INTERNATIONAL DISTRIBUTION AGREEMENT
AGREEMENT, made as of this 1st day of April, 1997, by and between ECHOCATH,
INC., a corporation formed under the laws of the State of New Jersey, U.S.A.,
having its principal place of business at ▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "ECHOCATH"), and MEDISON
CO. LTD, having its principal place of business at ▇▇-▇, ▇▇▇▇▇▇▇▇▇ 5-ga,
Chung-gu, ▇▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "DISTRIBUTOR").
W I T N E S S E T H
WHEREAS, the parties desire to enter into an Agreement relating to the
distribution by Distributor of certain products manufactured or sold by
EchoCath; and
WHEREAS, Distributor agrees to distribute EchoCath's products subject to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
1. DEFINITIONS: For the purpose of this Agreement, the following
definitions shall apply:
1.1 "TERRITORY" shall mean the geographic territory as specified in
Schedule A attached hereto, which schedule is hereby made a part of this
Agreement.
1.2 "PRODUCT" OR "PRODUCTS" shall mean those products of EchoCath and
its affiliates as specifically listed on Schedule A attached hereto. EchoCath
may, in its sole discretion, from time to time and at any time upon
30 days notice to Distributor add or delete any of its products to the
list of Products included on Schedule A upon written notice to Distributor;
provided, however, that EchoCath shall honor any order for a Product being
deleted which is accepted by EchoCath before the effective date of the deletion.
1.3 "QUALITY ASSURANCE STANDARDS" shall mean such government and
industry requirements for assuring quality of the Products and such other
reasonable requirements as may be appropriate in the industry and applicable to
products of the same type as the Products.
1.4 "APPROPRIATE REGULATORY AUTHORITIES" shall mean all governmental and
other regulatory agencies, authorities and commissions which are responsible for
(i) approving Products before they can be sold commercially within the Territory
or (ii) otherwise regulating the manufacturing, packaging, labelling, marketing,
advertising, storage, records and reports, and distribution of Products within
the Territory. Specifically included within this definition, but without in any
way limiting its generality, shall be the United Stated Food and Drug
Administration.
2. APPOINTMENT
2.1 APPOINTMENT. EchoCath hereby grants to Distributor during the term
of this Agreement the exclusive right to promote, sell and distribute the
Products within the Territory. It is understood that Distributor is an
independent contractor and that Distributor has the right to sell the Products
at any price or prices it may choose. Distributor may appoint one or more
sub-distributors, but such sub-distributors must adhere to the provisions of
this agreement. Notwithstanding the foregoing, Distributor may not sell Products
for use in the field of electrophysiology and/or for use in cardiac ablation or
pacemaker lead implantation or removal or procedures related thereto.
DISTRIBUTION AGREEMENT
2.2 Distributor shall not make any warranties, representations, promises
or covenants on behalf of or for EchoCath to anyone, except such as may be
expressly approved in writing by EchoCath. Unless otherwise agreed in writing by
EchoCath, Distributor shall not during the term of this Agreement function as or
accept an appointment as a promoter, distributor or sales representative of any
third-party with respect to the sale or lease of any competitive products, or
their components or ancillary products (except in-so-far as Distributor's
ultrasound consoles may be deemed to be ancillary products are concerned), other
than the Products hereunder, or promote and/or sell and/or distribute the
Products for sale to anyone or in any place other than to the customers within
the Territory. For purposes of this Section 2.2, the term "Distributor" shall
also be meant to include any and all persons (whether such person be an
individual, a partner or a corporation) who control, are principal owners of, or
are otherwise acting as principals of the Distributor appointed herein.
2.3 DISTRIBUTOR'S OBLIGATIONS - SALES AND MARKETING. During the term of
this Agreement, Distributor shall undertake in good faith and shall use its best
efforts to promote, sell and distribute the Products within the Territory.
Furthermore, Distributor shall:
(a) Take all reasonable and necessary action to satisfy the
demand for the Products throughout the Territory and attempt to increase the
demand for such Products by, among other things, servicing all Customer accounts
with reasonable frequency and soliciting new buyers within the Customer market.
(b) Maintain adequate sales and warehouse facilities and employ a
sufficient number of personnel with experience reasonably satisfactory to
EchoCath to adequately promote the sale of Products.
(c) Maintain a sufficient inventory of Products, demonstration
units and support material to reasonably fulfill the requirements of its
Customers located in the Territory.
(d) Maintain adequate records concerning the sale of the Products
as required by Appropriate Regulatory Authorities including, without limitation,
complete and accurate records concerning the sale of the Products by product
numbers and by lot numbers.
(e) Submit to EchoCath (i) quarterly reports of quarterly sales
tracking data in units of product sales and quarterly sales data by hospital or
other appropriate facility and (ii) other reports at such times and in such
manner as EchoCath and Distributor mutually agree.
(f) Use only advertising literature provided or approved by
EchoCath (Distributor may translate such literature into the native language(s)
of the Territory) and develop a promotional program that takes into account the
local culture in each particular region within the Territory.
(g) Comply with any and all standard operating procedures
("SOPs") established by EchoCath as they relate to quality control, medical and
technical complaints, packaging, labelling, trademark usage and regulatory
procedures to the extent that EchoCath has furnished copies of such SOPs to
Distributor. In the event that local variations to the SOPs are needed due to
different market conditions, Distributor shall notify EchoCath in advance of any
such variation, which notice shall specify the actual variation(s) needed and
the justifications for such variance. In no event may any variation which
affects a Product's safety, efficacy or approved use in the United States be
submitted to any Appropriate Regulatory Authority or otherwise implemented
without EchoCath's prior written approval.
DISTRIBUTION AGREEMENT
2.4 DISTRIBUTOR'S OBLIGATIONS - LEGAL AND REGULATORY MATTERS.
Distributor, at its sole cost and expense (except as otherwise expressly
provided below), with sole responsibility in its capacity as Exclusive
distributor and in full compliance with all applicable laws and regulations,
including but not limited to those of all Appropriate Regulatory Authorities,
shall:
(a) Be responsible for identifying all regulatory requirements,
obtaining and maintaining in the name of EchoCath, all necessary approvals,
authorizations, registrations and/or licenses for the market, sale and
distribution of the Products; any and all such activities shall be coordinated
with EchoCath in order to avoid duplication of effort and unnecessary expense.
EchoCath shall provide Distributor with the information and materials for
submission to the Appropriate Regulatory Authorities as requested by such
Appropriate Regulatory Authorities. In making such submissions Distributor (i)
shall not make any statement or representation of any kind which is untruthful
or otherwise deceptive (ii) shall inform EchoCath of all material requested by
the Appropriate Regulatory Authorities (iii) shall submit only materials which
have been provided or approved by EchoCath for such purpose and/or which have
been prepared by Distributor using information accurately derived from such
materials (iv) shall not, without EchoCath's prior written permission, alter in
any way any material which EchoCath provides to Distributor for submission.
(b) Pay for all costs related to any clinical trial required by
any Appropriate Regulatory Authority with respect to a Product in order to
obtain its approval, registration or license. The parties shall endeavor to
discuss any protocols for clinical trials prior to any submission of such
protocols to any Appropriate Regulatory Authority.
(c) Store Products under their respective labelled conditions
using appropriate facilities and equipment which comply with current good
manufacturing procedures and practices.
(d) Distribute Products, and their respective labelling as
received from EchoCath without any modifications, unless such modifications are
required by Appropriate Regulatory Authorities (in which case Distributor shall
advise EchoCath before such modification is made) or are mutually agreed upon
prior to distribution. Distributor shall also provide appropriate language
translations for product literature and labels to facilitate the distribution of
Products within each country of the Territory.
(e) Exercise required vigilance with respect to any and all
charges, complaints and claims concerning the Products which are in the nature
of a legal claim or otherwise reportable to the Appropriate Regulatory
Authorities; immediately forward to EchoCath information concerning such
matters; cooperate with EchoCath in investigating such matters; maintain
adequate records so as to permit a recall of any Product or Product lot; and
cooperate with EchoCath in effecting a recall should one be deemed necessary by
EchoCath.
(f) Submit to EchoCath all written trademark, labelling, and
instructional materials, and other promotional items subject to regulatory
control to be used in connection with any Products.
(g) Advise EchoCath fully with respect to all safety,
environmental, and other standards, specifications, and other requirements
imposed by Appropriate Regulatory Authorities or otherwise by law, regulation or
order in the Territory and applicable to the Products and advise EchoCath of all
instructions, warnings and labels applicable to the Products that are necessary
or desirable under laws, regulations or practices in the Territory.
DISTRIBUTION AGREEMENT
2.5 ECHOCATH'S OBLIGATIONS - LEGAL AND REGULATORY MATTERS. EchoCath, at
its sole cost and expense shall:
(a) Supply all Products packaged and labelled (in the English
language unless otherwise agreed) in compliance with requirements in the country
of destination, provided Distributor has advised EchoCath of any particular
requirements.
(b) Promptly investigate all Product complaints received from
Distributor and advise Distributor, in writing of the results of any such
complaint investigation.
(c) Promptly advise Distributor if the recall of any Product or
any lot of any Product becomes necessary and assist Distributor in notifying all
customers and effecting the recall.
(d) Provide Distributor with advance notification of any material
changes or modifications of any Product which may affect the Product's
regulatory registration or approved indications.
2.6 RIGHT OF FIRST REFUSAL. In the event EchoCath shall finalize an
agreement wherein a third party is to be appointed as an exclusive distributor
of the Products in any one or more countries outside of the Territory, then and
in that event, Distributor shall have the right of first refusal to accept such
appointment on the exact same terms and conditions, including any and all sales
performance requirements, that EchoCath shall have offered to the third party.
EchoCath shall provide Distributor with written notice of such pending
appointment and Distributor shall have five business days to accept the
appointment. Failure to respond within that time period shall be deemed a
rejection by Distributor of the appointment. It is expressly acknowledged that
this provision shall not survive any merger or acquisition of EchoCath and in
the event of such a transaction, neither EchoCath, the acquiring company or the
surviving company shall be bound by the terms of this paragraph.
3. SUPPLY OF PRODUCT AND PACKAGING.
3.1 EchoCath shall sell to Distributor and Distributor shall purchase
from EchoCath all of its requirements of the Products according to the terms
hereof.
3.2 The "General Terms and Conditions" set forth in Schedule C attached
hereto shall apply with respect to all Products sold pursuant to this Agreement
and are hereby incorporated as part of this Agreement.
4. ANNUAL BUSINESS PLAN
4.1 The representatives of the Distributor and EchoCath will meet at
least once per calendar year to discuss sales forecasts, budgets, customer
issues, demographics, and other items as they arise.
5. PERFORMANCE REQUIREMENTS
5.1 During each twelve-month period of this Agreement, Distributor
agrees to purchase a sufficient quantity of Products to meet the performance
requirements set forth on Schedule B of this Agreement; such performance
requirements may be modified by mutual written agreement of EchoCath and
Distributor. Any failure by Distributor to make purchases at or above the
performance requirements set forth on Schedule B attached hereto shall be deemed
a material breach hereof and this Agreement may be terminated immediately by
EchoCath. The parties agree to meet prior to the end of the twelve month period
to negotiate performance requirements for the subsequent twelve month period
based upon the previous year's actual sales performance.
DISTRIBUTION AGREEMENT
6. TERM OF AGREEMENT
6.1 This Agreement shall become effective upon the date first above
written (the "Effective Date") and shall expire on the first anniversary of the
Effective Date unless sooner terminated in accordance with the terms and
conditions hereof. After such initial period the parties may agree to renew this
Agreement for additional periods; provided that (i) the parties shall have
mutually agreed in advance as to the performance goals and other terms
applicable to such renewal term and (ii) any such renewal shall be in writing
and signed by both parties.
6.2 This Agreement may be terminated by either party: (a) at any time
during the initial term or any subsequent renewal hereof, upon written notice to
the other party by reason of any default or breach of this Agreement; provided
that, the defaulting party shall have received prior written notice of the
specific default or breach and has failed to cure the default within thirty (30)
days after a notice sent by the aggrieved party to the defaulting party (except
that if such breach is not curable such termination shall be effective on the
date of such notice), or (b) immediately with or without the giving of notice,
if the other party shall file a petition in bankruptcy, or shall be adjudicated
a bankrupt, or shall take advantage of the insolvency laws of any state or
country, or shall make an assignment for the benefit of creditors, or shall be
voluntarily or involuntarily dissolved, or shall have a receiver, trustee or
other court officer appointed for its property.
6.3 Upon the termination of this Agreement, the Distributor shall
immediately remove all displays, signs and decals and cease to represent itself
as an authorized Distributor of EchoCath Products and shall otherwise desist
from all conduct or representation which might lead the public to believe that
Distributor is so authorized. Thereafter Distributor immediately shall
discontinue all display of EchoCath's trademarks.
6.4 Upon termination of this Agreement, Distributor shall promptly upon
request by EchoCath (i) take any and all action necessary and appropriate and
(ii) cooperate with EchoCath, in order to effect the orderly transfer to
EchoCath (or to any legally permissible EchoCath designee) of any and all of the
approvals, authorizations, registrations and/or licenses from Appropriate
Regulatory Authorities in the Territory in order to permit continued marketing,
sale and distribution of the Products by EchoCath (or by such EchoCath
designee).
6.5 Any termination of this Agreement shall not be an exclusive remedy,
but shall be in addition to any legal or equitable remedies available. Neither
the termination nor non-renewal of this Agreement shall release Distributor from
the obligation to pay any sum that may be owing to EchoCath (whether then or
thereafter due) or operate to discharge any liability that had been incurred by
Distributor prior to any such termination. Except as qualified by the preceding
sentence, neither party shall, by reason of the termination or non-renewal of
this Agreement be liable to the other for any damages (whether direct,
consequential, incidental, or other including, without limitation, expenditures,
loss of profit or projected profits of any kind whatsoever), sustained by reason
of any such termination.
7. NOTICES
Any notice required or permitted to be given hereunder shall be in
writing, shall be effective when actually delivered and shall be either (i)
delivered personally by hand, (ii) sent by registered or certified mail, or
(iii) sent by an internationally recognized and qualified delivery service
(e.g., Federal Express or DHL). All such notices shall be sent postage prepaid
to the addresses of each party set forth at the beginning of this Agreement or
to such other address or addresses as shall be designated in writing.
8. MISCELLANEOUS
DISTRIBUTION AGREEMENT
8.1 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New Jersey (U.S.A.). The provisions of
the Uniform Commercial Code as adopted by the State of New Jersey (U.S.A.) and
not the Convention on Contracts for the International Sale of Goods shall apply.
For purposes of this Agreement, Distributor agrees to accept personal
jurisdiction in the State of New Jersey (U.S.A.). Furthermore, Distributor (i)
agrees that exclusive venue for any and all litigation concerning this Agreement
shall be in the State of New Jersey (U.S.A.), (ii) waives any claim of lack of
jurisdiction, and (iii) agrees that any judgment rendered in EchoCath's favor
against Distributor may be enforced in the country where Distributor's offices
and/or Distributor's assets are located.
8.2 LOCAL LAW. The Distributor shall notify EchoCath of the existence
and content of any mandatory provision of law in the Territory or any other
applicable law that conflicts with any provision of this Agreement at the time
of its execution or thereafter. Any failure by Distributor to comply with the
provisions of this Section 8.2 shall constitute a material breach by Distributor
which shall entitle EchoCath to terminate this Agreement effective immediately
upon notice to the Distributor.
8.3 ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
between the parties with respect to the matters dealt with herein and
specifically supersedes any and all purchase or other agreements previously
entered into by the parties covering the sale of the Products. Neither party has
made nor relied upon any warranties or representations not specifically set
forth in this Agreement. No modification of any of the provisions contained
herein may be made except in writing, in each instance signed by and on behalf
of the party against which enforcement is being sought. In the event of any
conflict between this English version of this Agreement and any translation
(whether signed or unsigned by the parties) of this English version, this
English version shall prevail.
8.4 WAIVER. Any waiver or excuse of non-performance or non-compliance
with the terms of this Agreement granted by one party in favor of the other
party for any given occasion shall not be effective and shall not be construed
as a total waiver or excuse of non-performance or non-compliance for any
subsequent occasions.
8.5 BENEFIT AND ASSIGNMENT. Neither party shall, without the consent of
the other, assign or transfer this Agreement or any rights or obligations
hereunder, except that, upon notice to Distributor, EchoCath (or its authorized
assignee) may assign or transfer this Agreement to a successor organization in
the event of merger, consolidation or transfer or sale of all or substantially
all of its assets and in the case of any such assignment or transfer, this
Agreement shall be binding upon and inure to the benefit of such successor
organization, and such party shall remain fully liable hereon.
8.6 SEVERABILITY. The invalidity or enforceability of any term,
provision, clause, or any portion thereof of this Agreement shall in no way
impair or affect the validity or enforcement of any other provision of this
Agreement, which remains in full force and effect.
8.7 RELATIONSHIP BETWEEN THE PARTIES. The relationship between Buyer and
Seller is that of vendee and vendor. Neither party, nor its agents and
employees, shall under any circumstances be deemed agents or representatives of
the other and neither shall have authority to act for and/or bind the other in
any way, whether express or implied, or represent that it is in any way
responsible for acts of the other. This Agreement does not establish a joint
venture, agency nor partnership between the parties, nor does it create an
employer/employee relationship.
8.8 SCHEDULES. The Schedules and Addenda (if any) attached hereto are
hereby made a part of this Agreement as if fully included herein.
DISTRIBUTION AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
WITNESS: ECHOCATH, INC.
[SIGNATURE]
BY: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
TITLE: President June 10,1997
--------------------------------
WITNESS: DISTRIBUTOR:
[SIGNATURE]
BY: [SIGNATURE]
-----------------------------------
TITLE: CTO/Vice President June 10, 1997
---------------------------------
DISTRIBUTION AGREEMENT
SCHEDULE A
SCHEDULE OF TERRITORY, PRODUCTS, PRICING AND CUSTOMERS
1. The term "Territory" shall include the following geographic areas:
South Korea
Japan
Taiwan
The Peoples Republic of China
Thailand
The Philippines
Malaysia
Myanmar
Cambodia
Vietnam
Laos
Indonesia
Mongolia
Distributor expressly agrees that it shall be bound by and shall comply with any
rules or regulations promulgated by the United States barring or regulatory
trade with any country within the Territory. Nothing herein is intended to imply
that EchoCath has determined that sales of the Products are legally permissible
to any country in the Territory.
2. The term "Product(s)" shall mean the Color ▇▇▇▇ System consisting of the
following, and their corresponding prices.
(Information omitted and filed separately with the Commission under
rule 24B-2)
SCHEDULE B
(Information omitted and filed separately with the Commission under
rule 24B-2)
SCHEDULE C - GENERAL TERMS AND CONDITIONS - CONTINUED
SCHEDULE C
GENERAL TERMS AND CONDITIONS
C1. PRICE AND PAYMENT
C1.1 PRODUCT PRICES. Subject to the requirements of Section C1.2 below,
the price per unit of any Product shall be the respective price as stated on the
Schedule A, attached hereto and made a part hereof.. All prices shall be F.O.B.
Monmouth Junction, New Jersey. Distributor shall bear all costs and expenses
including but not limited to any taxes, levies, duties or fees of any kind,
nature or description whatsoever, incident or applicable to the shipment of any
Products sold to Distributor; any and all such costs and expenses paid by
EchoCath shall be separately billed to the Distributor in accordance with
EchoCath's standard shipping policies.
(C1.2 Information omitted and filed separately with the Commission under
rule 24B-2)
C1.3 INVOICES. All invoices submitted by EchoCath to Distributor shall
be payable by Distributor in United States by means of one or more letters of
credit for the benefit of EchoCath, in form and substance acceptable to
EchoCath, to provide payment for Product. If payment is not received within the
prescribed period, then (i) EchoCath may notify Distributor of such failure and
(ii) interest shall accrue on any unpaid balance from the date of the invoice at
the rate of 1.5% per month (18% per annum), but, in no event at a rate greater
than the maximum rate permitted by applicable law. All payments are payable in
U.S. dollars only unless EchoCath shall otherwise agree to in writing prior to
Distributor tendering payment.
SCHEDULE C - GENERAL TERMS AND CONDITIONS - CONTINUED
C2. PURCHASE ORDERS; DELIVERY OF PRODUCT
C2.1 All orders for Products shall be made on Distributor's purchase
order forms. Each purchase order or any acknowledgment thereof, whether printed,
stamped, typed or written shall be governed by the terms of this Agreement and
none of the provisions of such Distributor purchase orders or acknowledgments
shall be applicable, except those specifying the quantity of Products ordered,
or general delivery date and shipping instructions and other general
non-contractual invoice information.
C2.2 In order to plan manufacturing capacity and to order raw materials
from vendors, EchoCath required and Distributor shall provide on the first day
of each month the following: a) a six month rolling forecast for purchases of
the Products for each month during that period; and b) a three month firm
purchase order for the number of units to be purchased of the products during
that period. EchoCath shall be required to deliver the number of units in the
firm three month purchase order, provided the number of units does not exceed
33% above the units anticipated by the six month forecast for the corresponding
period. Orders which exceed such amount shall be addressed on a best efforts
basis by EchoCath. In no event, however, is EchoCath required to divert orders
from its other customers in order to meet such coverage in Distributor's firm
purchase order. Distributor's firm purchase order shall also not be for an
amount of units equal to or less than 50% of the amount anticipated for the
corresponding period by the six month forecast. In the event Distributor's firm
purchase order shall not meet such minimum requirements, Distributor upon
EchoCath's request, shall reimburse EchoCath for the cost of raw materials
(including transportation charges) purchased in anticipation of meeting 100% of
the amount anticipated for that period by the six month forecast.
C3. REJECTION
C3.1 If Distributor reasonably determines that a Product does not
conform to EchoCath's product specifications or is otherwise defective,
Distributor may reject such Product, but such rejection must be made by written
notice mailed within thirty (30) days after discovery of such non-conformance or
defect. Failure to notify EchoCath shall constitute acceptance.
C3.2 EchoCath shall have the right to either replace any properly
rejected Product or otherwise cure the non-conformance within forty-five (45)
days after the date of such written notice. If the non-conformance cannot be
remedied within such 45-day period of time, Distributor's exclusive remedy shall
be a refund of the purchase price paid by Distributor for the non-conforming
Product, such reimbursement to be initially by credit to Distributor's account
and then in cash if no charges arise within ninety (90) days to which such
credit may be applied. Distributor shall return the non-conforming goods to
EchoCath at EchoCath's request and expense.
C3.3 The term "non-conformance" as used in this Article shall not be
meant to include the fact that the Products have become outdated after receipt
by Distributor.
C4. TRADEMARKS; OWNERSHIP OF DATA; CONFIDENTIALITY
C4.1 Distributor shall acquire no rights under this Agreement in any
product, patent, trademark or trade names of EchoCath, EchoCath's parent
company, or their affiliates, except as is, in EchoCath's sole discretion,
consistent with Distributor's right to offer for sale and sell the Products
under the terms of this Agreement. Distributor admits and acknowledges that
EchoCath is the sole and complete owner of such names and marks. Without
limiting the generality of the foregoing, Distributor shall not register, or
attempt to register,
SCHEDULE C - GENERAL TERMS AND CONDITIONS - CONTINUED
any trademark, trade name, service ▇▇▇▇ or logo now or hereafter owned, licensed
or used by EchoCath (collectively "Trademarks") in any country except where such
registration is made at the request of, in the name of, and for the benefit of,
EchoCath as owner of the Trademarks and is in furtherance of the purposes of
this Agreement. In no event shall Distributor cause or permit itself to be
registered as the exclusive licensee of the Trademarks.
C4.2 Distributor will promptly notify EchoCath of any infringement or
threatened infringement of any patents, trademarks or trade names under which
EchoCath's products are sold of which Distributor becomes aware, and will at
EchoCath's request, assist EchoCath in preventing or eliminating such
infringement.
C4.3 Distributor shall not disclose to any person or entity, or permit
to be disclosed by any of its employees, officers, directors or agents, any
confidential information of EchoCath except for disclosures authorized in
writing by appropriate officers of EchoCath. For purposes of this Agreement,
"confidential information" shall include such information as know-how relating
to the Products, product development data, customer lists, marketing business
information and trade secrets, which are acquired by Distributor from EchoCath
during the term of this Agreement. This restriction on disclosure shall not
apply if such information is ascertainable from public or published information
from trade sources. This provision shall survive termination of this Agreement.
C5. REPRESENTATIONS AND WARRANTIES
C5.1 EchoCath represents and warrants that all Products shall be
manufactured in accordance with its specifications and appropriate Quality
Assurance Standards and shall meet all requirements set by the U.S. Food and
Drug Administration and comparable requirements of the European Community as
they become effective.
C5.2 The obligation of EchoCath under this warranty shall be strictly
and exclusively limited to repair, replacement or refund at the sole option of
EchoCath; EchoCath specifically disclaims liability for any damages (whether
direct or indirect, consequential, incidental or otherwise), including, without
limitation, expenditures, or loss of profits or projected profits.
C5.3 Distributor agrees and acknowledges that ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE
PRODUCTS ARE EXPRESSLY EXCLUDED FROM THIS AGREEMENT OR ANY SALE PURSUANT HERETO.
Furthermore, the warranty stated herein shall not apply or be available to: (a)
any Product which, after shipment by EchoCath, is damaged, altered in any
respect, or subject to negligent treatment; (b) any consumer or user subsequent
to the initial purchaser from Distributor or Subdistributor; or (c) any Product
or under any circumstances more than two (2) years from the date the Product is
shipped to Distributor (except where a longer warranty period is specified in
writing by EchoCath with respect to a particular Product).
SCHEDULE C - GENERAL TERMS AND CONDITIONS - CONTINUED
C5.4 Distributor represents and warrants that it is not subject to any
conflicting obligations which might prevent it from, or interfere with, its
execution of this Agreement or its performance hereunder.
C6. INDEMNIFICATION
C6.1 Distributor shall indemnify and hold EchoCath harmless from,
against, for and in respect of any and all damages, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees) arising out of any
suit, action or proceeding relating in any manner to Distributor's sale of
Products or performance of obligations hereunder, unless and to the extent that
such injury or damage is caused, directly or indirectly, by any contributing act
or omission, negligent or otherwise, of EchoCath, its directors, officers,
employees, servants or agents.
C7. EXEMPTIONS FROM PERFORMANCE REQUIREMENTS
No failure or delay in performance by either Distributor or EchoCath
shall give rise to any claims for damage if, and to the extent, such failure or
delay is caused by any one of more of the following: (a) Acts of God, fires or
flood; (b) Acts of public enemy; (c) Acts of governmental authority; (d)
Expropriation or confiscation of any plant, plant site or any of facilities
thereon; (e) Compliance with any law or regulation or the order of any court or
governmental authority; (f) Acts of war, rebellion, sabotage, riots, civil
disorders or explosions; (g) Strikes or labor disputes; (h) Unavoidable
casualties; (i) any delays in obtaining required regulatory approvals despite
diligent efforts by EchoCath or Distributor, as the case may be; or (ii) Any
other cause beyond EchoCath's and Distributor's reasonable control.
Notwithstanding the foregoing, neither party shall be excused by reason of the
above-described events from any obligation to pay money when due hereunder or
under any invoice.
C8. GOVERNMENTAL CONSENT TO EXPORTATION. This Agreement is made subject to any
restrictions concerning the export of products or technical information from the
United States which may be imposed upon or related to EchoCath or Distributor
from time to time by the Government of the United States. Furthermore,
Distributor agrees that it will not export, directly or indirectly, any
technical information acquired from EchoCath under this Agreement or any
products utilizing such technical information to any countries for which the
United States Government or any agency thereof at the time of export requires an
export license or other governmental approval, without first obtaining the
written consent to do so from the Department of Commerce or other agency of the
United States Government when required by applicable statute or regulation.
C9. IMPORT LICENSES, EXCHANGE CONTROLS, AND OTHER GOVERNMENTAL APPROVALS;
COMPLIANCE. The Distributor shall, at its expense, obtain any and all import
licenses and governmental approvals that may be necessary to permit the sale by
EchoCath and the purchase by the Distributor of Products hereunder, comply with
all registration requirements in the Territory, obtain such approvals from the
banking and other governmental authorities of the Territory as may be necessary
to effect payment of all amounts due hereunder to EchoCath, and comply with any
and all governmental laws, regulations, and orders that may be applicable to the
Distributor by reason of its execution of this Agreement including any
requirement to be registered as EchoCath's independent distributor with any
governmental authority, and including any and all laws, regulations, or orders
that govern or affect the ordering, export, shipment, import, sale (including
government procurement), delivery, or redelivery or Products in the Territory.
The Distributor shall furnish EchoCath with such documentation as EchoCath may
request to confirm the Distributor's compliance with this paragraph C9 and
agrees that it shall not engage in any course of conduct that, in EchoCath's
reasonable belief, would cause EchoCath to be in violation of the laws of any
jurisdiction.
SCHEDULE C - GENERAL TERMS AND CONDITIONS - CONTINUED
C10. QUESTIONABLE PAYMENTS. The Distributor certifies that neither it, nor any
of its directors, officers, employees, or agents is an official, agent, or
employee of any government of governmental agency or political party or a
candidate for any political office on the date of this Agreement. The
Distributor shall promptly notify EchoCath of the occurrence of any event that
would or may result in an exception to the foregoing representation. The
Distributor shall not, directly or indirectly, in the name of, on behalf of, or
for the benefit of EchoCath offer, promise or authorize to pay, or pay any
compensation, or give anything of value to, any official, agent, or employee of
any government or governmental agency, or to any political party or officer,
employee, or agent thereof. The Distributor shall require each of its directors,
officers, employees, and agents to comply with the provisions of this Section
C10. Any failure by Distributor to comply with the provisions of this Section
C10 shall constitute a material breach of this Agreement by Distributor which
shall entitle EchoCath to terminate this Agreement effective immediately on
notice to the Distributor.
