SALES, MARKETING AND SERVICE AGREEMENT
THIS SALES, MARKETING AND SERVICE AGREEMENT (this "Agreement")
is made effective as of the 12th day of August 1999 (the "Effective Date"), by
and between Swissray America, Inc., a Delaware corporation, with offices at 320
West 77th Street, Suite 1A, New York, New York 10024 ("SWISSRAY") and Hitachi
Medical Systems America Inc., a Delaware corporation, with offices at 1959
Summit Commerce Park, Twinsburg, Ohio 44087 ("HMSA"). SWISSRAY and HMSA are each
sometimes referred to herein as a "Party," and are sometimes collectively
referred to herein as the "Parties."
In consideration of the mutual undertakings and agreements set
forth herein, and for other good and valuable consideration given by each Party
hereto to the other, the receipt and sufficiency of which is hereby
acknowledged, SWISSRAY and HMSA intending to be legally bound, agree as follows:
1. DEFINITIONS. Terms not otherwise defined in this Agreement shall have
the following meanings:
1.1 The term "PRODUCT" shall mean the ddR Multi-System for X-Ray
designed, manufactured and sold by SWISSRAY under the SWISSRAY
trademark or tradename, as more fully described in Exhibit A
attached hereto and incorporated herein, as well as products
manufactured and sold by SWISSRAY under the SWISSRAY trademark or
tradename that are new iterations thereof, so long as such new
iterations use the same core technology as described in Exhibit
A. No other SWISSRAY product, whether or not sold under the
SWISSRAY trademark or tradename, is intended to be encompassed
within the definition of PRODUCT.
1.2 "Term" shall mean the period of time commencing on the Effective
Date and ending upon termination of this Agreement as provided
under section 14 of this Agreement.
1.3 "Effective Date" shall mean the date first written above.
1.4 "SIS" shall mean Swissray Information Solutions, Inc., an
affiliate of SWISSRAY.
2. HMSA APPOINTMENT; SCOPE OF APPOINTMENT.
2.1 General Appointment. SWISSRAY hereby appoints HMSA, and HMSA
hereby accepts appointment, solely to sell the PRODUCT directly
to end users and to provide warranty service for the PRODUCT its
sells, all subject to the terms and conditions of this Agreement,
including the limitations set forth in sections 2.2 and 2.3 of
this Agreement. See section 3.5 with respect to post-warranty
service for PRODUCTS.
2.2 Territories: HMSA is hereby authorized to sell the PRODUCT to end
users within the geographical areas specified on Exhibit B,
attached hereto and incorporated herein (the "Territory").
2.3 SWISSRAY Reserved Accounts: Except with respect to the accounts
listed in Exhibit C, attached hereto and incorporated herein (the
"Reserved Accounts"), which are hereby reserved to SWISSRAY,
SWISSRAY shall not sell the PRODUCT to customers within the
Territory during the Term. SWISSRAY may sell PRODUCTS to the
Reserved Accounts both within and outside the Territory.
Notwithstanding anything in this Agreement to the contrary,
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nothing in this Agreement shall prohibit SIS from selling
PRODUCTS to any customer within the Territory as a part of the
overall resolution of issues addressed by SIS. See Exhibit E.
2.4 Notwithstanding anything to the contrary in this Agreement, HMSA
is not authorized to sell and shall not sell PRODUCTS to the
Reserved Accounts. HMSA shall not, except as otherwise set forth
in this Agreement, be compensated by SWISSRAY for any sale by
SWISSRAY to any Reserved Account.
2.5 If HMSA determines to market, sell or service any direct digital
radiographic system or computed radiography products (CR devices)
that compete with PRODUCTS, HMSA shall give SWISSRAY immediate
notice thereof and SWISSRAY shall have the right to presume that
such intended action will occur and may terminate this Agreement
immediately upon written notice to HMSA. Such termination by
SWISSRAY shall be deemed a termination for cause as described in
section 14.2, below.
2.6 Except as specifically limited by this section 2, SWISSRAY and
HMSA shall each have the right to sell and distribute any
products and services within the Territory.
3. HMSA'S MARKETING RESPONSIBILITIES. HMSA shall have the following
rights, and accepts and will perform the following
responsibilities, at no additional cost or expense to SWISSRAY,
at all times during the Term:
3.1 Promote Products: HMSA will use all reasonable commercial efforts
to promote the goodwill of SWISSRAY and to promote and sell
PRODUCTS within the Territory in a manner that will emphasize
their high quality, technology and utility. Specifically:
3.1.1 HMSA shall develop sales incentives, sales support and other
sales aids in support of the PRODUCT.
3.1.2 Within three (3) months after the Effective Date, HMSA shall
provide a direct mailing in support of the PRODUCT to its
Magnetic Resonance Imaging product installed base within the
Territory. SWISSRAY shall have the right to inspect, but not
copy, the list of the recipients of all such mailings prior to
the mailing being sent so that SWISSRAY may assure that it is
being sent only within the Territory and not to Reserved
Accounts.
3.1.3 SWISSRAY and HMSA shall, to the extent reasonably practicable,
coordinate public relations, advertising and other similar
marketing activities and shall upon each party's prior written
approval share on an equal basis the expenses of such marketing
activities. The primary purpose of such activities shall be
commercial sales of the PRODUCT.
3.2 Reports and Records:
3.2.1 HMSA shall provide SWISSRAY with reports during the Term, as
follows: (A) monthly, at the end of each month during the Term:
(i) a list of HMSA current sales leads or prospects; (ii) a
rolling forecast of sales and PRODUCT requirements for the
following six (6) month period of which the first ninety days'
shall be considered firm orders and shall be accompanied by
HMSA's purchase order, which shall be deemed accepted by SWISSRAY
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unless HMSA is notified to the contrary within ten (10) business
days thereafter; (iii) the information required to be maintained
by HMSA pursuant to section 3.2.2, below with respect to PRODUCTS
sold by HMSA during the prior month; and (B) on a routine basis,
but in no event less than monthly during the Term, a good faith
update from the appropriate HMSA X-Ray specialist to his or her
SWISSRAY regional representative counterpart of the marketing
activities and the status of sales leads within such region, and
(C) such other reports as may be reasonably requested by SWISSRAY
from time to time. All reports submitted by HMSA shall become the
property of SWISSRAY but shall be used solely for its own
internal purposes.
3.2.2 HMSA shall maintain accurate records that identify the Products
(by model and serial number) it sells to all of its customers,
such records to include, customer's name, address, telephone
number and date of sale. HMSA shall also maintain all records
required to be maintained under applicable federal laws and
regulations, including as required by the Food, Drug and
Cosmetics Act. Such records shall be made available to SWISSRAY
for inspection and copying during HMSA's normal business hours
upon at least twenty-four (24) hours' prior notice to HMSA, but
in no event shall SWISSRAY be allowed to see or copy resale price
information.
3.2.3 HMSA shall notify SWISSRAY promptly of all complaints of its
customers regarding the PRODUCTS. SWISSRAY shall have the right
to communicate directly with such customer with respect to such
complaint, but shall have no right to make, and shall not purport
to have authority to make, any commitment on behalf of HMSA with
respect thereto.
3.3 Maintain Sales and Technological Expertise: Except as otherwise
stated below, HMSA shall, at no cost or expense to SWISSRAY,
employ and maintain sales and technical personnel sufficiently
trained to assist its customers in the use of Products as
solutions for end-user problems, to fill end-user needs and to
provide installation, applications training and warranty service
to its customers. SWISSRAY will rely upon HMSA to provide such
value-added sales and technical and engineering service as a
principal reason for entering into and continuing this Agreement.
Without limiting this general obligation:
3.3.1 HMSA shall, maintain an aggressive outbound sales
force which actively pursues (including, making field
sales calls) opportunities to sell Products to end
users, and which is technically trained as provided
in section 3.3.2, below;
3.3.2 HMSA shall provide necessary training so that (1) its
technical support and service engineer staff shall
have a thorough familiarity with the specifications
and technical features of Products, and (2) its sales
personnel will have a full understanding of the
technical features of, and know the competitive
advantages of, PRODUCTS. HMSA shall participate in
and otherwise cooperate with SWISSRAY in training
programs which SWISSRAY may establish, and shall
require its sales and technical staff to study all
materials issued to HMSA by SWISSRAY for that
purpose;
3.3.3 HMSA acknowledges receipt of SWISSRAY's current
service engineer prerequisite minimum requirements.
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HMSA shall review SWISSRAY's service engineer
prerequisite minimum requirements, and shall require
its x-ray service engineers to meet such requirements
as the same may be reasonably amended by SWISSRAY
from time to time, including without limitation, with
respect to NT Workstation, DICOM and Ethernet
connectivity; and
3.3.4 HMSA will provide applications training, at its own
expense, to customers in connection with HMSA's
PRODUCT sales. SWISSRAY shall provide the entire
requisite documentation and software to support
applications training and shall provide a "train the
trainer" session for one HMSA applications person.
See Exhibit D.
3.4 Warranty Service: HMSA shall perform all warranty repairs and
parts replacements for PRODUCTS sold by HMSA, using SWISSRAY
Spare Parts (defined in section 8.1, below), as may be
required by SWISSRAY's End-User Warranty (defined in section
11.1, below) using, among other things, the Activation Codes
made available to HMSA by SWISSRAY in accordance with section
6.3. All such warranty repairs and parts replacements shall be
conducted in accordance with SWISSRAY's warranty service
policies and procedures as they may be amended from time to
time in SWISSRAY's sole, absolute discretion. HMSA
acknowledges receipt of SWISSRAY's current warranty service
policies and procedures manual.
3.4.1 In connection with its warranty service obligations,
HMSA shall return parts replaced under the End-User
Product Warranty to SWISSRAY and HMSA shall pay all
expenses for transporting and insuring such defective
parts one-way to SWISSRAY. SWISSRAY shall not accept
defective parts directly from HMSA customers, unless
authorized in writing by HMSA to do so. SWISSRAY
shall pay all expenses for transporting and insuring
replacement parts for such parts that it confirms are
defective.
3.4.2 For the period of either (a) fifteen (15) months from
SWISSRAY's delivery of PRODUCT to HMSA or to the
destination specified in HMSA's order; or (b) twelve
(12) months after HMSA completes installation of
PRODUCT at HMSA's customer's site, whichever is
shorter, SWISSRAY shall issue a credit to HMSA for
the net cost of Spare Parts used by HMSA as
replacement parts under SWISSRAY's End-User Product
Warranty. SWISSRAY reserves the right to verify
defects in parts before it issues a Spare Parts
credit to HMSA. HMSA acknowledges and agrees that no
additional consideration shall be due to HMSA for
labor, administrative or other costs associated with
warranty work performed by HMSA under this Agreement.
3.4.3 Within seven (7) days following the expiration or
earlier termination of this Agreement, HMSA shall
notify SWISSRAY in writing whether HMSA elects to
continue to provide warranty service as required by
this Agreement for HMSA's customers of PRODUCTS. The
obligations set forth in this section 3.4.3 shall
survive the expiration or earlier termination of this
Agreement. If HMSA fails to notify SWISSRAY that it
elects to continue to provide warranty service as
required by this Agreement, SWISSRAY shall have the
right, at its option, to assume such warranty service
obligations.
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3.4.4 HMSA shall not contract with any third party to
perform any of its installation or warranty services
under this Agreement without the prior written
consent of SWISSRAY in each instance.
3.5 Post-Warranty Service: HMSA may, but shall not be obligated
to, provide post-warranty service for PRODUCTS sold and
installed by HMSA in the Territory. HMSA acknowledges and
agrees that, except to the extent of its obligations under
sections 8 and 11.2.2, SWISSRAY has no responsibility and
assumes no liability for post-warranty service performed by
HMSA.
3.6 Act Lawfully: Each of SWISSRAY and HMSA shall comply with
all federal, state and local laws and regulations in
performing its responsibilities under this Agreement and in
all of its activities with respect to PRODUCTS.
3.7 HMSA shall (1) at its own expense, except as set forth in
section 3.4.2, install and service the PRODUCTS in accordance
with SWISSRAY's published specifications, installation
procedures, maintenance manuals and user manuals; and (2) not
modify PRODUCTS or Spare Parts without the prior written
consent of SWISSRAY.
3.8 The parties acknowledge that the services of SIS may be
significant to the proper systems integration and operation of
PRODUCTS. Therefore, whenever HMSA shall receive an inquiry
from a customer or potential customer of PRODUCTS that is
within the consulting or connectivity services offered by SIS,
HMSA shall consult with SIS with respect thereto and shall
direct such customers or potential customers to SIS in Gig
Harbor, Washington, tel. No. (253) 858-3330.
4. SWISSRAY'S RESPONSIBILITIES. SWISSRAY accepts and will perform the
following responsibilities at no additional cost or expense to HMSA
except as otherwise stated:
4.1 The scope of the technical support, documentation and training
to be supplied by SWISSRAY is defined in Exhibit D attached to
this Agreement and incorporated herein. The technical support,
documentation and training to be supplied by SWISSRAY shall
include a general indoctrination of PRODUCT knowledge.
4.2 SWISSRAY shall provide HMSA at no cost with four (4) complete
sets of operation manuals, installation manuals and all other
service documents for the PRODUCTS upon execution of this
Agreement, and thereafter during the Term, shall provide at no
cost to HMSA updates to these documents from time to time.
4.3 SWISSRAY shall use its reasonable best efforts to provide HMSA
with access to the installed base of SWISSRAY PRODUCTS for
demonstration and testimonial purposes. Access, in each
instance, to the SWISSRAY installed base shall be solely with
SWISSRAY's prior written authorization.
4.4 For promotion purposes, SWISSRAY shall assist HMSA at mutually
agreed upon industry trade-shows. The extent of such
assistance by SWISSRAY shall be mutually agreed upon on a case
by case basis.
4.5 Subject to section 6.3, below, SWISSRAY shall, until the first
anniversary of the Effective Date, provide to HMSA at
SWISSRAY's sole cost and expense "SwissVision" software and
images that will allow HMSA to produce clinical images to
support HMSA's sales effort. HMSA will provide the laser
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camera and manpower to produce such images.
4.6 SWISSRAY shall provide HMSA, at HMSA's expense (less an
initial one-time credit of $5,000.00 ) with sales support
materials, including sales brochures, financial proformas and
sample images on X-Ray film in reasonable quantities to allow
HMSA's to fulfill its obligations under this Agreement.
4.7 SWISSRAY shall secure from SIS a letter substantially in the
form of Exhibit E.
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5. PURCHASE OF PRODUCT AND SPARE PARTS BY HMSA.
5.1 Governing Terms and Conditions. The terms and conditions
solely and exclusively governing the sale of Products and
spare parts for PRODUCTS ("Spare Parts") to HMSA will be as
set forth in this Agreement. If the terms and conditions set
forth in any document forming a part of any order for Products
or Spare Parts placed by HMSA are different from or in
addition to the provisions of this Agreement, the provisions
of this Agreement shall prevail, and any such different or
additional terms and conditions proposed by HMSA thereby will
be deemed deleted and not binding or enforceable upon SWISSRAY
and are hereby objected to by SWISSRAY.
5.2 Ordering: HMSA purchase orders for PRODUCT or Spare Parts
shall be addressed to:
SWISSRAY America, Inc.
5801 Soundview Drive, Suite 50
Gig Harbor, WA 98355
All HMSA purchase orders must be submitted to SWISSRAY in
writing and are subject to acceptance by SWISSRAY in writing
(as provided in section 3.1.2 with respect to PRODUCTS). Any
shipment of Products or Spare Parts to HMSA in whole or in
partial fulfillment of any order will not be deemed to
constitute an acceptance by SWISSRAY of any of the terms and
conditions of such order, except as to identification of
Products or Spare Parts, as the case may be, and the
quantities involved, unless otherwise expressly agreed to in
writing by SWISSRAY.
5.3 Delivery:
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5.3.1 SWISSRAY shall use its reasonable best efforts to
deliver the PRODUCT not later than ninety (90) days
from the date of the HMSA purchase order, unless
otherwise requested by HMSA and agreed to in writing
by SWISSRAY.
5.3.2 SWISSRAY shall use its reasonable best efforts to
ensure that (i) lead times for shipment of Spare
Parts shall not exceed seven (7) days from HMSA's
purchase order date, and (ii) emergency orders for
Spare Parts shall be shipped within three (3) days
after purchase order date. SWISSRAY shall make direct
deliveries of emergency orders to customers of HMSA
on behalf of HMSA only upon prior written
instructions by HMSA.
5.4 Order Cancellations by HMSA. No purchase order for PRODUCTS
accepted by SWISSRAY may be revoked or cancelled by HMSA, in
whole or in part, except with SWISSRAY's written consent and
upon the following terms:
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5.4.1 HMSA shall pay SWISSRAY 33% of the purchase price for
purchase orders cancelled or revoked between
forty-five (45) and ninety (90) days of the delivery
date;
5.4.2 HMSA shall pay SWISSRAY 66% of the purchase price for
purchase orders cancelled or revoked between fifteen
(15) and forty-four (44) days of the delivery date;
and
5.4.3 HMSA shall pay SWISSRAY 75% of the purchase price for
purchase orders cancelled or revoked between one (1)
and fourteen (14) days of the delivery date.
The cancellation payments required under sections 5.4.1, 5.4.2 and
5.4.3 shall not apply to cancellations, in whole or in part, by HMSA of
its purchase order for PRODUCT accepted by SWISSRAY if such
cancellation by HMSA is exclusively caused by a modification to PRODUCT
by SWISSRAY that materially and adversely affects functional
specifications and with respect to which SWISSRAY receives written
confirmation from HMSA's customer that as a result of such
modification, such HMSA customer cancelled its order with HMSA.
6. CONTINGENCY PLAN, INTELLECTUAL PROPERTY.
6.1 In order to ensure the availability and quality of service and
Spare Parts hereunder, SWISSRAY shall maintain a complete and
up-to-date set of (a) drawings of Spare Parts; (b)
documentation necessary for the repair of detectors; (c)
contact information for third party vendors of Spare Parts;
and (d) the Activation Code described in section 6.3 in an
escrow location mutually agreed upon for the deposit of such
documentation pursuant to the terms of a Technology Escrow
Agreement among SWISSRAY, HMSA and Data Securities
International, Inc. substantially in the form of Exhibit H
(the "Technology Escrow Agreement"), which is being entered
into by such parties contemporaneously with the execution and
delivery of this Agreement. HMSA shall have access to such
documentation solely upon (a) SWISSRAY, its successors or
assigns ceasing to engage in the sale of PRODUCTS or Spare
Parts; (b) the events set forth in section 14.2.1 below shall
occur to SWISSRAY and not be cured as provided therein; or (c)
provided that HMSA is not in breach of this Agreement, if
SWISSRAY fails to make Spare Parts available to HMSA as may be
required by this Agreement for a period of ninety (90) days.
HMSA's access to the escrow, if any, shall be for the sole
purpose of fulfilling HMSA's warranty and post-warranty
service obligations to its customer base of installed
PRODUCTS. The provisions of this section 6.1 shall survive the
expiration or earlier termination of this Agreement. In the
event SWISSRAY shall terminate this Agreement for cause as set
forth in section 14.2, the Technology Escrow Agreement shall
be simultaneously terminated and the escrowed documentation
shall be returned to SWISSRAY in accordance with the terms and
conditions of the Technology Escrow Agreement.
6.2 HMSA hereby acknowledges that SWISSRAY and its parent and
affiliates, have legally protected rights and interests in
Products, software, tradenames, trademarks, logos, insignias
and all other proprietary information and things, tangible and
intangible, whether or not registered (the "Intellectual
Property Rights"). HMSA will not imitate Products or infringe
upon SWISSRAY's Intellectual Property Rights in any way
whatsoever. HMSA shall immediately notify SWISSRAY in writing
upon learning that a third party is or may be violating
SWISSRAY's Intellectual Property Rights.
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6.3 SWISSRAY hereby grants to HMSA the nonexclusive,
nontransferable, nonsublicensable right: (a) to demonstrate
and evaluate (but not otherwise use) software associated with
the PRODUCT; and (b) to use the activation codes provided by
SWISSRAY to HMSA so that HMSA can have access to the
diagnostic software resident within the PRODUCT (the
"Activation Code") solely for the purpose of servicing the
PRODUCT sold by HMSA and for no other purpose. HMSA will not,
and will not allow any other person to, make any copies of
such software, to modify, disassemble or decompile any such
software, or to remove, obscure or alter any notice of patent,
trademark, copyright or trade name on such software. No title,
ownership or proprietary right to any such software,
Activation Codes or other Intellectual Property Rights is
granted or transferred by virtue of this Agreement. The
provisions of this Section 6.3 shall survive the expiration or
earlier termination of this Agreement.
6.4 HMSA shall not use the "SWISSRAY" name or any of the
Intellectual Property Rights without SWISSRAY's prior written
consent, except that the name "SWISSRAY" may be used in
connection with the sale of Products, but only if due regard
is given to proper trademark use and the ownership by SWISSRAY
of its name and mark. Without limiting the generality of the
foregoing, HMSA will not use any trademark or tradename owned
by SWISSRAY, or its parents or affiliates, either alone or
with any other word or words as part of HMSA's trade or
corporate name or in any advertising, without the express
written consent of SWISSRAY. HMSA will not remove any such
trademark or tradename from any Products, Spare Parts or other
literature or materials provided to HMSA by SWISSRAY. Upon the
termination or expiration of this Agreement, HMSA will
discontinue completely any use of any of SWISSRAY's trademarks
or tradenames as set forth in section 15.3, below.
6.5 HMSA acknowledges that, should it breach its covenants as set
forth in sections 6.2, 6.3, or 6.4 above, or section 13,
below, SWISSRAY will be irreparably harmed, that money damages
alone would not provide an adequate remedy, and that therefore
SWISSRAY shall be entitled to an injunction preventing HMSA
from further breaching such covenants without any further or
more particularized showing of irreparable injury or the
posting of a bond or other security. Such an injunction may be
applied for before any Court having jurisdiction thereof. In
any such proceeding, SWISSRAY will also be entitled to recover
damages only as set forth in section 11.6 of this Agreement.
7. MODIFICATION OF PRODUCT.
7.1 SWISSRAY may modify the PRODUCT in its sole, absolute
discretion prior to delivery of PRODUCT. If such modifications
materially affect specifications or FDA submissions, SWISSRAY
shall use its best efforts to notify HMSA of such
modifications in writing at least ninety (90) days prior to
first delivery of the modified PRODUCT. In no event will
SWISSRAY be obligated to make any such modification to
Products previously supplied to HMSA or to continue to supply
Products as made prior to such modification.
7.2 Modifications of PRODUCT which, in SWISSRAY's sole discretion,
are based upon safety or legal concerns shall be implemented
by SWISSRAY as promptly as may be practicable under the
circumstances. Notwithstanding anything to the contrary in
this Agreement, SWISSRAY may, in its sole discretion, suspend
sales and shipment of PRODUCTS or Spare Parts for safety
reasons without liability to HMSA.
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7.3 SWISSRAY shall send HMSA all field change orders relating to
the PRODUCT in writing. HMSA shall promptly implement such
field change orders within the time period referenced in such
field change order. Field change orders shall contain at least
the following information:
(a) Reason for change;
(b) Designation of PRODUCT concerned by serial number(s);
(c) Importance of modification (immediately, next service
call optionally);
(d) Time required for work, and
(e) Instructions for implementation.
7.4 If, in SWISSRAY's sole judgment, safety-related field change
orders to PRODUCT are required by law, the costs of material
in respect of such field change orders shall be borne by
SWISSRAY and the cost of labor to implement same shall be
borne by HMSA. In all other cases, unless a field change order
is required by SWISSRAY solely for its convenience, in which
case SWISSRAY shall bear the cost of material and labor in
respect thereof, the cost of materials and labor associated
with a field change order shall be borne by HMSA.
7.5 SWISSRAY shall promptly respond to HMSA's written concerns
relating to safety problems.
8. SPARE PARTS, POST WARRANTY SERVICE.
8.1 SWISSRAY shall make available to HMSA a complete list of Spare
Parts arranged according to SWISSRAY's part numbers. The Spare
Parts list shall be revised by SWISSRAY as necessary to be
kept up-to-date and shall cross reference HMSA part numbers.
8.2 Spare Parts shall be packed and labeled to identify the
contents of each package in accordance with the Spare Parts
list. Labeling shall indicate the respective revision level,
if any, of Spare Parts.
8.3 For a period of seven (7) years following shipment of each
PRODUCT under this Agreement, SWISSRAY shall supply HMSA with
Spare Parts for such PRODUCT at the then current list price,
less any applicable discount. Thereafter, if any Spare Part is
not available for purchase, SWISSRAY shall make reasonable
efforts to re-engineer the fit or function of similar Spare
Parts, if any, for a reasonable fee.
8.4 Spare Parts shall be of the same quality as the parts
installed in the PRODUCTS.
8.5 The parties acknowledge the importance of post-warranty
service to the proper operation of PRODUCTS. Therefore, if
HMSA determines at any time that it will not, itself, satisfy
any one or more post-warranty service contracts for PRODUCTS,
HMSA shall provide SWISSRAY with the first opportunity to
assume HMSA's obligations under such contracts.
9. PRICES AND TERMS OF PAYMENT.
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9.1 The prices for PRODUCT (the "Prices") are stated in Exhibit F,
attached to this Agreement and incorporated herein. Prices
include packaging, packing and are FOB to SWISSRAY's US
shipping point.
9.2 Terms of payment:
For PRODUCT:
10% upon date of order
70% upon tender of delivery to the shipping address in HMSA's
Purchase Order 20% 30 days after tender of delivery to the
shipping address in HMSA's Purchase Order
For Spare Parts:
100% 30 days after tender of delivery to the shipping address
in HMSA's Purchase Order
9.3 The Prices listed on Exhibit F shall remain in effect for all
Products or Spare Parts ordered prior to the first anniversary
of the Effective Date. For any PRODUCT ordered thereafter,
SWISSRAY may change the price by written notification to HMSA
ninety (90) days prior to the date the price change will
become effective, provided that, no price change shall affect
PRODUCT orders placed by HMSA prior to effective date of the
price changes.
10. SHIPPING, TAXES, TITLE, RISK OF LOSS, Force Majeure.
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10.1 At the time of shipment of PRODUCTS to HMSA, SWISSRAY shall
furnish HMSA with at least the following information:
(a) Purchase order number
(b) Transportation information
(c) Serial number of the PRODUCT
10.2 Shipment.
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10.2.1 Shipment Terms. Delivery and price terms for PRODUCT
and Spare Parts are F.O.B. to SWISSRAY's U.S.
shipping point. Thereafter, HMSA shall bear all
costs, insurance premiums, freight and all other
charges and expenses incurred after SWISSRAY has
placed Products or Spare Parts in the custody of a
carrier. All such costs, charges and expenses will be
included on SWISSRAY's invoice and will be paid by
HMSA in accordance with the terms of this Agreement.
The method and route of shipment shall be as set
forth on HMSA's purchase order. If the method and
route of shipment are not specified on HMSA's
purchase order, the method and route of shipment
shall be at SWISSRAY's discretion.
10.2.2 Separate Shipments. Each shipment of Products or
Spare Parts to HMSA will constitute a separate sale
obligating HMSA to pay therefor, whether such
shipment is in whole or in partial fulfillment of
HMSA's purchase order or confirmation for such
Products or Spare Parts, as the case may be.
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10.2.3 Suspension of Shipment. In the event of a default by
HMSA under this Agreement, SWISSRAY may decline, at
its sole option, to make further shipments under any
and/or all orders for Products or Spare Parts under
this Agreement. If SWISSRAY elects to continue
shipments, such continuation will not constitute a
waiver of such default, nor will such continuation in
any way limit SWISSRAY's legal remedies for such
default.
10.2.4 Shipment Allocation. If PRODUCTS are in short supply,
SWISSRAY reserves the right to allocate shipment of
orders and back orders for all PRODUCTS among HMSA,
other customers and itself in its sole, absolute
discretion. SWISSRAY shall notify HMSA in the event
of a change in the status of HMSA's deliveries under
this section 10.2.4.
10.2.5 Shipment Directly to Customer. Notwithstanding
anything in this Agreement to the contrary, if
SWISSRAY shall suspend shipments as provided in
section 10.2.3, SWISSRAY shall have the right,
without liability, to ship suspended PRODUCTS
directly to the HMSA customer to whom the suspended
shipment was due for SWISSRAY's own account. HMSA
shall cooperate with SWISSRAY to assure the
completion of such shipment.
10.3 Taxes. Federal, state and municipal taxes now or hereafter
imposed in respect of the sale, use, production, manufacture,
delivery or transportation of Products or services of SWISSRAY
(except SWISSRAY's income taxes not levied in lieu of any of
the foregoing) will be added to and become a part of the price
of Products payable by HMSA. Such taxes required by law to be
collected or paid by SWISSRAY will be additional to prices
quoted on Exhibit F, will be included on SWISSRAY's invoice
and will be paid by HMSA unless HMSA supplies tax exemption
certificates in form satisfactory to SWISSRAY.
10.4. Title and Risk of Loss. All shipments from SWISSRAY's U.S.
shipping point are made at HMSA's risk. Title to PRODUCTS and
risk of loss of or damage to Products or Spare Parts will pass
to HMSA upon SWISSRAY placing Products or Spare Parts in the
custody of a carrier for shipment to HMSA. It will be the sole
responsibility of HMSA to file all claims for shipment damage
or loss with the carrier but SWISSRAY will cooperate with HMSA
in such effort.
10.5. Force Majeure. Notwithstanding anything in this Agreement
to the contrary, SWISSRAY shall not be liable for loss or
damage of any kind resulting from delay or inability to
deliver, or failure to deliver, caused directly or
indirectly by: acts of God or the public enemy; accidents;
strikes or differences with labor; inability to obtain
labor, material, equipment or transportation; compliance
with or the operation of any applicable legislation,
regulation, directive, ruling, judgment or order of any
governmental unit or any court or other competent
governmental authority or matters covered by section 7.2,
above; or any other thing, similar or dissimilar, beyond
SWISSRAY's absolute and unconditional control. SWISSRAY
shall not be required to use overtime labor, nor to expend
any monies whatsoever, to cure any such delay or failure to
deliver. In the event of any partial failure to deliver,
SWISSRAY will have the right to receive payment pro rata for
such of Products or Spare Parts as it did in --- ---- fact
deliver, whether or not delivery of the same may have been
delayed.
11. WARRANTY, LIMITATION OF DAMAGES.
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11.1 End-User Product Warranty. SWISSRAY extends a warranty for
Products directly to end-users of the Products (the "End-User
Product Warranty"). SWISSRAY's current End-User Product
Warranty is attached as Exhibit G. As set forth in Exhibit G,
the End-User Product Warranty shall be in effect for twelve
(12) months from the date of completion of the installation of
the PRODUCT at HMSA's customers' site. Replacement parts shall
be warranted for the remainder of the original warranty
period.
11.2 SWISSRAY Warranties to HMSA.
---------------------------
11.2.1 General: SWISSRAY warrants to HMSA that: (1) HMSA
shall acquire good title to the PRODUCTS free and
clear of all liens and encumbrances; (2) there is no
pending litigation or, to the knowledge of SWISSRAY,
any existing claim involving the PRODUCT that
adversely affects HMSA's rights or obligations under
this Agreement in respect of the PRODUCT; (3)
SWISSRAY's sale of the PRODUCT to HMSA as
contemplated by this Agreement will not violate any
contract, agreement or understanding to which
SWISSRAY is a party or by which SWISSRAY is bound;
(4) throughout the Term of this Agreement, SWISSRAY
shall have the right to continue to sell PRODUCT to
HMSA.
In addition, SWISSRAY warrants to HMSA that, at the
time of sale by SWISSRAY, the PRODUCT (1) shall
comply with all applicable United States laws and
regulations including but not limited to safety
standards and FDA requirements related to the
manufacture or sale of PRODUCTS; and (2) shall be
listed by UL as appropriate and labeled accordingly.
SWISSRAY shall certify compliance with any such
applicable laws and regulations, shall maintain any
UL listing and shall maintain required FDA records
throughout the Term.
11.2.2 Spare Parts: SWISSRAY warrants to HMSA only that
Spare Parts will be free from defects in material and
workmanship at the time of delivery to HMSA. For a
period of twelve (12) months thereafter (the "Spare
Parts Warranty Period"), SWISSRAY in its sole,
absolute discretion, as HMSA's exclusive remedy under
this section 11.2.2, will either repair Spare Parts
found by SWISSRAY to be defective, or replace such
defective Spare Parts, with new or refurbished
equivalent Spare Parts. Repaired or replacement Spare
Parts are warranted under the terms of this warranty
for the remainder of the original Spare Parts
Warranty Period. Exchanged Spare Parts become the
property of SWISSRAY.
This Spare Parts warranty shall not apply if warranty
service is necessitated in whole or in part by: (1)
Spare Parts having been abused or damaged by casualty
or accident or Spare Parts not used in accordance
with SWISSRAY's manuals or publications, (2) Spare
Parts having been serviced or modified other than by
SWISSRAY, or the use of parts or software not sold by
SWISSRAY for the Spare Parts, (3) failure to maintain
the environmental conditions prescribed by SWISSRAY
for Spare Parts, or (4) deviation from SWISSRAY's
recommended maintenance procedures for Spare Parts.
11.3 No Other SWISSRAY Warranty. Except as set forth in section
11.2, above, SWISSRAY makes no warranties, guarantees or
representations, express or implied, to HMSA with respect to
Products, Spare Parts or otherwise. ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
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WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR USE OR FOR A
PARTICULAR PURPOSE ARE HEREBY EXCLUDED AND DISCLAIMED.
11.4 HMSA Warranty to SWISSRAY. HMSA warrants that it shall (1)
install and service the PRODUCTS in accordance with SWISSRAY's
published specifications, installation procedures, maintenance
manuals and user manuals; (2) not modify PRODUCTS or Spare
Parts; and (3) comply with all applicable federal, state and
local laws, rules, regulations and ordinances including but
not limited to safety standards and FDA requirements, related
to HMSA's obligations under this Agreement.
11.5 No Warranty by HMSA to Customers. HMSA will not make any
warranties, representations or guarantees to any person,
either orally or in writing, in the name or on behalf of
SWISSRAY with respect to Products (or their features or
specifications) or otherwise, except as set forth in
SWISSRAY's written literature distributed by SWISSRAY for that
purpose.
11.6 Damage Limitations
11.6.1 EXCEPT AS PROVIDED IN SECTION 11.6.2 WITH RESPECT TO
DIRECT DAMAGES ARISING OUT OF CLAIMS RELATED TO
PRODUCT OR SPARE PARTS ORDERS AND EXCEPT AS PROVIDED
IN SECTION 12 WITH RESPECT TO THIRD PARTY CLAIMS,
UNDER NO CIRCUMSTANCE WILL SWISSRAY OR HMSA BE
LIABLE FOR ANY DAMAGES, UNDER ANY LEGAL THEORY,
INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY,
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) OR LOSS OF PROFITS, SUSTAINED BY THE OTHER
PARTY, OR BY ANY PERSON DEALING WITH SUCH OTHER PARTY
IN CONNECTION WITH ANY PRODUCT OR SPARE PARTS ORDER
OR PRODUCTS OR SPARE PARTS COVERED THEREBY.
11.6.2 THE LIABILITY OF EITHER PARTY, IF ANY, FOR DIRECT
DAMAGES IN CONNECTION WITH A BREACH OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, REGARDLESS OF THE
DELIVERY OR NON-DELIVERY OF PRODUCTS OR SPARE PARTS,
WILL NOT, IN ANY EVENT, BE GREATER THAN THE ACTUAL
PURCHASE PRICE PAID OR TO BE PAID BY HMSA'S CUSTOMER
FOR THE PRODUCTS OR SPARE PARTS WITH RESPECT TO WHICH
SUCH CLAIM IS MADE.
11.7 The provisions of this section 11 shall survive the expiration
or earlier termination of this Agreement.
12. THIRD PARTY CLAIMS.
12.1 SWISSRAY shall indemnify, hold harmless and defend HMSA, its
parents, subsidiaries and affiliates and its and their
officers, directors, agents, employees and each of their
successors and assigns (the "HMSA Indemnified Parties") from
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and against or, in SWISSRAY's sole absolute discretion, shall
settle, any and all third-party claim, loss, liability, cost,
damage and expense including, without limitation, reasonable
attorneys' fees, with respect to which HMSA or the HMSA
Indemnified Parties may suffer (collectively, "Losses")
arising out of (1) alleged product liability solely in
connection with the design or manufacture of the Products; (2)
SWISSRAY's material breach of this Agreement by act or
omission of SWISSRAY, its employees, agents, or contractors,
or otherwise; and (3) alleged infringement of any patent,
copyright, trademark, trade secret or other intellectual
property right solely in connection with the design or
manufacture of the PRODUCTS (collectively, "Patent Claims"),
provided that, SWISSRAY shall have no obligation for Losses
for Patent Claims if PRODUCTS that are the subject of any
Patent Claims have been altered or modified by HMSA or its
customers or have been combined by HMSA with any other product
or have been made to HMSA's specifications or custom made at
HMSA's request.
12.1.1 Notwithstanding anything to the contrary in this
Agreement SWISSRAY's liability for Losses indemnified
under 12.1(2) (but not under 12.1(1) or 12.1(3))
shall be limited to the actual purchase price paid by
HMSA's customer for Spare Parts or PRODUCTS with
respect to which such claim for Losses is made.
12.1.2 In the event a claim is made against SWISSRAY that
PRODUCT or Spare Parts infringe the intellectual
property rights of any third party, SWISSRAY may at
its option (a) obtain a license for HMSA and its
customers to continue to use or to sell the
infringing PRODUCT; or (b) replace or modify the
PRODUCT so that it performs substantially in
accordance with its specifications and avoids the
alleged infringement. Moreover, SWISSRAY may cancel
all orders for PRODUCT or Spare Parts effected by
such Patent Claim and, in such event, HMSA shall use
commercially reasonable efforts to mitigate its
damages. HMSA acknowledges and agrees that SWISSRAY's
liability for cancelling orders for PRODUCT or Spare
Parts pursuant to this section 12.1.2 shall be
limited to the purchase price that would have been
paid by HMSA's customer for such cancelled PRODUCTS
or Spare Parts.
12.2 HMSA shall indemnify, hold harmless and defend SWISSRAY and
its parents, subsidiaries and affiliates and its and their
officers, directors, agents, employees and each of their
successors and assigns (the "SWISSRAY Indemnified Parties")
from and against or, in HMSA's sole absolute discretion, shall
settle, any and all third-party claim, loss, liability, cost,
damage and expense, including, without limitation, reasonable
attorneys' fees, which SWISSRAY or the SWISSRAY Indemnified
Parties may suffer arising out of (1) any act or omission of
HMSA, its employees, agents or contractors in connection with
the satisfaction of HMSA's obligations under this Agreement;
and (2) HMSA's material breach of this Agreement, including
its obligations described in Exhibit C.
12.3 The indemnifications set forth above are conditioned upon
HMSA or SWISSRAY, as the case may be, giving the other party
prompt notice if its receipt of a claim for which
indemnification is sought hereunder. The indemnified party
shall, at no out-of-pocket expense to the indemnifying
party, cooperate with the indemnifying party in respect of
the defense of such matter. The indemnified party shall have
the right, without affecting its indemnity hereunder, to
participate in the administration, defense or settlement of
any such matter at its own expense and with counsel of its
own choosing. The indemnifying party shall not settle any
claim indemnified hereunder without the written consent of
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the indemnified party unless the indemnified party is given
a full and unconditional release in respect of such matter.
12.4 The provisions of this section 12 shall survive the expiration or
earlier termination of this Agreement.
13. CONFIDENTIALITY.
13.1 Each Party shall keep confidential the Intellectual Property
Rights, Activation Codes, technical data, past, present and
future business plans, concepts and designs, drawings,
sketchings, techniques, technologies, systems, processes,
know-how, trade secrets and/or information identified as
confidential (hereinafter referred to as "CONFIDENTIAL
INFORMATION") that it receives from the other party. The
receiving party agrees not to reproduce, disclose such
CONFIDENTIAL INFORMATION to any third party, or to use it for
any purpose not authorized by the disclosing party. The
receiving party agrees to instruct its employees having access
to such CONFIDENTIAL INFORMATION of receiving party's
confidentiality obligations, and further agrees to restrict
access of such CONFIDENTIAL INFORMATION to employees or agents
who have a need to know pursuant to their scope of employment
or agency arrangement. The receiving party agrees to hold the
disclosing party's CONFIDENTIAL INFORMATION in confidence and
to protect such information with the same degree of care used
in protecting the receiving party's similar information, but
in no event, with less than a reasonable degree of care.
13.2 This confidentiality obligation shall not apply to know-how,
data and/or information which is:
13.2.1 demonstrated to be available from public sources or
in the public domain through no fault of the
receiving party, its employees or agents;
13.2.2 demonstrated to be received at any time from any
third party without breach of a nondisclosure
obligation or obligation of secrecy to the disclosing
party or any other party;
13.2.3 demonstrated through proper documentation to have
been developed independently by the receiving party
without reliance on the disclosing party's
CONFIDENTIAL INFORMATION or to have been in the
possession of the receiving party prior to its
disclosure by disclosing party;
13.2.4 required to be disclosed by judicial or governmental
order, provided that, the disclosing party is given
prompt written notice of a request or demand for
disclosure to enable it to seek a protective order or
similar relief; or
13.2.5 approved for disclosure by prior written consent of
an authorized corporate representative of the
disclosing party.
13.3 The provisions of this section 13 shall survive the expiration
or termination of this Agreement.
14. TERM AND TERMINATION.
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14.1 Term. Unless earlier terminated pursuant to section 14.2,
below, this Agreement shall remain in force until the first
anniversary of the Effective Date (the "Term"). This Agreement
may be renewed for additional periods if each party gives
written notice of its intent to renew to the other party not
less than sixty (60) days' prior to the expiration of the
initial or any renewal period. SWISSRAY and HMSA shall consult
during the tenth (10th) month following the Effective Date to
consider whether to renew this Agreement and if so, for how
long and whether the renewal will be for an expanded territory
or otherwise. In reaching such decisions, SWISSRAY shall place
substantial weight on HMSA's performance in respect of
purchase volumes and future commitments to purchase PRODUCTS.
Assuming that HMSA can meet SWISSRAY's marketing needs in
SWISSRAY's sole, good faith discretion, it is SWISSRAY's
present intent to expand the Territory up to and including
exclusivity throughout the United States.
If, after the expiration of the Term, the Agreement has not
been renewed as above provided, and if the parties nonetheless
continue to do business, then the Agreement will continue in
effect subject to all of the terms and conditions set forth
herein, except that it will be terminable by either party,
with or without cause, for any reason or for no reason, upon
30 days' written notice to the other party.
14.2 Termination for Cause. Notwithstanding the Term hereof, this
Agreement may by written notice be terminated and canceled at
the option of the party having such right as follows:
14.2.1 By either Party in the event that the other Party
voluntarily files a petition in bankruptcy or has
such a petition involuntarily filed against it, or is
placed in an insolvency proceeding, or if an order is
entered appointing a receiver or trustee for or a
levy attachment is made against a substantial portion
of its assets which voluntary petition, involuntary
petition, insolvency proceeding or order shall not be
vacated, set aside or stayed or a plan of
reorganization shall not accepted within 120 days
after its initiation, or if any assignment for the
benefit of its creditors is made;
14.2.2 By SWISSRAY in the event HMSA shall have infringed
SWISSRAY's Intellectual Property Rights or breached
its obligations in section 13, above;
14.2.3 By either Party in the event that the other Party
shall have failed to cure, upon 30 days' prior
written notice, any breach of a covenant,
representation or warranty made or to be performed
hereunder.
14.2.4 By either Party in the event the other Party shall
merge or consolidate with or into any other entity,
or if either Party shall sell or otherwise dispose of
its capital stock or substantially all of its assets.
15. PROVISIONS AFTER TERMINATION OF THE AGREEMENT. If this Agreement
expires or is sooner terminated:
15.1 SWISSRAY shall continue to supply to HMSA PRODUCT to fulfill
HMSA's open sales orders to HMSA customers prior to notice of
termination of this Agreement, except that, SWISSRAY may
demand full payment immediately upon tender of delivery of
PRODUCT to the destination stated in HMSA's purchase order.
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15.2 SWISSRAY may declare all sums owing from HMSA immediately due
and payable, notwithstanding any credit terms previously
extended or in effect, if SWISSRAY terminates this Agreement
for cause in accordance with section 14.2.
15.3 HMSA shall immediately discontinue use, direct or indirect, of
the Intellectual Property Rights, except that, HMSA may
provide post-warranty service for PRODUCTS to its customers
and SWISSRAY shall continue to supply Spare Parts therefor
pursuant to section 8.3, above.
15.4 Nothing contained herein is intended to prejudice any rights
of the Parties hereto that have accrued prior to the
termination of this Agreement in accordance with its terms or
otherwise, or any rights of the Parties that are intended to
survive any such termination.
16. ARBITRATION AND GOVERNING LAW.
16.1 Arbitration. Except as provided in section 6.5, above, and
except with respect to disputes as to indebtedness arising out
of the sale of Products or Spare Parts, any controversy or
claim arising out of or relating to this Agreement or the
breach thereof, whether common law or statutory, including
without limitation claims asserting violations of the
antitrust laws or RICO, shall be settled exclusively by
arbitration in New York, New York, using the American
Arbitration Association.
16.2 Governing Law. 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
term or provision of this Agreement, nor to grant injunctive
relief, including interim relief, of any nature, nor to award
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 entered by any Court having
jurisdiction to do so, and the parties to this Agreement
hereby irrevocably consent and submit to the exclusive
personal jurisdiction and venue of the United States District
Court for the Southern District of New York or the Supreme
Court of the State of New York, County of New York, for that
purpose as well as for any and all other permitted purposes in
connection with this Agreement.
16.3 Failure to Arbitrate. The failure or refusal of either party
to submit to arbitration shall constitute a breach of this
Agreement. If judicial action is commenced in order to compel
arbitration, and if arbitration is in fact compelled, the
Party that shall have resisted arbitration shall be required
to pay to the other Party all costs and expenses, including
reasonable attorneys' fees, that it incurs in compelling
arbitration. All other fees and charges of the American
Arbitration Association shall be borne by the losing Party or,
in the event, neither Party is the losing party on all issues,
as the arbitrators shall determine in their award.
16.4 Matters Not Arbitrated. With respect to claims or
controversies that are not the subject of arbitration pursuant
to this Agreement, the rights and obligations of the parties
under this Agreement will be governed by the internal law of
the State of New York, exclusive of its conflict-of-laws
principles. All such causes of action instituted by either
party with respect to this Agreement will be brought solely in
the United States District Court for the Southern District of
New York, or, if that court lacks subject matter jurisdiction,
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then solely in the Supreme Court of the State of New York,
County of New York. For this purpose, the Parties hereby
irrevocably consent to the jurisdiction of the State of New
York over their person, and waive any defense based upon
improper venue, inconvenient venue or lack of jurisdiction.
17. INSURANCE.
SWISSRAY will provide HMSA with documentation of acceptable levels of
product liability insurance coverage (minimum limits of five million
dollars ($5,000,000) each occurrence and in the aggregate) naming HMSA
as an additional insured, related to the PRODUCT.
18. MISCELLANEOUS.
18.1 All changes and amendments to this Agreement must be in
writing, must recite that they are amendments or changes to
this Agreement and must be signed by a corporate officer of
HMSA and a corporate officer of SWISSRAY to be valid. This
requirement of written form can only be waived in writing.
18.2 Notices and communications between SWISSRAY and HMSA required
by this Agreement shall be given in writing and sent by
certified mail, postage prepaid and return receipt requested,
or by fax to the following address of the parties or to such
other address as the party concerned may subsequently notify
in writing to the other party:
If to SWISSRAY to: SWISSRAY America, Inc.
320 West 77th Street, Suite 1A
New York, New York 10024
Attn: Mr. Ueli Laupper, Vice President
Fax No.: 212-545-7912
With a copy to: Piliero Goldstein Jenkins & Hall, LLP
292 Madison Avenue
New York, New York 10017
Attn: Edward J. Goldstein, Esq.
Fax No.: 212-685-2028
If to HMSA to: Hitachi Medical Systems America, Inc.
1959 Summit Commerce Park
Twinsburg, OH 44087
Attn: Mr. Richard L. Ernst, President
& CEO
Fax No.: 330-425-1410
Any such notice if given or made by certified mail as
aforesaid shall be deemed to have been received on the earlier
of the-date actually received and the date five (5) calendar
days after the same was posted and if given or made by fax
shall be deemed to have been received at the time of dispatch,
provided that, a copy of such fax notice is delivered by
certified mail within five (5) calendar days after the same
was faxed. If the date of deemed receipt is not a business
day, the date of deemed receipt shall be the next such
succeeding business day.
18.3 No rights, duties, obligations or interests in this Agreement
shall be assigned by either SWISSRAY or HMSA without the
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written consent of the other Party, and any attempted
assignment, whether voluntarily, involuntarily, by operation
of law or otherwise, shall be wholly void, totally
ineffective, and of no force and effect, and shall not confer
any rights of any kind upon the intended assignee.
18.4 The Parties acknowledge and agree that the Parties are
independent contractors. Nothing in this Agreement shall be
deemed to establish or otherwise create or constitute a
relationship of principal and agent or franchisor and
franchisee between SWISSRAY and HMSA. Neither HMSA nor any of
its agents or employees shall have any right or authority to
assume or create any obligation of any kind, whether express
or implied, on behalf of SWISSRAY or have any authority to
bind SWISSRAY in any respect whatsoever. Neither HMSA nor
SWISSRAY will represent itself, either directly or by
implication, as franchisee or franchisor (as the case may be),
agent, joint venturer, partner or representative of the other
Party.
18.5 The titles to the sections in this Agreement are for
convenience of reference only and are not part of this
Agreement and shall not in any way affect the interpretation
thereof.
18.6 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 will 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 will remain in full force and
effect and will in no way be affected, impaired or
invalidated. In the event, however, that any law, order,
regulation, direction, restriction or limitation, or
interpretation thereof, will in the judgment of either Party
substantially alter the relationship between the Parties under
this Agreement, or the advantages derived from such
relationship, either Party may request the other Party hereto
to modify this Agreement, and, if, within 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 30 days' notice to the other Party.
18.7 This Agreement together with its Exhibits sets forth the
entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes and cancels any and
all prior or contemporaneous discussions, negotiations,
arrangements and agreements between them, express or implied,
with respect to such subject matter. The Parties acknowledge
that no representations or promises have been made to induce
either of them to enter into this Agreement other than as may
be specifically set forth herein.
18.8 The failure or refusal by either Party 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 of such right
presently or as a modification or amendment of this Agreement,
nor shall such failure or refusal be deemed a custom or
practice contrary to such provision or right. A waiver of any
default by either party of any of the terms and conditions of
this Agreement shall not be deemed to be a continuing waiver
or a waiver of any other default or of any other of these
terms and conditions, but shall apply solely to the instances
to which such waiver is granted.
18.9 (a) This Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of
the parties hereto. (b) The rights of the Parties under this
Agreement are for the sole benefit of SWISSRAY and HMSA and
are not intended for any other person. (c) The words
"including," "includes," "include" and "covering" as used in
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this Agreement mean, respectively, "including, without
limitation," "includes, without limitation," "include, without
limitation" and "covering, without limitation." (d) References
to sections are to sections in this Agreement and in each case
include references to all subsections under the referenced
section. (e) The words "hereof" "herein" and "hereunder" and
words of similar import shall refer to all applicable
provisions of this document and not to any particular
provision. (f) This Agreement is the result of negotiation
and, accordingly, no presumption or burden of proof will arise
with respect to any ambiguity or question of intent concerning
this Agreement favoring or disfavoring any Party to this
Agreement by virtue of the authorship of any provision of this
Agreement. (g) Words denoting the singular tense or person
shall include the plural and vice versa and references to the
masculine gender shall, where the context permits, include the
feminine and/or neuter genders and vice versa. (h) All
references to statutory provisions shall include all
amendments and re-enactments thereof. (i) The obligations of
the parties that expressly survive the expiration or
termination of this Agreement, or which, by their nature are
intended to survive such expiration or termination, shall so
survive in accordance with their terms or as is required to
give effect to such intention, respectively.
18.10 This Agreement may be executed in multiple counterparts and
duplicate originals, each of which will be deemed enforceable
without production of the others.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in duplicate by their duly authorized officers on the
day and year mentioned below.
SWISSRAY AMERICA, INC. HITACHI MEDICAL SYSTEMS
AMERICA, INC.
By:_____/Ueli Laupper/___________ By:__/Richard L. Ernst__________
------------- -----------------
(authorized signature) (authorized signature)
Name:___Ueli Laupper____________ Name:__Richard L. Ernst________
------------ -----------------
(print or type) (print or type)
Title:_____CEO_________________ Title:___President and CEO_______
--- -----------------
By:____/Michael Baker/___________
-------------
(authorized signature)
Name:____Michael Baker__________
-------------
(print or type)
Title:___Deputy CEO_____________
SWISSRAY America, Inc.
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EXHIBIT A
ddRMulti-System - General Informations
1.Overview
Direct digital, multifunctional X-ray system for advanced radiographic
examinations
The system includes the Stand, the C-arm, the digital AddOn(R)-Bucky,
GUN-X-2000/4000 X-ray Generator including the tube and collimator, the Mobile
Patient Table ddR and the SwissVision(R) Image Processing System.
The system can be supplied in different versions, when taking in consideration
the direction of the x-ray beam:
- Standard Right version
The stand is designed as a right hand version (tube is at the right
side in horizontal beam position).
-Standard Left version
The stand is designed as a left hand version (tube is at the left side
in horizontal beam position).
2. Floor Mounted C-Arm Type Positioning Stand
All system movements are automatically manipulated and o All may be controlled
by touchscreen, push buttons at the system or remote control. The movements are
motor-driven with a double speed slowstartlfast- move motor. This allows
convenient and ultra-precise positioning.
The unit is computer controlled and has two preset positions for vertical and
horizontal examinations and an additional park position, which all can be
individually programmed.
The C-Arm type tube arm allows cross-lateral examinations. The system computer
recognized the room measures and therefore collisions will not occur.
The X-ray tube is in any position, even for axial examinations, centered to the
Add0n(R)-Bucky which results in efficient and convenient positioning. For
special examinations the AddOn(R)-Bucky and the X-ray tube may be positioned
independent from each other.
3 Direct Digital Add0n(R)-Bucky
- The Add0n(R)-Bucky is a 35x43 cm or 43x35 cm (17"x14") full size direct
digital detector and performs digital X-rav images within 16-20 seconds.
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The AddOn(R)-Bucky is CCD-based.
The ddRMulti-System is accompanied with an oscillating arid which can be removed
4. GEN-X-2000/4000(R)X-Ray Generator
High frequency generator with 80kW output.
The GEN-X-2000/4000(R) uses the patented Swissray 1-2-3 point system anatomical
program for efficient and easy selection of the exposure parameters.
5. SRX 21-HS-1 High Speed Tube/Collimator
0.6/1.2 mm double focus rotating anode high speed tube with a 12 degree target
angle.
The tube is combined with a motor-drive collimator. The tube/collimator unit is
accompanied with 3 different filters which can be used at the users convenience.
The mounting cone may be rotated to perform orthopedic examinations
conveniently.
6. Mobile Patient Table ddR
Mobile patient table with transparent table top allowing positioning of the
Bucky and 4 double wheels for convenient handling of recumbent patients.
The table may be easily locked in any position by mechanical brakes. Two wheels
on each side are fitted with a pedal lever to adjust three different positions.
- Normal position: Table can be moved in all directions because wheels turn
360(degree).
- Position locked: Table can be moved in straight direction only.
- Position brake: In this position both wheels on each side are locked.
To move it conveniently, the table is equipped with two handles
7. SwissVision(R)Imase Processing System
The SwissVision(R) Image Processing System is a Microsoft Windows NT(R) based
full digital X-ray acquisition workstation including postprocessing algorithms.
It performs the proprietary Swissray organ specific image processing algorithms
and a wide range of other modern image processing functions. The user can decide
to automatically post process the image by using predetermined default values or
he can chance and modify these default values from case to case.
Swissvision(R) offers its own patient directory (image archiving) with an
additional DICOM interfact (DICOM 3.0 by Merge via Ethernet TCP/IP). Image
size is maximum 2500 x 2000 pixel (12 bit/pixel data) and image acquisition time
up to 20 seconds. The SwissVision(RE) software includes:
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- Patient demographics
- Zooming
- Contrast/Brightness/Shape adjustment
- ROI definition
- Post processing including Noise reduction, Contrast Amplifcation,
Edge Contrast Boosting, Lattitude Reduction, Sensitometric Curves,
Window boundary offset, Density and other special algorithms
The SwissVision(R)workstation is DICOM 3.0 compliant Optional features are
HL-7/DICOM Worklist softwares.
The Windows NT(R)based software is divided in mainly four different modules
consisting of the following functions:
a) Automatic Image processing for routine use:
- Contrast,
- Brightness,
- Shape
- Zooming
- Window leveling,
- Default post processing values will be used (standard values or
customer specific)
b) Individual image processing:
- All parameter as with automatic processing,
- All post processing parameter can be selected and set individually,
as Noise reduction, Contrast Amplification, Edge Contrast Boosting,
Lattitude Reduction, Sensitometric Curves, Window boundary offset,
Density and other special algorithms
c) Additional functions:
- Image directory management (max 9 images in process)
- Patient management (DICOM conformity)
- Positive-/neative inversion including image rotation and mirroring.
- Online Help (in preparation).
- 8 or 16 bit image display
- Duplication of images
- Storage of images local or external (DICOM archive)
- Print options:
> Multiple print out (divisions 1/1, ?/1, 1/2 and 4/4) (DICOM)
> Printing with original size ("requested image size") (DICOIVI)
> Printing with modified window leveling
> Paper printing of images via Windows(R) compatible printer including patient
data
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> Individual printer and storage management
d) Service and Support Functions
- Error management with logbook function
- Service mode
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EXHIBIT B
[The Territory]
The Territory shall be the Fifty (50) states of the United States of America,
except the following geographic areas:
1. The States of Alabama, Arizona, Connecticut, Mississippi, Maine,
Massachusetts, New York, Rhode Island, Vermont and New Hampshire.
2. The portion of New Jersey that includes the Atlantic City Expressway
and north.
3. The following counties in the State of Pennsylvania: Allegheny, Clinton
Mercer, Armstrong, and Crawford, Mifflin, Beaver, Elk, Potter, Butler,
Erie, Venago, Cambria, Forest, Warren, Cameron, Indiana, Washington,
Center, Jefferson, Westmoreland, Clarion, Lawrence, Clearfield and
McKean.
4. The following counties in the State of California:Orange and San Diego.
5. The Panhandle of Florida - Tallahassee west.
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EXHIBIT C
Symbol [ ] indicates information redacted in accordance
with confidential treatment request.
A. GENERAL
1. (a) Governmental National Accounts. Governmental National Accounts, i.e., the
Department of Defense and other federal, state and local government accounts,
including each Governmental National Accounts' constituent purchasing units
(each, a "Governmental National Account"), it being understood and agreed that
SWISSRAY shall negotiate the terms and conditions of sale to such Governmental
National Accounts and shall have the exclusive right to enter into contracts for
the sale of PRODUCTS to such Governmental National Accounts within the
Territory. HMSA shall solicit the sale of PRODUCTS to the constituent purchasing
units of the Governmental National Accounts within the Territory on behalf of
SWISSRAY solely upon the terms and conditions of the Governmental National
Account contract negotiated by SWISSRAY or otherwise in accordance with the
written directions of SWISSRAY. SWISSRAY shall accept such orders only in its
sole, absolute discretion. For each PRODUCT sold by SWISSRAY to a Governmental
National Account within the Territory, and to the extent permitted under
SWISSRAY's contract with the relevant Governmental National Account with respect
to such PRODUCT. HMSA shall have the rights and obligations set forth in section
3 of this Agreement, and SWISSRAY shall have the rights and obligations set
forth in section 4 of this Agreement. For each sale of PRODUCT completed by
SWISSRAY to a Governmental National Account within the Territory, and in
consideration of HMSA's obligations undertaken in this section A(1), SWISSRAY
shall pay HMSA a fee equal to the net price of the PRODUCT sold by SWISSRAY less
the price of the identically configured PRODUCT as set forth in Exhibit F.
(b) Hospital National Accounts. SWISSRAY will negotiate contracts with
certain Hospital Buying Groups through out the country (each a "Contract;
collectively, the "Contracts"). Such Contracts state the terms of sale,
including price, under which SWISSRAY will make PRODUCTS available to each
constituent unit (a "Constituent Unit") of such Hospital Buying Group. For the
avoidance of doubt, HMSA shall have the limited right to offer PRODUCTS directly
to a Constituent Unit within the Territory and such sales are not reserved
exclusively to SWISSRAY under this Agreement. HMSA may provide PRODUCTS at a
price higher than the price set forth in the Contract covering the Constituent
Unit. In no event shall HMSA have the right to provide PRODUCTS (i) to a
Hospital Buying Group with which SWISSRAY has a Contract or (ii) to Constituent
Units of such Hospital Buying Group outside of the Territory. Hospital Buying
Groups, as an entity, are Reserved Accounts under this Agreement.
2. HBOC, Data General, IBM, Sequoia and Storcomm.
B. SOUTHEAST
1. [ ]
2. [ ]
3. [ ]
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4. [ ]
5. [ ]
6. [ ]
7. [ ]
8. [ ]
9. [ ]
10.[ ]
11.[ ]
12.[ ]
13.[ ]
14.[ ]
15.[ ]
16.[ ]
17.[ ]
18.[ ]
19.[ ]
20.[ ]
21.[ ]
22.[ ]
23.[ ]
24.[ ]
25.[ ]
26.[ ]
27.[ ]
28.[ ]
29.[ ]
30.[ ]
31.[ ]
32.[ ]
33.[ ]
34.[ ]
35.[ ]
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B. SOUTHWEST
Protected accounts in the Southwest territory are the hospitals listed below
including associated imaging centers. Hospitals are located in [ ] unless
otherwise noted.
1. [ ]
2. [ ]
3. [ ]
4. [ ]
5. [ ]
6. [ ]
7. [ ]
8. [ ]
9. [ ]
10.[ ]
11.[ ]
12.[ ]
13.[ ]
14.[ ]
15.[ ]
16.[ ]
17.[ ]
18.[ ]
19.[ ]
20.[ ]
21.[ ]
22.[ ]
23.[ ]
24.[ ]
25.[ ]
26.[ ]
27.[ ]
28.[ ]
29.[ ]
30.[ ]
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C. NORTHEAST
1. [ ]
2. [ ]
3. [ ]
4. [ ]
5. [ ]
6. [ ]
7. [ ]
8. [ ]
9. [ ]
D. NORTHWEST
1. [ ]
2. [ ]
3. [ ]
4. [ ]
5. [ ]
6. [ ]
7. [ ]
8. [ ]
9. [ ]
10.[ ]
11.[ ]
12.[ ]
13.[ ]
14.[ ]
15.[ ]
16.[ ]
17.[ ]
18.[ ]
19.[ ]
20.[ ]
21.[ ]
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22.[ ]
23.[ ]
24.[ ]
25.[ ]
26.[ ]
27.[ ]
28.[ ]
29.[ ]
30.[ ]
31.[ ]
32.[ ]
33.[ ]
34.[ ]
35.[ ]
36.[ ]
37.[ ]
38.[ ]
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EXHIBIT D
[Technical, Support Documentation and Training]
SWISSRAY shall provide HMSA with service training, technical support and
parts support as follows:
(a) SWISSRAY shall provide HMSA with factory training for a maximum of [ (
)] engineers. Additional training can be purchased from SWISSRAY at the
rate of [$ ] per engineer. HMSA is responsible for all transportation,
meals and lodging expenses of its employees in connection with such
training.
(b) SWISSRAY shall provide reasonable installation support for the first
two (2) HMSA installations of PRODUCT.
(c) SWISSRAY shall provide technical support services to HMSA. Fees to be
determined.
(d) SWISSRAY shall maintain a spare parts depot in the United States.
(e) SWISSRAY shall provide a "hero kit" (parts deemed by SWISSRAY and HMSA
to be essential site spares) at no charge to HMSA. Replacement parts to
the "hero kit" will be invoiced based on SWISSRAY's then current list
price less any HMSA discount. HMSA will purchase a factory spares kit
from SWISSRAY for first line support to customers after HMSA has
installed ten (10) units of PRODUCT.
(f) For a mutually agreed upon period, SWISSRAY shall provide remote
diagnostics at an agreed upon charge to HMSA. AS a long-term goal, both
parties agree to transfer this capability to HMSA as soon as reasonably
practicable.
(g) SWISSRAY shall make available its sales and product marketing
specialists to support HMSA in connection with its sales efforts within
the Territory.
(h) SWISSRAY shall exchange detectors that it determines are defective with
a refurbished detector and charge HMSA an amount equal to SWISSRAY's
cost of repair, including labor and parts, in respect of such defective
detector.
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EXHIBIT E
Hitachi Medical Systems America Inc.
1959 Summit Commerce Park
Twinsburg, Ohio 44087
Re: Commitment to Consult
Medical Imaging Informatics
Gentlemen:
We understand that Hitachi Medical Systems America Inc. ("HMSA") has
entered into a distribution agreement with Swissray America, Inc. (the
"Agreement"). Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to them in the Agreement.
With reference to sections 3.8 and 4.7 of the Agreement, Swissray
Information Solutions, Inc. ("SIS") will provide a finder's fee to HMSA in
connection with (1) the initial contract for services rendered by SIS to an HMSA
customer, and (2) all imaging devices, other than Product, sold to such customer
during the Term. The finder's fee will be in an amount equal to [ ] percent [ (
%)] of the net price for such services or devices is the direct result of a lead
provided to SIS by HMSA.
In the event SIS or its partners completes a sale of Product within the
Territory to an account that is not the direct result of a lead provided to SIS
by HMSA and is not a Reserved Account, SIS shall pay HMSA a [$ ] commission upon
full payment of SIS's invoice by such SIS account. In consideration of the
payment by SIS of [$ ] per unit of Product, HMSA shall have responsibility for
installation, applications training and warranty service (as described in the
Agreement) for each of such Products sold by SIS or its partners within the
Territory.
The determination by SIS whether and upon what terms it will contract
with an HMSA customer shall be in the sole absolute discretion of SIS.
This letter contains the entire understandings between SIS and HMSA
with respect othe subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, warranties and understandings,
either oral or written, with respect thereto. The provisions of this letter may
be amended only by a written instrument signed by SIS. All claims for finder's
fees by HMSA under this letter shall be made to SIS at its Gig Harbor address.
Very truly yours,
32
EXHIBIT F
[SWISSRAY Price Quotation to HMSA for PRODUCT]
DIRECT DIGITAL RADIOGRAPHY SYSTEM
Quantity Product
1-10 SWISSRAY branded ddR Multi-System, complete, consisting of:
o Motorized, remote controlled positioning device
o AddOn-Bucky, full size digital detector
o Mobile patient table for recumbent examinations
o 80k W high frequency generator
o 0.6/1.2 mm high speed x-ray tube, 100kW
o Motorized, remote controlled collimator with 3 different filters
o SwissVision Acquisition Station
o MUSICA Algorithms
o DICOM 3.0 connectivity
o One set of operator's manuals (2 sets for government accounts)
Hitachi Net Price [US$ ]
* HMSA shall be granted a one time PRODUCT purchase price of [US$ ] for
PRODUCT to be installed within the greater Chicago, Atlanta or Miami areas.
Additional Discounts
o For unit nos. 11 - 25, SWISSRAY shall provide HMSA with an additional [ %]
discount off of the "Hitachi Net Price" set forth above if ordered
within one (1) year of the date of this Agreement.
o For unit nos. 26 - 50, SWISSRAY shall provide HMSA with an additional [ %]
discount off of the "Hitachi Net Price" set forth above if ordered
within one (1) year from the date of this Agreement.
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OPTIONS
Product Hitachi Net Price
DICOM Worklist Management [ ]
HL - 7 Interface [ ]
Single Monitor Diagnostic Acquisition Workstation [ ]
Upgrade of the SwissVision workstation supplied with ddR Multi-System.
Upgraded workstation includes:
SwissVision 4000 Software
Single 21 "MegaScan Monitor (2048x2560) in lieu of standard
monitor
4 Megapixel Dome Graphics Card (Dual monitor capability) in lieu of
standard graphics card
Dual Monitor Diagnostic Acquisition Workstation [ ]
Upgrade of the SwissVision workstation supplied with ddR Multi-System.
Upgraded workstation includes:
SwissVision 4000 Software Plus
Two (2) 21 "MegaScan Monitors (2048x2560) in lieu of single
standard monitor
Two (2) 5 Megapixel Dome Graphics Card (Dual monitor capability)
in lieu of standard graphics card
Dual Monitor Diagnostic Acquisition Workstation [ ]
(General Rad work only)
SwissVision workstation supplied.
SwissVision 4000 Software PlusTwo
Two (2) 21 Megapixel Dome Graphics Card (Dual monitor capability)
in lieu of standard graphics card
Two (2) 5 Megapixel Dome Graphics Card (Dual monitor capability) in lieu of
standard graphics card
SwissVision AIT Archive - 40 GB [ ]
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Upgrade of the ddR Multi-System to provide expanded on-line and near line
digital image storage. Upgrade consists of the following:
Windows NT Workstation/Server with 9GB Mirrored Drives, 128 MB RAM,
Tape Backup, UPS, Modem, Remote Access Software, NT, SQL
FileLink Medical Archive Software(TM)
Ability to archive from multiple ddR Multi-Systems or other DICOM compliant
Storage Service Class Users
FileLink Medical Archive Software (TM)
40 gigabyte total storage capacity using AIT drive
SwissVision DLT Archive - 40 GB [$ ]
Upgrade of the ddR Multi-System to provide expanded on-line and near line
digital image storage. Upgrade consists of the following:
Windows NT Workstation/Server with 9GB Mirrored Drives,
128 MB RAM, Tape Backup, UPS, Modem, Remote Access Software, NT, SQL
FileLink Medical Archive Software (TM)
Ability to archive from multiple ddR Multi-Systems or
other DICOM compliant Storage Service Class Users
40 gigabyte total storage capacity using AIT drive
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EXHIBIT G
[End User Product Warranty]
SWISSRAY AMERICA, INC. warrants to End-User that Product (exclusive of Product
Software) will be free from defects in material and workmanship at the time of
delivery to End-User. For a period of twelve (12) months from the date of
completion of the installation of the Product, SWISSRAY AMERICA, INC. in its
sole, absolute discretion will either repair defects in defective Product, or
parts thereof, or replace defective Product, or parts thereof, with new or
refurbished equivalent Product or parts. Repaired or replacement Product and
parts are warranted under the terms of this warranty for the remainder of the
original Warranty Period. Exchanged Product and parts become the property of
SWISSRAY AMERICA, INC.
The warranties and remedies set forth herein do not apply to Product, advice or
assistance that SWISSRAY AMERICA, INC. furnishes to End-User as a business
courtesy, or if warranty service is necessitated in whole or in part by (1)
Product having been abused or damaged by casualty or accident or Product not
used in accordance with its manuals, (2) Product having been serviced or
modified other than by SWISSRAY AMERICA, INC. or its authorized representative,
or the use of parts or software not sold by SWISSRAY AMERICA, INC. for the
Product (3) failure to maintain the environmental conditions prescribed by
SWISSRAY AMERICA, INC. for the Product site, or (4) deviation from SWISSRAY
AMERICA, INC. recommended maintenance procedures.
THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED BY
AFFIRMATION, PROMISE, DESCRIPTION, MODEL, SAMPLE OR OTHERWISE, AND ANY AND ALL
OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, ARE HEREBY
DISCLAIMED.
EXCEPT FOR THE EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH ABOVE, UNDER
NO CIRCUMSTANCE WILL SWISSRAY AMERICA, INC. BE LIABLE FOR ANY DAMAGES, INCLUDING
WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES (EXCEPT FOR DAMAGES RELATING TO DEATH OR PERSONAL INJURY
IN JURISDICTIONS WHERE SUCH DAMAGES MAY NOT BE DISCLAIMED AS A MATTER OF LAW) OR
LOSS OF SAVINGS, REVENUES OR PROFITS, UNDER ANY LEGAL THEORY, SUSTAINED BY
END-USER OR BY ANY OTHER PERSON IN CONNECTION WITH PRODUCTS. THIS LIMITATION
CANNOT BE WAIVED OR AMENDED BY ANY PERSON AND WILL BE EFFECTIVE EVEN IF SWISSRAY
AMERICA, INC. OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF, OR MIGHT
HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.
36
