EXHIBIT 10.3
MARKETING, SALES AND SERVICES AGREEMENT
This Marketing, Sales and Services Agreement ("Agreement") is
entered
into this ___ day of _______200_ (the "Effective Date") by and
between DOBI
MEDICAL INTERNATIONAL, INC., a Delaware corporation, with its
principal place of
business located at 1200 MacArthur Blvd., Mahwah, NJ 07430, USA
(hereinafter
referred to as "DOBI Medical") and
_________________("Distributor"), with its
principal place of business located
at_________________________________________.
WHEREAS, DOBI Medical is in the business of developing,
manufacturing
and distributing various medical products; accessories and
supplies; and
WHEREAS, Distributor is in the business of marketing, selling,
and
servicing various medical services, accessories and supplies within
the
Territory as specifically set forth in Schedule A; and
WHEREAS, Distributor and DOBI Medical have agreed to enter into
an
arrangement whereby DOBI Medical will appoint Distributor as its
authorized
Distributor within the Territory for the purpose of marketing,
selling and
servicing the single use products owned by DOBI Medical to be sold
to
Distributor for resale to its customer end users, subject to the
terms and
conditions set forth herein; and
NOW THEREFORE, in consideration of the mutual promises and
representations made
between the parties in this Agreement, Distributor and DOBI Medical
hereby agree
as follows:
1. Definitions
a) "Marks" include all words, symbols, insignia, devices,
designs,
trade names, trademarks, service marks, or combinations thereof,
owned or
licensed by DOBI Medical as identifying its products, software,
documentation,
manuals, systems, devices, parts, and services.
b) "Patents" include one or more patents issued or applications
pending
in the United States Patent and Trademark Office or in any foreign
jurisdiction
which are owned or licensed by DOBI Medical or an affiliate of DOBI
Medical.
c) "Products" include the single use medical imaging system and
related
Software, installation, training, service and other manuals and
documentation,
accessories and options, supplies, spare and replacement parts, and
related DOBI
Medical's copyrights, Marks and Patents, as offered for sale or
license by DOBI
Medical as a complement to mammography, and as set forth in
Schedule B attached
hereto, and as may be amended from time to time by mutual written
agreement.
DOBI Medical may, but is not obligated to develop any subsequent
updates,
upgrades, improvements, other enhancements, new models
incorporating or based
upon such technologies, features, and/or operating system. If it
does, DOBI
Medical reserves the right to require additional licenses and
charge different
fees with different discounts off published listed retail
prices.
d) "Purchase" shall have the meaning given to it at Section
3.c).
e) "Services" include installation, hardware maintenance and
repair,
support services, consulting, training, and all materials and
other
documentation with respect to the Products sold by Distributor
under the terms
of this Agreement.
f) "Software" includes ComfortScan software embedded in the
ComfortScan
system as fixed, unaltered, bundled and originally sold by DOBI
Medical, and not
removable in normal operation, ii) the ComfortView CD reader
software, iii)
related manuals and firmware, and iv) any subsequent releases or
upgrades
associated with the Software as may be made available from time to
time by DOBI
Medical.
g) "Territory" means only the geographically bounded area(s) as
specifically set forth in attached Schedule A.
h) "Unit" shall have the meaning given it at Section 3.a).
2. Grant of
Distributorship License
a) Appointment and Scope. Provided Distributor is in compliance
with
this Agreement, including without limitation, Distributor meeting
the minimum
purchase requirement obligations per year as mutually agreed to and
set forth in
Schedule D attached, DOBI Medical, subject to Section 3 a) below,
hereby grants
a limited, non-transferable (subject to Section 2 d) non-exclusive
license to
Distributor as DOBI Medical's authorized Distributor within the
Territory with
respect to the promotion, marketing, sales and servicing of
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those single use Product(s) that are specifically set forth in
Schedule B, (and
for no other products or services), for resale to its
subdistributors, if any,
and customer end users within the Territory.
b) Acceptance. Distributor understands that DOBI Medical has
expended
and will continue to expend substantial efforts and funds to secure
and retain
public goodwill toward DOBI Medical, the Products, Services,
copyrights and
Marks, and Distributor recognizes the vital interest to DOBI
Medical for it to
be well represented within the Territory in accordance with the
terms and
conditions of this Agreement, including without limitation, the
importance for
Distributor's customers to be trained in the proper functioning,
use and
operation of the Products. Distributor hereby accepts its
obligations under this
Agreement, and undertakes, at its expense, to use its best efforts
to promote
the sales and servicing of the Products for resale to its customers
end user
within the Territory in accordance with the terms and conditions of
this
Agreement.
c) Sublicense to Customers. For so long as Distributor is in
compliance
with this Agreement, DOBI Medical hereby grants a limited,
non-exclusive,
non-transferable license to sublicense to its customer end users
the perpetual
right to the use of the Products in connection with the Software
for the single
use and single user for which the Products are originally sold, as
more fully
described in the Customer End User Agreement attached hereto a
Schedule E.
d) Sublicense to Subdistributors. For so long as Distributor is
in
compliance with this Agreement, Distributor may also, after
exercising due
diligence, grant sublicenses under this Agreement by appointing
qualified
subdistributors within the Territory who in the judgment of
Distributor are well
recognized and of good reputation, and who are experienced in
selling medical
devices, provided that: i) any such sublicense shall be pursuant to
and
consistent with all the terms and conditions of this Agreement, ii)
DOBI Medical
has approved in writing the form of any sublicense agreement that
Distributor
intends to utilize, which form must conform to this Agreement in
all material
respects, and to which Distributor may not waive, alter, or change
any provision
of the approved sublicense agreement without the prior written
approval of DOBI
Medical, iii) Distributor shall at all times remain primarily
liable to DOBI
Medical for all obligations it delegates hereunder to any such
subdistributor,
including without limitation, any payment of fees, reporting,
marketing, sales,
service, training, intellectual property rights and proper usage
thereof,
minimum sales quotas, and certification obligations contained
herein, iv) the
term of any sublicense agreement conforms in all respects to the
remaining term
of this Agreement, and vi) Distributor sends a copy of any such
sublicense
agreement, and any subsequent amendments or modifications, together
with a
complete and accurate English translated copy, to DOBI Medical and
a copy of any
notice of default to any sublicense. Distributor acknowledges and
agrees that it
will, at its sole cost and expense, promptly and strictly enforce
the terms and
conditions of any sublicense agreement against any such
subdistributor, and
further, that any default not cured within the cure period of any
its
sublicensees will be deemed a default of Distributor under this
Agreement, and
subject to termination rights of DOBI Medical under Section 15 of
this Agreement
in the same manner as if Distributor had defaulted. Nothing shall
preclude DOBI
Medical's right to enforce any rights it may have in law or in
equity directly
against any sublicensee of Distributor, however, nothing shall
require DOBI
Medical to exhaust any legal or equitable remedies it may have
against the
sublicensee before seeking legal recourse against Distributor.
3.
Distributor's Obligations
a) Within thirty (30) days after the Effective Date of this
Agreement,
Distributor will identify a clinical site within the territory,
which must be
approved by DOBI Medical, whereby Distributor will promptly
commence a market
study to meet Distributor's requirements to begin commercial sales
within the
Territory.
b) Within sixty (60) days after the Effective Date of this
Agreement,
Distributor shall submit to DOBI Medical a marketing plan for the
Territory.
Distributor agrees to use its best commercial efforts to actively
promote the
sale of the Products within the Territory, including developing and
executing a
comprehensive marketing plan, the use of direct marketing and media
campaigns,
and attending and promoting the Products at trade shows and other
conferences.
Distributor shall only use the Marks and promotional materials as
approved by
DOBI Medical in advance (which approval shall not be unreasonably
withheld or
delayed) of use and in accordance with DOBI Medical's policies. In
carrying out
its obligations herein, Distributor agrees to exercise its best
efforts to avoid
deceptive, misleading, or unethical practices that may be
detrimental to the
goodwill, name, and reputation of DOBI Medical, its Products and
Services, its
Patents, its Marks, and its other products and services.
Distributor will not
make any representations, warranties, or guarantees to any
customers or
prospective customers concerning the Products or anything else
relating to DOBI
Medical that are inconsistent with or are in addition to those
expressly set out
in writing by DOBI Medical.
c) Minimum Purchase Requirements. Distributor shall purchase from
DOBI
Medical and DOBI Medical shall have received payment in full in US
currency for
at least the minimum number of Products on an annual base with
quarterly
reviews, as mutually agreed to by the parties and set forth in
Schedule D
attached. Time is of the essence, and, but for Distributor's
promise and
representation to timely meet all the obligations set forth in this
Section and
Schedule D, DOBI Medical would not have entered into this
Agreement. "Purchase"
shall mean ordering the Products on or before the last day of such
period with
payment made in full to DOBI Medical as mutually agreed to by the
parties.
Purchases of Products made in excess of the minimum purchase
requirement will be
credited towards the minimum purchase requirements for subsequent
periods.
Failure to meet the minimum purchase requirement shall give rise to
DOBI
Medical's right to terminate this Agreement pursuant to Section
15.a) (v) below.
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d) Account Administration and Reports. Upon execution of this
Agreement, Distributor agrees to designate an Account Manager
responsible for
the oversight of this Agreement and for all administrative and
non-technical
matters, including keeping DOBI Medical informed about
Distributor's marketing
plan and execution, current market trends and conditions within the
Territory,
customers' comments about the Products and Services, and major
negotiations and
prospective sales possibilities. Distributor through its Account
Manager shall
provide by electronic media quarterly, or more often if requested
by DOBI
Medical all sales forecast and service/installation reports.
Product Service and
installation reports shall include the customer installed base by
customer name,
address, phone, fax and email numbers, contact person, Product
identity (e.g.,
description and model number), site where installed, date
installed, serial
number, and such other information as DOBI Medical may reasonably
request, or as
may be made necessary by reason of any federal, state, local or
foreign
governmental entity or industry requirement.
e) Training. Distributor, at its own expense, shall designate a
number
of its employees as reasonably determined by DOBI Medical and
Distributor to
attend (i) DOBI Medical's applications training program, and, (ii)
field service
technician program at a location(s) to be determined by DOBI
Medical, taking
into consideration the region where Distributor is located. All
classes and all
materials will be in English. All such designated trainees shall be
reasonably
experienced in the sales and servicing of other medical imaging
devices and must
attend and successfully complete the applicable training program to
DOBI
Medical's reasonable satisfaction, including written, oral and
skills testing,
in order to become certified. Distributor shall employ at least two
certified
applications trainers and two certified field service technicians
at all times,
and Distributor shall promptly replace any such employee whom DOBI
Medical
determines in its sole discretion is no longer qualified with
another certified
employee. Distributor is responsible for all compensation,
insurance, travel and
living expenses of its employee trainees, plus, after the initial
training
session for which there is no fee, the payment to DOBI Medical of
$500 per
employee for the first day of training or portion thereof, and $300
per employee
for each additional day or portion thereof for all subsequent
training sessions
after the initial training session. Distributor may train these
persons using
DOBI Medical's approved training program upon DOBI certifying
Distributor's
train the trainer program, and Distributor may certify such persons
so long as
they satisfactorily pass DOBI Medical's standardized test.
(i) Distributor, at its own expense, shall arrange for its
certified trainers to attend additional DOBI Medical's training
sessions in
order to obtain certification for new products and/or retain the
competence
levels necessary to provide applications training to certify
customer end users
of the Products in accordance with DOBI Medical's instructions,
documents, and
policies. Distributor must document all applications training that
it provides
to its customer end users and maintain a current list of certified
customer
technicians. Distributor shall not permit any person or entity to
use the
Product without assurances from the customer that its technicians
will be and
remain certified in the use of the Product.
(ii) Distributor shall cause each trainee to execute and
maintain in effect DOBI Medical's confidentiality, non-disclosure
and
non-compete agreement as a condition for certification, and provide
an original
to DOBI Medical prior to such trainee commencing training.
Distributor agrees to
promptly notify DOBI Medical of any threatened or actual material
breach that it
becomes aware of, and to assist DOBI Medical, at DOBI Medical's
expense, in
enforcing such agreement(s).
(iii) Prior to Distributor's installation of the Product at
the site and the training of its customers' technicians and
physicians,
Distributor shall cause each of its customer end users to execute
two (2)
original Customer End User Agreement on a form as attached hereto
as Schedule E,
and promptly forward both originals to DOBI Medical for DOBI
Medical's execution
and return one (1) original to the customer end user, with a copy
to
Distributor. In the alternative, if DOBI Medical does the
installation, it will
require the customer to sign the Customer End User Agreement,
provide an
original to the customer end user, with a copy to Distributor.
Distributor
agrees to promptly notify DOBI Medical of any threatened or actual
material
breach by any customer end user or any other person or entity
relating to the
subject matter of the Customer End User Agreement that it becomes
aware of, and
to cooperate with DOBI Medical in enforcing any violations or
threatened
violations.
f) Facilities. Distributor shall maintain adequate facilities,
communications services and at least one complete and operational
demonstration
Product along with a reasonable inventory of common replacement
parts, so as to
allow for the prompt delivery and servicing of its customers, as
well as
sufficient personnel and promotional and training materials to at
all times
efficiently operate the business of marketing, selling and
servicing the
Products and otherwise fulfilling the obligations under this
Agreement.
Distributor shall keep its personnel who have a need to know
current and fully
informed on the DOBI Medical Products, their installation and
training,
operation, specifications, maintenance and repair, and
applications. All
Services provided on DOBI Medical Products must be in accordance
with DOBI
Medical's instructions, documents, and policies. DOBI Medical shall
have the
right upon prior notice and at reasonable times to audit
Distributor's
facilities, employees, books and records relating to compliance
with this
Agreement.
g) Quality Control. Distributor agrees to provide the Services to
each
of its customers with respect to the Products in a good and
workmanlike manner
and in compliance with all DOBI Medical specifications, service
manuals and
other publications. Only a certified field service technician with
satisfactory
basic technical skills and training and customer complaint handling
in DOBI
Medical's Products, policies and procedures, and duly certified by
DOBI Medical,
is permitted and authorized to install and service the Products.
Distributor
shall use only authorized, original DOBI Medical replacement parts,
and shall
cause each field service technician to possess all the tools and
then current
technical manuals and updates in order to service and maintain the
Products in
accordance with DOBI Medical's specification, policies, and
procedures.
Distributor shall keep detailed, accurate, and complete
documentation and
records of all field
Page 3 of 22
<PAGE>
installation and service calls, and upon request, forward copies
thereof to DOBI
Medical. All service visits shall be recorded in accordance with
all applicable
legal and regulatory requirements and DOBI Medical's instructions,
documents and
policies. At a minimum, all records shall include the name of the
customer,
location and model number of the Product being serviced, date of
Service, name
of the field service technician servicing the Product, services
performed, and
test and inspection data. All service reports shall regularly be
reviewed by
Distributor for quality assurance, potential reportable events, and
systemic and
safety concerns, and Distributor shall promptly send a report of
each such
incident to DOBI Medical. Distributor shall promptly implement any
programs,
modifications or changes required by any technical bulletins, field
change
notices, and safety notices it receives from DOBI Medical.
h) Product Approval/Registration. As of the Effective Date,
DOBI
Medical is ISO 9001:2000 and ISO 13485 certified, has received CE
Marking for
the Product, and is in the process of seeking approval for the
Product by the
United States Food and Drug Administration ("FDA") for sale in the
United
States. However, Distributor understands that as of the Effective
Date, no DOBI
Medical Product is currently approved by the FDA, and DOBI Medical
does not
guarantee that the Product ever will be approved, and shall not be
legally bound
to receive approval, by the FDA or any other federal or state
agency in the
United States or by any governmental authority of any other
jurisdiction,
foreign or domestic, or by any industry practice or certification
entity.
Therefore, Distributor agrees not to sell any Product in or for use
in any
jurisdiction if such jurisdiction requires the licensing or other
approval of
the Product for sale or use in such jurisdiction, unless and until
such Product
has been duly approved and/or registered for sale and use in such
jurisdiction.
i) Distributor
agrees, at its expense, on behalf of and in the name of
DOBI Medical, to do all things necessary and reasonable to obtain
approval
and/or registration of DOBI Medical's Product from the appropriate
governmental
entities within the Territory as soon as possible. Certified copies
of all
governmental approvals and registrations shall be promptly sent to
DOBI Medical.
Further, if requested in writing by DOBI Medical, Distributor
agrees to fully
cooperate and exercise best efforts to cause its subdistributors
and its
customer end users to cooperate with DOBI Medical, at DOBI
Medical's direction
and expense, to assist DOBI Medical in obtaining and maintaining
any such
approvals, including providing DOBI Medical with proper
documentation of
Distributor's handling of the Product, to assure that DOBI
Medical's Products in
Distributor's possession comply with all orders, rules and
regulations,
including without limitation, those issued by the FDA.
j) Distributor further agrees to complete and submit to DOBI
Medical,
on a quarterly basis, a Product and Service installation report for
each DOBI
Medical Product installed during the previous quarter as required
by the U.S.
Medical Device Directive. Such form will be supplied by DOBI
Medical, and
Distributor hereby agrees to timely complete and submit such
form(s) and any
other additional information or additional forms as may hereafter
be required by
the U.S. Medical Device Directive, and any amendment thereto or
successor
regulations, or as may be required by the FDA, or any other
domestic or foreign
governmental entity.
4. DOBI
Medical's Obligations
a) Marketing Plan. Within sixty (60) days after the Effective Date
of
this Agreement, DOBI
Medical and Distributor will agree to a marketing plan
for selling the
Products within the Territory, which plan shall include DOBI
Medical making
available a marketing and sales training program to
Distributor's sales
team as soon as possible as mutually agreed to by the
parties at no
additional cost to Distributor other than as set forth in
Section 3.d).
b) Investigational Unit. As set forth in 3.a) above, upon
identification of the
approved clinical site for the marketing or clinical
study, DOBI will ship
Ex Works ("EXW") Mahwah, NJ, USA to Distributor, at Net
Price to Distributor
as set forth in Schedule D pursuant to the sales and
payment terms set
forth in 5.b), an investigational unit to be used for the
study. Upon completion
of the study, DOBI Medical will provide to Distributor
any new commercially
available Software releases to install into the
investigational unit
for subsequent sale of the ComfortScan system within the
Territory describe in
Schedule A.
c) DOBI agrees to deliver the systems at the earliest time possible
in
accordance with
manufacturing schedules and backlogs. DOBI Medical shall
provide an initial
support schedule and contacts for all sales, technical,
Product and Service
matters, and, upon consultation with Distributor, will
determine the level of
continued marketing, sales, training and technical
support as deemed
necessary and reasonable by DOBI Medical. DOBI Medical will
maintain sufficient
quantities of spare parts within the Territory to ensure
reasonable response to
Distributor's service requirements. Inventory levels
will be based on local
install base, component reliability, and expected lead
times for restocking.
DOBI Medical will regularly review parts inventories and
usage history on a
global basis and make adjustments accordingly.
d) Training. DOBI Medical shall make available to Distributor
in
English, at such time
and place as designated by DOBI Medical, its training
programs for
certifying Distributor's field service technicians and
applications trainers
in order to assist Distributor in organizing and
developing its
applications training program for its customer end users to
certify its
technicians in the use and operation of the Product. Subsequent
support for training
will be made available as deemed necessary and reasonable
by DOBI Medical in
accordance with Section 3. e) above and 4. e) below. DOBI
Medical shall provide
Distributor with current technical bulletins, Field
change notices, and
safety notices affecting Distributor's installations of
Products and
replacement parts.
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<PAGE>
e) Promotional Materials. DOBI Medical shall provide Distributor
with
reasonable quantities
of promotional materials in English to assist in
Distributor's
marketing efforts. Additional materials can be purchased by the
Distributor at DOBI
Medical's then current costs plus shipping and any taxes.
All promotional
materials and other documentation and manuals relating to the
Products and Services
are in English. Any translations are at the sole cost of
Distributor and must
conform in all material respects with the English
versions, including
proper and conspicuous use of DOBI Medical's Marks and
Patent and copyright
notices, and be duly certified by a certified translator.
f) Second Line Support. DOBI Medical shall provide at no
additional
cost ongoing second
line support as reasonably requested by Distributor via
electronic media
between the hours of 9:00 AM and 5:00 PM, Eastern Time, USA,
Monday through Friday
(except US holidays). DOBI Medical will use commercially
reasonable efforts to
respond to Distributor's requests in a manner and time
frame which are
reasonably responsive considering the nature and severity of
the concerns which
gave rise to such request.
g) DOBI Medical will designate maintenance and support personnel
to
assist Distributor's
first line support personnel in providing maintenance and
support services. DOBI
Medical shall provide reasonable access to and
assistance of its
technical, sales, and service personnel as reasonably
appropriate under the
circumstances at no additional charge.
h) Subsequent Support/Releases/Upgrades. Any subsequent support
services, including
without limitation, technical support, software or
hardware customization
or training services requested by Distributor which are
beyond the reasonable
scope of this Agreement or are not specifically required
to be performed by
DOBI Medical under this Agreement, are subject to the
availability of DOBI
Medical's clinical and technical staff, and shall be
billed at DOBI
Medical's then current time and material rates plus
out-of-pocket
expenses, and subject to such other terms and conditions which
may be agreed upon in
writing by the parties before such services are
performed. Further,
DOBI Medical reserves the right to require additional
licenses and charge
additional fees for any new (as determined in the sole
discretion of DOBI
Medical) releases, upgrades or additions to the Product,
Software, or any new
options, accessories, supplies, or new functionality
related to the
ComfortScan system .
5. Terms and
Conditions of Sales to Distributor
a) So long as Distributor is in compliance with this Agreement,
DOBI
Medical agrees to sell to Distributor the Products and related
replacement parts
described in Schedule B of this Agreement at the then published,
suggested,
retail net prices, delivery EXW, Mahwah, New Jersey, USA, or such
other place of
manufacture, in effect on the date of acceptance by DOBI Medical
of
Distributor's order, less the applicable discounts as set forth in
Schedule D.
Payments must be in full and in available U.S. currency. Prices are
valid for
all purchase orders issued by Distributor only if accepted in
writing by DOBI
Medical within ten (10) business days of its receipt of an order.
Failure to
issue a timely written acceptance or rejection shall be deemed an
acceptance of
the order in issue. DOBI Medical shall inform Distributor giving at
least 90
days notice prior to effecting any price changes to the Products,
and at least
30 days notice as to replacement parts. All purchase orders
accepted by DOBI
Medical are final. DOBI Medical will NOT allow the return of
Products, except
for warranty claims approved by DOBI Medical in accordance with
this Agreement.
b) All fees are due in full and in available U.S. currency
within
thirty (30) days of the date of DOBI Medical's invoice to
Distributor. Upon DOBI
Medical's acceptance of each Distributor purchase order,
Distributor shall
thereupon provide DOBI with an irrevocable, documentary letter of
credit in a
form to DOBI Medical's reasonable satisfaction from a first class,
global bank
having an affiliate in New York, NY, for the value of the purchase
order.
Payment terms as between Distributor and its customers are the
sole
responsibility of Distributor and failure of a customer to pay
Distributor shall
in no manner relieve Distributor from payment and receipt by DOBI
Medical of the
full purchase price when due pursuant to the terms of this
Agreement. DOBI
Medical has the right to set off and apply any amounts paid by
Distributor to
past due accounts. However, Distributor bears the entire risk of
loss upon DOBI
Medical's delivery of the Products to the shipper EXW, Mahwah, NJ,
USA, or such
other place of manufacturer.
c) All past due amounts are subject to a late charge equal to one
and
one-half percent (1 1/2%) per month or the maximum amount allowed
by law,
whichever is less. Distributor shall be liable for all costs,
including but not
limited to, reasonable attorney's fees, incurred by DOBI Medical in
collecting
any past due amounts. Unless exempted, evidence of which must be
provided to
DOBI Medical, Distributor shall be obligated to determine and
timely pay any
applicable foreign and domestic federal, state, local and other
taxes or other
charges, penalties, interest thereon (other than taxes on income
payable by DOBI
Medical) applicable to the Products, Services and the transactions
resulting
from this Agreement, as well as any shipping and handling fees. (If
no taxes are
assessed, Distributor is solely responsible to self-assess and pay
any taxes
that may be due as a result of its purchase of the Products,
Services, Marks,
Patents and transactions resulting from this Agreement). Except as
otherwise
provided herein, each party shall be responsible for all taxes,
tariffs, duties
and other governmental charges, however designated, levied or
based, on its
sale, purchase and use of the other party's Products and Services
or the charges
for such Products and Services, including without limitation, sales
and use
charges that may now or hereafter be imposed.
d) Except as may by specifically authorized by DOBI Medical
pursuant to
this Agreement, all payments made by Distributor hereunder are
non-refundable,
and no partial payment or acceptance by DOBI Medical of any partial
payment
shall be treated as anything other than as a partial payment on
account without
prejudice to DOBI Medical. Distributor agrees to pay DOBI Medical
on demand any
and all costs and expenses in collecting any money owed by
Distributor. These
costs and expenses may include, but are not limited to,
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<PAGE>
costs and commissions due a collection agency, reasonable
attorneys' fees
(including any attorneys' fees incurred in bankruptcy or like
proceedings),
court costs, expert witness fees, any witnesses' reasonable travel
and living
costs, discovery costs and any reasonable attorneys' fees and costs
for appeals,
together with the maximum legally allowable interest charges
computed from the
date the obligation was first past due.
e) DOBI Medical and Distributor, as the case maybe, shall cause
all
Product shipments to be made in customized containers capable of
withstanding
damage to the Product contained therein. All such containers shall
be properly
labeled and made to accommodate any U.S. Customs or other
government
inspections, including but not limited to, the use of heavy screws
and bolts
(not nails) to permit the reasonable re-closing after a Customs
inspection. DOBI
Medical and Distributor, as the case may be, shall assure any
vehicle transport
of Distributor's Product orders is equipped with air-ride
suspension or other
similar equipment to avoid Product damage. DOBI Medical or
Distributor, as the
case maybe, may request that a specific freight carrier be used,
and such
request will give such request due consideration, but neither party
is under any
obligation to use such freight carrier.
6.
Limited Warranty
a) Without prejudice to any local law, DOBI Medical represents
and
warrants to the Distributor and to its original customer end users
that the
Products or parts shall be free from defects in material or
manufacturing,
except for minor errors that do not materially affect functionality
or
performance, and shall conform substantially to applicable
specifications in
effect as of the date of shipment EXW Mahwah, NJ, USA of the order
by DOBI
Medical of the Product or part when properly installed by a
Distributor's field
technician certified by DOBI Medical, and when subjected to normal,
proper and
intended usage and operation by a technician of customer end user
who has been
certified by Distributor. Products and parts manufactured by
parties other than
DOBI Medical, where DOBI Medical acts solely as Distributor or
reseller, will
carry their respective manufacturers' warranties.
b) DOBI Medical Products shall be warranted for a period of 12
months
from the time of original installation, the date of which will be
determined by
a completed, returned warranty card, which must be received by DOBI
Medical at
its corporate office, attention: Service Department, within 30 days
of Product
installation. If the warranty card is not so timely received by
DOBI Medical,
then the warranty shall take effect 12 months from the date of
shipment EXW
Mahwah, NJ, USA by DOBI Medical. In no event shall the warranty
exceed 15 months
from the date of shipment EXW Mahwah, NJ, USA from DOBI Medical.
Repair and
replacement parts will be warranted for 90 days from installation
or 12 months
from shipment, whichever is sooner. Any component furnished without
charge
during the warranty period to correct a warranty failure shall be
warranted only
to the extent of the unexpired term of the warranty of the original
Product or
replacement part. Warranty consideration will be given only for
defective DOBI
Medical products properly returned to the factory in accordance
with DOBI
Medical's warranty return procedure. DOBI Medical will act as the
sole judge in
determining whether new products or parts may be defective by
reason of
manufacture.
c) In the event that a documented and reproducible flaw iin the
Product(s) inconsistent with this warranty is discoveredthat
significantly
impacts system performance and/or creates a safety hazard for
patient or
operators, DOBI Medical shall use commercially reasonable efforts
to correct
such flaw in a timely manner. At DOBI Medical's option and at no
cost to or
expense to Distributor or customer end user, DOBI Medical shall
correct any such
failure by (i) repairing, adjusting, or replacing any defective
or
non-conforming Products, or parts, (ii) by making available any
necessary
repaired or replacement parts or assemblies, or (iii) by furnishing
either new
or exchanged replacement parts or assemblies. All such returned
Products and
parts shall become the property of DOBI Medical if determined by
DOBI Medical to
be defective by reason of material or manufacture. DOBI Medical
will bear the
cost of shipping such defective Product back to DOBI Medical.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR
FITNESS FOR USE FOR A PARTICULAR PURPOSE. DOBI MEDICAL'S WARRANTY
IS EXCLUSIVE
OF, WITHOUT LIMITATION, THE FOLLOWING:
o
Failure of
Distributor or customer end user to prepare the site or
provide power requirements or operating environmental conditions
in
compliance with any applicable instructions or recommendations of
DOBI
Medical.
o
Failure of
Distributor or customer end user to provide the proper
incoming power required to support the Products in accordance with
the
recommendation of DOBI Medical.
o
Any modification
of Product performed by a party other than DOBI
Medical or an authorized Distributor or a technician certified by
DOBI
Medical.
o
Combining products or furnishing services which have not been
authorized
in
publications by DOBI Medical and are deemed by DOBI Medical to
be
incompatible with the Products.
Page 6 of 22
<PAGE>
o
Improper or
extraordinary use of the Product, improper maintenance of
the Product, or failure to comply with any applicable instructions
or
recommendations of DOBI Medical.
o
Misuse,
tampering, or negligent storage/handling of the Product by
Distributor or customer end users, its employees, agents, or
contractors.
o Acts of civil
or
military authority, fires, floods, power failures or electrical
power
surges, strikes or other labor disturbances, war, acts of
terrorism, riots
or
other causes beyond the reasonable control of DOBI Medical.
o
Installation,
troubleshooting, or repair services are not included in
this warranty, and are provided solely by the Distributor and a
certified technician.
o
Any
installation, maintenance, repair, service, relocation or
alteration to or of, or any other tampering with the Product
performed
by any person or entity other than DOBI Medical, Distributor, or a
DOBI
Medical certified technician without the prior written approval of
DOBI
Medical shall immediately void and cancel all warranties with
respect
to the Product.
o
Products and any
portions thereof containing any third party software
or hardware manufactured other than by DOBI Medical, whether sold
or
given to Distributor or customer end user hereunder, are provided
"AS
IS", and DOBI Medical makes no representations or warranties in
connection thereto. Any warranties that may be associated with any
such
third party items are the sole obligations of such third parties
and
shall pass directly through to the customer end user, and are not
the
obligation of DOBI Medical.
o
Software
maintenance after the applicable warranty period to the end
user has expired, unless there is a separate software
maintenance
written agreement in effect between the end user and DOBI
Medical.
o
Any Products or
parts damaged in transit. It is the sole responsibility
of Distributor to adequately insure such freight and examine
all
cartons and crates carefully at time of delivery. If damage is
apparent, Distributor should make a notation on the delivery
receipt,
request an inspection by the freight carrier, and if applicable,
file
appropriate claim(s).
7.
Limitations of Liability
a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS
OF
PROFIT, OR FOR SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER
INDIRECT
DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES,
EVEN IF IT
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY
SHALL NOT BE
LIABLE TO THE OTHER FOR ANY CORRUPTION, ANY DOWN TIME OF THE
PRODUCTS OR
SERVICES OR SUSPENSION OF THE SERVICES OR USE OF THE PRODUCTS, OR
FOR ANY LOSS
OR
