5.2.10 The OEM Manufacturer will support the Own brander with regular training and education
on the products manufactured by the OEM Manufacturer for the Own brander to distribute them with the necessary special knowledge. 5.2.11 The OEM will provide to the OBL devices with the instructions for installation and
servicing of the products delivered. The OEM will carry out all servicing activities.
5.2.12 All Complaints received by the Own Brander and or with the Own Brander labeling will
be handled, investigated and resolved by the OEM Manufacturer. The OEM Manufacturer will answer all questions; will prepare all the applicable documentation and CAPA's where necessary. The OEM Manufacturer will forward all the Complaint records to the Own Brander. 5.2.13 The OEM Manufacturer will set up and maintain up to date a systematic procedure to review
experience gained from devices in the post production phase and to implement appropriate means to apply any necessary corrective actions, taking into account the nature and risks in relation to the Device according to the requirements set forth in the applicable Annex of the Directive, and provide this information to Own brander.
5.2.14 The OEM manufacturer will provide to the Own brander any available Post Marketing
Surveillance (PMS) data including but limited to annual report on the experience gained in the post production phase.
5.2.15 In the event of Field Safety Corrective Action, the OEM manufacturer will use its
reasonable efforts to (a) notify customers in a manner reasonably requested by the Own Brander (b) get the applicable devices recalled according to the Own Brander instructions (c) cooperate with the Own Brander to comply with the applicable laws and regulatory requirements.
6 SHIPPING AND PAYMENT TERMS
6.1 Product Shipment. All products will be shipped directly to the Customer by OEM Manufacturer or its agent at the address and via the means of transportation specified by Own Brander in an Accepted Order; if no means of transportation is specified, OEM Manufacturer shall ship by an appropriate means which, in OEM Manufacturer’s judgment, is consistent with the requirements of the Accepted Order. OEM Manufacturer will deliver all Products sold to Own Brander FOB OEM Manufacturer place of business or warehouse. OEM manufacturer is responsible for the cost of all import customs and duties, freight and insurance. Title to, and all risk or loss of or damage or casualty to, such Products will pass to Own Brander upon shipment.
6.2 Payment Terms. Own Brander shall pay all invoices within 30 days following collection of the price from Customer.If any amount payable by Own Brander hereunder is not made within the specified period, Own Brander shall pay the higher interest between 1.0% per quarter and the maximum allowed under the law by which this Agreement is governed by,on any amount unpaid. All payments shall be made in U.S. Dollars or in Euros. 6
7 WARRANTY
7.1 OEM Manufacturer warrants to Own Brander that, upon delivery:
(a) each Product will be free from defects in materials and workmanship for a period of two years, from the date of use, provided that such use is made within 90 days of shipment; and
(b) each Product will conform in all material respects to its specifications established by OEM Manufacturer.
7.2 OEM Manufacturer will, at its option, repair, replace or otherwise correct any product that does not conform to the warranty set forth in Section 7.1 (a) or (b), provided that:
(a) Own Brander notifiesOEM Manufacturer of such nonconformity in writing before the expiration of forty five (45) days after delivery of the nonconforming Product to Own Brander;
(b) Own Brander, at OEM Manufacturer's request, returns the nonconforming Product to OEM Manufacturer or its manufacturer, as OEM Manufacturer may designate; and
7.3 Product Replacement Procedure. When Own Brander becomes aware of a defective Product, Own Brander shall contact OEM Manufacturer. OEM Manufacturer’s personnel will help to identify the problem and determine the action required (adjustment, repair, part replacement, etc.). If it is
determined that a Product or a Product part is to be returned to OEM Manufacturer for repair, OEM Manufacturerwill issue a Return Goods Authorization number (RGA) to return the inventory. The customer shall return the defective Product or part with a complete OEM Manufacturer RGA form.
8 CONFIDENTIALITY
8.1 Confidential Information. The business and technical relationships and information developed or acquired by OEM Manufacturer, including without limitation, all information used in the
manufacture of OEM Manufacturer’s products and equipment , are the exclusive property of OEM Manufacturer, are among OEM Manufacturer’s most valuable assets, and their value to OEM
Manufacturer may be lost by dissemination or disclosure to any third person or entity. Accordingly, all lists of customers developed, procured or solicited by OEM Manufacturer and delivered or disclosed to Own Brander (whether orally or as hard copy) during the term of this Agreement, all Product and Product pricing information and all information of a business or technical nature imparted or disclosed to Own Brander by OEM Manufacturer including, without limitation, all inventions, technological discoveries, future development plans, techniques, procedures, systems, methods, formats, forms, records, and any other information of whatever kind acquired by Own Brander or concerning OEM Manufacturer’s business and technology during the term of this 7
Agreement, shall be deemed to be confidential, and Own Brander shall not, directly or indirectly, except on behalf of OEM Manufacturer, use any of the foregoing or disclose or disseminate any of the foregoing to any party or entity during the term of this Agreement or at any time during the five (5) year period after the expiration of this Agreement, regardless of the reason for such expiration, without the express written consent of OEM Manufacturer. This obligation of confidentiality shall not apply to any information which (i) was known to the Own Brander prior to the time of receipt; (ii) was in the public domain at the time of receipt; (iii) becomes public through no fault of the Own Brander obligations under this Agreement; or (iv) is required by applicable law to be divulged.Own Brander’s obligations under this section shall not derogate from any of Own Brander’s obligations under any other confidentiality agreement that Own Brander may have entered into with OEM Manufacturer.
8.2 Return of Confidential Information. Own Brander shall return to OEM Manufacturer all OEM Manufacturer confidential business information and materials immediately upon the termination of this Agreement or upon OEM Manufacturer’s request.
8.3 This Section 8 shall survive the termination or expiration of this Agreement.
9 INDEMNIFICATION
OEM Manufacturer shall and does hereby agree to indemnify and hold harmless Own Brander and its affiliates from any and all liability, loss, cost, injury, damage, demand and expense
(including, without limitation, reasonable attorneys’ fees) of any kind whatsoever arising out of, on account of, or in connection with (a) any instruction, specification or labeling supplied by OEM Manufacturer regarding the Product; (b) any use of the Product in a manner prescribed in writing by OEM Manufacturer; (c) any installation of the Product by OEM Manufacturer, or; (d) any breach by OEM Manufacturer of this Agreement. This Indemnity shall survive the termination or expiration of this Agreement.
In all events, the foregoing obligations are conditioned upon the indemnifying party having sole control of the defense and/or settlement of the claim, the indemnified party notifying
indemnifying party promptly in writing of such claim or suit and giving indemnifying party all information in its possession known by indemnified party to be relevant to the claim or defense, and indemnified party cooperating with indemnifying party in the defense and/or settlement or such claim.
10 TERM AND TERMINATION
10.1 Term. The term of this Agreement shall be for the Term, unless sooner terminated or renewed by mutual agreement of the Parties. 8
10.2 Automatic Termination. Unless OEM Manufacturer notifies Own Brander to the contrary in writing, this Agreement will terminate immediately and without notice upon the institution of insolvency, bankruptcy or similar proceedings by or against Own Brander, any assignment or
attempted assignment by Own Brander for the benefit of creditors, or any appointment, or application for appointment, of a receiver for Own Brander.
10.3 Termination for Cause.Upon any material breach of or default under this Agreement by either party, the non-breaching party may by notice to the breaching party declare the breaching party in default. If the breaching party has failed to cure such breach or default within thirty (30) days of delivery of such notice, the non-breaching party may immediately terminate this Agreement, by giving written notice to the other party.
10.4 Termination Without Cause. Either party may terminate this Agreement without cause or reason by providing not less than ninety (90) days prior written notice to the other party. Suchninety (90) days notice period may be waived by the non-terminating party.
10.5 Actions Upon Termination.Within ten (10) days of the expiration or termination of this Agreement, Own Brander shall provide OEM Manufacturer a complete and updated list (in hard copy and sortable electronic format) of all the customers of OEM Manufacturer products, including
customer contact information and the serial numbers, quantities by models of Products purchased by such customers, and copies of all original documents indicating customer information, expiration date, quantities, etc., and of all long-term supply agreements and tenders under which the Own Brander is obligated to fulfill and supply OEM Manufacturer products (the “Customer List”).
10.6 Own Brander shall return to OEM Manufacturer, in good condition, all Products held in consignment which do not have further use by the Own Branderas part of post-termination obligations.
If and when requested by OEM Manufacturer, Own Brander shall take all actions and shall assist, at the cost to OEM Manufacturer, in the process of changing the registration of the Products with all relevant authorities (e.g. Ministry Of Health and/or entities involved in reimbursement, and/or others), and to assign and/or transfer any right OEM Manufacturer may request, in accordance with OEM Manufacturer guidance, in order to effectively allow transition of all distribution rights and activities to OEM Manufacturer and/or to any other party selected by OEM Manufacturer, including, without limitation, a newly appointed Own Brander, agent, or representative. The Own Brander shall provide all necessary documentation and shall not delay any action or response required from the Own Brander for completion of such transition. OEM Manufacturer shall bear no cost or penalty related to such transition.
Upon expiration or termination of this Agreement, OEM Manufacturer will pay a
compensation to Own Brander for its efforts to develop OEM Manufacturer’s operations, in an aggregate amount of annual cost incurred by Own Brander agreement during the last
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twelve months period of this Agreement, or the pro rata of such twelve month period if this Agreement is terminated after less than twelve months + 10%.
Following the termination, Own Brander shall cooperate in good faith with OEM
Manufacturer in order to facilitate a smooth transition of all Own Brander’s obligations hereunder to OEM Manufacturer or any designee of OEM Manufacturer.
11 RIGHT TO PURCHASE
At any time during the term of this Agreement, the OEM Manufacturer will have the right to
repurchase the rights granted to Own Brander hereunder. The parties will discuss in good faith the price of such purchase.
12 GENERAL
12.1Entire Agreement. This Agreement constitutes the entire Agreement between the parties concerning the subject matter hereof and supersedes any prior written or verbal agreements or understandings in
connection herewith, including, without limitation, the Original Distribution Agreement. No amendment, waiver or modification hereto or hereunder shall be valid unless in writing and signed by an authorized signatory of each of the parties hereto.
12.2 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered, international courier service or certified mail or delivery either by hand or by messenger, or sent via fax, computer mail or other electronic means, addressed to the address set forth in the preamble of this Agreement. Any notice or other communication so addressed and mailed by registered or certified mail (in each case, with return receipt requested) shall be deemed to be delivered and given when so mailed. Any notice so addressed or otherwise delivered shall be deemed to be given when actually received by the addressee.
12.3. Severability. If for any reason any provision of this Agreement shall be deemed by a court of competent jurisdiction to be legally invalid or unenforceable in any jurisdiction to which it otherwise applies, the validity of the remainder of the Agreement shall not be affected and the offending provision shall be deemed modified to the minimum extent necessary to make it consistent with applicable law, and, in its modified form, the provision shall then be enforceable and enforced.
12.4 Independent Contractors. In entering into this Agreement, Own Brander does so as an independent contractor and not as an employee, partner or a franchisee of OEM Manufacturer. Except as expressly set out in this Agreement, Own Brander shall have sole discretion and responsibility for all incidents of Own Brander’s performance and shall bear all costs, risk of loss and expenses, except for such expenses as are expressly assumed by OEM Manufacturer in writing. Nothing in this Agreement or its
performance shall render either party responsible for the debts, obligations, liabilities or acts of the other party. 10