EXHIBIT 10.13
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement") is made as of April 16, 2004;
BETWEEN: Possis Medical, Inc., a Minnesota corporation, 0000 Xxxxxxxxx Xxxxxxxxx
XX, Xxxxxxxxxxx, Xxxxxxxxx 00000 ("Distributor" or "Possis");
AND: Angiometrx Inc., a corporation incorporated under the Canada Business
Corporations Act and having its primary business office at Xxxx 000, 0000 0xx
Xxxxxx Xxxx, in the City of Vancouver, in the Province of British Columbia,
Canada; ("Manufacturer" or "Angiometrx")
BACKGROUND
A. Angiometrx manufactures (or causes to be manufactured) and markets certain
products and devices described in the attached Exhibit A (such products and
devices are referred to as the "Products");
B. Distributor possesses the facilities, personnel, ability and capacity to
promote the sale and use of the Products in the geographic area described in the
attached Exhibit B (such area is referred to as the "Territory"); and
C. Angiometrx wishes to sell the Products to Distributor, and Distributor wishes
to purchase the Products for resale in the Territory.
AGREEMENT
In consideration of the foregoing and of the mutual covenants contained herein,
and intending to be legally bound, Angiometrx and Distributor agree as follows:
1. DISTRIBUTION.
a.) APPOINTMENT. Subject to the terms of this agreement, Angiometrx hereby
appoints Distributor and Distributor hereby accepts appointment as the
exclusive distributor of Products in the Territory.
b.) DURATION AND TERMINATION.
(1) This Agreement shall begin on the date written above and shall
continue in full force and effect for a three and one quarter
year term, expiring August 1, 2007. The Agreement can be
extended up to an additional twenty-four (24) months by
agreement in writing between Angiometrx and Distributor,
provided Angiometrx and Distributor can negotiate agreeable
sales volume commitments and contract duration for the
extended term. These negotiations may begin anytime and must
be concluded by the thirty third (33) month of the original
term.
(2) Each of the following circumstances shall constitute an "Event
of Default" under this Agreement: i) Material breach of any
term or condition of this Agreement; ii) The repeated failure
of a party to perform one or more of its obligations whether
or not this repeated failure constitutes a material breach;
iii) The filing by or against the other party of any
insolvency or bankruptcy proceeding, or proceedings for
reorganization, receivership, dissolution or any arrangement
under bankruptcy law, iv) The existence of a condition of
force majeure for longer than six (6) months; v) Any change in
a party's ownership which shall impair its ability to perform
its obligations under this Agreement; or vi) The failure or
inability of Distributor to meet sales objectives outlined in
Section 2(d)(2).
Upon the occurrence of an Event of Default by one of the parties, the
other party may terminate this Agreement upon thirty (30) days prior
written notice to the defaulting party; provided that the defaulting
party shall not have cured the default within such thirty (30) day
period. Therefore, if the Event of Default is not cured within that
thirty (30) day period, this Agreement will be deemed terminated. Not
withstanding the foregoing, no notice shall be required for an Event of
Default as defined in Section 1(b)(2)(iii).
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(3) During the 30 day notice period described in subsection (2) above,
the party giving notice may withhold its own performance (except with
respect to payment of any amount then due and owed to the other party)
unless the other party cures or acts with due diligence to cure the
Event of Default within the notice period.
c.) SUB-DISTRIBUTORS.
If at any time during the term of this Agreement Distributor appoints
any sub-distributors for the Products, Distributor shall:
i) Cause such sub-distributors to comply fully with all
obligations imposed hereunder upon Distributor applicable to
resale of the Products within the Territory;
ii) Obtain a guarantee from any such sub-distributor that it will
not represent itself as an employee, agent or representative
of Angiometrx;
iii) Indemnify Angiometrx and defend and hold Angiometrx harmless
from all claims, damages and liabilities which Angiometrx may
incur in connection with the appointment or termination of
such sub-distributor and the sale of Products by such
sub-distributor; iv) Submit to Angiometrx a list of the
sub-distributors including addresses, fax and phone numbers.
d.) CONFLICTS OF LNTEREST.
In the absence of approval by the Manufacturer, such approval not to be
unreasonably withheld, Distributor expressly agrees not to engage in
any activity relating to a product that competes directly with the
Products. These competing products are outlined in Exhibit E
e.) INDEPENDENT CONTRACTOR.
Distributor is an independent contractor authorized only to purchase
products from Angiometrx for resale within the Territory. Nothing in
this Agreement creates a relationship of employer-employee,
principal-agent, franchiser-franchisee, joint venture or partnership
between Distributor and Angiometrx. Distributor has no power or
authority to bind Angiometrx in any way for any purpose, nor to give
any representation on Angiometrx's behalf, nor to create any liability
against Angiometrx. Distributor agrees to indemnify and to hold
harmless Angiometrx from and against any and all claims, damages or
liabilities arising from any act of Distributor outside of its scope of
authority under this Agreement.
2. PRODUCTS.
a.) PRICE.
(1) The initial Price for the Products is set forth in the attached
Exhibit C. Said prices shall be binding on Manufacturer for the first
year of the term of this Agreement and shall be modified only with the
express approval of Distributor, except as noted in section 2.a.(2).
(2) Prices may be modified by the Manufacturer for the second year of
the Agreement upon 60 days notice to Distributor, provided that
AngioMetrx demonstrates that the price change is justified by an
increase to Angiometrx of at least ten per cent (10%) in the
manufacturing costs for the Products ( inclusive of the impact of
changes in the applicable currency exchange rate). Following such a
price increase, the new price shall be fixed for the entire year.
Prices may be modified by the Manufacturer for the third year of the
Agreement upon the same terms and conditions as required for a price
increase in the second year of the Agreement.
(3) Any modified price will not apply to orders received and accepted
by Angiometrx prior to the effective date of such Distributor price
changes.
(4) All prices and shipments to Distributor shall be F.O.B.
Angiometrx's plant in Vancouver, Canada. To such prices shall be added
all shipment costs, transit insurance costs, and applicable duties or
taxes and other related costs and expenses relating to the sale and
shipment of the Products to Distributor. The Manufacturer shall ship
all Products to the Distributor's main facility located in Minnesota,
or such other location as may be designated from time to time by the
Distributor. The Distributor shall specify its carrier of choice for
shipments in each purchase order to the Manufacturer. The Manufacturer
will invoice the Distributor for any shipment costs incurred.
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b.) PURCHASE ORDERS.
(1) Distributor agrees to purchase the Products from Angiometrx, solely
from Angiometrx and not from any other source, and Distributor agrees
that purchase of the Products is for resale on Distributor's own
account.
(2) Distributor may issue only written purchase orders for the Products
to Angiometrx. All purchase orders shall specify Product type,
quantity, desired shipping date, unit price (from the Price List),
unique purchase order number, shipping destination and any special
shipping instructions. All purchase orders shall be subject to the
terms and conditions of this Agreement and in the event of a conflict
or inconsistency between the terms of this Agreement and the terms of
any purchase order or other document submitted by Distributor to
Angiometrx, this Agreement shall control unless the parties
specifically otherwise agree in writing.
(3) Angiometrx may impose, as a prerequisite to its acceptance of a
purchase order, the payment of outstanding delinquent invoices.
(4) Angiometrx will acknowledge the acceptance of a purchase order by a
written order confirmation, shipment of the Products ordered, or other
appropriate communication. Distributor acknowledges and understands
that Angiometrx's obligation to sell any Products is subject to
availability of Products. No purchase order shall be binding upon
Angiometrx until the same is accepted in writing by Angiometrx.
(5) Angiometrx shall make reasonable efforts to fill each purchase
order that is accepted, but Angiometrx shall not be liable for damages
caused by failure to ship or delay in shipment resulting from
conditions beyond the control of Angiometrx, including but not limited
to the inability of its suppliers to obtain material and supplies or to
produce sufficient components to meet Product sales demand. Any failure
by Angiometrx to ship Product ordered by Distributor to meet the
minimum purchase requirements as provided in Exhibit D herein shall
reduce Distributor's purchase requirements provided in Exhibit D herein
for that period and shall suspend the remedies provided in Section
(d)(2) herein for Distributor's failure to meet purchase requirements
during that period.
c.) PAYMENT.
(1) All amounts due to Angiometrx shall be for the net invoice amount
paid in U.S. Dollars without discount or rebate. Payment terms are
thirty (30) days, which shall be stated on each invoice. Angiometrx may
at its sole discretion require wire transfer prior to shipment or
irrevocable standby letter of credit payable by sight draft from
Distributor. If Distributor is prohibited from making payment in U.S.
Dollars because of any applicable law or regulation, Angiometrx may
elect to designate a currency or mode of payment not so prohibited, or
to terminate this Agreement upon ten (10) days written notice.
Termination does not discharge any obligation of Distributor to
promptly pay any unpaid invoices in full in any non-prohibited currency
designated by Angiometrx.
(2) If Distributor is delinquent in remitting payments to Angiometrx
under the terms of any invoice, Angiometrx may: i) decline to accept
new purchase orders; ii) charge Distributor interest on past due
amounts at a rate of 1.5 percent per calendar month; and/or iii)
require advance payment, payment on delivery, or bank-guaranteed method
of payment for further shipments. Distributor shall comply with the
modified payment terms. The foregoing remedies of Angiometrx are not
exclusive, but in addition to any and all remedies available to
Angiometrx under this Agreement and applicable law.
d.) SALES.
(1) Distributor shall restrict to the Territory its active promotion
and marketing of the Products. Distributor shall not actively pursue
sales of the Products outside the Territory.
(2) Minimum purchase requirements are as set out in Exhibit D. Failure
of Distributor in any one-year period to purchase the annual commitment
shall result in a ninety (90) day probationary period. During this
period, Distributor must increase purchases to levels specified by
Angiometrx. If Distributor fails to meet the probationary purchase
requirements, Angiometrx may terminate this Agreement immediately upon
written notice to Distributor.
(3) Distributor shall submit detailed sales and inventory reports to
Angiometrx on a quarterly basis, together with a rolling good faith but
non-binding sales forecast. The reports shall be in a form and
substance as reasonably required by Angiometrx.
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e.) SHIPMENT, DELIVERY AND INVENTORY.
(1) All risk of loss or damage to the Products shipped will pass from
Angiometrx to Distributor at the time the shipment is delivered to the
carrier.
(2) Delivery schedules set forth in Angiometrx's order confirmations
reflect Angiometrx's reasonable estimate of actual shipping dates.
Angiometrx will use its reasonable best efforts to meet such dates.
Partial shipments will constitute independent transactions for which
payment is due according to the terms of this Agreement. Distributor
shall be solely responsible for obtaining whatever licenses, permits or
the like may be required to allow it to receive the Product.
(3) Distributor shall inspect the Products promptly upon their arrival
at their shipping destination. All defects or other nonconformities of
the Products to the terms of the purchase order discoverable upon
receiving inspection, must be reported in writing to Angiometrx within
thirty (30) days after the date of receipt of the Products, or
Distributor's rights for redress shall be forever waived. All other
defects or nonconformities must be reported in writing within thirty
(30) days after discovery or Distributor's rights for redress shall be
forever waived.
(4) Distributor shall at all times maintain sufficient inventory of
Products to meet customer demand and established sales objectives for
the Territory.
(5) Shelf Life Conditions and Remedies:
i) NINE MONTHS OR GREATER SHELF LIFE: For any product that is
provided to the Distributor with a minimum of nine (9) months
shelf life, the Distributor may not return inventory to
Angiometrx or transfer inventory to any other distributor
without Angiometrx's express written consent. Product can be
returned to Angiometrx only in the event of termination of
this distribution agreement subject to the following
limitations: Product with a minimum of six (6) months shelf
life remaining can be returned for a refund of the purchase
price; Product with less than six (6) months remaining shelf
life cannot be returned; Distributor will bear all risks of
loss or damage to returned Products occurring before receipt
of the Products by Angiometrx.
ii) LESS THAN NINE MONTHS SHELF LIFE: For any Product that is
provided to the Distributor with less than nine (9) months
shelf life, the Distributor can return it to the Manufacturer
at any time for full refund or replacement. Distributor will
bear all risks of loss or damage to returned Products
occurring before receipt of the Products by Angiometrx.
(6) Notwithstanding the provisions of Section 2(e)(5) herein,
Manufacturer shall accept the return and issue full credit to
Distributor for all product returned by Distributor, unless
Manufacturer can demonstrate such returned product is functional and
shows no operational defect. Manufacture shall issue a credit of $75.00
to Distributor for all product returned by Distributor as to which
Manufacturer can demonstrate the absence of any functional or
operational defect.
f.) PRODUCT MODIFICATIONS.
(1) Angiometrx reserves the right to modify the design,
specifications, and/or the method of manufacture of the
Products at any time and to substitute the modified Products
for those originally ordered by Distributor, provided there is
no material alteration of the Products' form, fit, function or
quality and Distributor is provided notice of such
modifications prior to the delivery of any Product to
Distributor. Angiometrx may not discontinue manufacture of the
Products without reasonable notice to Distributor.
(2) Manufacturer shall provide, at its cost, all software upgrades
deemed beneficial to the performance of the Metricath 1000
Console; such software upgrades shall be installed as the
parties shall mutually agree.
3. DISTRIBUTOR'S OBLIGATIONS.
In addition to Distributor's other agreements herein, Distributor further
agrees to:
a.) Exercise its best efforts to (1) promote the sale of the
Products at its own expense throughout the Territory using
such means as advertising, customer contact, distribution of
printed materials, attendance at trade shows and conventions,
support of local surgeons at trade shows and conventions and
the like; (2) promote the goodwill of Angiometrx; and (3) meet
or exceed the sales objectives established in Section 2;
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b.) Provide and maintain at its own expense, one or more suitable
places of business in the Territory staffed with an adequate
force of competent sales personnel who are thoroughly familiar
with the Products and shall contact customers throughout the
Territory; pay all expenses incurred by its personnel relating
to attendance at Angiometrx's training or other presentations
regarding the Products; c.) Cooperate with Angiometrx in the
sponsorship and planning of technical seminars on the
Products, without charge to Angiometrx; d.) Furnish without
charge to Angiometrx market surveys and related information
prepared by Distributor or third parties pertaining to the
market for the Products in the Territory; e.) Provide
Angiometrx with prompt written notice of all material changes
in management or sales personnel responsible for the promotion
and sale of the Products in the Territory; f.) When
appropriate, assist Angiometrx in collecting clinical data
from designated clinical centers within the Territory; g.)
Maintain in accordance with Angiometrx's requirements
complete, accurate and current records on Product shipments so
that quarterly reports may be sent to Angiometrx indicating
location, by serial number or lot number, of all Products sold
to Distributor by Angiometrx; and h.) Assist Angiometrx in any
recall of Products sold in the Territory.
4. SURVIVING OBLIGATIONS.
Upon the expiration or termination of this Agreement, all rights of
Distributor under this Agreement shall immediately cease, and
Angiometrx may appoint a new distributor(s) of the Products in the
Territory. The following obligations of Distributor shall survive and
continue after expiration or termination of this Agreement:
a.) To offer to sell its inventory of the Products back to Angiometrx
at the purchase price originally paid by Distributor, less any credits
and allowances applied to Distributor's account for the Products.
Unless such termination is the result of an Event of Default by
Distributor as described in Section 1(b)(2), Angiometrx shall be
obliged to repurchase such Products, provided they are in their
original packaging, form and condition, subject to the terms of section
2(e)(5).
b.) To immediately return to Angiometrx all Product samples,
information, literature and other documents supplied to Distributor by
Angiometrx;
c.) To continue to make payments owed to Angiometrx promptly when due;
d.) To provide a final, current and accurate record of the location of
all Product not returned to Angiometrx under section (a) above;
e.) To cease trading in the Products and give prompt notice to all
sub-distributors, agents and employees in the Territory of the
cessation of Distributor's rights to distribute the Products in the
Territory;
f.) To continue to indemnify Angiometrx with respect to all matters to
which indemnification by Distributor is covenanted herein;
g.) To continue to keep information confidential and protect
Angiometrx's Intellectual Property as provided under Section 8; and
h.) To continue to observe any and all obligations of Distributor
herein which are to survive expiration of this Agreement according to
express terms of this Agreement.
5. ANGIOMETRX'S OBLIGATIONS.
In addition to Angiometrx's other agreements herein, Angiometrx further
agrees to:
a.) Furnish to Distributor reasonable quantities of promotional
materials and marketing literature as sales aids for the Products. All
such promotional materials shall be and remain the exclusive property
of Angiometrx;
b.) Provide to Distributor in writing, or by oral or other
presentation, information and training concerning the technical
specifications of the Products; together with training necessary to
allow Distributor personnel to effectively sell and service its
customers;
c.) Cooperate with Distributor in the planning of technical and
educational seminars on the Products;
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d.) Respond to inquiries from Distributor regarding the Products, their
use and application, the status of shipments on accepted purchase
orders, new or improved versions of the Products and the like; and
e.) Refrain from soliciting for employment by Angiometrx employees of
Distributor during the term of this agreement and for one (1) year
following the termination or expiration of this Agreement. This
obligation shall survive the termination or expiration of this
Agreement unless such termination results from an Event of Default by
Distributor under this Agreement.
6. COMPLIANCE WITH LAW.
a.) Angiometrx will comply with all pertinent statutes, regulations and
rules governing the manufacture and sale of medical devices in the
United States and all applicable requirements of the United States Food
and Drug Administration.
b.) Distributor shall be solely responsible for compliance in the
Territory with all applicable local laws and regulations relating to
distribution of the Products and the marketing and sale thereof by
Distributor. Angiometrx and Distributor will cooperate where
appropriate in order to assure compliance of both parties with such
laws and regulations.
7. LIMITED WARRANTY AND LIMITATION OF REMEDIES. [Warranty attached as Exhibit F]
a.) The sole warranty given by Angiometrx to Distributor
respecting the Products shall be that contained in the
literature supplied by Angiometrx with the Products, which
warranty Angiometrx may change at any time in its sole
discretion, subject to 60 days notice to Distributor prior to
any such change. Angiometrx's liability will be limited to the
provisions of such warranty, and Distributor shall not make
any other representations or warranties respecting the
Products. SUCH WARRANTY IS EXCLUSIVE AND IS GIVEN IN LIEU OF
ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND
CONDITIONS, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
DURABILITY AND FITNESS FOR PURPOSE (INCLUDING FITNESS FOR A
PARTICULAR PURPOSE) AND WARRANTIES ARISING FROM USAGE OF TRADE
OR COURSE OF DEALING. Any description of Products, whether in
writing or made orally by Angiometrx, specifications, samples,
models, bulletins, drawing, diagrams, or similar material used
in connection with the Products are for the sole purpose of
identifying the Products and shall not be construed as an
express warranty or representation. ANGIOMETRX AND DISTRIBUTOR
SPECIFICALLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
b.) DISTRIBUTOR'S EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY
DESCRIBED IN SECTION 7.a.) WILL BE REPLACEMENT OF SUCH
PRODUCTS BY ANGIOMETRX OR, AT ANGIOMETRX'S ELECTION, REFUND OF
THE PURCHASE PRICE. ANGIOMETRX SHALL NOT BE SUBJECT TO AND
EXPRESSLY DISCLAIMS: (A) ANY OTHER OBLIGATIONS OR LIABILITIES
ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY, (B) ANY
OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING
NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER
THEORIES OF LAW WITH RESPECT TO PRODUCTS OR ANY UNDERTAKINGS,
ACTS OR OMISSIONS RELATING THERETO, AND C) ALL CONSEQUENTIAL,
INCIDENTAL, SPECIAL AND CONTINGENT DAMAGES WHATSOEVER, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, ANGIOMETRX
SPECIFICALLY DISCLAIMS ANY LIABILITY FOR PROPERTY OR PERSONAL
INJURY DAMAGES, PENALTIES, SPECIAL OR PUNITIVE DAMAGES,
DAMAGES FOR LOST PROFITS OR REVENUES, OR ANY OTHER ECONOMIC
LOSS AND FOR CLAIMS OF DISTRIBUTOR'S CUSTOMERS OR ANY THIRD
PARTY FOR ANY SUCH DAMAGES. Distributor shall be liable to
Angiometrx for any Products damaged after title and risk of
loss is passed to Distributor, or for any Products to which
Distributor made changes in fabrication, assembly or
otherwise.
c.) Angiometrx shall hold Distributor harmless from any and all
claims, demands and liabilities (including product liability)
arising from or related to any claim, action or proceeding
made by a third party as a result of Angiometrx's activities
hereunder (subject to the limitations described in paragraph
7.a. and 7.b above) unless such liability arises from a
negligent act or omission of Distributor.
d.) Distributor shall not make any oral or written representations
that vary from the specifications, operating instructions or
representations given or made by Angiometrx to Distributor or
Distributor's employees with respect to the Products.
e.) Distributor shall defend and hold harmless Angiometrx and any
of its affiliates from and against any and all claims,
demands, actions, liabilities, damages, judgments, liens,
costs losses and expenses (including legal expense) which may
be suffered as a result of or in connection with the conduct
of the business of Distributor or any failure of Distributor
to perform and observe its obligations under this Agreement.
f.) Notwithstanding anything herein to the contrary, subject to
the consent of Manufacturer, such consent not to be
unreasonably withheld, Distributor is authorized to offer
extended warranty programs and to offer warranty coverage, at
its risk and expense, beyond the warranty coverage offered by
Manufacturer. Distributor shall be entitled to all of the
profits, if any, derived from said extended warranty programs.
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8. CONFIDENTIALITY AND INTELLECTUAL PROPERTY.
a.) Distributor acknowledges Angiometrx's exclusive right, title and
interest in the Territory to Angiometrx's patents, trademarks, trade
names, emblems, designs, models and methods of presentation relating to
the Products (referred to as "Intellectual Property"). Distributor
shall not do or cause to be done anything, which directly or indirectly
challenges or impairs Angiometrx's rights to the Intellectual Property.
b.) Except as expressly provided herein, this Agreement does not give
Distributor any right, title, license, or interest to the Intellectual
Property and Distributor will not describe or represent itself as
having such rights.
c.) Distributor may use Angiometrx's Intellectual Property only in
connection with the promotion, marketing and sale of the Products.
During the term of this Agreement, Distributor may refer to itself on
its letterhead and in advertisements as the authorized distributor of
the Products and put Angiometrx's company logo in promotional materials
relating to the Products. In no event is Distributor granted the right
to use Angiometrx's Intellectual Property in connection with other
goods distributed by Distributor, or to use or adapt such Intellectual
Property or any confusingly similar words or symbols as part of its
commercial name.
d) Distributor acknowledges that it will obtain confidential
information from Angiometrx and that the disclosure of this information
would inflict irreparable harm upon Angiometrx. Distributor agrees to
maintain in confidence aII information it may receive under this
Agreement concerning the Products or Angiometrx's business, and
Distributor will not disclose or disseminate such information to others
without the prior written consent of Angiometrx. Distributor
specifically agrees: (1) not to disclose to any unauthorized person any
information concerning the terms and conditions of this Agreement; (2)
to take all reasonable steps to prevent unauthorized disclosure of
confidential information by Distributor's sub-distributors, agents and
employees; and (3) to safeguard and protect all confidential documents
from theft, loss or perusal by unauthorized persons.
9. FORCE MAJEURE AND OTHER CONTINGENCIES.
Neither Angiometrx nor Distributor shall have any liability to the
other or any third party for any failure or delay in the performance of
any obligation under this Agreement (except the obligation to make
payments as and when due) if directly or indirectly caused by or
resulting from force majeure beyond the reasonable control and without
fault or negligence of the party claiming force majeure. The party
claiming force majeure will give the other party written notice of the
cause within fifteen (15) days after the occurrence, and will exercise
reasonable diligence to remove the cause and resume performance. If
Angiometrx is the affected party, it may equitably allocate production
and delivery of affected Products among its customers and its
distributors. If any performance is suspended or delayed because of
force majeure, the period for performance will be correspondingly
extended; provided however, if the performance is suspended or delayed
for more than six (6) months the party not claiming force majeure may
at any time after such six (6) month period, and while the performance
remains suspended or delayed, terminate this Agreement by written
notice to the other party as provided in Section 14 below.
10. EQUITABLE RELIEF.
Distributor acknowledges and agrees that, in the event of a breach by
Distributor of any of the provisions of Sections 1(d) (Conflicts of
Interest) or 8(d) (Confidentiality) of this Agreement, Angiometrx's
remedies at law will be inadequate and such breach may cause Angiometrx
substantial and irreparable injury and damages. Distributor agrees that
Angiometrx will be entitled to the remedies of injunction, specific
performance and other equitable relief to prevent a breach of such
provisions of this Agreement. The exercise by Angiometrx of its rights
under this Section 10 shall not be construed as a waiver of any rights
which Angiometrx may have for damages or otherwise in the event of a
breach of the provisions of Sections 1(d) and 8(d), or any other
provision of this Agreement.
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11. NO LIABILITY FOR TERMINATION.
No party terminating this Agreement in accordance with its terms shall,
because of such termination, be liable to the other for compensation,
reimbursement or damages on account of loss of profits on sales or
estimated profits on anticipated sales or on account of expenditures,
investments or commitments made in connection with the business or
goodwill of the other party and neither party shall have such claim
upon the expiration of this Agreement. Termination of this Agreement
will not release either party from any debt owed to the other party
prior to termination.
12. SETOFF.
Angiometrx reserves the right to set off any amounts Distributor owes
to Angiometrx against any amount Angiometrx owes to Distributor
13. SEVERABILITY.
If any one or more of the provisions contained in this Agreement shall
for any reason be held invalid, illegal, or the impossibility of
enforcement in any respect, such invalidity, illegality, or the
impossibility of enforcement shall not affect any other provision of
this Agreement.
14. NOTICES.
All notices or consents required by this Agreement shall be in writing
in English. Notices shall be deemed delivered if: a) delivered in
person, b) sent by certified mail, return receipt requested, correct
postage prepaid, c) by telecopy, or d) by recognized international,
commercial, overnight courier, to the address and/or telecopier number
listed below, unless such address or telecopier number is changed by
written notice hereunder:
If to Angiometrx:
Angiometrx
000 - 0000 0xx Xxxxxx Xxxx
Xxxxxxxxx, XX Xxxxxx
X0X 0X0
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxx,President
Cc: Xxxxxxx Varabioff, General Counsel
If to Distributor:
Possis Medical Inc.
0000 Xxxxxxxxx Xxxxxxxxx XX
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx, Chairman, CEO and President
CC: Xxxxxx X. Xxxxxxx, Vice President and General Counsel
Xxxxx X. XxXxxxxx, Vice President, Worldwide Sales
Any notice or consent delivered (a) in person shall be deemed delivered
when delivered and signed for by any person at the address above; (b)
by certified mail, postage prepaid, return receipt requested, shall be
deemed delivered on the seventh business day after the date deposited
in the mail; (c) by telecopier transmission shall be deemed delivered
on the date sent, if sent before 5:00 p.m. on a business day in the
recipient's location, and in any event only when a transmission report
is retained by the sender which indicates the telecopy has been duly
received; and (d) by courier service shall be deemed delivered on the
next business day after the date sent.
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15. APPLICABLE LAW.
a.) This Agreement shall be governed by the Province of British
Columbia law, without regard to principles of choice of laws and the
parties hereby submit to the jurisdiction of the Courts of British
Columbia and agrees that service of process may be completed and shall
be effective and binding upon the party served if mailed by certified
mail, return receipt requested, postage prepaid and properly addressed
to the party as set forth in Angiometrx's records.
b.) Distributor represents and warrants to Angiometrx that each of the
provisions of this Agreement is valid, binding and enforceable under
the laws in existence in the Territory. Distributor agrees that upon
request by Angiometrx, Distributor shall provide Angiometrx with an
opinion of counsel to the foregoing effect.
16. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof; no other representations or
covenants have induced either party to enter into this Agreement.
17. CONSTRUCTION.
The paragraph headings of this Agreement are for convenience of
reference only and do not form a part of the terms of this Agreement.
As used in this Agreement, the masculine, feminine or neuter pronoun
shall include each the masculine, feminine and neuter genders. A
reference to a person or entity shall mean a natural person, a trustee,
a corporation, a partnership or any other form of legal entity. All
references (including pronouns) in the singular or plural number shall
be deemed to have been made, respectively, in the plural or singular
number as well, as the context may require.
18. BENEFIT.
This Agreement shall be binding on, and inure to the benefit of, the
parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns. The Distributor may not assign this
Agreement without the prior written consent of Angiometrx.
19. COUNTERPARTS.
This Agreement may be executed in counterparts which when taken
together shall constitute one agreement which is binding on all the
parties, even though all the parties are not signatories to the same
counterpart.
20. AMENDMENT AND MODIFICATION.
This Agreement may be amended or modified, or any provision hereof may
be waived, only by a written amendment or waiver executed by Angiometrx
and Distributor.
21. SURVIVAL.
All representations, warranties, covenants and agreements set forth in
this Agreement will survive the execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby.
22. NO WAIVER.
Waiver of any default shall not be considered a waiver of any other
default or of the same default occurring subsequently. No delay or
failure by any party to exercise any right or remedy shall be a waiver
of such right or remedy, and no single or partial exercise of any right
or remedy shall preclude the further exercise thereof, or the exercise
at any time of any other right or remedy.
23. EXHIBITS.
The Exhibits, which are attached and made a part hereof, are a part of
this Agreement as if fully set forth herein. All references herein to
sections, subsections, clauses and exhibits shall be deemed references
to such parts of this Agreement, unless the context shall otherwise
require.
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24. THIRD PARTY BENEFICIARY.
This Agreement is not intended as and shall not be construed to make
any third party a beneficiary hereof. No creditor of Distributor shall
have or receive any direct or indirect benefits hereunder and this
Agreement may be enforced only by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
Angiometrx Inc.
By: /s/ Xxxxxx Xxxxx
-------------------------
Xxxxxx Xxxxx, President
Possis Medical, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx,
Chairman, CEO and President
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