EXHIBIT 10.7
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
▇▇▇▇▇▇ ▇. ▇▇▇▇
President
Image Monitoring
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ L5K2R4
Dear ▇▇▇▇▇▇:
This letter will confirm our agreement effective March 1, 1998, regarding the
representation by Image Monitoring (Distributor) of Cambridge Heart, Inc.
(Cambridge Heart) and certain of its products in Canada.
1. Appointment and Territory. Distributor is appointed exclusive and
-------------------------
sole distributor in the Territory for the Cambridge Heart CH 2000 system and
accessories (the Products), subject to the terms and conditions set forth in
this agreement.
2. Term. This agreement is for one year and commences on the date set
----
forth above, unless sooner terminated in accordance with the provisions of
Paragraph 11 below. This agreement shall be automatically renewed for
successive one-year periods unless either party shall notify the other in
writing on or before sixty (60) days prior to each expiration date of this
agreement of such notifying party's intention not to renew this agreement.
3. Prices. All purchases of Products by Distributor shall be at the
------
prices, terms and discounts described in Appendix A. Cambridge Heart may change
its prices from time to time and will give Distributor at least sixty (60) days'
notice of such price changes. If there are any quotes outstanding, copies of
which have been received and approved by Cambridge Heart, those quotes will be
honored for up to four (4) months.
4. Payment. For the purchase of the first two CH2000 systems, all
-------
payments must be made, in U.S. dollars, in advance of shipment or by irrevocable
Letter of Credit drawn on a United States bank and in form and substance
satisfactory to Cambridge Heart. Thereafter, Distributor may pay by wire
transfer of U.S. dollars up to sixty (60) days from the date of shipment by
Cambridge Heart. Cambridge Heart may in its sole discretion limit the credit
allowed to distributor. Until a satisfactory payment history is established,
the credit limit will be set at [**].
5. Forecast and Delivery.
---------------------
(a) On or before the first day of each calendar Quarter during the
term of this agreement, Distributor will deliver to Cambridge Heart a written
report forecasting the number and type of Products Distributor will order during
the next six successive calendar months, including the proposed dates of
shipment and the names of the customers with respect to such orders (when
known). Cambridge Heart will use its best efforts to ship orders, within
Distributor's most recent forecast, within 45 days after receipt of the purchase
order and other required ordering documentation.
(b) Distributor's quarterly forecast for the first annual term of this
agreement (the Annual Forecast) is in Appendix B. At least 90 days prior to the
expiration of each annual renewal period, Distributor will deliver to Cambridge
Heart a new Annual Forecast for the products Distributor will order during the
next renewal period.
6. Software License.
----------------
(a) Cambridge Heart grants to Distributor a nontransferable limited
license to license the Software object code included in the Product for use
solely for internal business purposes with and as part of the Product. For
purposes hereof, "Software" shall mean the programs, routines, subroutines,
algorithms, translators, compilers and operating systems which Cambridge Heart
has developed or has the right to sublicense for general commercial use with the
Product.
(b) In order to constitute a valid license of the Software object
code, prior to delivery of Software to each end user, Distributor shall have
each end user execute a Software License Agreement directly with Cambridge Heart
substantially in the form of Appendix C, as approved by Cambridge Heart. Upon
execution of the Software License Agreement by the end user, Distributor shall
forward an original, executed copy of such license agreement to Cambridge Heart.
Distributor shall use reasonable efforts to ensure that all end users comply
with the terms of the Software License Agreement at all times and shall promptly
notify Cambridge Heart of any breaches of such agreements when such breaches
become known to Distributor.
(c) Distributor agrees to the terms and provisions of the Software
License Agreement attached as Appendix C with respect to the Software as if set
forth in full herein, except that Distributor may transfer copies of the
Software in object code form to valid licensees of Cambridge Heart in accordance
with the terms of this agreement. Title to and ownership of the Software shall
at all times remain the exclusive property of Cambridge Heart or of Cambridge
Heart's licensors, as appropriate. Distributor shall have no access to the
source code for the Software. Distributor shall not make any modification to or
enhancement of the Software without the prior written consent of Cambridge
Heart.
-2-
7. Warranty.
--------
(a) Cambridge Heart warrants for a period of fifteen (15) months from
shipment by Cambridge Heart to Distributor, or twelve (12) months from shipment
by Distributor to its customer, whichever is shorter ("Warranty Period"), that
the Product shall conform to Cambridge Heart's standard specifications and shall
be free from defects in material and workmanship under normal and proper use in
accordance with any instructions and directions of Cambridge Heart applicable
thereto. Distributor agrees to provide the necessary labor to replace any
defective parts at Distributor's expense and to provide a 12-month parts and
labor warranty to its customers of the Products.
(b) THE EXPRESS WARRANTIES SET FORTH IN PARAGRAPH (a) CONSTITUTES
THE ONLY WARRANTIES WITH RESPECT TO THE PRODUCTS. CAMBRIDGE HEART MAKES NO
REPRESENTATION OR WARRANTY OF ANY OTHER KIND, EXPRESS OR IMPLIED (EITHER IN FACT
OF BY OPERATION OF LAW), WITH RESPECT TO THE PRODUCTS, WHETHER AS TO
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER.
(c) IN NO EVENT SHALL CAMBRIDGE HEART BE LIABLE FOR SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF DISTRIBUTOR OR ANYONE CLAIMING
THROUGH OR ON BEHALF OF DISTRIBUTOR, INCLUDING LOSS OF USE, REVENUE, OR PROFITS,
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY BREACH OF THIS
AGREEMENT BY CAMBRIDGE HEART OR THE EXISTENCE, FURNISHING, FUNCTIONING, OR
DISTRIBUTOR'S OR ANY THIRD PARTY'S USE OF ANY PRODUCTS OR SERVICES PROVIDED FOR
IN THIS AGREEMENT, EVEN IF CAMBRIDGE HEART HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
(d) THE WARRANTIES SET FORTH HEREIN MAY BE ASSERTED BY DISTRIBUTOR
ONLY AND NOT BY DISTRIBUTOR'S CUSTOMERS OR END USERS. DISTRIBUTOR'S SOLE REMEDY
FOR CAMBRIDGE HEART LIABILITY OF ANY KIND, INCLUDING NEGLIGENCE, WITH RESPECT TO
ANY PRODUCT FURNISHED UNDER THIS AGREEMENT, WHETHER THE CLAIMED LIABILITY IS
BASED ON A DEFECT, WHETHER DISCOVERABLE OR LATENT, IN ANY PRODUCT, SHALL BE
LIMITED TO THE REMEDIES PROVIDED IN PARAGRAPH (d) OF THIS AGREEMENT. Any other
representations or warranties made by any person, including employees or
representative of Cambridge Heart, which are inconsistent herewith shall be
disregarded by Distributor and shall not be binding upon Cambridge Heart. If
any Product model or sample was shown to Distributor, such model or sample was
used merely to illustrate the general type and quality of the Product and not to
represent that the Product would necessarily conform to such model or sample.
-3-
(e) Cambridge Heart's warranties set forth in Paragraph (a) shall not
apply in circumstances that would be excluded by its standard end user warranty
terms, such as misuse or alteration of the Product or use of the Product for
other than the specific purpose for which it is designed.
(f) Cambridge Heart's sole obligation under the hardware warranty set
forth in Paragraph (a) shall be to repair or replace, at Cambridge Heart's
option, the defective or nonconforming hardware. Cambridge Heart's sole
obligation under the Software warranty set forth in paragraph (a) shall be to:
(i) accept, analyze and provide written response to any reports from Distributor
of Software malfunction or error; and (ii) use best efforts to provide responses
to correct such errors when they reflect significant deviations from Cambridge
Heart's design specifications for the current release of the Software. The time
required to repair or replace any defective Product shall not extend the
Warranty Period.
8. Marketing, Distribution and Service.
-----------------------------------
(a) Distributor agrees to use its best efforts to promote, advertise
and market the Products and solicit orders. Distributor shall install Products,
train customers and provide service for the products, in accordance with
Cambridge Heart's approved procedures, and provide Cambridge Heart with current
and timely information regarding market conditions in the Territory in a
professional manner. Distributor also agrees to accomplish the specific
marketing activities specified in Appendix B.
(b) Distributor agrees to support and service the products in the
Territory and to provide all labor necessary for the repair of Products,
including warranty service. Such service shall be provided by distributor in a
professional and responsive manner, at a level, and with response times, rates
and other attributes consistent with the highest performance offered in the
Territory for other stress test equipment, by competitors or others. Distributor
shall purchase and maintain in its possession a Spare Parts Kit, as described in
Appendix A, and shall have at all times in its employ an appropriate number of
service personnel who are trained to service the products in a manner acceptable
to Cambridge Heart.
(c) If Distributor advertises the sale and service of Products
Distributor shall not use any advertising which tends to mislead or deceive the
public, the Distributor agrees to discontinue any advertising or other methods
of sales promotion which Cambridge Heart may find to be injurious to Cambridge
Heart's business or reputation or likely to deceive the public. Distributor may
use printed advertising and promotional materials furnished by Cambridge Heart
or may use its own materials. Cambridge Heart agrees to provide reasonable
quantities of sales literature, training and promotional materials as needed and
as determined by Cambridge Heart.
-4-
9. Regulatory Compliance. Distributor will at all times fully comply
---------------------
with all regulations of the United States Food and Drug Administration and
applicable authorities in the Territory with respect to the monitoring of
complaints and maintenance of repair and other records. Distributor shall
forward such documents to Cambridge Heart at such frequency as shall be
reasonably requested by Cambridge Heart, and shall cooperate with Cambridge
Heart in all complaint measures deemed by Cambridge Heart to be necessary or
appropriate, including any voluntary recall of Products.
10. Patents and Trademarks. It is understood and agreed that all patents
----------------------
and patent rights, trademarks, copyrights, trade names and other property rights
in and with respect to the Products are and will remain exclusively and property
of the Cambridge Heart. Solely for the purpose of marketing Products,
Distributor may, during the term of this agreement, indicate that it is an
authorized distributor for Products and may advertise the same under the
trademark for the product of Cambridge Heart. All Distributor advertising using
any trade name, trademark, service marks, or logos of Cambridge Heart shall be
submitted with English translation to Cambridge Heart for approval prior to its
use and, when used, shall appropriately credit Cambridge Heart.
11. Demo Equipment. Distributor agrees to purchase within thirty (30)
--------------
days of the effective date of this agreement and to maintain in its possession
during the term of this agreement one of each of the Products (in its maximum
configuration) for demo purposes. Two demo systems may be purchased at the
special demo discount in Appendix A. Additional demo systems shall be purchased
at the standard distributor discount.
12. Confidentiality. Distributor agrees to keep confidential any and all
---------------
trade information, proprietary information (including, without limitation, the
Software) and business information of Cambridge Heart acquired pursuant to this
agreement except as authorized in writing by Cambridge Heart.
13. Covenant. Distributor agrees that the Distributor Data Sheet in
--------
Appendix D is accurate and contains a full listing of the other companies and
products currently represented by Distributor. During the term of this
agreement, Distributor agrees not to enter into any new arrangements with any
company for the sale of systems capable of performing an Exercise Stress Test or
measuring Electrical Alternans without the express written permission of
Cambridge Heart.
14. OEM Arrangements. Cambridge Heart reserves the right to sell all or
----------------
part of the hardware and software components of the CH 2000 to one or more OEM's
who may have rights to sell private label systems including such hardware and
software in the Territory. Such right is limited to systems which will include
a substantially limited subset of the CH 2000 capability and/or include a
substantial amount of other hardware and/or software which such OEM's
manufacture, integrate or develop.
-5-
15. Termination.
-----------
(a) Cambridge Heart may terminate this agreement at any time by
written notice as follows:
(i) If Distributor shall fail to pay any sums due under this
agreement and shall fail to remedy such default within ten (10) days after
receipt of written notice thereof;
(ii) If Distributor shall fail to perform or comply with any
provision or conditions of this agreement and shall fail to remedy such default
within thirty (30) days after receipt of written notice thereof;
(iii) If any case, proceeding or other action shall be commenced
by or against Distributor seeking to have an order for relief entered on
Distributor's behalf as debtor or to adjudicate Distributor as bankrupt or
insolvent, or seeking the reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Distributor or Distributor's debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors or
seeking appointment of a receiver, trustee, custodian or other similar official
for Distributor or for all or a substantial part of Distributor's assets.
(iv) At any time after the expiration of the first six months of
the initial term or of any renewal term of this agreement, upon written notice
to Distributor, if Distributor shall have failed to purchase from Cambridge
Heart and paid for in full during such six-month period at least 50% of the
number of units of the Product forecasted in the Annual Forecast to have been
sold during such six-month period.
(b) Upon termination or expiration of this agreement, Distributor
shall immediately discontinue the use of any trade names, trademarks, symbols or
designations associated with Cambridge Heart or the Products and shall
immediately discontinue designating itself as an authorized distributor of
Cambridge Heart.
(c) Except as set forth below, in the event of termination or
expiration of this agreement, Distributor shall immediately (i) return to
Cambridge Heart all copies of sales manuals, operating and service manuals,
parts identification data, instructions, catalogs, descriptions, price lists,
order forms, advertising, and other similar materials and all confidential or
proprietary information furnished to Distributor by Cambridge Heart and all
materials derived therefrom, and (ii) assign to Cambridge Heart or Cambridge
Heart's designee all end user service contracts which Distributor may have
entered into for the servicing of Products. Notwithstanding the foregoing,
provided Distributor is not then in default under Distributor's obligations
hereunder and provided Distributor will continue to service Products after
expiration of this agreement, upon
-6-
expiration of this agreement, Distributor may retain such of the foregoing
materials and service contracts as Cambridge Heart may deem necessary for
Distributor's continued servicing of Products. However, should Distributor cease
servicing Products at any time thereafter, Distributor shall immediately return
to Cambridge Heart all such materials retained by Distributor and all materials
derived therefrom and assign Distributor's service contracts to Cambridge Heart
or Cambridge Heart's designee.
(d) Upon the termination or expiration of this agreement, Cambridge
Heart shall have the first option of repurchasing from Distributor, at a price
not exceeding Distributor's cost plus actual freight on shipment to point of
original delivery (less any sums owed by Distributor to Cambridge Heart), any
Products purchased by Distributor which are in Distributor's place of business
or in Distributor's control or possession.
(e) Termination or expiration of this agreement shall not affect the
rights of any Software licensee not affiliated with Distributor and, to the
extent the licenses under this agreement apply to Distributor or its affiliates
as end users of the Product, termination or expiration shall not affect the
rights of the Distributor or its affiliates to the licenses granted.
16. Notices. All notices, demands, requests, consents, approvals or other
-------
communications required or permitted to be given under this agreement or which
are given with respect to this agreement shall be in writing and may be
personally served or may be deposited in the United States federal Territory
mail, registered or certified, return receipt requested, postage prepaid,
addressed as follows:
To Cambridge Heart: Cambridge Heart
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
To Distributor: Image Monitoring Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
or such other address as such party shall have specified most recently by
written notice. Notice mailed as provided herein shall be deemed given on the
fifth business day following the date so mailed.
17. Miscellaneous.
-------------
(a) This agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
but one and the same instrument.
-7-
(b) This agreement shall be governed by, interpreted under, and
construed and enforced in accordance with, the laws of the Commonwealth of
Massachusetts, U.S.A., applicable to agreements made and to be performed wholly
within the Commonwealth of Massachusetts and, to the extent not inconsistent
therewith, the United Nations Convention on the International Sales of Goods.
(c) This agreement may not be modified, changed or supplemented, nor
may any obligations hereunder be waived or extensions of time for performance
granted, except by written instrument signed by the party to be charged.
(d) No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
or of any other agreement or provision herein contained.
(e) Distributor is an independent contractor, and is not an agent of
Cambridge Heart. Distributor is not authorized to accept any orders on behalf
of Cambridge Heart. Nothing herein shall be construed so as to create an
employer-employee, agency, partnership, or joint venture relationship between
the parties.
(f) This agreement and the rights, duties, and obligations hereunder
may not be assigned or delegated by any party without the prior written consent
of the other party. Notwithstanding the foregoing, Cambridge Heart may assign
its rights or delegate its duties hereunder to any affiliated person or entity
which controls, is controlled by, or is under common control with, Cambridge
Heart or to any successor to its business.
(g) This agreement and the provisions hereof shall be binding upon
each of the parties, their successors and permitted assigns.
For Cambridge Heart, Inc. For Image Monitoring
Signature /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- ----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- --------------------------------
Title Cambridge Heart Title Image Monitoring Inc.
VP Sales and Marketing President
------------------------------- --------------------------------
Date 2/1/98 Date February 12, 1998
-------------------------------- ---------------------------------
-8-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
APPENDIX A: PRICE LIST
1. Shipment Terms. Products will be shipped F.O.B. Cambridge Heart. All
--------------
prices are exclusive of, and Distributor is responsible to pay, all tariffs,
duties and taxes due in the country of destination, and all insurance, delivery
and shipping charges. Title to and risk of loss of Products sold hereunder
shall pass to Distributor upon delivery to the carrier at the F.O.B. point. In
the absence of instructions to the contrary, Cambridge Heart on behalf of
Distributor will select the carrier but shall not be deemed thereby to assume
any liability in connection with the shipment nor shall the carrier be construed
to be an agent of Cambridge Heart. Insurance for Products during transit will
be the responsibility of Distributor. Products will be shipped in Cambridge
Heart's standard packaging; unless otherwise agreed upon by Cambridge Heart in
writing, Cambridge Heart shall be under no obligation to provide special or
military packaging.
2. Security Interest. Distributor hereby grants to Cambridge Heart a
-----------------
security interest in all Products sold to Distributor and any proceeds
(including accounts receivable) thereof as security for all its payment
obligations for Products purchased and not paid for by Distributor under this
agreement. Upon request by Cambridge Heart, Distributor shall execute any
instrument required to perfect such security interest.
3. Failure to Take Delivery of Orders. If Distributor fails to take
----------------------------------
delivery of any shipment, or any portion of a shipment, upon arrival at the
designated delivery point, Cambridge Heart shall have the right to place the
Products in storage, and Distributor shall be liable for all reasonable
transportation, loading, storage, and costs incurred by Cambridge Heart by
reason of Distributor's failure to take delivery of the Products.
4. Purchase Orders. All orders for Products shall be placed only on
---------------
Distributor's standard purchase order form. All purchase orders are subject to
acceptance by Cambridge Heart in its sole discretion.
5. Discount for Demo System with alternans and AIC card
[**] One demo unit with laser printer
[**] One demo unit with strip chart recorder
-9-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
PRICE LIST - IMAGE MONITORING
CATALOG
NO. DESCRIPTION PRICE
CH 2000 CARDIAC DIAGNOSTIC SYSTEM - Computer-based
Cardiac Diagnostic System capable of interface with
treadmills and bicycles. Fully-featured stress test capability
supports a broad range of standard and physician
customized protocols. Crystal Clear 12-lead diagnostic
display and median enlargement allows detailed
interpretation of results on screen. Multiple report formats
including full disclosure reports which disclose entire
arrhythmia record at a glance.
Country and Language must be specified. (English, German,
French, or Italian)
Includes:
---------
(1) System Cart with casters
(1) IBM Compatible Pentium computer
(1) Dedicated keyboard
(1) 15 inch - High Resolution Color Monitor mounted on
swivel-tilt bracket
(1) PM-1 Patient Module
(1) Standard 10 Electrode patient lead cable with color
coded clip (specify U.S. or International)
(1) Operator's Manual
2000-001 Includes above system configured with Laser Printer and 100/115 v power supply. [**]
2000-002 Includes above system configured with Laser Printer and 230 [**]
v power supply.
2000-003 Includes above system configured with Strip Chart and [**]
100/115 v power supply.
2000-004 Includes above system configured with Strip Chart and 230 v [**]
power supply.
-10-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
OPTIONS AND ACCESSORIES
CATALOG
NO. DESCRIPTION PRICE
10014-001 T-WAVE ALTERNANS OPTION - Allows measurement of [*]
T-wave alternans at rest, during exercise, pacing and
pharmacologic stress utilizing the spectral method.
Produces T-wave alternans trend and spectral reports.
Includes:
---------
(1) Software License Agreement for Alternans Option
(1) High Resolution 14 Electrode patient lead cable
(specify U.S. or International)
(1) Hi-Res Electrode Package (7 ea.)
(1) TM-1 Tachometer Display Module
This option requires a separately purchased ergometer
interface
cable. The Magneto/Optical Drive, option number 10069-001, is
a recommended option for unlimited test storage.
20096-001 Hi-Res Electrodes - Sold in case quantity, 20 packages to [**]
a case, 7 electrodes per package. 1 package required per
test.
-11-
APPENDIX B: FORECAST AND MARKETING PLAN
FORECAST
--------
---------------------------------------------------------------------------
JAN FEB MAR APR MAY JUNE JULY AUG SEPT OCT NOV DEC
---------------------------------------------------------------------------
CH2000 1 1 1 1 1 1 1 1
---------------------------------------------------------------------------
CH 2000
WITH TWA
---------------------------------------------------------------------------
ELECTRODES
---------------------------------------------------------------------------
MARKETING PLAN: (Please attach a plan for the next 12 months and include the
--------------
following)
A) BUSINESS OBJECTIVES (for example: growth, market share expectations,
geographic expansion, product focus, etc.)
B) CURRENT PRODUCTS:
C) APPROXIMATE % MARKET SHARE WITHIN TERRITORY FOR MAJOR PRODUCTS
D) MARKET DYNAMICS: (changes, trends in products, marketplace,
customers, etc.)
E) MARKET FOCUS: % of business in Hospitals _______:
% of business in Doctors Office _____:
% of business that is cardiology oriented _____:
F) COMPETITIVE STRATEGY
G) HIRING PLANS
H) TRAINING PLANS
I) SPECIFIC MARKETING ACTIVITIES
OTHER RELEVANT INFORMATION
-12-
APPENDIX C: SOFTWARE LICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT
This License Agreement is your proof of license.
Please treat this as valuable property.
CH-2000 Cardiac Diagnostic System
This is a legal agreement between you, Image Monitoring, the end user, and
Cambridge Heart, Inc. ("CHI").
CAMBRIDGE HEART LICENSE AGREEMENT
Grant of License. Upon acceptance by CHI, CHI grants to you the right to use
----------------
one copy of the CHI software program identified above (the "Software") on the
single computer on which the Software is initially installed by CHI (the
"Dedicated Computer"), in the country indicated across from your signature
below.
Ownership; Copyright. As the licensee, you own the physical media on which the
--------------------
Software is originally or subsequently recorded, but CHI and its licensors (if
any) retain title and ownership of the Software recorded on the original disk or
other media and all subsequent copies of the Software, regardless of the form or
media in or on which the original and other copies may exist. This license is
not a sale of the original Software or any copy thereof. The Software and the
accompanying written materials are patented and copyrighted and are protected by
United States patent and copyright laws and international treaty provisions, and
further, contain trade secret and proprietary information. Therefore, you must
treat the Software like any other patented and copyrighted material (e.g., a
book or musical recording) and trade secret information. Subject to these
restrictions, you may either (a) make one copy of the Software solely for backup
purposes in support of your permitted use of the Software on the Dedicated
Computer, or (b) transfer the Software to a single hard disk on the Dedicated
Computer provided you keep the original solely for backup purposes. (Programs,
however, may include mechanisms to limit or inhibit copying, and they are marked
"copy protected"; programs on CD-ROM will not be copyable.) The patent,
copyright and other notices must be reproduced on the backup copy. You may not
copy the written materials accompanying the Software.
Other Restrictions. You may not rent or lease the Software, but you may
------------------
transfer your rights under this Agreement on a permanent basis in conjunction
with your transfer of the Dedicated Computer, provided at the same time you
transfer the Software (including all copies, whether in printed, machine
readable form or otherwise, and all accompanying written materials) and
Dedicated Computer you retain no copies, the recipient agrees in writing to
accept the terms of this Agreement and such writing is
-13-
delivered to and accepted by CHI. Any such transfer, or any transfer of
possession of any Software in whole or in part to another party shall
automatically terminate your license. If the Software is an update, any transfer
must include the update and all prior versions. YOU MAY NOT DISTRIBUTE COPIES OF
THE SOFTWARE OR THE ACCOMPANYING WRITTEN MATERIALS TO OTHERS. YOU MAY NOT
MODIFY, ADAPT, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR CREATE
DERIVATIVE WORKS BASED ON THE SOFTWARE OR THE WRITTEN MATERIALS.
Dual Media Software. If the Software package contains both diskettes and CD-
-------------------
ROM, then you may use only the media appropriate for your single Dedicated
Computer. You may not use the other media on another computer or computer
network, or loan, rent, lease or transfer it to another user except as part of a
transfer or other use as expressly permitted by this Agreement.
Limited Warranty. CHI does not warrant that the functions contained in the
----------------
Software will meet your requirements or that the operation of the Software will
be uninterrupted or error free. However, CHI warrants to you, the original
licensee, that the Software will perform substantially in accordance with the
accompanying written materials under normal use and service for a period of one
(1) year. This limited warranty shall not apply to Software which CHI
determines has been subject to misapplication, improper installation, repair,
modification or alteration by anyone other than CHI, or which has been subject
to accident or abuse or merged with or incorporated into any other program.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. THE SOFTWARE IS
LICENSED ON AN "AS IS" BASIS WITHOUT ANY, AND CHI AND ITS LICENSORS (IF ANY)
HEREBY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF IMPLIED
WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY
GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH MAY
VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Remedies. CHI's entire liability and your exclusive remedy shall
----------------------
be, at CHI's option, either: (1) the replacement of any diskette(s) or other
media not meeting CHI's "Limited Warranty" and which is returned to CHI or an
authorized CHI Software distributor or dealer within such one (1) year period
with a copy of your receipt, or (2) if CHI or the distributor or dealer is
unable to deliver within 180 days after such return a replacement diskette(s) or
other media meeting CHI's "Limited Warranty", you may terminate this Agreement
by returning the Software (and all related documentation) and your money will be
refunded. Any replacement of the Software will be warranted for
-14-
the remainder of the original warranty period or thirty (30) days, whichever is
longer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CHI
OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY
OF THE SOFTWARE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL
INJURY OR DEATH, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS
INTERRUPTION, LOSS OF INFORMATION OR ANY OTHER PECUNIARY LOSS), WHETHER
RESULTING FROM DEFECTS IN THE MEDIA, OR ARISING OUT OF THE USE OR PERFORMANCE OF
OR INABILITY TO USE OR THE RESULTS OF USE OF, THE DOCUMENTATION OR SOFTWARE,
EVEN IF CHI OR AN AUTHORIZED SOFTWARE DISTRIBUTOR OR DEALER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU.
General. You may not sublicense, assign or transfer the license of the Software
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except as expressly provided in this Agreement. Any attempt otherwise to
sublicense, assign or transfer any of the rights, duties, or obligations
thereunder is void. No amendment to or modification of this Agreement shall be
binding unless in writing and signed by a duly authorized representative of CHI.
This Agreement is governed by the internal laws of the Commonwealth of
Massachusetts, U.S.A., without the conflict of laws, principles thereof and, to
the extent not inconstant therewith, the United Nations Convention on the
International Sales of Goods. Should you have any questions concerning this
Agreement, of if you desire to contact CHI for any reason, please write:
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APPENDIX D: DISTRIBUTOR DATA SHEET
1. Distributor Name and Address:
Image Monitoring Inc.
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2. Names and Titles of Principals:
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3. Locations of all Sales Offices;
Vancouver, Toronto
4. Other Companies and Products Sold or Represented:
Hitachi
Rozinn
Pulse Metric
Sony
Imex
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