EXHIBIT 10.15
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, LLC
AND EDUDATA CORPORATION (D&M)
and
479671 BC Ltd.
DBA NATIONAL DENTAL DIRECT
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DISTRIBUTOR AGREEMENT
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THIS AGREEMENT is made and entered into the 29th day of Aug. 1996.
BETWEEN:
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, L.L.C.
AND EDUDATA CORPORATION
000-000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx
Xxxxxx Xxxxxx of America
91362
hereinafter called "D&M"
OF THE FIRST PART,
AND:
479671 BC LTD.
DBA NATIONAL DENTAL DIRECT
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx
Xxxxxx
X0X 0X0
hereinafter called "NDD"
OF THE SECOND PART.
1.0 INTRODUCTION
1.1 D&M manufactures, and markets a range of hardware and associated
software having applications in dentistry and other areas.
1.2 D&M is desirous of having NDD as exclusive distributor of its Products
in the Territory described herein and to contract with any
sub-distributors in the Territory herein described and under the Terms
and conditions herein described; and NDD is desirous of marketing,
selling, and supporting the sale of D&M's Products in the Territory and
represents that it possesses the structural facility and the ability to
promote and sell the Products.
2.0 DEFINITIONS
2.1 PRODUCTS. As used herein, the word "Products" shall mean those set out
in Appendix "A", particularly the TeliCam IntraOral Camera and D&M's
full range of software.
2.2 NEW PRODUCT(S). As used herein, the word(s) "New Product(s)" shall mean
a Product which may later be manufactured, developed, or distributed by
D&M, but not included in the current Appendix "A".
2.3 D&M's TRADEMARKS. As used herein, D&M's Trademarks shall mean (a) the
marks set forth in Appendix "D"; (b) all designs related to those marks,
and (c) all other marks that D&M adds from time to time and authorizes
NDD to use these marks.
As of the commencing date and until further notice the Trademrks so
designated are: DMD and TeliCam.
2.4 COMMENCEMENT. This Agreement shall commence on the 29th day of
Aug. 1996.
2.5 TERM. This Agreement shall commence on the commencement date and shall
continue for a Term of 5 years and shall be automatically renewed for
the like Terms unless one party notifies the other not less than 90 days
prior to the end of any Term of its intention to terminate this
Agreement. This Agreement can be terminated by D&M if NDD does not
purchase 60 TeliCam Cameras on a quarterly basis; if NDD does not pay
for purchases of TeliCam Cameras on a Net 30 basis; or by any other
provisions of this Agreement.
2.6 TERRITORY. The Territory shall mean the countries and areas listed in
Appendix "B".
3.0 APPOINTMENT
D&M hereby appoints NDD as its exclusive distributor of the Products in
the Territory. NDD may designate their affiliated subsidiaries and
successors in interest to receive the benefits of and to carry out the
rights of NDD under this Agreement.
4.0 TERMINATION
4.1 Immediate Termination. In addition to all other rights or remedies,
either D&M or NDD may Terminate this Agreement upon 10 days prior
written notice if:
(a) the other party (1) makes an assignment for the benefit of
creditors; (2) files a voluntary petition in bankruptcy or is
adjudicated as bankrupt or insolvent; or (3) files any petition or
answer seeking reorganization, liquidation or similar relief;
(b) within 90 days after the commencement of any proceeding against the
other party seeking reorganization, liquidation, or similar relief, the
proceeding; has not been dismissed;
(c) any court, tribunal, or government agency modifies any Terms of this
Agreement to the substantial detriment of the party seeking Termination;
(d) the other party dissolves or ceases to do business; or
(e) the other party appoints a receiver or trustee for all or a part of
its assets, business, or property.
4.2 NDD and D&M each agrees to advise the other immediately in writing of
the occurrence of any event specified in Section 4.1.
4.3 Parts and Components Following Termination. D&M agrees to supply NDD
parts and components, priced on the same basis as during the Term of
this Agreement, for Products for a period of 12 full calendar months
following the Termination of this Agreement.
5.0 NATIONAL DENTAL DIRECT'S OBLIGATIONS
5.1 NDD shall promote and develop sales of the Products in the Territory
upon such Terms and conditions as it shall determine from time to time.
5.2 NDD shall maintain sales of the Products in the Territory at the
following volumes: 240 TeliCam Cameras per year to be purchased at 60
units per quarter, net 30 days.
In the event that NDD's purchases are less than the minimum quota set
forth above for any quarter, D&M shall have the right to terminate this
Agreement, if after giving notice of its intent in writing to NDD, NDD
fails to rectify any shortfall within ninety (90) days from the time
that such notice is given. If the minimum quota is met, D&M cannot
terminate this Agreement.
Reasonable minimum quotas for future products offered for sale by D&M to
NDD will be established on a product by product basis. In no event will
the minimum quotas exceed 10% of the sales volume experienced in the
United States.
5.3 NDD shall maintain in the Territory, adequate facilities and sales
personnel to undertake its obligations under this Agreement, as shall
its sub-distributors.
5.4 NDD shall maintain a place of business, display rooms, installation and
training department which shall, subject to reasonable prior notice, be
available for inspection by D&M.
6.0 D&M'S OBLIGATIONS
6.1 D&M shall sell to NDD during the Term of this Agreement the Products
described in Appendix "A"
6.2 Should D&M or any associated companies develop or distribute New
Products not listed in Appendix "A", NDD will be given a right of first
refusal to become the exclusive distributor of such Products in the
Territory.
6.3 Promotional Materials. D&M shall provide to NDD, at its cost, such
films, video tapes, brochures, marketing material, samples, etc., as it
shall have available from time to time and which may assist NDD in the
promotion and sales of the Products.
6.4 Direct Mail Advertising. D&M shall provide, at no cost to NDD, 13,000
copies of every direct mail piece produced for D&M. All direct mail
pieces produced for D&M shall be printed with the words "In Canada Call
National Dental Direct at 1(800) 392-1171".
6.5 Trade Journal Advertising. D&M will include the words "In Canada Call
National Dental Direct at 1(800) 392-1171" in all trade journal
advertising placed by D&M.
6.6 Trade Show Booth Space. D&M will pay for a minimum of one ten foot
booth space for all Canadian dental meetings attended by National Dental
Direct. For large dental meetings, D&M will pay for one half of the
total booth space required by National Dental Direct to a maximum of two
booth spaces. In no event will D&M pay for more than two booth spaces
for any given trade show.
6.7 Trade Show Displays. D&M will provide, at no cost to NDD, trade show
displays for use during dental meetings attended by NDD. NDD will pay
the transportation costs for the trade show displays.
6.8 Shipment of Orders. D&M shall fill and ship all Products ordered on NDD
purchase orders in a prompt and timely manner. D&M will provide NDD with
prompt notification of any delays in filling purchase orders.
6.9 Trademarks. Subject to the provisions of this Agreement, D&M grants to
NDD the exclusive right to use the Trademarks and Trade Names in
connection with the marketing and distribution of the Products in the
Territory during the Term of this Agreement.
7.0 Demonstration Equipment. D&M shall provide NDD with up to fifteen
demonstration systems for use in promoting the Products in the Territory
during the Term of this Agreement. There shall be no cost to NDD for the
use of the demonstration equipment, and ownership of all demonstration
equipment will remain with D&M.
7.1 Product Warranty. D&M warrants to NDD that the Products sold to NDD (a)
are fit for, and safe to use for the purpose of which they are designed
and promoted, and (b) shall be free from defects in materials and
workmanship for a period of one year from the date the Products are
received by the actual end user of the Products; provided however, that
this warranty shall in no event extend beyond the close of the fifteenth
full calendar month following the date of shipment by D&M.
If NDD or its customers are made parties to any claim or action
involving the Products, including claims relating to the manufacturer or
use of the Products, NDD will immediately notify D&M in writing. D&M
shall warrant and indemnify NDD pursuant to any such claims and hold NDD
harmless and defend NDD against any such claims.
7.2 Standards. All Products supplied by D&M must meet the standards,
specifications and requirements of the country of the Territory
described herein. D&M will incur the cost of modifying or changing
Products in order to comply will all Products requirements and
specifications.
8.0 PRICING
8.1 International Price List. NDD shall order and purchase the Products
from D&M and D&M shall sell the Products to NDD at the price set forth
in the then current price list for export to the Territory, the current
version of which is attached as part of Appendix "C". D&M may from time
to time during the Term of this Agreement change any or all of the
prices set forth in the then current list upon sixty days written notice
to NDD, provided that any change will not affect any existing orders
placed by NDD.
8.2 Pricing Terms. The prices for Products are quoted FOB Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxx Xxxxxx of America or Irvine, California, United
States of America. All orders are to be in writing and shall be subject
to prompt written acceptance by D&M.
8.3 Payment Terms. Payment for orders for Products placed by NDD shall be
on open account with payment due within thirty days of the shipment date
or such other Terms as may be agreed upon from time to time.
8.4 Prices offered to NDD shall be no greater than the price offered to
other parties by D&M related companies.
8.5 All prices quoted and payments made shall be in the currency of the
United States of America.
8.6 WARRANTY FULFILLMENT
8.7 Products are to be received by NDD and put through a quality control
check within 15 days of receiving goods at NDD.
8.8 Products are either accepted or rejected by NDD.
8.9 If NDD REJECTS PRODUCTS:
Products are sent back to D&M from NDD and re-shipped by D&M to NDD. D&M
pays freight both ways.
9.0 If a Product malfunctions WITHIN 30 DAYS of being sold to the end user:
- RMA number is issued by D&M.
- NDD ships customer a loaner from NDD loaner inventory, at D&M's
expense.
- NDD has customer send defective unit to NDD at D&M's expense.
- NDD completes customs paperwork to avoid paying additional tax and
duty, and ships to D&M for repair or replacement at D&M's expense.
- D&M prepays shipping charges back to NDD. No tax or duty charges
incurred.
- Warranty period starts over on the day D&M ships replacement unit.
- NDD sends repaired unit to customer at D&M's expense.
- NDD has customer send back loaner to NDD at D&M's expense.
9.1 If a Product malfunctions AFTER 30 DAYS of being sold to the end user:
(during one year warrantee period)
- RMA number is issued by D&M.
- NDD ships customer a loaner from NDD loaner inventory, at NDD's
expense.
- NDD has customer send defective unit to NDD at NDD's expense.
- NDD completes customs paperwork to avoid paying additional tax and
duty, and ships to D&M for repair or replacement at NDD's expense.
- D&M prepays shipping charges back to NDD. No tax or duty charges
incurred.
- NDD sends repaired unit to customer at NDD's expense.
- NDD has customer send back loaner to NDD at NDD's expense.
9.2 If a Product malfunctions AFTER WARRANTEE period:
- RMA number is issued by D&M.
- NDD ships customer a loaner from NDD loaner inventory, at NDD's
expense.
- NDD has customer send defective unit to NDD at NDD's expense.
- NDD completes customs paperwork to avoid paying additional tax and
duty, and ships to D&M for repair or replacement at NDD's expense.
- D&M bills NDD a reasonable fee for parts and labor.
- D&M ships back to NDD at NDD's expense. No tax or duty charges
incurred.
- NDD sends repaired unit to customer at NDD's expense.
- NDD has customer send back loaner to NDD at NDD's expense.
10.0 MISCELLANEOUS
10.1 Patents. NDD acknowledges that certain Products subject to this
Agreement are extremely proprietary to D&M, and D&M expressly retains
all right, title, or interest in the Products, patents, patent
applications, copyrights, or trade secrets related to the Products. D&M
warrants that it is the owner of and has the right to grant NDD use of
the Trademarks in the Territory.
10.2 Independent Contractor. The relationship of NDD to D&M is that of
independent contractor and neither party is in any way the legal
representative or agent of the other for any purpose whatsoever. Neither
party has any right or authority to assume or create, in writing or
otherwise, any obligation of any kind, express or implied, in the name
of or on the behalf of the other.
10.3 Entire Agreement. This Agreement and its appendixes constitute the
entire and only Agreement between the parties hereto relating to this
subject matter. This Agreement supersedes all previous Agreements,
commitments, and presentations in respect thereto and may not be changed
or modified in any manner except by an instrument of subsequent date
signed by both parties.
10.4 Headings. The headings of this Agreement are inserted only as a matter
of convenience and for reference and in no way define the scope or
content of this Agreement or the construction of any provision hereof or
of any instrument or document referred to herein.
10.5 Severability. Whenever possible, each provision of this Agreement and
all related documents shall be interpreted in such a manner as to be
valid under applicable law, but if any such provision is invalid or
prohibited under said applicable law, such provision shall be in effect
up to the extent of such invalidity or prohibition without invalidating
the remainder of such provision or the remaining provisions of this
Agreement.
10.6 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, U.S.A.
10.7 Arbitration. Any and every dispute or difference between the parties
concerning the validity, meaning or effect of this Agreement shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by a single arbitrator appointed in
accordance with such Rules, and the place of Arbitration shall be
Vancouver, BC, Canada.
10.8 Notices. All notices or other communications required or given in
connection with this Agreement shall be deemed to have been properly
made when telecopied or deposited in the mail, postage pre-paid
addressed as follows:
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, L.L.C. ATTN: PRESIDENT
000-000 Xxxxx Xxxxxxxx Xxxxxxxxx, Tel: 000 000-0000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000 Fax: 000 000-0000
U.S.A.
NATIONAL DENTAL DIRECT ATTN: PRESIDENT
000 Xxxxxxxxx Xxxxx Tel: 000 000-0000
Xxxxxx, XX X0X 0X0 Fax: 000 000-0000
CANADA
10.9 Compliance With Law. D&M will cooperate with NDD in seeking to have all
Products comply in all material respects with all applicable laws in the
Territory.
11.0 Force Majeure. Except for obligations relating to the payment of money,
neither party will be liable for failure to perform its obligations
under this Agreement when the failure is due to causes beyond the
control of that party.
11.1 This Agreement shall be binding upon and applicable to any and all
subsidiaries or related or controlled affiliates of D&M, its successors
and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as the day
and year first above written.
Attest: Dental/Medical Diagnostic Systems, LLC and
Edudata Corporation
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By: Xxxxxx X. Xxxxxxxxx
Attest: 479671 BC LTD
DBA NATIONAL DENTAL DIRECT
September 23, 1996 /s/ Xxxx X. Xxxxxxxx
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By: Xxxx X. Xxxxxxxx
APPENDIX A
PRODUCTS
Telicam intraoral camera.
APPENDIX B
TERRITORY
Canada
APPENDIX C
PRICING
Telicam Intraoral Camera - $2,750 USD
APPENDIX D
TRADEMARKS
TeliCam
DMD
