Execution
Copy
CONFIDENTIAL PORTIONS OF THIS
AGREEMENT DESIGNATED BY ASTERISKS (*) HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
EXCLUSIVE
MARKETING AGREEMENT
This Agreement is effective as of July 15, 2009
by and between Cardio Vascular Medical Device Corp., a company
organized and existing under the laws of the State of Delaware
listed on the OTCBB under Ticker CVSL (the “
Marketing Arm ”), and Elgressy Engineering Services
(1987) Ltd., a company incorporated in the State of Israel with
principal place of business located in 16 Schechterman Street,
Industrial Zone Netanya (hereinafter “ Elgressy
”); each of the Marketing Arm and Elgressy may be referred to
as a " Party " and collectively as the " Parties
".
RECITALS
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Elgressy is engaged in the business of designing
and manufacturing products for cooling tower water treatment
systems, parts of which currently are either patented or
have patents pending (the " Products ") and desires that the
sale and use of such Products be actively and diligently promoted
in the Territory and in the Fields (both as defined below);
and,
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The Marketing Arm desires to actively and
diligently promote the use of the Products in the Territory and in
the Fields, with the aim of locating customers in the Territory and
in the Field and entering into Lease Agreements or Sale Agreements,
as defined below, for the Products with such customers.
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IN CONSIDERATION OF THE MUTUAL BENEFITS TO BE
DERIVED HERETO AND MUTUAL AGREEMENTS HEREIN, THE PARTIES, INTENDING
TO BE LEGALLY BOUND, HEREBY AGREE AS FOLLOWS:
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" Additional Installation " means as
defined in Section 3.12 below.
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" Affiliate " means all persons and
business entities that now or hereafter, directly or
indirectly, i) control, or ii) are owned or controlled by, or iii)
are under common control of such Party.
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" Agreement " means this document and any
annex, exhibit, attachment, schedule, addendum, or modification
hereto, unless the context otherwise indicates.
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" Claims " means any and all costs,
losses, liabilities, damages, lawsuits, judgments, claims, actions,
penalties, fines and expenses (including, without limitation,
interest, penalties, reasonable attorneys’ fees and all
monies paid in the investigations, defense or settlement of any or
all of the foregoing).
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" Confidential Information " means any
invention, know-how or idea of a Party hereto or any other
scientific, business, technical or financial information of Party
hereto including any proprietary information relating to the
Products or the business of a Party hereto, its financials and
business, marketing and sales plans that may be divulged to the
other Party in the course of the performance of this Agreement
provided however, that any of the above which is either (i) already
known to the disclosing Party at time of its disclosure; or (ii)
becomes publicly known through no wrongful act of the disclosing
Party or as a result of a breach of this Agreement; or (iii)
received from a third party free to disclose it to the
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disclosing Party and without any
obligations to keep confidential; or (iv) communicated to a third
party with express written consent of the other Party, shall not be
deemed to be Confidential Information.
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" Customer ” means a lessee or
purchaser(s) of Products pursuant to a Lease or a Sale Agreement
under the Revenue Based Model (as defined in Section 9).
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" Field " means any and all types of
power plants in the United States (the “Power Plants
”) or the hotel chains set forth in Schedule1.8
hereto, in the United States (the " Hotels ");
the Power Plants and the Hotels are hereinafter collectively
referred to as the " Fields ".
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" Initial Installation " means as defined
in Section 3.12 below.
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" Installation " means to install and
execute the initial operation of a Pilot Products and/or the
Products (as the case may be) at the Customer's
facility.
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" Intellectual Property Rights " means
any and all patent and patent application rights, copyrights, moral
rights and any other rights in works of authorship, rights to
trademarks and service marks and applications, and all other
intellectual property rights in connection with inventions,
improvements, designs, configurations, ideas, concepts,
innovations, know how, drawings, schematics, original works of
authorship, formulae, concepts, techniques, methods, systems,
processes, compositions of matter, software, databases and mask
works; all of the foregoing, in any jurisdiction, whether or not
patentable, copyrightable or protectable as trade secrets,
irrespective of whether registered as a patent, copyright,
trademark or in another form, and irrespective of whether
constituting a commercial, professional or trade secret, including,
without limitation, with respect to Elgressy, the Manufacturing
Technology and the Production Data Package.
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" Lease Agreement " means a lease
agreement entered into by the Marketing Arm or a subsidiary
thereof, with a Customer, for the lease of the Products, for a
period of up to ten (10) years.
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" Lease Price" means the
total consideration paid by the Customer in connection with the
lease of the Products.
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" Manufacturing Technology "
means hardware, software, inventions, data,
trade secrets, works of authorship, know-how, methods and
methodologies, inventions, ideas, processes and practices,
technical data, drawings, formulations, technical reports,
operating and testing procedures, instruction manuals, raw material
or production specifications, computer software, the results of
research and development work, whether in hard copy or in computer
held form, including without limitation the Production Data Package
and all Intellectual Property Rights underlying the
Products;
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" Material Breach " a material breach of
this agreement shall be a default of a Party under Sections 3.3(
'Non-competition ), 3.15 (' Title to Modifications
'), 4.15 (' Elgressy IP rights ') and any other
breach which a Party fails to rectify, if rectifiable, within a
period of thirty (30) days after receipt of a written notice of
default. In order to remove doubt, failure to reach the sales
targets whether pursuant the Short Marketing Plan or the Five Year
Marketing Plan will not be considered a Material Breach.
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“ Pilot Product ” means as
defined in Section 4.5 below.
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" Product " means as defined in the
recitals above.
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“ Production Data Package ”
means the design, engineering, functional and technical
specifications, bill of materials and testing procedures for the
Products, including net lists, schematics, enhancements, designs,
formulae, processes, drawings, routines, subroutines, techniques,
concepts, computer software programs or applications (in both
source code and object code form), flow charts, diagrams, work
product and other materials or any types whatsoever, know-how, and
tangible or intangible information or material, including third
party software to the extent permitted by law or
contract.
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" Regulatory Requirements " means any
laws, rules, regulations, certifications and standards under any
applicable law or that are promulgated or provided by a
governmental or regulatory agency, as they may be from time to
time, which apply to or are required for certain activity in
connection with or arising out of this Agreement.
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A “ Sale Agreement ” means an
agreement for the sale of the Products entered into by the
Marketing Arm or its subsidiary with a Customer.
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" SLA " means a service level agreement.
" Elgressy SLA " means the SLA which sets forth the level of
service Elgressy is required to provide to the Marketing Arm, and
is attached hereto as Schedule 1.21A . " MA SLA "
means the SLA which sets forth the minimum level of service the
Marketing Arm, directly or indirectly, is required to provide to a
Customer and is attached hereto as Schedule 1.21.B
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" Territory " means (i) Germany and (ii)
the states of the United States of America listed in Schedule
1.22 hereto (the " States ").
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Appointment. Elgressy hereby appoints the Marketing Arm as:
(1) its exclusive independent sales and marketing representative
for the Products in the Territory and the Fields, and (2) its
exclusive service provider relating thereto, and the Marketing Arm
hereby accepts such appointments, all subject to the terms and
conditions of this Agreement.
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Activity Outside Territory.
The Marketing Arm shall be entitled
to act outside the Territory and/or the Fields with respect to
marketing and sale of the Products, only with the prior written
consent of Elgressy, for each sale.
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The Marketing Arm may use subcontractors and/or
subagents including the Marketing Arm’s subsidiaries (“
Subagent(s) ”), to promote the sale, lease and use of
the Products and for the Installation (as defined below) and the
supply of the after sale technical and other required services in
the Territory and/or in the Fields; provided that : (i) the
Marketing Arm shall provide Elgressy with the name, address and
field of activity of any such Subagent, (ii) all agreements with
Subagents relating to the Products (“ Subagent’s
Agreement(s) ”) shall be consistent with this Agreement
and shall include the provisions attached hereto as Schedule
2.3.1 , and (iii) Elgressy shall have the right to demand that
the Marketing Arm replace any Subagent in the event of a breach of
this Agreement and/or the Subagent's Agreement, if such breach is
not cured within sixty (60) days of receiving a notice by the
Marketing Arm from Elgressy regarding such breach. It is agreed
that the Marketing Arm shall consult Elgressy regarding the
criteria which may be applied for selecting local Subagents. The
Marketing Arm shall inform Elgressy, as soon as practical, of it
becoming aware, of any breach by Subagent which constitutes a
breach of this Agreement or a breach of a Subagent's Agreement,
affecting Elgressy’s IP rights . The Marketing Arm shall
assist Elgressy in protecting Elgressy’s rights against such
acts and infringements.
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The Marketing Arm shall require its Subagents,
acting on behalf of the Marketing Arm with respect to this
Agreement, to purchase and maintain insurance at all times
throughout the term of the Subagent's Agreement, at such Subagent's
own account, with respect to the operation of the Products (“
Subagent's Insurance Policies ”). The
Subagent's Insurance Policies will have terms and conditions and a
limit of liability in an amount as shall be advised by an
independent insurance expert, to be appointed by the Marketing Arm
at no expense to Elgressy. The Subagent's Insurance Policies shall
name each of the Marketing Arm and Elgressy as additional insured
or loss payee.
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ADDITIONAL UNDERTAKINGS OF THE MARKETING
ARM
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The Marketing Arm undertakes that it will make
reasonable commercial efforts to promote the sale/lease and use of
the Products in the Territory and in the Fields.
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The Marketing Arm agrees to make reasonable
commercial efforts to carry out the marketing, promotion and
sale/lease of the Products in the Territory and in the Fields, by
different means, at its sole discretion, but in no case less than
reasonable commercial means pursuant to the Short Marketing Plan
and the 5 Year Marketing Plan (both as defined below). Any and all
marketing, promotional, sales and administrative costs, including
any and all costs associated with attendance at or participation in
trade shows, congresses or similar conferences, shall be borne by
the Marketing Arm, unless otherwise is expressly stated in this
Agreement.
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Non-competition. The Marketing Arm declares that it is not
currently selling or promoting products that are competitive with
the Products in the Territory and/or the Fields, and that the
Marketing Arm does not have, nor during the term of this Agreement
will it have, any conflict of interest or otherwise be subject to
any restriction or third party agreement that would substantially
adversely impair or prevent the Marketing Arm from representing the
Products in the Territory and in the Fields faithfully and
diligently, and during the term of this Agreement and for a period
of two (2) years following its termination, will not
sell or promote products that are competitive with the
Products.
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It is hereby clarified that for the purposes of
this Section 3.3 " products that are competitive with the
Products " means products with the same functionality of the
Products and that an end user customer may consider purchasing as
an alternative to the Product for the same purpose, and further
provided that such products, which may be
competitive, utilize electro-chemical technologies for
water purification.
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Marketing and Sales Plan . Prior to the signing of this Agreement the
Marketing Arm has provided Elgressy with a detailed marketing and
sales plan for the first year, including quarterly sales targets
(“ Short Marketing Plan ”). The signing
of this Agreement by the parties hereto is deemed consent of the
Parties to the content of the Short Marketing Plan. The Short
Marketing Plan includes the following:
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Each of the sales targets set forth in the Short
Marketing Plan or annual targets for the Five Year Marketing Plan,
respectively, shall be deemed to be achieved, if the annual
aggregate Contract Value of the agreements relating to each of such
Territory or Field entered into by the Marketing Arm and/or any of
its Subagents within the relevant year, shall be equal to or
greater than * with respect to the Short Marketing Plan and 75% of
the sales target for each year specified in the Five Year Marketing
Plan.
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For the purposes of this Agreement the te rm
"Contract Value " means the minimum projected total aggregate
amount of all income to be generated over 12 (twelve) months from
signing a specific contract, in accordance with the terms of that
contract, commencing upon the signing of such specific contract
regardless whether such period will extend beyond the year with
respect to which sales targets are being calculated, according to
the terms of such specific contra ct; provided howeve r that
if the actual total aggregate amount of all income
generated, with respect to each Lease and Sale Agreements - during
the twelve (12) months period from its signing, from Lease and Sale
Agreements entered into during the relevant (relevant for the
purposes of sale target calculations) year is less than the amounts
specified in this Section 3.4.6 above then the said sales targets
shall be deemed not to have been achieved, and the provision of
Section 3.8 below shall apply, including the Marketing Arm Option,
as defined therein.
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It is further clarified and agreed for the
purposes of assessing whether a sales target is met,
that:
(i) if such Lease or Sale Agreement has been
cancelled - then the shortfall
projected income as from the cancelation date shall be deducted
from the calculation as to whether a performance target has been
achieved with respect to the relevant year (it is hereby clarified
that any income due or actually generated from a cancelled contract
shall be taken into account when calculating Contract Value and
sales targets, respectively, for the purposes of this Agreement);
and
(ii) notwithstanding the above, if such Lease or
Sale Agreement has been cancelled and such cancellation is caused
by Elgressy's delay in the supply of the Products and/or Elgressy's
breach of its undertakings under this Agreement and/or as a direct
result from any act or omission of Elgressy, Elgressy's agents
and/or representatives and/or any third party on Elgressy's behalf
the aggregate projected income originally anticipated from such
Lease or Sale Agreement shall be deemed to be actually generated
for the purposes of determining whether a sales target is
met.
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Hotels and States . If the Marketing Arm achieves the aforesaid
targets with respect to the Chosen Hotels (both Pilot targets and
sales targets), then in the following year the Marketing Arm shall
be entitled to the rights granted under this Agreement with respect
to two additional Hotels and to one additional State, out of the
list attached hereto as Schedule 1.8, and this mechanism
shall continue in the years thereafter, granting the Marketing Arm
the rights to sell to two additional Hotels a year, and one
additional State for each subsequent year, subject to
its meeting the previous year's sales target for such Chosen Hotels
or Chosen States (including for the States added as aforesaid), as
applicable.
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Five Year Marketing Plan.
Attached to this Agreement as
Schedule 3.6 , are the five year sale targets including
projections for each of the different States,
Territories and Fields, for the first five (5) years
following the first calendar year of this Agreement (the “
Five Year Marketing Plan ”).
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Updated Targets. It is agreed that each of the
annual sale targets in the Five Year Marketing Plan, for
subsequent five (5) year periods and thereafter shall be at
least *than the targets for the previous calendar
year.
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Non-Performance. If the Marketing Arm does not meet at least 75%
of its annual targets as set out in the Short Marketing Plan and in
the Five Year Marketing Plan and/or with regard to the Pilot
targets (“ Non-Performance ”), as updated from
time to time in accordance with Section 3.7 above, then subject to
Marketing Arm Option, as defined below, (i) Elgressy may at any
time and in its sole discretion, terminate the Marketing Arm's
rights to exclusivity with respect to the Territory and/or
the Field regarding which the Non-Performance occurred, by giving
ninety (90) days written notice to the Marketing Arm. For as long
as Elgressy has not granted any third party exclusive rights for
such Territory or Field, the Marketing Arm will be allowed to
continue and operate on a non-exclusive basis in such Territory or
Field, or part thereof, which is not subject to third party
exclusivity rights) as the case may be. Upon the appointment by
Elgressy of an exclusive representative or agent in a Chosen State
or Germany or Field, the Marketing Arm will have no further rights
in such Chosen State or Germany or Fields, as the case may be,
except under existing Sales or Lease Contracts. The Marketing Arm
shall not have any claims and shall not be entitled to any remedy
against, and compensation from, Elgressy or anyone acting on its
behalf, in connection with any such termination of rights. It is
hereby clarified, that if the Marketing Arm does not achieve 75% of
the aforesaid annual targets with respect to the States, it shall
lose its exclusivity with respect to all the States. However
notwithstanding the above, if an annual target is not met, the
Marketing Arm shall have the option to pay Elgressy a cash payment
equal to Elgressy's share in the shortfall with regard to 75% of
the relevant annual target, in order to keep its exclusivity in the
aforementioned Territories or Fields (the " Marketing Arm
Option "). The Marketing Arm Option must be exercised and
funded within sixty (60) days of the end of a relevant year, after
which it shall expire.
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Notwithstanding the above, in the event that (i)
the Marketing Arm did not exercise the Marketing Arm Option, and
(ii) Elgressy has not granted any third party exclusive rights for
any Chosen State or Germany or Field, and (iii) in the year
following the Non-Performance, the Marketing Arm has achieved the
relevant targets for a Chosen State or Germany or Field for the
year for which Non-Performance occurred and for the following year,
the exclusivity shall be reinstated for such Chosen State or
Germany or Fields, as the case may be and the above paragraph of
this Section 3.8 shall apply. For the purpose of this section, the
target for the Chosen States shall be reduced proportionally for
the Chosen States in which exclusivity has
been granted by Elgressy to a third party. (i.e., if Elgressy
grants exclusivity with respect to one of the Chosen States, and
assuming there are three Chosen States, the annual
target with respect to the Chosen States left
shall be reduced from *
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Subject to any applicable law and regulation,
the Marketing Arm shall provide Elgressy with a written report, not
later than thirty (30) days following the completion of each
quarter, indicating the Marketing Arm’s sales/leases in the
Territory in the previous calendar quarter, with the
Customer’s name and address. The Marketing Arm will also
provide Elgressy copies of all agreements, in connection with the
Products, which were entered into with Customers and
Subagents. The Marketing Arm shall maintain complete and accurate
records of the location, quantities, catalog number, place of sale
in the Territory and lot numbers of all shipments as part of its
in-house tracking program for a period not less than the longer of:
(i) three (3) years after the last Product was dispatched by
Elgressy to the Marketing Arm, and (ii) the period required under
any applicable law or regulation.
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In addition, the Marketing Arm shall provide
Elgressy with: (i) a report once every calendar quarter specifying
the Revenues actually received during the previous calendar quarter
for which payments are due to Elgressy, signed by the Marketing
Arm's Chief Financial Officer or Chief Executive Officer, and (ii)
not later than twenty one (21) days following the publication of
the Marketing Arm's annual a copy of financial statements as
published subject to the Marketing Arm being a corporation whose
stock is publicly traded.
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It is hereby clarified, that for the purpose of
this Agreement the term "Revenues" shall mean any and all payments
actually received by the Marketing Arm from Customers and Subagents
(with regard to Products).
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Lease Agreements . The Marketing Arm undertakes
that all Lease Agreements shall be consistent with this Agreement
and shall include the following provisions: (i) all Customers shall
be connected to Elgressy’s control center, if available, and
(ii) in the event that the Marketing Arm shall breach the Elgressy
SLA which breach shall not be cured within thirty (30) days from
the receipt of written notice from Elgressy to this effect, the
Lease Agreement (including all rights and obligations thereof) will
be assigned by the Marketing Arm to Elgressy or its designee, upon
Elgressy’s written request to such assignment. The Marketing
Arm shall provide Elgressy with an electronic copy of all signed
Lease Agreements. The aforementioned provisions shall apply
mutatis mutandis to any Sales Agreement. It is
hereby agreed that the Marketing Arm shall make its best efforts
that a Lease Agreement shall not include any provision with respect
to penalty in case of delay in delivery; however, in the event that
a Customer insists on such a provision in its Lease Agreement or
Sale Agreement, such provision in the Lease Agreement or Sale
Agreement will be subject to Elgressy's prior written consent and
approval (" Special Provision "), in order for Elgressy to
be deemed liable for payment thereof.
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Permits and Approvals. If any Installation (as defined below) requires
any permits and approvals under the jurisdiction of the Territory
and/or the Field, as applicable, the Marketing Arm shall obtain
such permits and approvals at its sole expense - all, subject to
Section 6 below.
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Additional Installations . With respect to any Installation
following the first two Installations (" Additional
Installations ") in each of Germany, each Field and the States
(together) the Marketing Arm, by itself or through suitable
contractors located by the Marketing Arm (" Contractors "),
shall execute the Installation, as well as provide
technical support to the Customers for the entire Lease Agreement
period, subject to the terms and conditions of such Lease Agreement
and this Agreement. All the costs and
expenses relating to these Additional Installations will be borne
by the Marketing Arm. It is clarified that the first two
Installations in each of Germany, each Field and the States
(together) (8 Installations in total) (the " Initial
Installations ") shall be carried out according to Section 4.8
hereto.
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Subagents/Contractors. Any agreement with a Subagent and/or Contactor
shall include a provision according to which any such agreement,
including all rights and obligations thereof, may be assigned by
the Marketing Arm to Elgressy or its designee, subject to
Elgressy's prior written consent.
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Service Warranty . Upon Customer's request only,
the Marketing Arm shall provide each Customer with a service
warranty consistent with the MA SLA.
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Title to Modifications .. The Marketing Arm agrees that Elgressy shall
have any and all right, title and interest in and to any
modifications, design changes or improvements arising directly out
of or in direct connection to the Products' technology suggested by
the Marketing Arm, its employees, Subagents, Customers, or other
persons, without the payment of any additional consideration
therefor either to any of such persons, except to the extent, and
then only to the extent, required by applicable law otherwise. The
Marketing Arm will execute (and/or cause the execution) of all
reasonable documents and take (and/or cause to be taken) all other
reasonable action necessary to vest all such right, title and
interest in such modifications, design changes or improvements in
Elgressy; provided however that any costs and expenses incurred by
the Marketing Arm and/or its Contactor or Subagents with respect to
this Section shall be borne and/or reimbursed by Elgressy, subject
to its prior written consent. For removal of doubt the Marketing
Arm and/or its Contractor and/or Subagents' undertakings under this
Section shall be subject to such reimbursement by Elgressy, and the
reasonable availability of the Marketing Arm and/or is Contractor
and/or Subagent's.
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ADDITIONAL OBLIGATIONS OF
ELGRESSY
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Sales Support . Elgressy shall provide the Marketing Arm with
any and all sales and marketing information available with regard
to the Products and shall furnish, without charge, such promotional
literature, and other materials pertaining to products as are
available from time to time. Elgressy hereby authorizes the
Marketing Arm and any of its employees and Subagents to use such
material and information in connection with the Products as well as
with any other material and information available on the Elgressy
website as may be updated from time to time.
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Control Center . Subject to the terms of this Agreement, the
Lease Agreements and the Sale Agreement, Elgressy hereby undertakes
to (i) enable the connection of each and every Customer's Product
to its control center within thirty (30) days following such
request from the Marketing Arm and through provision of the
Products with the relevant functionality to allow such connection;
(ii) to provide control, malfunction assessments and diagnosis in
real time pursuant to the Elgressy SLA for a period equal to the
term of each Lease Agreement.
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Warranty and Process Guarantee.
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THE WARRANTIES SET FORTH IN THIS SECTION 4.3 ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ALL OF WHICH
ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED BY ELGRESSY,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
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The warranties and performance guarantee in this
Section 4.3 do not extend to any Product that is modified or
altered, is not maintained according to Elgressy’s
maintenance recommendations attached hereto as Schedule
4.3.2 (the " Maintenance Recommendations "), is
operated, handled or stored in a manner other than that specified
in the Maintenance Recommendations (as such recommendations are
reasonably amended by Elgressy from time to time with respect to
its customers generally), has its serial number removed or altered
or is treated with abuse, negligence or other improper treatment.
.
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Product Warranty . Elgressy warrants and represents, for a period
of 18 (eighteen) months commencing upon installation of a Product
at the Customer's premises (the " Warranty Period ") that
the Products (including any spare parts) shall be free from defects
in material and workmanship and shall comply with the
specifications. The Marketing Arm will provide a back-to-back
warranty to the Customer in the States and the Fields. In Germany,
the Marketing Arm shall provide the Customers with an Elgressy
product warranty unless otherwise demanded by Customer, and
Elgressy undertakes to provide such Product warranty
.
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Warranty for Repairs . Without derogating from the warranty provided
in the preceding clause, Elgressy warrants and represents that any
repair of a Product shall be free from material defects in material
and workmanship, and shall comply with the applicable
specifications, for a period of eighteen (18) months from the date
of repair of such Product.
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Performance Guarantee. Elgressy shall provide the Marketing Arm with a
performance guarantee for the Warranty Period, with respect to the
Product, as may be adjusted on a project-by-project basis, upon
receiving the Customer's specifications, whereby Elgressy shall
guarantee the due performance of the Product pursuant to the
specifications and Customer's requirement, as set forth in the
request for quotation, as may be thereafter amended by the consent
of the parties . The Marketing Arm will provide a
back-to-back performance guarantee to the Customer in the States
and the Fields. In Germany, the Marketing Arm shall provide the
Customers with an Elgressy performance guarantee, and the latter
undertakes to supply such performance guarantee
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Remedies . Should there be any defect covered by the
warranties and guarantees set forth in Sections 4.3.3 to 4.3.5
above, Elgressy shall, at its own expense, repair or replace the
non-conforming Product pursuant to and within the time frame set
forth in the Elgressy SLA. It is understood by the Parties that
neither the Marketing Arm nor any of its Subagents shall be
entitled to any other remedy from Elgressy under such warranties
and guarantees unless otherwise expressly stated herein).
Notwithstanding the aforesaid, it is hereby clarified, that in the
event of a malfunction or breakdown of a Product within 30 days of
Installation, in a way that Elgressy is not able to repair or
replace such Product, Elgressy shall (i) remove the Product from
the Customer’s premises, at its own expense, and (ii) will
return to the Marketing Arm the consideration paid for such Product
and this shall be the sole and exclusive liability of
Elgressy.
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SLA. All of Elgressy's obligations hereunder shall be
performed at the times and under the terms prescribed in the
Elgressy SLA.
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Products Supply . Elgressy undertakes to supply,
during the term of this Agreement the Products to the Marketing
Arm, for the consideration set out in Section 5. In addition,
Elgressy shall supply to the Marketing Arm, upon the latter’s
request and free of any consideration, two (2) pilots of the
Product (“ Pilot Products ”), provided that (i)
the cost of each of these Pilot Products based on the price set
forth in the Price List (as defined below) (in this Section only,
the " Cost ") shall not exceeed* and (ii)
Installation of the Pilot Products shall be as provided
for Initial Installations or Additional Installations, as
applicable, and any, additional expenses such as shipment shall not
be borne by Elgressy and (iii) the Lease/ Sale Agreement with such
Customer shall include a provision according to which the Customer
undertakes to lease/purchase the Product within thirty (30) days of
Installation, if, the Pilot Products fulfils the performance
criteria set out in such Lease Agreement or Sale Agreement. It is
hereby clarified, that (a) in the event that the
Marketing Arm requires Pilot Products with a Cost greater than *
Elgressy shall be entitled to receive payment of the difference
between the Cost of the Pilot Products required and * (b) upon the
reimbursement of Elgressy for a Pilot Product, the Marketing Arm
shall be entitled to a replacement Pilot Product such
that at all times the Marketing Arm shall have at its disposal two
(2) Pilot Product installations.
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Technical Support. Elgressy (directly or through its designees)
undertakes to provide the Marketing Arm and the Customers, as may
be required by the Marketing Arm and/or by the Customers, with
technical support by e-mail or telephone, in accordance with the
Elgressy SLA. In the event of a malfunction or breakdown of a
Product during the Warranty Period and subject to the above
Warranty, Elgressy undertakes that it will, at its expense, solve
any problems that the Marketing Arm's technical support or the
Subagents and Contractors are (i) unable to resolve despite the
reasonable efforts by duly trained personnel, or (ii) unauthorized
to resolve pursuant to this Agreement, or (iii) if resolved by them
would void the warranty granted by Elgressy to the Product, and in
such cases, to repair or replace such Product (or
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