any such bankruptcy
proceeding, liquidation or insolvency proceeding. Further, Manufacturer
may terminate this Agreement immediately upon written notice in the
event (i) Distributor fails to provide additional assurances when
requested by Manufacturer under Section 3.3; (ii) Distributor transfers
or assigns this Agreement or any right or obligation hereunder or sells
or transfers any material interest in the ownership of Distributor
without the prior written approval of Manufacturer; (iii) Distributor
provides falsified data or information to Manufacturer; or (iv)
Distributor ceases to function as a going concern or to conduct its
operations in the normal course of business as currently conducted.
11.4 Manufacturer or Distributor may terminate this Agreement
on ninety (90) days' written notice if there is a change in control
(purchase of 50% or more) of Manufacturer, or in the event of a sale by
Manufacturer of that portion of its business operation which includes
the Products.
11.5 After the Initial Term of this Agreement, Manufacturer or
Distributor may terminate this Agreement without cause on 180 days'
written notice.
11.6 Termination of this Agreement shall not relieve
Manufacturer of its obligations to deliver all Products ordered by
Distributor and accepted by Manufacturer prior to such termination; nor
will such termination relieve Distributor of its obligation to accept
and pay for all Products ordered by Distributor under purchase orders
issued by Distributor and accepted by Manufacturer prior to the date of
such termination. Termination shall not relieve or release either party
from its obligation to make any other payments which may be owing to
the other party under the terms of this Agreement or from any other
liability which either party may have to the other arising out of this
Agreement or the breach of this Agreement. Following notice of
termination, Manufacturer shall have no obligation to accept any orders
for Products from Distributor.
11.7 Upon termination of this Agreement, Manufacturer shall
have the right, but not the obligation, to repurchase all unexpired
Products in the possession of Distributor at the price paid to
Manufacturer by Distributor for said Products at the lower of
Distributor's original invoice purchase price or the then current
invoice price, provided, however, that such Products are new, unused,
nonobsolete and in saleable condition as determined by Manufacturer.
Distributor agrees to sell said Products to Manufacturer for said price
should Manufacturer exercise this right to repurchase.
11.8 It is expressly understood and agreed that the right of
termination set forth in this Section 11 is absolute, and that the
parties have considered the possibility of the making of expenditures
by one or both of the parties hereto in preparing for and the actual
performance of this Agreement and the possibility of loss and damage
resulting from termination hereof. It is the express intent and
agreement of the parties that neither shall be liable to the other for
damages arising by reason of the termination of this Agreement as
hereinabove provided.
11.9 Notwithstanding anything contained herein to the
contrary, Sections 13, 14.1.1, and 21 of this Agreement shall survive
termination of this Agreement and shall remain in full force and
effect.
12. WAIVER OF BREACH. The waiver or failure of either party to enforce
the terms of this Agreement in one instance shall not constitute a waiver of
said party's rights under this Agreement with respect to other violations.
13. DISCLAIMER OF WARRANTY. All Products shall be warranted by CNS only
in accordance with the terms set forth in the CNS warranty as the same is
included in Product packaging and as it may be changed from time to time at
CNS's sole discretion. Representative may not alter or modify that warranty.
Replacement or refund shall be the exclusive remedy. Manufacturer shall not be
liable to Distributor, its agents or purchasers, for any incidental or
consequential loss, personal injury, damage or expense, including loss of
profits, arising, directly or indirectly, from the sale or use of the Product
whether such claim is based on warranty, contract, negligence, strict liability
or any other basis. Under no circumstances shall the liability of Manufacturer
to Distributor exceed the amount paid by Distributor to Manufacturer for the
particular Products involved. Distributor shall notify Manufacturer of any
claimed defect and shall include model and lot number of each Product, as well
as the number and date of invoice therefor. If the Products are to be returned
to Manufacturer, written authorization and shipping instructions shall be
transmitted to the Distributor. If the defect is the result of improper storage,
all necessary expenses shall be borne by Distributor. Any Products returned to
Manufacturer for replacement shall become the property of Manufacturer.
14. DISTRIBUTOR'S REPRESENTATIONS AND ACTIONS.
14.1 Distributor's Representations.
14.1.1 Distributor, its agents and employees, shall
not make any statements, representations, warranties, or
advertisements concerning the Products or their effectiveness
which exceed in scope or are different in meaning from the
statements made by the Company in its own literature (the
"Permissible Statements"). Any statements, representations,
warranties, or advertisements by Distributor, its agents or
employees, which exceed in scope or are different in meaning
from the Permissible Statements shall be the sole
responsibility of Distributor and Distributor shall indemnify
and hold Manufacturer harmless against the liability, costs,
and expenses of any nature which Manufacturer may incur as the
result of any such activities or any negligent or willful
conduct by Distributor, its agents or employees. Manufacturer
reserves the right at its sole discretion, separate from all
other termination provisions of this Agreement, to terminate
this Agreement immediately and cancel all open orders from
Distributor if, in the sole judgment of Manufacturer,
Distributor has made any statements, representations,
warranties or advertisements concerning the Products beyond
the scope of the Permissible Statements.
14.1.2 Distributor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Minnesota and the undersigned has been
duly authorized to execute this Agreement on behalf of the
Distributor, and when so executed, this Agreement will
constitute the valid and binding obligation of Distributor,
enforceable in accordance with its terms.
14.2 Manufacturer's Representations.
14.2.1 Manufacturer has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
14.2.2 Manufacturer is the exclusive licensee of the
Products and Manufacturer has obtained clearance to market the
Product in the United States and Canada from the FDA and the
Ministry of Health, respectively.
15. TRADEMARKS AND TRADE NAMES.
15.1 Manufacturer hereby grants to Distributor permission to
use all trademarks and trade names owned by Manufacturer on Products in
connection with the advertising and sale thereof in conformity with the
requirements set forth herein. In connection with such advertising and
sales, Distributor agrees to use such trade name or trademark of
Manufacturer as is requested by Manufacturer in the form requested by
Manufacturer. Except as otherwise expressly provided in this Agreement,
Manufacturer is not granting Distributor any rights or license
whatsoever, by implication, estoppel or otherwise, to utilize
Manufacturer technology, information, data, proprietary or patent
rights, or trademarks or trade names which Manufacturer may have or may
secure in the future, without the express written consent of
Manufacturer.
15.2 Distributor shall not remove, cover, change, or add to
the labels affixed by Manufacturer to Products without first receiving
Manufacturer's written approval.
16. PATENT INFRINGEMENT.
16.1 If a patent infringement action is commenced or
threatened against Manufacturer as to any Product and Manufacturer
elects to, as a result, discontinue the sale of any particular Product
in any part or all of the Territory, Distributor shall discontinue its
efforts to sell said Product in any such part or all of the Territory
immediately upon receipt of written notice thereof from Manufacturer.
Manufacturer shall indemnify Distributor against any and all claims
brought against Distributor for patent infringement and will hold
Distributor harmless against any and all damages relating thereto.
16.2 Distributor shall promptly notify Manufacturer in the
event Distributor becomes aware of any activities of a third party that
may constitute infringement of the Manufacturer's patents or pending
patents on the Products.
17. RECALL. Distributor shall maintain complete and accurate records of
all Products sold by Distributor, its agents or employees (including without
limitation a complete and current list of all customers who have purchased, the
date of such purchases and the lot numbers of the units purchased). In the event
of a recall of any of the Products, Distributor will, at its own expense,
cooperate fully with Manufacturer in effecting such recall, including without
limitation, promptly contacting any purchasers Manufacturer desires be contacted
during the course of any such recall, and promptly communicating to such
purchasers such information or instructions as Manufacturer may desire be
transmitted to such purchasers.
18. TRACEABILITY. Distributor agrees to comply with all traceability
programs in effect at any time as initiated by Manufacturer. Manufacturer may
examine and make transcripts of any records required as part of a traceability
program at reasonable times during business hours.
19. WARRANTY CREDIT. In order that Manufacturer may make accurate
warranty representations and in order to promote the goodwill of Manufacturer,
Distributor shall credit its customer's account for the amount of Distributor's
mark-up, in addition to Distributor's costs whenever Manufacturer credits
Distributor's account in fulfillment of a warranty obligation or in the case of
Products recall by Manufacturer or advisory by Manufacturer.
20. APPOINTMENT OF SUBDISTRIBUTORS. Distributor shall not, without the
prior written approval of Manufacturer, appoint any subdistributors in the
Territory in connection with the performance of this Agreement. In the event
Manufacturer grants such approval, it is understood that such appointment shall
be made only in the name and for the account of Distributor and shall be for a
term no greater than the term of this Agreement. Distributor shall not grant to
the subdistributors and/or sales representatives, any rights greater than those
which are granted by Manufacturer to Distributor under this Agreement.
Distributor shall also impose on the subdistributors and/or sales
representatives, the same obligations as Manufacturer has imposed on Distributor
under this Agreement for the purpose of protecting the goodwill of Manufacturer
and the Products. Distributor shall defend, indemnify and hold Manufacturer
harmless against any claims, loss, liability or expense, including attorneys'
fees and court costs arising out of or based upon any claim made by any of
Distributor's subdistributors, sales representatives or employees against
Manufacturer.
21. CONFIDENTIAL INFORMATION. Distributor specifically agrees to keep
confidential and not to disclose to others any and all technical and other
information marked "confidential" or "proprietary" made available to it by
Manufacturer. Upon the request of Manufacturer, or in the event of the
expiration or other termination of this Agreement, Distributor shall promptly
return all such confidential and proprietary information to Manufacturer.
Distributor agrees not to use any such confidential or proprietary information
of Manufacturer except in conjunction with the purposes of this Agreement.
22. FORCE MAJEURE. Manufacturer assumes no liability and shall not be
liable to Distributor for any failure to fill, or any delay in filling, orders
received and accepted by Manufacturer caused, in whole or in part, directly or
indirectly, by strikes, lockouts, or any other labor troubles, fires, floods,
acts of God, accidents, embargoes, war, riots, act or order of any government or
governmental agency, delay in the delivery of raw material, parts, or completed
merchandise by the supplier thereof, or any other cause beyond the control of,
or occurring without the fault of, Manufacturer.
23. NOTICE. All notices under this Agreement shall be in writing, and
may be delivered by hand or sent by mail or facsimile transaction. Notices sent
by mail shall be sent by registered mail, return receipt requested, and shall be
deemed received on the date of receipt indicated by the receipt verification
provided by the United States postal service. Notices delivered by hand or
facsimile transaction shall be effective upon receipt. Notices shall be given,
mailed, or sent to the parties at the following addresses:
If to Distributor: Aequitron Medical, Inc.
14800 28th Avenue North
Minneapolis, MN 55447
Attn: Bill Milne
Phone: (612) 557-8233
Fax: (612) 557-8200
If to Manufacturer: CNS, Inc.
1250 Park Road
Chanhassen, MN 55317
Attn: Richard E. Jahnke
Phone: (612) 474-7600
Fax: (612) 474-6737
Any party hereto may designate any other address for notices given it
hereunder for written notice to the other party given at least ten (10) days
prior to the effective date of such change.
24. ENTIRE CONTRACT. There are no oral or other agreements or
understandings between the parties affecting this Agreement or relating to the
selling or purchase of Products. This Agreement supersedes all previous oral and
written arrangements between the parties and is intended as a complete and
exclusive statement of the terms of their understanding.
25. AMENDMENTS. Amendments, if any, shall be in writing and valid only
when signed by both parties.
26. ASSIGNABILITY; CHANGE IN OWNERSHIP. This Agreement is personal to
Distributor and may not be sold, assigned, or transferred without the written
consent of Manufacturer. Distributor shall promptly notify Manufacturer of any
substantial change in the nature or ownership of its business. In the event of
the material change in the ownership or control of Distributor, or in the event
of the sale by Distributor of that portion of the business operation which
includes all or most of the Products and, Manufacturer has not consented to that
change or sale, then this Agreement may be terminated at any time thereafter by
Manufacturer upon written notice given at least sixty (60) days in advance of
the effective date of termination. Manufacturer may assign this Agreement to any
subsidiary or division controlled by it, or to an entity purchasing control of
Manufacturer as provided in paragraph 11 of this Agreement.
27. SEVERABILITY. In the event that any provision of this Agreement is
held invalid by the final judgment of any court of competent jurisdiction, the
remaining provisions shall remain in full force and effect as if such invalid
provision had not been included herein.
28. REMEDIES. The parties acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that, in
addition to any other relief afforded by law, an injunction against such
violation may be issued against it and every other person concerned thereby, it
being understood that both damages and an injunction shall be proper modes of
relief and are not to be considered mutually exclusive remedies. In the event of
any such violation, Distributor agrees to pay, in addition to the actual damages
sustained by Manufacturer as a result thereof, the reasonable attorneys' fees
incurred by Manufacturer in pursuing any of its rights under this Agreement.
29. ACTION FOR BREACH. The time within which Manufacturer or
Distributor may bring an action for breach of this Agreement shall be one year
from the date of such breach. No action may be commenced after that one-year
period.
30. APPLICABLE LAW AND FORUM SELECTION. Except as altered or expanded
by this Agreement, the substantive law (and not the law of conflicts) of the
State of Minnesota shall govern this Agreement in all respects as to the
validity, interpretation, construction and enforcement of this Agreement and all
aspects of the relationship between the parties hereto. Any disputes between the
parties hereto shall be resolved before a court of general jurisdiction located
in Hennepin County, Minnesota, and jurisdiction is hereby conferred upon such
court. In connection therewith, each party hereby agrees to submit to the
jurisdiction of such court and to waive any possible defense of lack of personal
jurisdiction before such court.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal
as of the day and year first above written.
AEQUITRON MEDICAL, INC.
By /s/ James Hickey
Its President and CEO
Date 5/8/95
CNS, INC.
By /s/ Richard E. Jahnke
Its President and CEO
Date 5/8/95