13.1 Further Assurances. CTI, CPS, and Siemens shall cooperate reasonably with each other in connection with any steps required to be taken as part of their respective obligations under this Agreement, and shall i) furnish upon request to each other such further information; ii) execute and deliver to each other such other agreements, certificates, documents, and instruments; and iii) do such other acts and things, all as any other party to this Agreement reasonably may request for the purpose of carrying out the intent of this Agreement and the transactions contemplated hereby.
13.2 Assignment of Contracts. In the event that the transactions contemplated by this Agreement require the sale, assignment, assumption, transfer, conveyance, or delivery by any party hereto (the "ASSIGNOR") to another party hereto (the "ASSIGNEE") of any contract to which the Assignor is a party, and if either (x) the provisions of such contract (the "RESTRICTED CONTRACT") prohibit such assignment, or (y) the provisions of the Restricted Contract require the consent of any other party to such sale, assignment, assumption, transfer, conveyance, or delivery and such other party withholds, unreasonably delays, or unreasonably conditions such consent, then:
(a) Notwithstanding any other provision hereof, neither this Agreement nor any other document related to the consummation of the transactions contemplated hereby shall constitute a sale, assignment, assumption, transfer, conveyance, or delivery or an attempted sale, assignment, assumption, transfer, conveyance ,or delivery of the Restricted Contract; and
(b) The Assignor and the Assignee shall cooperate with each other in any reasonable and lawful arrangements designed to provide to the Assignee the benefits of use of the Restricted Contract for the term thereof (or any right or benefit arising thereunder, including the enforcement for the benefit of the Assignee of any and all rights of the Assignor against a third party thereunder); and
(c) The Assignor and the Assignee shall use their respective best efforts, and shall cooperate with each other, to obtain the consent to the assignment of the Restricted Contract as quickly as practicable.
Once consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Contract is obtained, the Assignor promptly shall assign, transfer, convey, and deliver the Restricted Contract to the Assignee, and the Assignee shall assume the obligations under the Restricted Contract assigned to the Assignee from and after the date of assignment to the Assignee.
14.1 Relationship. Nothing in this Agreement shall be construed to render any party the employer or employee of any other party, the agent or principal of any other party, or a joint venturer or member of any other party. No party shall have the right to bind any other party, to exercise control of any other party, or to conduct any other party's business, except as expressly set forth in this Agreement.
14.2 Force Majeure Provision. No party hereto shall be liable for any delay arising from unanticipated catastrophic circumstances beyond its reasonable control including, but not limited to, acts of God, war, riot or civil commotion, fire, flood, terrorism, drought or act of government ("FORCE MAJEURE EVENTS"); provided, that the party seeking to be excused shall make every reasonable effort to minimize the delay resulting therefrom. Each party shall keep the other parties fully informed of any such circumstances. During the period that the performance by one of the parties of its obligations under this Agreement is been suspended by reason of a Force Majeure Event, all parties to this Agreement shall cooperate and use their commercially reasonable best efforts to continue the business contemplated by this Agreement; provided, that any Unaffected Party may (but shall not be required to) suspend performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable. The parties agree to resume their performance under this Agreement as soon as possible upon the passing of the Force Majeure Event.
14.3 Assignment. No party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other parties; provided, however, Siemens and CTI shall each be entitled to assign any or all of its rights and obligations hereunder to any of its controlled subsidiaries, provided that both Siemens and CTI, as applicable, shall remain fully liable for the performance of all its obligations hereunder; and further provided that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of the entire business of either party shall acquire all rights and obligations of such party hereunder. Any prohibited assignment shall be null and void.
14.4 Notices. All notices or other communication which are required or permitted hereunder shall be in writing and sufficient if delivered by hand, by facsimile or telecopier transmission (and a transmission confirmation is received by the sender), or by a recognized international or overnight courier, to the persons at the addresses set forth below (or at such other address as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered.
Siemens: Siemens Nuclear Medicine Group
3501 North Barrington Road
Hoffman Estates, Illinois 60195
Facsimile: (847) 304-7080
Attention: President, Siemens Nuclear Medicine
With copies to: Siemens Medical Solutions USA, Inc.
51 Valley Stream Parkway
Malvern, PA 19355
Attention: President & CEO
and Associate General Counsel
Siemens Legal Department J-16
51 Valley Stream Parkway
Malvern, PA 19355
CTI: CTI Molecular Imaging, Inc.
810 Innovation Drive
Knoxville, TN 37932
Fax No.: 865/218-3016
With a copy to: CTI Molecular Imaging, Inc.
810 Innovation Drive
Knoxville, TN 37932
Fax No.: 865/218-2760
Attention: General Counsel
CPS: CPS Innovations
810 Innovation Drive
Knoxville, TN 37932
Fax No.: 865/218-2878
With a copy to: Kilpatrick Stockton LLP
607 14th Street
Washington, DC 20005-2018
Fax No.: 202 585 0002
Attention: David A. Stockton
14.5 Entire Agreement. This Agreement, including the schedules attached hereto and incorporated as an integral part of this agreement, constitutes the entire Agreement of the parties with respect to the subject matter hereof, and supersedes any and all previous Agreements by and between CPS, Siemens and CTI with respect to the subject matter hereof, if any, as well as any and all proposals, oral or written, and all negotiations, conversations or discussions heretofore had between the parties related to this agreement.
14.6 Amendment. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by the parties hereto.
14.7 Publicity. This Agreement is confidential and no party shall issue press releases or engage in other types of publicity of any nature dealing with the commercial and legal details of this Agreement without the other parties' prior written approval, which approval shall not be unreasonably withheld. However, approval of such disclosure shall be deemed to be given to the extent such disclosure is required to comply with governmental rules, regulations or other governmental requirements. In such event, the publishing party shall promptly furnish a copy of such disclosure to the other parties. Notwithstanding the foregoing, CPS, Siemens and CTI shall be permitted to file this Agreement and to disclose the terms of this Agreement in their respective filings with the U.S. Securities and Exchange Commission or any similar state agency.
14.8 Severability. In the event that any of the terms of this Agreement are in conflict with any rule of law or statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
14.9 Counterparts. This Agreement shall be executed in three or more counterparts, and each such counterpart shall be deemed an original hereof.
14.10 Waiver. No failure or delay by any party to take any action or assert or exercise any right or remedy hereunder shall operate or be deemed to be a waiver of such right or remedy in the event of the continuation or repetition of the circumstances giving rise to such right; nor shall any single or partial exercise of such right or remedy preclude any other or further exercise thereof or of any other right or remedy. No provision of this Agreement may be waived except in a writing signed by the party granting such waiver. Quyền từ bỏ thực hiện. Không có điều khoản nào trong hợp đồng này cho phép từ bỏ nếu không được bên kia chấp thuận bằng văn bản.
14.11 Authorization and Execution. By executing this Agreement each party represents and warrants to the other parties (i) that the entry into and execution and performance of this Agreement has been fully and duly authorized by all required corporate action, and (ii) that the person signing this Agreement on behalf of a party has been fully authorized by all required corporate action to execute this Agreement on behalf of the party for which such person is signing.
14.12 Confidentiality. Each party hereto agrees not to disclose to others the technical and business information of the other parties hereto ("CONFIDENTIAL INFORMATION"), and agrees to use the other parties' Confidential Information only for the implementation of this Agreement and to hold the other parties' Confidential Information confidential using at a minimum the same care it would exercise to protect its own Confidential Information but in no event less than a reasonable degree of care. The receiving party further agrees to disclose the Confidential Information of the disclosing party only to the receiving party's employees and agents who have a need to know and only to those employees and agents who have agreed in writing to confidentiality obligations substantially similar to those in this Section 14.12. The receiving party shall not permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any Confidential Information provided by the disclosing party, and the receiving party shall not permit any of its personnel to reproduce or copy any such Confidential Information except as expressly authorized under this Agreement. Provided, however, that such confidentiality obligation shall not apply to any information which (a) is now or hereafter becomes a part of the public domain, other than by act or omission of the receiving party, (b) was independently developed by the receiving party or its affiliates; (c) information that was in such party's possession prior to disclosure by the other party, (d) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on use or disclosure, who lawfully possesses such information and did not acquire it directly or indirectly from the other party, (e) is disclosed in any U.S. or foreign patent, or published patent application, whether owned by the other party or any third party, or (f) is required to be disclosed to a government agency or pursuant to a judicial proceeding, but only to the extent so required and provided that the receiving party gives the disclosing party advance notice of such disclosure and reasonably cooperates with the disclosing party (at the disclosing party's expense) to contest such disclosure. The duration of this confidentiality obligation shall be for the term of this Agreement and for two (2) years thereafter with respect to any Confidential Information that does not constitute a "trade secret" under applicable law, and for Confidential Information that does constitute a trade secret under applicable law, these confidentiality obligations shall last in perpetuity. Nothing in this Section is intended by the parties to abrogate any rights or obligations of the parties under common law or statutory law with respect to the use and disclosure of confidential information or trade secrets.
14.13 Survival. The provisions in Section 14.12 shall survive the expiration or termination of this Agreement indefinitely.
14.14 Governing Law. This Agreement shall be governed by, construed under, and interpreted in accordance with the laws of the State of Delaware, U.S.A, applicable to contracts made and performed entirely within that state.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date.
CTI MOLECULAR IMAGING, INC.
By: /s/ Ronald Nutt
Ronald Nutt, Ph.D.
SIEMENS MEDICAL SOLUTIONS USA, INC.
By: /s/ Thomas N. McCausland
Thomas N. McCausland
CTI PET SYSTEMS, INC.
By: /s/ R. Gregory Brophy
R. Gregory Brophy
Chapter 3 (P. 115)
NEGOTIATING INSPECTION AND DEFECTS LIABILITY
1. Exporting and the Problem of Quality
Export markets are often far away. When things go wrong with products, repair and replacement can be ruinously expensive. What special steps can the exporter take to minimize the risk of the goods being rejected or of heavy defects liability claims?
The first steps an exporter should take are to ensure that all exported goods meet or exceed the quality specified, that marking and packaging are correct, and that delivery is on time. Secondly, the agreement between the parties should contain specific quality specifications; detailed specification reduces the chance of a dispute because it provides a clear and objective standard that the goods must meet.
IN MORE DEPTH
No manufacturer produces perfect products every time. Even so, quality is a key issue, and customer satisfaction is essential to successful business. Many companies have quality assurance programs to ensure that customers get what they pay for. Until things are going well in the local market, it makes little sense to export, because quality assurance and customer satisfaction are much rougher issues when the customer is in another country, and when distance makes communication, transport, inspection, payment, and verification of claims expensive and time consuming. Before looking in detail at inspection, defects liability and the other issues, let's trace the course of an exported product from manufacture through to the end of the defects liability period and see where the exporter is at risk.
Scenario: Verbena Electric is selling lightweight headphones with a built-in AM/FM radio. The equipment runs on a single AAA battery. The customer is Euroeast Impex, a purchasing house in an East European country with a huge market for modern, high quality equipment- provided the price is right. The two sides have agreed an FOB (Port Verbena) price of $2.78 per unit, excluding battery.
Quality is an issue from the start of negotiations. Euroeast wants a product it can sell in tens of thousands. But, despite the low price, this is not a throw-away product- the end user wants headphones that will last at least six months. How does Euroeast get the quality it wants.
CONCEPT REVIEW: Close Knit
Verbena Knils is selling 5,000 sweaters to an importer in Nonamia, a country 4,000 miles away. The Monamian buyer agrees to pay by letter of credit, but not by confirmed letter of credit. Delivery is to be made DDP (Port Nemo). As to specifications, the buyer’s general conditions of purchase state: "The quality of all deliveries shall be in accordance with the customs of the trade as practiced in the Republic of Nonamia." And further, “Clearly defective goods may'be rejected on arrival-and returned to exporter at the exporter's risk and cost." The buyer wants to buy from Verbena Knits on these loose and somewhat informal terms.
Where do you see danger for the exporter? If there is "Some Danger" or "Great
Danger,” what is the danger you foresee ?
1. In the terms of the letter of credit? ..........................................................
NO dancer SOME danger great danger
2. In the DDP delivery?..........................................................................
NO dancer SOME danger great danger
3. In the lack of detailed quality specification?................................................
NO dancer SOME danger great danger
4. In the "rejection on arrival" provision? ...................................... ...
. NO dancer SOME danger great danger
.5. In the unusually geographical distance between exporter and buyer?…......
NO dancer SOME danger great danger
1. Some danger. An unconfirmed letter of credit is liable to severe delay in payment; the buyer's bank (and therefore to some extent the buyer) take control of payment.
2. Some danger. The exporter bears the risk of the goods not only during their
voyage but also through customs and during transportation in the buyer's
country. This can cause problems.
3. Great danger. The right of the buyer to return "clearly defective" goods needs
close definition: full specificadon is the only way.
4. Some danger. The buyer has the right to reject defective goods undermost
applicable laws. The problem, as with question 3, is to define "defective."
5. Some danger. If anything goes wrong, the cost of putting things right increases with distance. :
What You Should Know
1. Delivery of poor quality products to export markets is particularly dangerous because the cost of curing defects is high.
2. To guard against high costs, the exporter should be particularly careful about quality assurance.
3. In negotiating quality clauses, the exporter should pay special attention to detailed, realistic specification of the goods.
4. Inspection provisions both before and after delivery must be negotiated with care.
5. The final quality hurdle is the defects liability period during which the exporter is liable to cure defects that come to light in the goods.
(Page 121) 3.2 INSPECTION, ACCEPTANCE AND REJECTION
When goods are delivered, the buyer inspects them. What are the buyer’s rights of rejection? Under what circumstances can the buyer cancel the contract?
The buyer has the right to inspect the goods and to reject them if they do not conform with the contract. Under certain circumstances, the buyer may cancel the contract, though normally the exporter takes or (has the right to take) corrective action.
IN MORE DEPTH
An exporter agrees to deliver goods of a certain quantity and quality. Any deviation is, essentially, a breach of contract. Everyone knows, however, that delivered goods are seldom “perfect.” Somehow the buyer must be protected against inferior goods, and the exporter must be protected against cancellation of the contract for trivial or insufficient reasons. The defects liability provision (or warranty) provides this double protection; the exporter says, in effect: “I promise to deliver perfect goods, but, if I break this promise, I still have a contract because I will fix the problem.”
Translate into Vietnamese
CONTRACT FOR DISTRIBUTORSHIP AGENCY: DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT dated the last day of January 2010 . by and between AGIP PETROLI SPA Singapore branch having a place of business at 302 Orchard Road 14-02 to 14-04 Tong Building, Singapore 0923 ("AGIP")
And " xxxxxxxxxxxxxxxxxxx whose registered office is
xxxxxxxxxxx ("DISTRIBUTOR") ' ,
AGIP and DISTRIBUTOR hereby covenant and agree as follows:
As used in this Agreement the following terms shall have the meaning set forth hereafter:
a) "Products" shall mean AGIP Lubricants for Automotive and Industrial application and Special Products as listed in the First Schedule for the distribution by Distributor in Consumer Packages (as hereinafter defined) carrying the registered AGIP trademarks and/or getting up; it is agreed by the parties hereto that AGIP or AGIP Affiliates (as hereinafter defined) may from time to time without assigning any reasons thereto make improvements to or changes in the Products during the currency of this Agreement; such improvement or changes even if resulting in a change in the characteristics of the Products shall not affect the status of the Products as the Products and AGIP shall notify DISTRIBUTOR of such improvement or changes
b) "Territory" shall mean the Socialist Republic of Vietnam
c) '"Consumer Packages" shall • mean such original standard packages from time to time adopted by AGIP
d) "Affiliate" shall mean any entity which is controlled by or in control of or under common control with another specified entity
"Control" shall mean' a 25% or larger ownership of issued and outstanding voting securities or common officers or directors or a contractual relationship allowing one entity to assume or
substantially influence the management or operations of another.
a) Subject to the terms and conditions in this Agreement AGIP hereby grants to the Distributor the sole right during the continuance in force of this Agreement to purchase for distribution and resale in the Territory those of its Products exclusively for Automotive and Industrial Application (excluding international marine application) specified in the First Schedule
b) This appointment shall take effect on ../../19 .. and shall subsist for a period of .. years from that date unless otherwise terminated in accordance with the provisions of this Agreement and shall continue thereafter until terminated by either party giving to
the other at any time six (6) months' notice in writing
c) Provided always that the Distributor is not in breach of any of its obligations and terms whatsoever hereunder AGIP will not appoint any other distributor for the Products in the Territory during the term of this Agreement; however AGIP may during the period of six (6) months prior to the termination hereof appoint the Distributor's successor (if any) and allow AGIP and such successor to make itself known as AGIP's future distributor appointed to do business after the termination of this Agreement
3. Distributor's undertakings
a) The Distributor shall during the continuance of this Agreement purchase all its requirement of the Products from AGIP and shall diligently and faithfully serve AGIP as its distributor in the Territory and shall improve and promote the sale of the Products for Automotive and Industrial application (excluding international marine application) to customers through the Territory and to ensure the best possible display of the Products in
all marketing and sales outlets
b) The Distributor shall ensure in all events that the minimum order for the Products for delivery to the Distributor shall be that set out in clause 6 (0 hereinafter set out in the Second Schedule hereto
c) The Distributor shall ensure that to conform with all legislation rules, regulations and statutory requirements relating to the importation storage distribution and sale of the Products in the Territory from time to time.
d) The Distributor shall not alter or treat in any way whatsoever the content and Consumer Packages of the Products and will supply Products only in Consumer Packages form and get up in which they are supplied to the Distributor by AGIP; the Distributor shall procure similar undertaking from all its marketing and sales outlets accordingly and shall be responsible for and stand liable for the compliance thereof
e) The Distributor shall maintain sales records in .respect of in its outlets and supply each month a sales and stocks return and such other further records and reports all in the English Language as may be specified by AGIP from time to time
f) The Distributor shall ensure that its salesmen visit regularly the business premises of present and potential marketing and sales outlets/customers for the Products in the Territory and in addition to visit attempt to obtain orders for the Products from any persons to whom they may be directed by GIP
g) The Distributor shall be responsible for ensuring that the Products reach the consumer in the best possible condition and shall take all positive precautions to avoid contamination or alteration of the Products and the Consumer packages and shall educate and procure similar undertaking from all its salesmen and marketing and sales outlets accordingly and shall be responsible for and stand liable for the compliance thereof
h) The Distributor shall promptly resolve satisfactorily any complaints relating to the promotion sale or provision of technical information and all other matters whatsoever in respect of the Products arising within the Territory; the Distributor shall promptly notify AGIP of any complaints or unusual comments whether favorable or unfavourable or by way of requests for information) it may receive pertaining to the Products or of any defective Products; it is understood that AGIP shall not be in anyway responsible for or liable to any complaints whatsoever and the Distributor hereby agrees to fully indemnify AGIP accordingly. The Distributor shall keep AGIP regularly and continuously informed of the progress and development of the market in the Territory for the Products and for all goods similar thereto or competitive therewith and of all laws 'and regulations affecting the
import distribution labelling packaging advertising and sale of the Products and of such goods in the Territory and of all matters whatsoever affecting or relevant to AGlP's business in the Territory.
j The Distributor shall not distribute similar product in the Territory or enter into any business transaction in competition with AGIP
k The Distributor will keep full proper and up-to-date records in the English Language showing clearly all enquiries, transactions and proceedings relating to the distributorship and shall at all times permit AGIP or its representatives full access thereto
l) The Distributor hereby acknowledges that the Agreement is personal and shall not assign or purport to assign the benefit of this Agreement without the prior consent in writing of AGIP, of which consent shall not be unreasonably withheld without prejudice to the foregoing; it is understood that an amalgation or reconstruction or change in control and change in ownership of up 25% equity and above are deemed an assignment for which AGIP prior written consent must be procured
m) The Distributor shall in selling the Products be bound by AGIP's conditions of sale as from time in force and any modification thereto made by AGIP either generally or in respect of any
particular purchase and in selling shall contract on like terms to those conditions as from time to time in force together with any general or particular modifications as respects any particular sale and shall not make any promises representations warranties or guarantees with reference to the Products except such as are consistent with those conditions or as one expressly authorised by AGIP in writing
n) The Distributor shall not directly or through any agent sell any of the Products outside the Territory or knowingly or having reason to believe that they would be so resold sell the Products to any person or body corporate or incorporate within the Territory with a view to their resale outside the Territory
o) The Distributor shall not directly or through any agent sell any of the Products for marine application or knowingly or having reason to believe that they would be resold, sell the Products to any person or bod}' corporate or incorporate
p) The Distributor acknowledges that it is not competent to and will not incur any liability on behalf of AGIP or in any way pledge or purport to pledge AGIP's credit or accept any order or make any contract binding upon AGIP
q) The Distributor shall present a draft annual marketing advertising and promotion plan to AGIP for comment and approval prior to its implementation. It is understood that approval by AGIP does not amount to an acceptance of liability whatsoever or howsoever thereunder and the Distributor undertakes to fully indemnify AGIP at all times accordingly
r) The Distributor undertakes that its marketing advertising and promotional activities in respect of the Products shall at all times comply with the applicable law and the industry standards
s) Distributor shall conduct its business in a manner that will reflect favorably on AGIP and AGIP Affiliates, the Products and the good name and reputation of the foregoing and shall foster consumer confidence in the Products. Distributor shall not engage in any deceptive or. misleading promotion or advertising or indulge or partake in or condone any unethical trade practices
t) The Distributor shall fully indemnify and keep AGIP fully indemnified and harmless at all times and from time to time and against any and all loss damage claim penalties whatsoever and howsoever or liability or expense (and if solicitor's fees on a solicitor and client's basis to be taxed) suffered or incurred by AGIP resulting from a breach of any of the terms herein by the Distributor or otherwise whatsoever and howsoever in relation to or arising out of this Agreement.