Swissray [LOGO]
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Swissray Medical Systems, Inc.
a company of Swissray International, Inc.
AUTHORIZED DISTRIBUTOR AGREEMENT
THIS AGREEMENT (the "Agreement") is made effective the day of, 19, by and
between Swissray America, Inc. an ______________ corporation, having its
principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx 00, Xxx Xxxxxx,
Xxxxxxxxxx 00000 (which with its successors and assigns is hereinafter called
"Swissray") and
MEDIKA EQUIPOS MEDICOS, INC.
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(Distributor's Full Legal Name)
Corporation
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(state whether an individual, partnership or corporation)
Puerto Rico
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(if a corporation, show name of state in which incorporated)
__________________, having its principal place of business at
(DBA, if different from legal name)
XX Xxx 000000
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(Street Address)
San Xxxx PR 00936-0888
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(City/Town) (State) (Zip)
(which, with its successors and permitted assigns, is hereinafter called
"Distributor").
BACKGROUND
A. Swissray is engaged in, among other things, the design, development,
manufacture, sale and distribution of high quality diagnostic imaging equipment
to the medical profession, hospitals, clinics, national accounts and government
purchasers and has established a quality image and goodwill among consumers in
the diagnostic imaging marketplace.
B. Swissray desires to appoint a limited number of Distributors to sell
certain Swissray products and accessories thereto (hereinafter individually and
collectively called "Swissray Products" or "Products"). Distributor desires to
be appointed as an authorized Swissray Distributor, and hereby warrants and
represents to Swissray that it shall at all times meet each of its requirements
and obligations set forth in this Agreement.
C. Based upon the foregoing, and in reliance thereon, Swissray and
Distributor agree as follows:
Swissray Medical Systems, Inc.
0000 Xxxxxxxxx Xxxxx. Xxxxx 00
Xxx Xxxxxx, XX 00000, XXX
Phone 000 000 0000
Fax 000 000 0000
2.6 Consumer Relations and Trade Practices.
2.6.1 Distributor shall conduct its business operations in such manner
so as to promote good customer relations.
2.6.2 Distributor shall at no time engage in "bait and switch" or any
other unfair or deceptive trade practice with respect to Swissray Products,
and shall make no false, misleading or disparaging representations
concerning Swissray or the Products in advertisements or otherwise.
2.6.3 Distributor shall make no representations to customers or to the
trade with respect to the specifications or features of Swissray Products,
except such as may be approved in writing or published by Swissray.
2.6.4 Distributor shall advise Swissray promptly concerning any
information that may come to its attention as to charges, complaints or
claims about Swissray Products by Distributor's customers or other persons.
2.6.5 Distributor will not imitate Swissray products or infringe in
any way upon Swissray's trademarks, trade dress or other intellectual
property, and will not involve itself in any way in the sale of imitations
of Products or the sale of any Swissray-brand products not intended for
sale in the United States (i.e., xxxx market goods).
2.7 Distributor Reports.
From time to time Swissray may ask Distributor to prepare and forward to
Swissray reports relevant to Distributor's business regarding Swissray Products.
All reports submitted by Distributor will become the property of Swissray.
Swissray will use reports submitted by Distributor only for Swissray's internal
purposes in connection with this Agreement and for no other purpose. Swissray
shall not disclose such reports to third parties except its professional
advisors and then only in connection with this Agreement.
2.8 Compliance with Laws.
Distributor and Swissray shall comply with all applicable federal, state
and local laws and regulations in performing its duties hereunder and in any of
its dealings with Swissray Products.
3 SUPPORT BY SWISSRAY
Swissray shall provide Distributor with support, as follows:
3.1 Swissray shall maintain such promotional programs as it believes in its
sole, absolute judgment will enhance the sale of the Products.
3.2 Swissray shall, from time to time, make sales literature and other
promotional materials available to Distributor.
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3.3 Swissray shall maintain a network of authorized service centers, which
shall provide both in-warranty and out-of-warranty services to consumers.
3.4 Swissray shall, as may be necessary or appropriate from time to time,
provide technical assistance to Distributor concerning Swissray Products.
3.5 From time to time Swissray may suggest the level of resale pricing of
Products. However, Distributor's resale prices, and its sales policies, shall be
established solely by Distributor, and Swissray, its employees and agents retain
no control of such resale prices or sales policies.
4 GOVERNING TERMS AND CONDITIONS; PRICES, ORDERING AND FINANCIAL REQUIREMENTS
4.1 For purposes of this Agreement, "Terms of Sale" shall mean the terms
set forth in Exhibit C, annexed hereto, and found on the reverse side of each
Swissray invoice, as such Terms of Sale may be replaced, supplemented or
modified, and "Price Schedules" shall mean the Swissray Confidential Price
Schedules as are issued and replaced, supplemented or modified from time to time
by Swissray. The Terms of Sale, Price Schedules are collectively referred to as
the "Terms and Prices." The terms and conditions solely and exclusively
governing the relationship of the parties to this Agreement and the sale of
Products to Distributor will be as set forth in this Agreement and in both the
Swissray Terms of Sale, and Price Schedules, as applicable. The provisions of
this Agreement and the Terms and Prices are cumulative. Nevertheless, except as
specifically stated in this Agreement to the contrary, and except with respect
to this paragraph 4.1 which shall be paramount, in the event of any
irreconcilable conflict between this Agreement and the Terms and Prices, the
latter will prevail.
4.2 From time to time, Swissray may issue policies relating to the sale of
Products including, without limitation, policies covering credit matters,
product repair or replacement or product returns; it may also issue from time to
time special programs containing terms and conditions of sale which temporarily
add to or deviate in part or in whole from the Terms and Prices. Such additional
or different terms and conditions, while in effect, supersede the Terms and
Prices to the extent of any conflict with them. Upon their issuance, and as
replaced, supplemented or modified, such policies and such additional or
different terms and conditions will be deemed a part of the Terms and Prices and
will be binding upon Swissray and Distributor with respect to orders accepted
after their issuance.
4.3 Distributor will, purchase Products at Swissray's standard prices as
set forth in the Price Schedules in effect at the time the order is placed, less
all applicable discounts and allowances as set forth in the Terms and Prices.
Prices, less such discounts and allowances, shall be set forth on Swissray's
invoice to Distributor. Notwithstanding anything to the contrary, all prices,
discounts and allowances are subject to change by Swissray upon their issuance
and without advance notice.
4.4 Distributor will order Products from Swissray in accordance with
ordering procedures established by Swissray from time to time. All purchase
orders must be submitted by Distributor in writing to Swissray's sales
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representative or, if a sales representative is not involved, directly to
Swissray. Telephone purchase orders must be confirmed in writing. All orders are
subject to acceptance in writing at Swissray's principal place of business. Any
shipment of Products to Distributor in whole or in partial fulfillment of any
purchase order of Distributor will not be deemed to constitute an acceptance by
Swissray of any of the terms and conditions of such purchase order, except as to
identification of Products and the quantities involved, unless otherwise
expressly agreed to in writing by Swissray. Swissray reserves the right to
accept or reject orders in whole or in part in its sole, absolute discretion.
Swissray shall also have the right in its sole, absolute discretion to cancel
any backorders even if such orders have been accepted previously by
acknowledgment, partial shipment or otherwise.
4.5 Distributor represents and warrants to Swissray that it is in good and
substantial financial condition and is able to pay all bills when due. At
Swissray's request, Distributor shall furnish financial statements or additional
information as may be necessary or appropriate to enable Swissray to determine
Distributor's creditworthiness.
4.6 Sales will be made on the credit terms in effect at the time that an
order is accepted. Swissray shall have the right to establish credit limits for
Distributor. If Distributor becomes delinquent in payment obligations or other
credit or financial requirements established by Swissray, or, if in the opinion
of Swissray, Distributor's credit becomes impaired, Swissray may from time to
time at its sole, absolute discretion, in addition to any rights or remedies
provided by applicable law or the Terms of Sale, alter Distributor's credit
limits (or other financial requirements established by Swissray) and take such
actions as it may deem necessary to protect its financial position.
4.7 Swissray's standard terms and conditions shall apply to all
transactions. (See attached Swissray Terms and Conditions)
5 CHANGES IN PRODUCTS, PARTS OR POLICIES
Unless otherwise provided by applicable laws, Swissray may at any time add,
change or cease making available any of the Products or parts without advance
notice to Distributor, and Swissray shall not be liable to Distributor for
failure to furnish the Products or parts of the model, design or type previously
sold.
6 DURATION OF AGREEMENT AND TERMINATION
6.1 Unless earlier terminated as provided below, this Agreement shall
remain in effect from one (1) year next following the date upon which this
Agreement becomes effective as set forth on the first page of this Agreement.
This Agreement may be renewed for one or more one-year periods if each party
hereto gives written notice of such intent to the other party not less than
sixty (60) days prior to the expiration of the initial or any renewal term. If,
after the expiration of the initial or any renewal term, the Agreement has not
been renewed as above provided, and if the parties nonetheless continue to
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do business, then the Agreement will continue in effect subject to all of its
terms and conditions except that either party shall have the right to terminate
the Agreement with or without cause, for any reason or for no reason, upon
thirty (30) days written notice to the other party.
6.2 This Agreement may be terminated prospectively as follows:
6.2.1 Distributor may terminate this Agreement at any time, with or
without cause, for any reason of for no reason, on 30 days prior written
notice to Swissray or upon 15 days prior written notice as provided in
paragraphs 1.01, 2.04(c), above, or 11.07, below.
6.2.2 Swissray may terminate this Agreement as follows:
6.2.2.1 Swissray may terminate this Agreement by giving Distributor 30
days prior written notice in the event Distributor will have failed to
fulfill or perform any one or more of the duties, obligations or
responsibilities undertaken by it pursuant to paragraphs 2, 5.06 and 11.01
of this Agreement and paragraphs 2, 5 (except with respect to non-payment
provided for in paragraph 7.02(b)(ii)(4), below] and 6(c) of the Terms of
Sale, or in the event of any change of which Distributor is required to
notify Swissray pursuant to paragraph 11.09 of this Agreement, except that
Swissray may terminate this Agreement upon 15 days prior written notice as
provided in paragraph 2.04(c), above.
6.2.2.2 Swissray may terminate this Agreement by giving Distributor
written notice, effective immediately, in any of the following events:
6.2.2.2.1 If Distributor has continued in default of any duty,
obligation or responsibility (other than as provided for in paragraph
7.02(b)(i), above, or other than as provided for in this paragraph 7.02(b)
(ii)] imposed on it by this Agreement, for 30 days after Swissray gives
written notice to Distributor of such default;
6.2.2.2.2 Any assignment or attempted assignment by Distributor of any
interest in this Agreement, or any violation of paragraph 8, below in
connection with a bulk sale or transfer;
6.2.2.2,3 If Distributor becomes insolvent, files or has filed against
it a petition in bankruptcy, makes a general assignment for the benefit of
its creditors or has a receiver or trustee appointed for its business or a
substantial portion of its properties;
6.2.2.2.4 If Distributor defaults in the payment of any indebtedness
to Swissray when and as the same becomes due and payable, if such default
has continued for a period of 10 days after written notice of such default
is given to Distributor; or
6.2.2.2.5 If Distributor makes a material false representation, report
or claim in connection with the business relationship of the parties, or
engages in fraud or criminal misconduct.
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6.3 Termination of this Agreement by Swissray for cause or termination by
Distributor with or without cause shall automatically accelerate the due date of
all invoices for Swissray Products so that they shall become immediately due and
payable as set forth in paragraph 5 of the Terms of Sale on the effective date
of termination, even if longer terms had been previously agreed to.
6.4 Termination of this Agreement by either party shall automatically
cancel all open orders without liability. In the event of termination of this
Agreement by either party with advance notice, Swissray shall, at its sole
option, be entitled to reject all or part of any orders received from
Distributor after notice but prior to the effective date of termination.
Notwithstanding any credit terms made available to Distributor prior to that
time, any Swissray Products shipped during said final period shall be paid for
by certified or cashier's check prior to shipment.
6.5 Within ten (10) days following the effective date of termination of
this Agreement, Distributor shall submit to Swissray a list of all new,
undamaged and current Swissray Products owned by Distributor as of the effective
date of termination. Swissray shall have the option in its sole, absolute
discretion to repurchase (but shall not be obligated to repurchase) any or all
of the Products upon providing written notice of its intention to Distributor
within thirty (30) days after receipt of the list of the Products from
Distributor. Upon receipt of notice that Swissray intends to exercise its
repurchase option, Distributor will cause the Products selected by Swissray for
repurchase to be delivered to such place(s) in the United States as Swissray may
designate, freight pre-paid. Swissray shall have the right to inspect all
returned merchandise before establishing final disposition. Upon inspection,
Swissray shall be entitled to reject and return to Distributor, freight collect,
any of the Products which, in Swissray's sole, absolute judgment, are in
unacceptable condition. Distributor shall be credited for any accepted Swissray
Products at the lower of: (i) the net invoice prices at which the Products were
originally purchased by Distributor, less any allowances which Swissray may have
given Distributor on account of the Products; or (ii) the price for such
Products prevailing at the effective date of termination of this Agreement, and,
in both cases, less the costs of repair, refurbishing or repackaging, as may be
necessary, and a minimum fee for restocking equal to 15% of the net invoice
price credited to Distributor for returned Products.
6.6 Neither Swissray nor Distributor shall be liable to the other because
of the termination of this Agreement (regardless of the circumstances thereof)
for compensation, reimbursement or damages of any kind, including, without
limitation, damages because of loss of prospective profits or because of
expenditures, investments, leases or any other types of commitments made in
connection with the business of either of them. In the event of termination,
Distributor shall remain liable for all outstanding invoices and unpaid accounts
and Swissray shall remain liable for all credits due to Distributor with respect
to requests for credit submitted by Distributor prior to termination or within
ninety (90) days thereafter.
6.7 Upon termination of this Agreement, each party shall immediately:
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6.7.1 Discontinue any and all use of the trademark of the other party,
including such use in advertising or business materials of the other party
(except as necessary to sell Products remaining in Distributor's inventory
after termination, but in no event more than one hundred twenty (120) days
after termination; and
6.7.2 Remove or obliterate any and all signs which designate
Distributor as an authorized Swissray Distributor or which include any
trademark of Swissray, and cease holding itself out, in any other manner,
as an authorized Swissray Distributor; and
6.7.3 Notify and instruct publications and others which may list or
publish Distributor's name as an authorized Swissray Distributor (including
telephone directories, yellow pages and other business directories) to
discontinue such listings.
7 ASSIGNMENT
7.1 Distributor is appointed as an authorized Swissray Distributor because
of Swissray's confidence in Distributor, which confidence is personal in nature.
Distributor may not assign, transfer or sell its rights under this Agreement (or
delegate its obligations hereunder) without the prior written consent of
Swissray, and any attempted assignment, transfer or sale (whether by transfer of
stock, assets or otherwise), absent such written consent, shall be null and
void. Subject to these restrictions, the provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties and their permitted
assigns.
7.2 Distributor shall not sell or otherwise transfer a major part of its
materials, supplies, merchandise or other inventory or a substantial part of its
equipment in connection with a sale or transfer of inventory without first
giving Swissray prior written notice as required by the Uniform Commercial Code
and other applicable law.
7.3 Distributor shall not consummate any sale or transfer as set forth in
paragraph 7.2, above, unless contemporaneously therewith Distributor pays all
sums due and payable to Swissray as determined in accordance with paragraph 5 of
the Terms of Sale, even if longer payment terms had been previously agreed to.
7.4 If Distributor shall fail to pay to Swissray all monies due to Swissray
as provided in paragraph 7.3, above, then proceeds or other consideration,
tangible or intangible, received by Distributors in connection with the transfer
described in paragraph 7.2, above, shall be deemed to be held by the recipient
of such proceeds in trust for the benefit of Swissray to the extent of the
amount due and payable to Swissray as provided in paragraph 7.3, above. If the
aforesaid proceeds or other consideration from such sale or transfer are not
received directly by Distributor, then Distributor shall cause the person or
other legal entity receiving such proceeds or consideration to hold such
proceeds or consideration in trust for the benefit of Swissray to the extent of
the amount due and payable to Swissray as provided in paragraph 7.3,
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above. Such trust shall be subordinate to a prior security interest held by a
person financing all or substantially all of Distributor's inventory. In the
event that a trust arises hereunder, Distributor shall give written notice of
such trust to the buyer or transferee of the materials, supplies, merchandise or
other inventory or equipment described in paragraph 7.2, above, and to Swissray.
7.5 If Distributor breaches any of its obligations under this paragraph 7
and Swissray is not paid the monies due as provided in paragraph 7.3, above,
then, in the event that Swissray chooses to pursue any rights it may have in any
forum in any jurisdiction to collect such monies from the aforesaid buyer or
transferee of Distributor, Distributor will indemnify and hold Swissray harmless
from and against any and all costs and expenses, including, without limitation,
reasonable attorneys' fees in connection with such pursuit.
7.6 Swissray retains the right to assign this contract in the event the
Swissray is sold or merged.
8 MUTUAL RELEASE AND LIMITATIONS ON FUTURE CLAIMS
8.1 Except as reserved in this paragraph 9.01, upon the mutual execution of
this Agreement, and any renewal thereof, Swissray and Distributor hereby do and
shall release each other of and from all manner of action and actions, cause and
causes of action, suits, contracts, controversies, damages, claims and demands
whatsoever, known or unknown, in law or in equity, whether under laws and
regulations of federal, state or municipal governments, under the common law or
otherwise, which such parties or their respective successors or assigns ever
had, now have, or which they or any of them hereafter can, shall or may have
against the other party by reason of any matter, cause or thing whatsoever from
the beginning or time until the date hereof. Swissray reserves its rights
against Distributor for payment with respect to any outstanding invoices and
open accounts and with respect to the protection of its trademarks, other
intellectual property rights and goodwill, and Distributor reserves its right
against Swissray for any unissued credits, for prior accruals for cooperative
advertising, if applicable, for matters regarding the protection of
Distributor's trademarks and other intellectual property and for matters arising
out of Swissray's Product liability. All cooperative advertising claims must be
submitted in accordance with Swissray's cooperative advertising policy.
8.2 Except as provided below in this paragraph 8.2, both Swissray and
Distributor agree that any cause of action or claim hereafter arising out of the
relationship between Swissray and Distributor, including any cause of action or
claim for alleged breach of this Agreement, shall be barred unless arbitration
(as provided in paragraph 10, below) or other action (if permitted by this
Agreement) is commenced by the aggrieved party within one (1) year after the
cause of action or claim first accrues. The aforesaid one (1) year limitation is
in lieu of all other applicable statutes of limitation which may be longer in
duration; however, such one (1) year period shall not apply to any
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causes of action or claim asserted against Distributor by Swissray arising from
any delinquencies in payment for Swissray Products or asserted by Distributor
with respect to third-party claims arising out of Swissray's Product liability.
9 ARBITRATION AND GOVERNING LAW
Except with respect to each party's indemnity and the other rights of each
party set forth in paragraph 10.5, below, the Arbitration and Governing Law
provisions of paragraph 10 of the Terms of Sale attached as Exhibit C shall also
govern any controversy or claim .arising out of or relating to this Agreement,
to the breach thereof, to the relationship created thereby or to the termination
thereof, with the additional provision that if Distributor shall breach the
provisions of paragraph 7 of this Agreement, it shall pay all of the costs and
expense of Swissray, including, without limitation, reasonable attorneys' fees,
in connection with such arbitration. The arbitrators award shall include such
costs and expenses. The provisions of paragraph 9(d) of the Terms of Sale
attached as Exhibit C shall govern any controversy or claim covered by paragraph
10.5, below.
9.1 The internal law of the State of New York, exclusive of its
conflict-of-laws principles shall govern claims or controversies that are not
the subject of arbitration under these Terms, for this purpose, both DISTRIBUTOR
and SWISSRAY hereby.
10 MISCELLANEOUS PROVISIONS
10.1 Swissray and Distributor agree that their relationship is that of
buyer and seller only, and Distributor shall be considered an independent
contractor at all times with respect to its relationship with Swissray. Nothing
in this Agreement shall be construed as creating the relationship of employer
and employee, master and servant, franchisor and franchisee, principal and agent
or joint venturers between the parties hereto. The relationship created by this
Agreement does not create the grant by Swissray of a franchise to Distributor,
and no federal or state franchise statute, law, regulation or rule will be
deemed or construed to apply to the formation, operation, administration,
expiration or termination of this Agreement. Except as authorized in writing
neither party shall have any express or implied right or authority to assume or
create any obligation on behalf of the other party, and shall not attempt to do
so. This Agreement does not grant to either party a license to use any trade
name, trademark, service xxxx or trade dress of the other party. Under no
circumstance shall either party, its agents or employees, be considered the
agent of the other party, its agents and employees, and neither party shall
represent themselves directly or by implication as such.
10.2 The failure or refusal by Swissray either to insist upon the strict
performance of any provision of this Agreement or to exercise any right in any
one or more instances or circumstances shall not be construed as a waiver or
relinquishment of such provision or right, nor shall such failure or refusal be
deemed a custom or practice contrary to such provision or right. A waiver of any
provision of this Agreement must be in writing, signed by the waiving party to
be effective.
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10.3 In the event that any of the provisions of this Agreement or the
application of any such provisions to the parties hereto with respect to their
obligations hereunder shall be held by a court or other tribunal of competent
jurisdiction to be unlawful, invalid, or void or unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. In the event, however, that any
law, order, regulation, direction, restriction or limitation, or interpretation
thereof, shall in the judgment of either party substantially alter the
relationship between the parties under this Agreement, or the advantages derived
from such relationship, such party may request the other party hereto to modify
this Agreement, and, if, within thirty (30) days subsequent to the making of
such request, the parties hereto are unable to agree upon a mutually
satisfactory modification hereof, then either party may terminate this Agreement
without further cause on fifteen (15) days prior written notice to the other
party.
10.4 The paragraph headings contained herein are for reference only and
shall not be considered as substantive parts of this Agreement. The use of the
singular or plural form shall include the other form, and the use of masculine,
feminine or neuter gender shall include the other genders.
10.5 Each party agrees to and does hereby indemnify and hold harmless the
other party and will, at the other party's request, defend the other party, its
employees and agents, with respect to any claim, demand or liability asserted by
a third party against such other party which is based upon any act or omission
by the indemnifying party including, without limitation, any breach of this
Agreement, and from any and all expenses and liabilities resulting therefrom
(including, without limitation, reasonable attorneys' fees). Each party
acknowledges that, should it breach any of its covenants with respect to
trademarks or other intellectual property rights of the other party in this
Agreement or in the Terms of Sale attached as Exhibit C, the otter party will be
irreparably harmed and will be entitled to an injunction preventing the other
party from further breaching the Agreement or the Terms of Sale attached as
Exhibit C without any further or more particularized showing of irreparable
injury. Such an injunction may be applied for before any Court having
jurisdiction thereof. In any such proceeding, the aggrieved party will be
entitled to recover any damages it suffers as a result of the other's breach,
including, without limitation, the recovery of any costs and reasonable
attorneys' fees incurred in enforcing its rights under this Agreement or the
Terms of Sale attached to Exhibit C.
10.6 Neither party shall be liable under the provisions of this Agreement
for direct or indirect damages (except with respect to Distributor's obligations
to pay for Products) on account of its failure to perform its obligations under
this Agreement on account of reasons beyond its absolute, exclusive and
unconditional control, and in no event shall either party be liable for any
indirect, special, incidental, punitive or consequential damages, or loss of
profits or financial investments, under any legal theory, sustained by the other
party (or any person transacting business with such other party) in connection
with its obligations under this Agreement or the relationship of the parties
hereunder.
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10.7 Nothing contained herein shall be deemed to limit or affect Swissray's
rights to modify, amend or change, in any way it deems to be necessary or
appropriate, any of its Terms and Prices or its policies or procedures,
regardless of whether or not such modifications, amendments or changes relate to
matters contained in this Agreement; provided that, such modification, amendment
or change is prospective in nature and Distributor has received notice of such
modification, amendment or change prior to submitting its purchase order. In the
event that Distributor objects to any such modification, amendment or change, it
may so notify Swissray in writing, and if within ten (10) days after such
notice, Swissray and Distributor do not reach agreement with regard to such
modification, amendment or change, Distributor may terminate this Agreement upon
fifteen (15) days' prior written notice to Swissray
10.8 Unless otherwise specified in this Agreement, all notices and demands
of any kind, which either Swissray or the Distributor may be required or desire
to serve upon the other under the terms of this Agreement, shall be in writing
and shall be served by personal delivery or by mail at their respective
addresses set forth in this Agreement or at such other addresses as may be
designated by the parties in writing. If by personal delivery, service shall be
deemed complete upon such delivery. If by mail, service shall be deemed complete
upon the expiration of the third day after the date of mailing, postage prepaid.
10.9 This Agreement has been entered into by Swissray with Distributor in
reliance upon:
10.9.l Distributor's representation that the following person(s)
substantially participate(s) in the ownership of Distributor:
Name Address % Interest
---- ------- ----------
Whiyie Sang Guaynabo, P.R.
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----------- -------------- ----------
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l0.9.2 Distributor's representation that the following person(s) will
have full managerial authority and responsibility for the operating
management of Distributor in the performance of this Agreement:
Name Position
---- --------
Whiyie Sang President
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----------- --------------
----------- -------------- and
10.9.3 In the event of any contemplated change of controlling
ownership, Distributor will give Swissray prior written notice thereof
(except in the
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event of a change caused by the death of any such person(s), in which case
Distributor will give Swissray immediate written notice thereof), but no
such change or notice thereof will act as a waiver of any right of Swissray
under this Agreement or at law unless and until embodied in an appropriate
written waiver duly executed by the Vice President-Sales of Swissray.
10.10 This Agreement shall be effective only after its execution by
Distributor and its subsequent execution by an officer of Swissray at the
principal office of Swissray. No other employee or representative of Swissray
shall have any right or authority to execute this Agreement or any modification
or waiver of this Agreement or to bind Swissray to any other agreement.
11.11 This Agreement, together with its Exhibits and any other documents
incorporated herein by reference, constitutes the entire Agreement between the
parties hereto pertaining to the subject matter hereof. Any and all written or
oral agreements heretofore or contemporaneously existing between the parties
pertaining to the subject matter of this Agreement are expressly canceled.
Except as otherwise provided by this Agreement, this Agreement may not be
altered, modified, amended or otherwise changed, except by a written instrument
executed by both parties.
11.12 The rights and remedies of the parties under this Agreement and the
Terms, attached as Exhibit C, and Prices are cumulative with rights and remedies
provided at law or in equity. Even if not expressly provided in the provisions
of this Agreement, the obligations of a party which, if they are to have their
stated effect must survive the termination of this Agreement, shall so survive
for the period necessary to give full effect to their stated purpose.
11.13 This Agreement has been executed in multiple counterparts, each of which
shall be deemed enforceable without production of the others.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date and year first hereinabove written.
DISTRIBUTOR Swissray America, Inc.
Medika Equipos Medicos, Inc. By: /s/ ILLEGIBLE
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Distributor's Full Legal Name
/s/ Whiyie Sang Title: /s/ ILLEGIBLE
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Signature
President, Whiyie Sang
--------------------------------
Name--print or type
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Title: President
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Corporate Officer
(indicate office)
Partner, Proprietor
Dated: October 16, 1998 Dated:
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Exhibits:
Exhibit A: Producta and Discounts.
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Swissray Add-On Multi System $450,000
Discount as negotiated
Exhibit B: Territoriy assignment.:
Selected South American markets, Puerto Rico,
Caribbean and Mexico
Swissray standard Terms and Conditions
TERMS of Sale
1. TEMS OF SALE. (a) These t and conditions of Sale
Icallectively. the -Termes) govern the sale of products, parts, accessories
and/or services (collectively, the OProductal) listed on the face of this
invoice sold by Swisavey America, Inc. t'SWISSRAY"I to the customer named an the
face of this invoice tthe -DISTRIBUTORI I. Any te,-, q and conditions of sale
proposed by DISTRXsuTOR in connection with the purchase of Products from
SWISSRAY which add to, vary from or conflict with these Terms are hereby
objected to, and SWISSRAY @ressly conditions its sale of Products on
DISTRIBUTOR'S assent to these Terms notwithstanding any dif f erencev or
additions in the terms proposed by DRSTRIBUTOR. DISTRIBUTOR shall be deemd
conclusively to have unconditionally accepted these Terms by the opening of a
,lettex of credit or other facility to pay for Products; or by the tender of
payment or advance payment for Products, or by acceptance of any Products,
whether conforming or nonconforming.
2- PRICES. Prices for Products that axe the subject of this
invoice are set forth on the face hereof. less any applicable discount and
allowances that may be available to DISTRIBUTOR pursuant to any SWISSRAY
programs that may be applicable. Prices &re exclusive of all taxes of any
nature, whether imposed by federal, state, local or foreign authority. All such
taxes shall be for DISTRIBUTORIS account. whether or not collected, advanced or
paid by SWISSRAY. and shall be paid by DISTRIBUTOR tapon RWISSRAY - s invoice
unless DISTRIBUTOR timely provides tax exemption certificates in form
satisfactory to SWISSRAY.
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3. SHIPMENT. (a) Delivery and price terms are F.O.B. Factory
(swissray, s shipping point). The method and route of ship@ent are at Swissray's
discretion. DISTRIBUTOR will bear all costs, insurance premiums, freight and
other charges and expenses incurred after SWISSRAY has placed Products in the
custody of a carrier. Each shipment of Products constitutes a separate xxx-e.
whether the shipment is in whole or in partial fulfillment of DISTRIBUTORIS
order or confirmation for Products. (c) If DISTRIBUTOR defaults in payment for
Products as required by these Terms, SWISSRAY may suspend further shipments.
Continuation of shipments does not constitute a waiver of such default. (d) If
Products are in short supply, SWISSRAY reserves the right to allocate shipment
of orders and back orders in any way it deems appropriate in its sale
discretion. (e) All shipments are made at DISTRIBUTOR's risk. Title to and risk
of loss of, or damage to, Products shall pass to DISTRIBUTOR when Products are
placed in the custody of a carrier for shipment to DISTRIBUTOR. it is the sole
responsibility of DISTRIBUTOR to file all claims for
shipment damage or loss with a carrier. Failure by DISTRIBUTOR to notify
SWISSRAY of any shortages, defects or damage within ten (10) days following
receipt by DISTRIBUTOR of Products will be conclusive proof that DISTRIBUTOR
has received Products without defects or damage, and in the quantity specified
on the xxxx of lading. (9) Date& for delivery of Products are estimates only.
SWISSRAY shall not be responsible for loss or damage of any kind resulting
from delay or inability to deliver, or failure to deliver, Products that is
caused directly or indirectly by any thing or event beyond SWISSRAY's
absolute, exclusive and unconditional control. SWISSRAY is not required to use
overtime labor or e@nd monies to cure delay or failure to deliver. In the
event of any partial failure to deliver, SWISSRAY will have the right to
receive payment @o rata for Products in fact delivered, whether or not
delivery may have been delayed.
4. RE PRODUCTS; CANCELXATION. (a) in no case may Products be
returned to SWISSRAY without first obtaining SWISSRAY's written permission or
upon conditions other than specified by SWISSRAY. SWISSRAY assumes no
responsibility for unauthorized returns. (b) SWISSRAY reserves the right in
its sole discretion to cancel any backorders even if such orders have been
accepted previously by acknowledgment, partial shipment or otherwise.
DISTRIBUTOR may cancel an order for Products in whole or in part upon two
business days' written notice to SWISSRAY prior to shipment.
S. PAYMENT AbM COLLECTION. (a) DISTRIBUTOR will pay SWISSRAY
the full amount of the purchase price of Products upon the due date set forth
on the reverse side hereof. Open accounts unpaid beyond such date will bear
interest at a rate not to exceed the highest rate legally permissible in the
state of DISTRIBUTOR'S domicile. if SWISSRAY retains an agency and/or
attorneys to collect amounts overdue after notifying DISTRIBUTOR of its
intention to do so, all collection costs, including without limitation
reasonable attorneys' fees, shall be payable by DISTRIBUTOR. (b) Unless
specifically authorized by SWISSRAY in writing, DISTRIBUTOR will make full
payment of this invoice regardless of any claim, counterclaim or setoff
DISTRIBUTOR may have against SWISSRAY. Any such claim, counterclaim or setoff
shall be resolved exclusively as provided in paragraph 10, below. (5) In the
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event payment for this invoice becomes past due. SWISSRAY will have the option,
in addition to any other rights it may have, and in its sole discretion, to
cancel or delay shipment of orders of DISTRIBUTOR previously accepted, to
declare all silm-q owing from DISTRIBUTOR to be immediatel @ due and payable,
and to cancel credit previously extended by SWISSRAY.
6. WARRANTIES. (a) SWISSRAY extends a Limited Warranty on
Products directly to distributor of Products, and SWISSRAY will, from time to
time, advise DISTRIBUTOR of the terms and conditions of such Limited Warranty.
(b) SWISSRAY MAKES NO W TIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED,
TO DISTRIBUTOR WITH RESPECT TO PRODUCTS. ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF
FITNESS FOR USE OR FITNESS FOR A PARTICULAR PURPOSE. AND ALL OBLIGATIONS TO
DISTRIBUTOR ON 3 F OF SWISSRAY WITH RESPECT TO ANY PRODUCTS ARE HEREBY EXCLUDED
AND DISCLAIMED EXCEPT AS SWISSP-AY MAY UNDSRTAKE IN A PUBLISHED POLICY OR
WRITTEN AGREEMENT WITH DISTRIBUTOR AT ITS OPTION TO REPAIR OR REPLACE PRODUCTS
THAT ARE FOUND TO BE DEFECTIVE PRIOR TO RESALE BY DISTRIBUTOR. SWISSRAY WILL NOT
BE LIABLE FOR ANY COST OR EXPENSE FOR REPAIR, INSTALLATION OR OTHER WORK BY
DISTRIBUTOR IN CONNECTION WITH PRODUCTS. ic) DISTRIBUTOR will not make any
warranties, representations or guarantees to any person, either orally or in
writing, in the name or on behalf of SWISSRAY without SWTSSRAY's prior written
consent,
7. LIMITATION OF LUMILITY. (a) EXCEPT AS PROVIDED IN THE
FOLLOWING PARAGRAPH (b) WITH RESPECT TO DIRECT DA14AGES ARISING OUT OF CLAIMS
RELATED TO ORDERS FOR PRODUCTS, UNDER NO CIRCUMSTANCE WILL SWISSRAY BE LIABLE
FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL.
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (EXCEPT FOR CONSEQUENTIAL DAMAGES
RELATING TO PERSONAL INJURY IN JURISDICTIONS WHERE SUCH DAMAGES MAY NOT BE
DISCLAIMED As A MATTER OF LAW AND THIRD-PARTY CLAIMS ARISING OUT OF SWRSSRAY'S
PRODUCT LIABILITY) OR LOSS OF PROFITS, UNDER XXX LEGAL THEORY, SUSTAINED BY
DISTRIBUTOR, OR BY ANY PERSON D @ ING WITH DISTRIBUTOR, IN CONNECTION WITH ANY
ORDER FOR PRODUCTS OR THE PRODUCTS COVERED THEREBY. (b) THE LIABILITY OF
SWISSRAY, IF ANY, FOR DIRECT DAMAGES IN CONNECTION WITH FILLING ORDERS FOR
PRODUCTS IN ACCORDANCE WITH THESE TERMS, REGARDLESS OF THE DELIVERY OR
NON-DELIVERY OF SUCH PRODUCTS, WILL NOT, IN ANY EVENT, BE GREATER THAN THE
ACTUAL PURCHASE PRICE OF PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
8. TPJW DISTRIBUTOR will not use the 'SWISSRAY" name or any of
the other intellectual property rights of SWISSRAY without SWISSRAY's prior
written consent, except that the name, 'SWISSRAY,L may be used in connection
with the sale of genuine SWISSRAY Products, but only if due regard is given both
to proper trademark use and to the ownership by SWISSRAY of its name and xxxx.
DISTRIBUTOR will not remove or alter any trademark or tradename or serial number
from any Products or use in connection with Products any trademarks or
tradenames other than SWISSRAY's or use SWISSRAY's trademarks or tradenames in
connection with products of others.
9. INTELLECTUAL PROPERTY PROTECTION. SWISSRAY's sole and
exclusive obligation to DISTRIBUTOR with respect to claims made
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against DISTRIBUTOR for alleged infringement of any patent arising by virtue of
the sale or normal use of unmodified Products or allegedinfringement of other
intellectual property (provided that DISTRI13UTOR has not contributed to such
infringement) shall be: (a) to defend. at SWISSRAY'S, cost any legal action
brought against DISTRIBUTOR in respect of any such claim for such patent
infringement and pay all final judgments and costs entered by reason of such
action (provided that SWISSRAY has been given prompt notice and has been allowed
to
deal with and defend any such action from the beginning) ; and (b) at SWISSRAY's
sole option to do any one or more of the following: (i) settle the claim of
infringement; (ii) procure for DISTRIBUTOR the right to use or sell the
allegedly infringing Products; (iii) replace or modify the allegedly infringing
Products so as to avoid the alleged infringement; or (iv) refund the price
actually paid by DISTRIBUTOR to SWISSRAY for the allegedly infringing Products.
10. MMXTRATION AND LAW. (a) Fxcept with
resnect to disputes as to indebtedness arising out of the sale of Pro@ucts in
the ard @ ry course of SWISSRAY's business and disputes relating Lo SWISSPAY's
intellectual property rights, any and all controversies or claims arising out of
or relating to these Terms, including without limitation claims asserting
violation of the antitrust laws, shall be settled exclusively by arbitration in
New York, New York if the arbitration shall be commenced by SWISSRAY and New
York, New York if arbitration shall be comenced by DISTRIBUTOR, using the
knerican Arbitration Association. The Arbitration shall be heard before three
arbitrators, one to be chosen by DI M IBUTOR, one to be chosen by SWISSRAY, and
the third to be chosen by those two arbitrators. (b) The arbitrators shall apply
the internal law of the State of New York, excluding its conflict-of-laws
principles. in determining the rights, obligations and liabilities of the
parties. The arbitrators shall not have the power to alter, modify. amend. add
to or subtract from any of these Terms, nor to grant injunctive relief or
punitive damages of any nature. In all other respects, the Commercial
Arbitration Rules of the American Arbitration Association shall govern the
arbitration. Judgment on the award of the arbitrators may be emtered by any
Court having jurisdiction to do so, and DISTRIBUTOR and SWISSRAY her @
irrevocably consent to the jurisdiction and venue of the federal and state
courts of the States of New Jersey and Nebraska over their person for that
purpose as well as for any and all other purposes in connection with these
Terms, and waive any defense based upon improper venue, inconvenient venue or
lack of jurisdiction in connection therewith. (c) The failure or refusal of
either DISTRIBUTOR or SWISSRAY to Submit to arbitration shall constitute a
breach of these Terms and the party resisting arbitration shall be required to
pay the costs, including without limitation reasonable attorneys, fees,
compelling the same. Cc) claims or controversies that are not the subject of
arbitration under these Terms shall be governed by the internal law of the State
of New York, exclusive of its conflict-of-laws principles. For this purpose,
both DISTRIBUTOR and SWISKRAY hereby.
II. MISCELLKNEOUS PRMASIONS. (a) In the event that any of the provisions of
these Terms are held by a Court or other tribunal of competent jurisdiction to
be unlawful. invalid, void or
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unenforceable. the remaining provisions of these Ter= will rwmin in full force
and effect and will in no way be affected, impaired or invalidated. (b) The
failure or refusal by SwissRAY to insist upon the strict performance of any
provision of these or to @rcise any right in one or more instances will not be
construed an a waiver of such provision or right presently or in the future.
nor will such failure or refusal be deemed a custom or practice contrary to
such provision or right. (c) The paragraph headings contained in these Term
are for reference only and will not be conxide@ as substantive parts of these
Terms or in their interpretation or for any other purpose. The use of the
singular or plural will include the other form. . (cl) SWISSRAY may assign the
proceeds under any contract to sell Products to any third party at any time
without the consent of DISTRIBLITOR. DISTRI]BL"ROR shall have no right to
assign any of its rights or obligations with .respect to orders for Products
without the prior written consent of SWISSRAY, and any attempt to so assign
shall be null and void-
Enhibit D! Swineray Standard Software Warranty
Soft a Waz=ant-yz For a period of me (1) yuar Er= the date of ah:Llpment
ovismiray warrants that the software *xxxx canto= to the specifications not Eo
@ in the dommentation. swiceray,,Lv &*la obligation %,,-der thin warranty
shall be IbAted to using reasonable efforts to ensure o@ cmf@ty ma to supply
SWer with a corrected version of the Baftmze an soon as practicable after
Buyer has notified @Aperay of UW ZLOACOnfommity. @ffaray @o not @-ramt that
(1) overat;ico of any of Um software shall be Interrupted or error free,, (2)
functions con@nad in the Software shall operate in Um ewftinations which may
be selected for use by buyer or meet: I"zlo -requireftente. This warranty
shall be @fLd it the Software is find without the written consent of @Aperay.
Exhibit E.- Swissray s anty
LXKX2= t OwimAr-ray warrants for a period of me (1) year two= the data of wh@nt,
that egmipmnt shall be free from defects iz material or wor ilp and will achieve
Um functionality domeribeci in the product documntation provided by Mdearay. AU
tomting of the aqu@nt shall be per:Eo=a4 using @owrar'n ip@ieb*d sipmelfications
text @theds MA test equiamnt. @ezray,'a solo componsibi3.ity under LM* warranty
shall lm to repair or replace, at awlesrayro cqption. wW @onento which faila
during the warranty period because oil eL doinct: in ma-v hilp and/or material.
All. replileamat e@ t: cc parts
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