**Exhibit 4.70**

 

 

 

 

 

 

 

 

**DISTRIBUTION AGREEMENT**

** **

**BETWEEN**

** **

** **

** **

**DRAXIMAGE LLC**

** **

** **

** **

**AND**

** **

** **

** **

**MEDI-PHYSICS INC.**

** **

**dba GE HEALTHCARE**

 

 

 

 

 

 

 

 

 

 

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**TABLE OFCONTENTS**

 
| **ARTICLE 1** - INTERPRETATION                                    | 1                              |
|-------------------------------------------------------------------|--------------------------------|
| 1.01                                                              | Definitions                    | 1 |
| 1.02                                                              | Headings                       | 3 |
| 1.03                                                              | Extended Meanings              | 3 |
| 1.04                                                              | Schedules                      | 4 |
| **ARTICLE 2** - APPOINTMENT - LICENSE                             | 4                              |
| 2.01                                                              | Appointment                    | 4 |
| 2.02                                                              | License                        | 4 |
| 2.03                                                              | Restrictions                   | 4 |
| **ARTICLE 3** - TERMS OF SALE                                     | 5                              |
| 3.01                                                              | Forecast                       | 5 |
| 3.02                                                              | Orders                         | 5 |
| 3.03                                                              | Delivery by DRAXIMAGE          | 6 |
| 3.04                                                              | Quality and Labelling          | 6 |
| 3.05                                                              | Customer Rejection             | 6 |
| 3.06                                                              | Audit Rights                   | 7 |
| **ARTICLE 4** - PRICE AND PAYMENT                                 | 7                              |
| 4.01                                                              | Price                          | 7 |
| 4.02                                                              | Taxes and Duties               | 7 |
| 4.03                                                              | Payment Terms                  | 8 |
| 4.04                                                              | Retail Price                   | 8 |
| **ARTICLE 5** - DUTIES OF DISTRIBUTOR                             | 8                              |
| 5.01                                                              | Duties                         | 8 |
| 5.02                                                              | Limitations                    | 9 |
| **ARTICLE 6** - ADVERSE EVENTS — RECALLS - PHARMACOVIGILANCE | 10                             |
| 6.01                                                              | Adverse Events                 | 10 |
| 6.02                                                              | Recalls                        | 10 |
| 6.03                                                              | Pharmacovigilance              | 10 |
| **ARTICLE 7** - WARRANTIES                                        | 11                             |
| 7.01                                                              | Representations and Warranties | 11 |
| **ARTICLE 8** - INDEMNITIES — LIMITATION OF LIABILITY        | 12                             |
| 8.01                                                              | Indemnities                    | 12 |
| 8.02                                                              | Conditions                     | 13 |
| 8.03                                                              | Records                        | 13 |
| 8.04                                                              | Limitation of Liability        | 13 |
| 8.05                                                              | Limitation on Warranties       | 14 |
| **ARTICLE 9** - RELATIONSHIP                                      | 15                             |
| 9.01                                                              | Independent Contractors        | 15 |
| 9.02                                                              | Confidentiality                | 15 |
| **ARTICLE 10** - Force Majeure                                    | 15                             |
| 10.01                                                             | Definition                     | 15 |
| 10.02                                                             | Non-default                    | 15 |
| 10.03                                                             | Cessation of Force Majeure     | 16 |
| 10.04                                                             | Termination                    | 16 |
| **ARTICLE 11** - TERM - TERMINATION                               | 16                             |

 

i

 

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| 11.01                                         | Term                        | 16 |
|-----------------------------------------------|-----------------------------|----|
| 11.02                                         | Termination                 | 16 |
| **ARTICLE 12** - INSURANCE                    | 17                          |
| 12.01                                         | Product Liability Insurance | 17 |
| 12.02                                         | All Risk Insurance          | 18 |
| **ARTICLE 13** - GOVERNING LAW - JURISDICTION | 18                          |
| 13.01                                         | Governing Law               | 18 |
| 13.02                                         | Jurisdiction                | 18 |
| **ARTICLE 14** - GENERAL                      | 20                          |
| 14.01                                         | Subcontract                 | 20 |
| 14.02                                         | Notice                      | 20 |
| 14.03                                         | Further Assurances          | 21 |
| 14.04                                         | Entire Agreement            | 21 |
| 14.05                                         | Amendment and Waiver        | 21 |
| 14.06                                         | Benefit of the Agreement    | 21 |
| 14.07                                         | Assignment                  | 21 |
| 14.08                                         | Severability                | 22 |
| 14.09                                         | Survival                    | 22 |
| 14.10                                         | Language                    | 22 |

 

ii

 

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**DISTRIBUTION AGREEMENT**

 
| **THIS AGREEMENT**  is effective from the 20th day of December 2007. |
|---------------------------------------------------------------------------|
|                                                                      |   |   |
| **B E T W E E N:**                                                        | ** ** | **DRAXIMAGE LLC**, a corporation  incorporated under the laws of the State of Delaware. |
|                                                                      |   |   |
|                                                                      |   | (hereinafter referred to as “**DRAXIMAGE**”), |
|                                                                      |   |   |
| **AND:**                                                                  | ** ** | **MEDI-PHYSICS INC**. doing  business as GE Healthcare, a corporation incorporated under the laws of the  State of Delaware, USA, having its principal office at 3350 North Ridge  Avenue, Arlington Heights, Illinois U.S.A 60004, |
|                                                                      |   |   |
|                                                                      |   | (hereinafter referred to as the “**Distributor**”), |
|                                                                      |   |   |
|                                                                      |   | (each a “**Party**”  and together the “**Parties**”). |

 

**ARTICLE 1 - INTERPRETATION**

 

1.01         **Definitions**

 

In this Agreement, unlesssomething in the subject matter or context is inconsistent therewith:

 

(1)           “**Affiliate**” means any Person which controls,is controlled by, or is under common control with another Person. A Personshall be regarded as “controlling” another Person for the purposes of thisAgreement if it owns more than fifty (50%) of the voting share capital of theother Person or if it has the legal power to direct the general management ofthe other Person;

 

(2)           “**Agreement**” means this agreement, includingits preamble, and all amendments made hereto by written agreement of the Parties;

 

(3)           “**Applicable Laws**” means, in relation to anyPerson, property, transaction or event, all applicable provisions in effect atthe relevant time (or mandatory applicable provisions) of federal, provincial,territorial, state, local or foreign laws, statutes, rules, regulations,directives and orders of all Regulatory Authorities, and all judgments, orders,decrees, decisions, rulings or awards of all Regulatory Authorities to whichthe Person in question is a party or by which it is bound or having applicationto the Person, property, transaction or event;

 

(4)           “**API**” means Active PharmaceuticalIngredient;

 

(5)           “**Average Selling Price**” (or “**ASP**”) shall mean ***

 

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(6)           “**Business Day**” or “**Business Days**” means any day other thanSaturday, Sunday or a holiday generally recognized in Germany, or in the UnitedStates;

 

(7)           “**Commercially Reasonable Efforts**” means ***

 

(8)           “**Current Good Manufacturing Practices**” or “**cGMP**” or “**GMP**”means, as applicable in accordance with the Territory in which the Product isdistributed in, the practices set out in the regulations (or “regulatoryrequirements”) for the manufacture of pharmaceutical products and the CurrentGood Manufacturing Practices as defined in United States 21 CFR 210, et seq.,as amended from time to time;

 

(9)           “**Distributor’s Canadian Radiopharmacy Network**”means the ***

 

(10)         “**Effective Date**” means the date at whichDRAXIMAGE receives a Marketing Authorization for the Product from the FDA andthe main patent for CardioliteÒ has expired inthe U.S. ***

 

(11)         “**FDA**” means the United States Food and DrugAdministration, or any successor to it;

 

(12)         “**Force Majeure**” has the meaning set out in Section 10.01;

 

(13)         “**GEHC Price**” means ***

 

(14)         “**Goodwill”**means the goodwill associated with the Product within the Territory;

 

(15)         “**Initial Term**”has the meaning set out in Section 11.01(1);

 

(16)         “**Intellectual Property**”shall mean, whether or not reduced to writing, all inventions, all rights toinventions, patents, patent applications and issued patents, copyright, copyrightapplications and registrations, processes, licenses, Marketing and DistributionKnow-How (as hereinafter defined), technology, data, chemical structures,formulae, customer lists, discoveries, trade secrets, proprietary informationand all other rights and intellectual property now or hereafter owned or heldand used by DRAXIMAGE or any of its Affiliates with respect to the Product inthe Territory.

 

(17)         “**Marketing andDistribution Know-How**” shall mean all readily available know-how,information, data, knowledge, discoveries, trade secrets, works, data,analytical reference materials and confidential or proprietary processesrelating to the Product or to the promotion, distribution or sale of theProduct in the Territory, and other information owned or developed by, in thepossession of, known to or used within the Territory by either Party, or any ofits Affiliates prior to the Effective Date or during the term of thisAgreement, that is reasonably required by Distributor in order to promote, distributeand sell the Product in the Territory. Without limiting the generality of theforegoing, Marketing and Distribution Know-How shall include all customerlists, market research data and reports, customer segmentation reports, detailpieces and any other marketing information relating to the promotion,distribution or sale of the Product in the Territory;

 

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(18)         **Marketing Authorizations”**means the Marketing Authorizations for the Product in the Territory specifiedin Schedule 1, including but not limited to any and all authorizations,licenses and compliance with all Applicable Laws;

 

(19)         “**Net Sales**”means the price received by the Distributor for sale of the Product, excludingapplicable sales taxes**,**customsfees, duties and freight costs;

 

(20)         “**Person**” meansan individual, corporation, company, co-operative, partnership organization orany similar entity;

 

(21)         “**Product**” meansDRAXIMAGEÒ Sestamibi manufactured and supplied by DRAXIMAGE or itsdesignated subcontractors and any other product hereafter included as a Productby written agreement of the Parties, as further described in Schedule 1;

 

(22)         “**Quality Agreement**”means that quality agreement to be entered into between the Parties withinninety (90) days of the date of execution of this Agreement;

 

(23)         “**RegistrationDocumentation**”****meansthe Drug Identification Number (DIN) or similar drug product identification,regulatory dossiers, data, results of clinical or other trials orinvestigations and the like, if any, submitted as part of any application forthe Marketing Authorizations and which is in the possession of DRAXIMAGE at anytime during the course of this Agreement, including, without limitation, thedrug master file and all information and data submitted to any provincial,state or federal or private insurance authorities or price control or licensingbodies;

 

(24)         “**Regulatory Authority**”means any federal, provincial, territorial, state, local or foreign governmentagency, board, tribunal, court, commission or authority and includes, withoutlimitation, the FDA, having authority over the purchase, manufacture, storage,handling, packaging, labelling, disposal, marketing, distribution or sale ofthe Product;

 

(25)         “**Regulatory Requirements**”means any rules, regulations, directives, policies, guidelines and orders ofany Regulatory Authority, including, without limitation, current goodmanufacturing practice and any Applicable Laws;

 

(26)         “**Renewed Term**”shall have the meaning set out in Section 11.01(2);

 

(27)         “**Specifications**”means the specifications of the Product attached hereto as Schedule 2, asamended from time to time by DRAXIMAGE upon prior notice to the Distributor;

 

(28)         “**Term**” means,collectively, the Initial Term and any Renewed Term, as the case may be;

 

(29)         “**Territory**”means the United States of America, including its territories;

 

(30)         **“Trade-marks”**means the trade-marks, trade names and trade dress for the Product (whetherregistered or not), the details of which are set out in Schedule 3;

 

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(31)         “**Warranties**”means the representations, warranties and covenants given by DRAXIMAGE to theDistributor as set out in Schedule 4; and

 

(32)         “**$**” means USdollars.

 

1.02**         Headings**

 

Thedivision of this Agreement into Articles and Sections and the insertion ofheadings are for convenience of reference only and do not affect theconstruction or interpretation of this Agreement.  The terms “this Agreement”, “hereof”,“hereunder” and similar expressions refer to this Agreement and not to anyparticular Article, Section or other portion hereof and include anyagreement supplemental hereto.  Unlesssomething in the subject matter or context is inconsistent therewith,references herein to Articles and Sections are to Articles and Sections of thisAgreement.

 

1.03         **Extended Meanings**

 

In thisAgreement words importing the singular number include the plural and viceversa, words importing any gender include all genders and words importingpersons include individuals, partnerships, associations, trusts, unincorporatedorganizations and corporations.

 

1.04         **Schedules**

 

Thefollowing are the Schedules attached hereto and deemed to be part hereof:

 

                           ***

 

**ARTICLE 2 -APPOINTMENT - LICENSE**

 

2.01         **Appointment**

 

(1)           Subject to the terms and conditions of this Agreement andwith effect from the Effective Date, DRAXIMAGE hereby appoints, and theDistributor hereby accepts its appointment, as the exclusive distributor of theProduct in the Territory and to Distributor’s Canadian RadiopharmacyNetwork for the Term of the Agreement.  ***

 

(2)           TheDistributor recognizes and agrees that it shall not be able to offer for saleor sell the Product in Canada to its Canadian Radiopharmacy Network untilDRAXIMAGE has received Health Canada approval for same and that the mainCanadian patent for CardioliteÒ has expired andthat consequently, DRAXIMAGE may sell the Product to Distributor ***

 

(3)           Exceptwith the prior written approval of DRAXIMAGE,and as provided herein, theDistributor shall not be empowered by its appointment hereunder or otherwise,to act on behalf of or bind DRAXIMAGE or to make any express or implied representationor give any warranty on the Product or otherwise on behalf of DRAXIMAGE.

 

(4)           ***

 

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2.02         **License**

 

(1)           DRAXIMAGE grants Distributor an exclusive,non-transferable, right and license to use, copy and reproduce in the Territory(i) the Intellectual Property, (ii) the Goodwill and (iii) theRegistration Documentation, solely for marketing, promoting, distributing andselling the Product, provided that any such use or display complies withDRAXIMAGE’s then-current trade-mark usage guidelines as provided by DRAXIMAGEto the Distributor in writing.

 

(2)           The Distributor acknowledges that DRAXIMAGE will have andretain all worldwide right, title and interest in and to the IntellectualProperty, the Goodwill and the Registration Documentation. All use of theTrademarks by the Distributor and the Goodwill generated thereby shall be ownedand enure to the benefit of DRAXIMAGE. DRAXIMAGE may terminate the rights granted in this Section 2.02 if,in its reasonable discretion, the Distributor’s use of the Trade-markstarnishes, blurs or dilutes the quality or Goodwill associated with theTrade-marks.

 

(3)           All rights not expressly granted in this Section 2.02are hereby reserved.

 

2.03**         Restrictions**

 

(1)           The Distributor agrees that it will not use theTrade-marks (i) as any part of the name under which the Distributorcarries on business or (ii) in combination with any other name or symbol,word(s), logo or mark so as to form a composite mark or a new mark. TheDistributor will not attempt to register any of the Trade-marks or any othermark confusingly similar thereto.

 

(2)           The Distributor shallprovide to DRAXIMAGE at least thirty (30) days in advance a copy of allproposed marketing and advertising material proposed to be used in respect ofthe Product or the Trade-marks, all of which material must be approved inwriting by DRAXIMAGE before it can be used by the Distributor in order forDRAXIMAGE to control the proper use of the trademarks and the properdescription of the Product.

 

**ARTICLE 3 -TERMS OF SALE**

 

3.01         **Forecasts**

 

(1)           The Distributor shall provide DRAXIMAGE with a mutually agreed ***  forecast of the purchasing volume of Product (i) within*** days of the Effective Date and thereafter each ***  of the Term (the “Annual Forecast”) and (ii) atthe beginning of each calendar quarter.

 

(2)           ***

 

3.02         **Orders**

 

(1)           ***

 

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(2)           DRAXIMAGE or its authorized subcontractor shall useits best commercial efforts to fill such orders.  DRAXIMAGE shall promptly inform the Distributorof the unavailability of any Product.

 

(3)           DRAXIMAGE shall inform the Distributor in writing withinfive (5) Business Days of the receipt of an order of its acceptance, refusal or non-execution ofsuch order transmitted by the Distributor.

 

(4)           All orders accepted by DRAXIMAGE shall be final.

 

3.03         **Inability to Supply**

 

(1)           ***

 

(2)           ***

 

(3)           ***

 

(4)           ***

 

(a)                                  ***

 

(b)                                 ***

 

(c)                                  ***

 

(d)                                 ***

 

(5)           ***

 

3.04         **Minimum Volumes**

 

(1)           ***

 

(2)           ***

 

(3)           ***

 

(4)           ***

 

3.05         **Delivery by DRAXIMAGE**

 

(1)           DRAXIMAGE or its authorized subcontractor shall deliverany orders placed by the Distributor and accepted by DRAXIMAGE in accordancewith Section 3.02(3) within thirty (30) days of the acceptance ofsaid orders, except due to exceptional circumstances.

 

(2)           DRAXIMAGE or its authorized subcontractor shall inform theDistributor of any anticipated delay in the delivery of the Product.

 

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(3)           ***

 

(4)           ***

 

3.06         **Quality and Labelling**

 

(1)           Upon delivery of the Product in accordance with Section 3.05(3), theDistributor shall conduct a visual inspection of said Product. If theDistributor reasonably believes that any shipment of the Product fails to meetthe Specifications upon delivery, the Distributor shall notify DRAXIMAGE or itsauthorized subcontractor within two (2) Business Days after delivery and,at the cost of DRAXIMAGE, may return the Product to DRAXIMAGE or its authorizedsubcontractor. DRAXIMAGE shall, pursuant to the Distributor’s directions,either replace the Product or refund the price of such returned Product to theDistributor.

 

(2)           Any dispute between the Parties regarding the conformity or non-conformityof Product to the Specifications shall be submitted to an independentlaboratory, to be agreed upon by the Parties. The decision of saidlaboratory shall be binding on both Parties with the fees of said laboratory tobe borne either by DRAXIMAGE if the concerned shipment does not correspond tothe Specifications or by the Distributor in any other event.

 

(3)           The Product shall be labeled as setforth in Schedule 5 attached herewith. The Distributor shall not change the labeling without the prior writtenconsent of DRAXIMAGE, except if mandatory because of an applicable regulatoryrequirement.

 

(4)           The Product to besold by the Distributor to the Distributor’s Canadian Radiopharmacy Networkshall have a distinct label in compliance with applicable Canadian legislation.

 

3.07         **Customer Rejection**

 

(1)           The Distributor shall immediately inform DRAXIMAGE in theevent that a customer rejects the delivery of the Product ordered. UponDRAXIMAGE’s written authorization, the Distributor shall request from theshipper that the Product be returned to a location to be designated in writingby DRAXIMAGE.

 

(2)           In the event that the Product which is returned isdeteriorated or expired Product, and provided that such return results fromDRAXIMAGE’s failure to comply with the requirements set forth under thisAgreement, DRAXIMAGE shall (i) credit the Distributor for the price it hasinvoiced to the Distributor for Product and (ii) bear all costs and lossesrelated to the returned Product, including its destruction. Subject to theabove, the Distributor shall, upon written request and at DRAXIMAGE’s expense,destroy any Product which is returned to the Distributor.

 

3.08         **Audit Rights**

 

(1)           Not more than once in any twelve (12) month period, uponten (10) Business Days’ notice, DRAXIMAGE shall be entitled through anindependent auditor, accountant or other representative:

 

 

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                                                to conduct during the term of this Agreement, or any renewalthereof, an inspection of the Distributor’s facilities and warehousing inaccordance with the terms of the Quality Agreement in order to verify theproper storage of the Product in accordance with the terms and conditions ofthis Agreement;

 

                                                to review and verify, during the term of this Agreement, orany renewal thereof, and for *** all of the records kept and maintained by theDistributor relating to the Distributor’s activities in connection with thisAgreement, including but not limited to ***

 

(2)           The inspection and review described in Section 3.08(1) shallbe at DRAXIMAGE’s expense, unless such review indicates a breach of the termsand conditions of this Agreement by the Distributor, in which case theDistributor shall pay DRAXIMAGE’s expenses in performing such review withinfifteen (15) days of a receipt of an invoice for same and DRAXIMAGE shall havethe right in its sole discretion to terminate this Agreement in accordance withSection 11.02(1).

 

**ARTICLE 4 -PRICE AND PAYMENT**

 

4.01         **Price**

 

The prices payable for allProducts purchased by the Distributor from DRAXIMAGE are set forth in Schedule7.

 

4.02         **Incentives**

 

Schedule 8 provides a listof applicable rebates on the GEHC Price in the event that the Distributorpurchases certain quantities of Products in a given year during the InitialTerm.

 

4.03         **Taxes and Duties**

 

The Distributor agrees to pay, in addition tothe price, all sales taxes, duties and other similar indirect taxes andcharges, domestic and international, where properly levied.

 

4.04         **Payment Terms**

 

The Distributor must payfor the Products within *** days****fromthe date of invoice on the terms set out in the invoice. Payment of all amountsdue to DRAXIMAGE shall in no event be delayed due to late payment to theDistributor by its customers.  Allamounts payable to DRAXIMAGE for Product shall be paid in US dollars to suchPerson at such address, electronic or otherwise, as shall be specified byDRAXIMAGE by notice to the Distributor.

 

4.05         **Retail Price**

 

Subject to any restrictionscontained in this Agreement, the Parties agree that the Distributor shall befree to make decisions in connection with its marketing activities, includingthe price of the Product, in an autonomous and independent manner.

 

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4.06         **Marketing Conditions**

 

***

 

4.07         **Reconciliation**

 

***

 

**ARTICLE 5 -DUTIES OF DISTRIBUTOR AND DRAXIMAGE**

 

5.01         **Duties**

 

**A - DISTRIBUTOR**

 

(1)           The Distributor will use its Commercially ReasonableEfforts to make available and to sell the Product in the Territory and, withoutlimiting the generality of the foregoing, will fill orders for the Product.

 

(2)           Upon a request from Distributor, DRAXIMAGE shall provideto Distributor such sales promotional material, displays and other merchandiseas DRAXIMAGE may currently have on hand, at its expense.

 

(3)           The Distributor shall:

 

                                                advise DRAXIMAGE of any matter that Distributor determineswill affect sales in the Territory and of any material customer complaints;

 

                                                deliver Product to customers of Product in the Territory.

 

**                                               **provide suitable facilities and cGMP warehousing to storeand handle Product delivered to the Distributor;

 

**                                               **maintain ***

 

**                                               **list the Product availability on its product catalogues andwebsite, if applicable, for the Nuclear Pharmacies product offering; and

 

                                                ***

 

(4)           The Distributor shall notify DRAXIMAGE withinfour (4) Business Days of any informationthat it may receive, from time to time, regarding any threatened or pendingaction by any competent authority which the Distributor determines may affectthe safety or efficacy claims of the Product or the continued marketing ofsame.

 

(5)           The Distributor shall keep accurate sales records inaccordance with applicable standards to enable rapid recall of the Product, ifsuch recall is necessary.

 

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(6)           The Distributor shall provide within forty-five (45) daysof the beginning of each calendar quarter a written sales report to DRAXIMAGErelating to the previous calendar quarter which shallinclude a breakdown by number of units of Product sold and sales to each of thedistribution channels ***

 

(7)           The Distributor shall promptly refer to DRAXIMAGE allinquiries received by it concerning the use or administration of the Product byor to third parties.

 

**B —DRAXIMAGE**

 

(1)           DRAXIMAGE shall be responsible for filing and maintainingthe ANDA and all supplemental applications.

 

5.02         **Limitations**

 

(1)           The Distributor will confine its sales of Product to theTerritory and will not, directly or indirectly, deliver any Product to anyplace outside the Territory or knowingly sell any Product for delivery to anysuch place.  The Product is manufacturedin Europe and is subject to European export control laws.  Any Product received in the United States isthereafter also subject to United States export control laws and economicsanctions regulations.  The Distributorwill indemnify and hold DRAXIMAGE and its Affiliates, employees, directors,officers and shareholders, harmless against any claims asserted against, orcosts or damages incurred or paid by, DRAXIMAGE which arise or result from theDistributor’s failure or alleged failure to comply with applicableexport-related laws or regulations.

 

(2)           ***

 

(3)           ***

 

(4)           The Distributor shall not sell or distribute any Productwhich has an expired shelf life.

 

(5)           Unless otherwise approved in writing by DRAXIMAGE, theDistributor shall not make any statement about the Product other than those setforth in DRAXIMAGE official labelling for the Product, as approved by thecompetent Regulatory Authority. For greater clarity, the Distributor will notmake any statement whatsoever with respect to off-label use of the Product.

 

**ARTICLE 6 -ADVERSE EVENTS — RECALLS - PHARMACOVIGILANCE**

 

6.01         **Adverse Events**

 

The Distributor shallinform DRAXIMAGE immediately, and in any event within four (4) Business Days of all reports of adverse drug events, coming to theDistributor’s knowledge with regard to the Product regardless of the origin ofsuch reports. The Parties shall inform each other without delay if any measureis necessary to remove or to minimize any risk with respect to a 

 

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specific production lot orpreparation of a Product.  However,DRAXIMAGE shall be responsible for all follow up procedures with regard to anyadverse drug event.

 

6.02         **Recalls**

 

(1)           If, for any reason, it shall become necessary to traceback or recall any particular batch of the Product, or to identify the customeror customers to whom any unit from such batch has been delivered, theDistributor shall co-operate with DRAXIMAGE in doing so.

 

(2)         In the event that either Party has reason to believe thatone or more lots of the Product should be recalled or withdrawn fromdistribution in the Territory, such Party shall immediately notify the otherParty in writing or by telephone if the notice is to be given on a day otherthan a Business Day. To the extent permitted by the circumstances, the Partiesshall confer together before initiating any recall in order to exchange anyrelevant information, but the decision as to whether or not to initiate arecall of the Product in the Territory shall be taken by DRAXIMAGE.  In this respect, DRAXIMAGE shall have theright, at any time, to recall any of the Product promptly by giving notice tothe Distributor by telephone (to be immediately confirmed in writing, byfacsimile or courier) and the Distributor shall upon receipt of such notice,immediately cease and desist from further selling and for distributing theProduct to be returned to the Distributor and shipped back to DRAXIMAGEpursuant to DRAXIMAGE’s instructions.  Ifthe Distributor deems there is a situation that necessitates a recall andadvises DRAXIMAGE of same and DRAXIMAGE does not respond to Distributor’sinquiry regarding same within twenty-four (24) hours notice of the receipt ofthe written notice by Distributor, then the Distributor shall be entitled toinitiate a recall of the Product.  Insuch event, Distributor shall advise DRAXIMAGE of all procedures taken and allrelated information.  However bothparties agree to work together in good faith to reach a mutually agreed upondecision in each case where a recall may be necessary.

 

If therecall is required because of a modification or withdrawal of an approval froma Regulatory Authority or of a negligent act or omission of DRAXIMAGE,DRAXIMAGE shall promptly reimburse the Distributor for the cost and expense ofsuch recall, and, at DRAXIMAGE’s option, DRAXIMAGE shall replace the recalledProduct or refund the purchase price (as referenced in Schedule 7 hereto) ofsuch recalled Product. If the recall is required because of a negligent act oromission of the Distributor in connection with the handling, refrigeration,storage or distribution of the Product, then such recall shall be conducted bythe Distributor at its sole cost and expense and the Distributor shall not beentitled to any such replacements or refunds from DRAXIMAGE. If such recall isrequired because of a joint act or omission of the Parties, the Distributorshall conduct the recall and the Parties shall negotiate in good faith anappropriate allocation of the cost and expense of such recall.

 

6.03         **Pharmacovigilance**

 

(1)           Except as already provided in Section 6.01, theParties agree that DRAXIMAGE shall be responsible for all pharmacovigilance andcompliance obligations in connection with this Product in the Territory.  DRAXIMAGE shall be the contact for the FDAand any other applicable regulatory agency.

 

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**ARTICLE 7 -WARRANTIES**

 

7.01         **Representations and Warranties**

 

(1)           Each Party hereby represents, warrants and covenants tothe other as follows, such representations, warranties and covenants havingfull force and effect for the benefit of the other Party throughout the term ofthe Agreement:

 

                                                it is duly incorporated, organized and validly existing andin good standing under the laws of jurisdiction of incorporation;

 

                                                it has full right and authority to enter into and deliverthis Agreement;

 

                                                this Agreement has been duly executed anddelivered by it, and is a valid and binding obligation of such partyenforceable in accordance with its terms;

 

                                                it has not entered into any contract,arrangement or understanding with any other Person or entity, that does or mayimpair or diminish its ability to fully perform, be responsible for and meetall the obligations and liabilities to it set forth in this Agreement; and

 

                                                it is not aware at the date of signature of this Agreementof anything within its reasonable control which might or will adversely affectits ability to fulfil its obligations under this Agreement.

 

(2)           The Distributor hereby represents, warrants and covenantsto DRAXIMAGE as follows, such representations, warranties and covenants havingfull force and effect for the benefit of DRAXIMAGE throughout the term of theAgreement:

 

                                                it has and/or will acquire and maintain allnecessary and appropriate authorizations, licenses, permits and permissions tofully perform, be responsible for and meet all the obligations and liabilitiesrelating to it set forth in this Agreement;

 

                                                it has and will maintain adequatefacilities and cGMP warehousing for the Product, in accordance with the storageinstructions set out in the Specifications. The Distributor shall keep theProduct in good condition and free from any damage and contamination that woulddetract from the appeareance and/or performance of the Product; and

 

                                                it has, and its officers and directorshave, no pending or anticipated litigation, action or proceeding before anycourt, tribunal or Person relating to any matter or thing that may affect itsability to fully perform, be responsible for and meet all 

 

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the obligationsand liabilities set forth in this Agreement or that DRAXIMAGE believes, actingreasonably, would reflect poorly on Distributor’s standing within the businesscommunity.

 

(3)           DRAXIMAGE hereby represents, warrants and covenants to theDistributor as set out in Schedule 4 (the “**Warranties**”),such representations, warranties and covenants having full force and effect forthe benefit of the Distributor through the term of the Agreement.

 

(4)           The provisions of Sections 8.04 and 8.05 hereof shalloperate to limit the liability of DRAXIMAGE under the Warranties and suchlimitation shall apply equally to any claim which may be brought by anypermitted assignee of the benefit of the Warranties.

 

**ARTICLE 8 -INDEMNITIES — LIMITATION OF LIABILITY**

 

8.01         **Indemnities**

 

(1)           DRAXIMAGE shall indemnify the Distributor and itsAffiliates, and their respective directors, officers and employees, and defendand save each of them harmless, from and against any and all losses, damages,liabilities, costs and expenses (including reasonable lawyers’ fees andexpenses) in connection with any and all suits, investigations, claims ordemands (collectively, “**Losses**”)arising from or occurring as a result of:

 

                                                ***

 

                                                ***

 

                                                ***

 

                                                ***

 

                                                ***

 

(2)           The Distributor shall indemnify DRAXIMAGE and Affiliatesand their respective directors, officers and employees, and defend and saveeach of them harmless, from and against any and all Losses arising from oroccurring as a result of:

 

                                                ***

 

                                                ***

 

                                                ***

 

                                                ***

 

 

----

 

 

8.02         **Conditions**

 

(1)           It shall be a condition of the Party giving theindemnification (the “**Indemnifier**”)being liable to indemnify the other Party (the “**Indemnified**”) under the provisions of Section 8.01 that:

 

                                                the Indemnified promptly notifies the Indemnifier of anyclaim made against it in relation to such matters;

 

                                                the Indemnified shall not accept any compromise orsettlement nor take any other material steps in relation to the subject of suchclaim without the prior approval in writing of the Indemnifier, such approvalnot to be unreasonably withheld; and

 

                                                the Indemnified shall (subject to being indemnified by theIndemnifier in a form reasonably satisfactory to the Indemnified against allcosts and expenses) allow the Indemnifier and its insurers to have the conductof any defence to, or settlement or compromise of, any such claim and give theIndemnifier all assistance that the Indemnifier reasonably requires inconnection therewith.

 

8.03         **Records**

 

(1)           During the term of this Agreement and for a period ofseven (7) years thereafter, Distributor shall keep records sufficient toenable DRAXIMAGE to verify Distributor’s compliance with the terms andconditions of the Agreement.

 

(2)           If an Indemnified Party is seeking indemnificationpursuant to this Article 8 in respect of a third party claim, theIndemnified Party shall provide the Indemnifier with access to and copies ofany information in the Indemnified Party’s possession as the Indemnifier mayreasonably require in order to enable it to defend such claim, and the Indemnifiershall hold such information as may have been transferred to it pursuant to thisAgreement in safe custody and shall not destroy any such information for aperiod of at least seven (7) years from the Effective Date of thisAgreement without the prior approval of the Indemnified Party.

 

8.04         **Limitation of Liability**

 

***

 

8.05         **Limitation on Warranties**

 

(1)           Where the grounds for a claim against DRAXIMAGE under theWarranties arises in respect of or in connection with a claim by, or allegedliability to, a third party:

 

(a)                                  The Distributor shall not accept any compromise orsettlement nor take any other material steps in relation to the subject of suchclaim without the prior approval in writing of DRAXIMAGE, such approval not tobe unreasonably withheld; and

 

(b)                                 The Distributor shall (subject to being indemnified byDRAXIMAGE in a form reasonably satisfactory to the Distributor against allcosts and expenses) allow 

 

----

 

 

DRAXIMAGE and its insurers to havethe conduct of any defence to, or settlement or compromise of, any such claimand give DRAXIMAGE all assistance that DRAXIMAGE reasonably requires inconnection therewith.

 

(2)           Where the Distributor has any claim against any thirdparty in relation to any matter in respect of which there shall have been a breachof the Warranties or where the Distributor receives any claim from a thirdparty which may result in the Distributor having a claim under the Warranties,DRAXIMAGE shall be entitled to take any action and require the Distributor totake any action it may reasonably request to prosecute or resist such claim, asthe case may be, in the name of the Distributor (if appropriate), but at theexpense of DRAXIMAGE, and DRAXIMAGE shall further be entitled at its ownexpense to have the conduct of any appeal, dispute, application for defermentand other forms of objection, compromise or defence and of any incidentalnegotiations and the Distributor shall give DRAXIMAGE such co-operation, accessand assistance for the purpose of considering, prosecuting or resisting, as thecase may be, such claim as  DRAXIMAGE mayreasonably require.

 

(3)           If DRAXIMAGE shall have made a payment in respect of aclaim under the Warranties and the Distributor shall subsequently receive froma third party, or under the terms of any insurance policy, a sum which wouldhave reduced the liability of DRAXIMAGE in respect of such claim had such sumbeen received prior to payment by DRAXIMAGE, the Distributor shall repay toDRAXIMAGE such amount as is equal to the sum subsequently received (afterhaving deducted the reasonable costs and expenses, if any, incurred inrecovering such sum) provided that the amount so repaid shall not exceed theamount of the payment made by DRAXIMAGE.

 

(4)           The Distributor acknowledges that no representations, undertakingsor warranties, express or implied, are given by DRAXIMAGE in relation to theProduct other than expressly contained or referred to in this Agreement or inany other document referred to in this Agreement.

 

**ARTICLE 9 -RELATIONSHIP**

 

9.01         **Independent Contractors**

 

(1)           The relationship between DRAXIMAGE and the Distributorcreated pursuant to this Agreement is intended to be and shall be solely thatof independent contractors. Neither Party, nor its employees, agents orrepresentatives shall under any circumstances be considered employees, agents,partners, joint venturers or representatives of the other Party. Neither Party,nor its employees, agents or representative shall act or attempt to act, orrepresent themselves, directly or by implication, as an employee, agent, jointventurer, partner or representative of the other Party or in any manner assumeor create, or attempt to assume or create, any obligation or liability of anykind, express or implied, on behalf of or in the name of the other Party.  No Person other than DRAXIMAGE or Distributormay rely on or enforce any provision of this Agreement.

 

(2)           The Distributor has no authority to adjust or negotiate orsettle any claims or demands against DRAXIMAGE or to bind DRAXIMAGE in anyrespect.

 

----

 

 

9.02         **Confidentiality**

 

ThisAgreement is subject to the Mutual Confidential Disclosure Agreement enteredinto between *** and the *** (“**CDA**”)which is incorporated herein by reference and attached hereto as Schedule 9;provided, however, that the Parties agree that (i) the provisions of theCDA shall apply to all information and data provided by either Party or theiragent(s) in confidence or as confidential and (ii) the definition of“Purpose” therein shall be extended to include the performance of each ofDRAXIMAGE LLC and the Distributor obligations under this Agreement.

 

**ARTICLE10 - FORCE MAJEURE**

 

10.01       **Definition**

 

In this Agreement, “**Force****Majeure**”means the following events or occurrences beyond the reasonable control of aParty which by the exercise of reasonable diligence could not be overcome,including, but not limited to, strikes, lock-outs, labour disruptions, acts ofGod, changes in the law, restraints of governments, riots, acts of war, civildisturbances, terrorist actions, rebellion or sabotage, pipeline or pipefailure, failure of fuel or water supply or transportation fire, flood, ice,lightning, epidemic, explosion, hydro-electric power failures, defaults bythird party suppliers, not caused by the act or omission of the Party or any delayor failure by a Regulatory Authority to issue any relevant permit or order notcaused by the act or omission of the Party.

 

10.02       **Non-default**

 

A Party shall be deemed notto be in default with respect to non-performance of any of its obligationsunder this Agreement, if and so long as such non-performance is due in whole orin some material way to an event of Force Majeure and that Party has usedCommercially Reasonable Efforts to remove the event of Force Majeure and toperform its obligations under the Agreement. If an event of Force Majeure occurs, the Party affected shall promptlynotify the other Party of the occurrence of the event, its extent and probableduration and shall use all reasonable endeavours to bring the Force Majeureevent to a close or to find a solution by which the Agreement may be performeddespite the continuance of the Force Majeure event.

 

10.03       **Cessation of Force Majeure**

 

Subject to Section 10.02,if a Party is unable to comply with its obligations under this Agreement byreason of Force Majeure, Force Majeure shall excuse such Party’s performanceuntil the Force Majeure has ceased and for a reasonable period of timethereafter, to allow said Party to restore itself to the position it wasimmediately prior to the Force Majeure.    The Party subject to the Force Majeure eventshall suffer no penalty or incur any liability for its inability to performhereunder by reason of Force Majeure.

 

----

 

 

10.04       **Termination**

 

If a Party fails to performany of its obligations under this Agreement by reason of Force Majeure and suchnon-performance continues for a period of ninety (90)****days from the first occurrence of the event of Force Majeure,the other Party may, if itself is not in default under the Agreement, terminatethis Agreement by providing written notice to that effect to the non-performingParty.  In the event of such termination,both Parties’ respective rights and obligations under this Agreement shallterminate except for any amounts previously due and owing by one Party to theother and except for any other obligations which this Agreement expresslyprovides shall survive termination.

 

**ARTICLE 11 -TERM - TERMINATION**

 

11.01       **Term**

 

(1)           This Agreement will commence on the date of signature hereof and continuein effect for a period of three (3) years from the Effective Date (the“Initial Term”), except that it is understood and agreed by the Distributorthat the supply of Products by DRAXIMAGE to the Distributor shall not commenceprior to the Effective Date and that the Distributor may not sell or offer forsale the Product prior to the Effective Date.

 

(2)           This Agreement shall be automatically renewed for successive periods of ***each (“Renewed Term”) following the expiration of the Initial Term, unlessotherwise indicated by either Party to the other with a prior *** writtennotice.

 

11.02       **Termination**

 

(1)           ***

 

(2)           ***

 

***

 

    ***

 

    ***

 

    ***

 

***

 

***

 

***

 

DRAXIMAGE shalldeliver such residual quantities of the Product to Distributor inaccordance with the terms set forth in Article 3 hereof.

 

----

 

 

(3)                   EachParty may terminate this Agreement, upon written notice:

 

                                                if the other Party breachesor fails to observe or perform any obligations set out in this Agreement andfails to cure such breach with fifteen (15) Business Days written notice or anylonger cure period mutually agreed to between the Parties;

 

                                                if the other Party fails toperform its obligations under this Agreement by reason of Force Majeure as setout in Section 10.04.

 

(4)           DRAXIMAGE may terminatethis Agreement forthwith by notice to the Distributor if:

 

                                                the Distributor ceasesdistribution of the Product;

 

                                                the Distributor ceases tocarry on business or sells the assets pertaining to the business ofdistributing Product or becomes insolvent or commences any proceedings or anyproceedings are commenced against it under any bankruptcy or insolvencylegislation or makes an assignment for the benefit of its creditors or proposesa compromise or arrangement to its creditors or if a receiver of its assets orany substantial part thereof is appointed.

 

(5)           ***

 

(6)           Upon expiration ortermination of this Agreement for any reason whatsoever:

 

                                                the Distributor shallimmediately cease to market, promote, distribute and sell the Product, unlessotherwise agreed in writing by DRAXIMAGE;

 

                                                the rights and licensesgranted to the Distributor under this Agreement will automatically terminate;

 

                                                the Distributor shall ceaseusing the Trade-marks and thereafter refrain from holding itself out as anauthorized Distributor of DRAXIMAGE;

 

                                                DRAXIMAGE shall be entitledto market, promote, distribute and sell the Product to any Person  in the Territory either directly orindirectly;

 

                                                DRAXIMAGE may repurchase allof the Distributor’s inventory of Product that meet the applicableSpecifications at the prices paid therefor by the Distributor.

 

                                                the Distributor will returnall paper and electronic copies of all promotional material and otherinformation relating to the Product and all Intellectual Property to DRAXIMAGEwithin thirty (30) days of the expiration or termination of the Agreement.

 

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**ARTICLE 12 - INSURANCE**

 

12.01       **Product LiabilityInsurance**

 

DRAXIMAGE agrees tomaintain product liability insurance in such form, amount and effect so as tofulfil its obligations hereunder to the Distributor’s reasonable satisfaction,but in no event shall such coverage be less than ***. Upon the Distributor’srequest, DRAXIMAGE shall provide the Distributor with certificates of insuranceattesting the existence of such insurance. ***

 

12.02       **All Risk Insurance**

 

The Distributor agreesto maintain all risk and general liability insurance in such form, amount andeffect so as to fulfil its obligations hereunder to DRAXIMAGE’s reasonablesatisfaction, but in no event shall such coverage be less than ***.  Upon DRAXIMAGE’s request, the Distributorshall provide DRAXIMAGE with certificates of insurance attesting the existenceof such insurance.  ***

 

**ARTICLE 13 - GOVERNING LAW - JURISDICTION**

 

13.01       **Governing Law**

 

This Agreement shall be governed by and construed in accordance with thelaws of the State of New York applicable therein, without regard to its choiceof law principles.

 

13.02       **Jurisdiction**

 

(1)           Throughout the Term, theParties will always attempt in good faith to resolve any disputes arising withrespect to the Agreement.  In the eventthat a dispute cannot be resolved by consensus after initial informaldiscussion between the Parties, such dispute shall be referred to thePresidents of DRAXIMAGE and Distributor (collectively, the “Negotiators”), whoshall discuss the matter and attempt in good faith to reach an amicablesolution to the dispute.  Should theNegotiators, within thirty (30) days of their first meeting (whether by phoneor in person) with respect to the dispute fail to resolve the dispute (the“Settlement Date”), the matter shall proceed to mediation as described below.

 

(2)           In the event the dispute isnot resolved in accordance with Section 13.02(1), the Parties shall thenattempt in good faith to resolve any significant controversy, claim, or disputearising out of or relating to this Agreement or any significant breach thereofthrough mediation with a mutually agreed mediator.  If the mediation of such dispute does notcommence within thirty (30) days (or such other period of time mutually agreedupon by the Parties) of the receipt of a written request for such mediation bythe other Party, or if the dispute is not resolved within thirty (30) days (orsuch other period of time mutually agreed upon by the Parties) of commencingsuch mediation, or if the Party against which a claim has been asserted refusesto attend such mediation, or the Parties are unable to agree upon a mediator,then either Party may proceed to litigation, as provided for in Section 13.02(4),other than with respect to a Payment Dispute (as defined below).

 

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(3)           Disputes with respect toterms of payment as set out in Article 4 (a “Payment Dispute”) shall besettled by Arbitration as set forth below.

 

                                                Any party having a claim,conflict or disagreement (“Claimant”) will forward a written notice(“arbitration notice”) to the other Parties containing:

 

                                                A reasonably detaileddescription of the claim, conflict or disagreement to be submitted toarbitration; and

 

                                                The name, address andprofession of the Person proposed as an arbitrator.

 

                                                the other Parties will haveten (10) days from the receipt of the arbitration notice to send theClaimant a notice confirming their acceptance or refusal to submit the conflictor disagreement to arbitration. If the Parties do not answer within thatdeadline, they will be considered as having refused the arbitration process. Ifthe Parties accept to submit the dispute or disagreement to arbitration, theymust send along with their confirmation of acceptance a notice confirming thesuggested arbitrator or else, the name, address and profession of the Personproposed as second arbitrator. If, while accepting the arbitration process, theother Parties do not oppose the Claimant’s choice of arbitrator and do notidentify a second arbitrator in the above-mentioned delay, they will beconsidered as having accepted the proposed arbitrator, who will act alone.  Failing the agreement on one arbitrator orthe default appointment of one arbitrator, the two arbitrators proposed by theParties shall select a third arbitrator as chairperson and the dispute shall beheard by an arbitral panel of three arbitrators.

 

                                                The hearing of Parties indispute must take place within thirty (30) days following the receipt of thearbitration notice.  The ruling of thearbitrator must be rendered in writing and communicated to the Parties at thelatest twenty (20) days after the hearing of Parties in dispute. Any rulingthus rendered is final and without possible appeal and, as soon as approved bythe Court, enforceable against the Parties. The arbitration costs are entirelypaid by the Party against whom the judgment is rendered unless the arbitratordetermine otherwise.

 

                                                For the purposes of anyarbitration in accordance with this section 10, the single arbitrator or, as applicable,the arbitration tribunal has all the powers of court of original generaljurisdiction, except those exclusively reserved to such a tribunal.Notwithstanding the above, the Parties retain their recourse to the common lawtribunals in matters of injunction.

 

(4)           Only in the event that adispute, other than a Payment Dispute, is not resolved through mediation, asprovided above, may the Parties resort to litigation.  Any dispute arising between the Partiesrelating to this Agreement shall be subject to the exclusive jurisdiction andvenue of the courts sitting in New York, County, New York.  The Parties hereby waive any objection whichthey may have now or hereafter to the laying of venue of proceedings in said courtsand to any claim that such proceedings have been brought in an inconvenientforum, and further irrevocably agree that a judgment or order in any suchproceedings shall be conclusive and 

 

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binding upon each of them and may be enforced in the courts of any otherjurisdiction.  Each party hereby submitsto the personal jurisdiction of the courts sitting in New York County for thesepurposes.  In addition, any arbitrationconducted in relation to this Agreement shall be conducted in New York County.

 

**ARTICLE 14 - GENERAL**

 

14.01       **Subcontract**

 

The Distributor shall not delegate or subcontract any or allof its obligations or responsibilities hereunder without the prior writtenconsent of DRAXIMAGE, at its sole discretion. Any permitted delegation orsubcontract of any of the Distributor’s obligations or responsibilities underthe Agreement shall not relieve the Distributor of any of its liability for anybreach or default by such delegate or subcontractor, and the Distributor shallbe liable therefor as if the Distributor had committed such breach or defaultitself.

 

14.02       **Notice**

 

Any demand, notice or other communication to be given in connection withthis Agreement shall be given in writing and shall be given by personaldelivery, by registered mail or by fax (with an original to follow by personaldelivery or registered mail) addressed to the recipient as follows:

 
| To:             | ** ** | **DRAXIMAGE LLC**c/o  Darby & Darby P.C.  7 World Trade Center - 250 Greenwich Street  New York, New York   10007-0042 U.S.A.

  |
|-----------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------|
|            | ** ** | Attention:                                                                                                                                     | *** |
|            | ** ** | Fax No.:                                                                                                                                       | *** |
|            | ** ** |                                                                                                                                           |   |
|            | ** ** |                                                                                                                                           |   |
| With a copy to: | ** ** | **DRAXIS HEALTH INC.**  16751 Trans-Canada Highway  Kirkland, Québec H9H 4J4                                                              |
|            | ** ** | Attention:                                                                                                                                     | General Counsel and Secretary |
|            | ** ** | Fax No.:                                                                                                                                       | *** |
|            | ** ** |                                                                                                                                           |   |
| To:             | ** ** | **MEDI-PHYSICS INC.**3350  North Ridge Avenue   Arlington Heights, Illinois 60004                                                              |
|            | ** ** | Attention:                                                                                                                                     | *** |
|            | ** ** | Fax No.:                                                                                                                                       | *** |
|            | ** ** |                                                                                                                                           |   |

 

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|            | ** ** |                                                                                                 |   |
|-----------------|------------|------------------------------------------------------------------------------------------------------|--------|
| With a copy to: |       | General Counsel

GE Healthcare — Medical Diagnostics   101 Carnegie Center  Princeton, NJ 08540 |
|            |       |                                                                                                 |
|            |       | Fax No.:                                                                                             | ***    |

 

or to such other address, individual or fax number as may be designated bynotice given by either party to the other. Any demand, notice or other communication given by personal deliveryshall be conclusively deemed to have been given on the day of actual deliverythereof and, if given by registered mail, on the 5th Business Dayfollowing the deposit thereof in the mail and, if given by fax, on the day oftransmittal thereof if given during the normal business hours of the Recipientand on the business day during which such normal business hours next occur ifnot given during such hours on any day. If the party giving any demand, notice or other communication knows orought reasonably to know of any difficulties with the postal system which mightaffect the delivery of mail, any such demand, notice or other communicationshall not be mailed but shall be given by personal delivery or by fax.

 

14.03       **Further Assurances**

 

Each Party will at any time and from time to time, upon the request of theother Party, execute and deliver such further documents and do such furtheracts and things as the other Party may reasonably request to evidence, carryout and give full effect to the terms, conditions, intent and meaning of thisAgreement.

 

14.04       **Entire Agreement**

 

(1)           This Agreement, and anyand all Schedules attached thereto, supersedes any prior agreements between theParties as to the subject matter of the Agreement, whether oral or in writing,and contains the entire understanding between the Parties as to the subjectmatter of the Agreement.

 

(2)           There are norepresentations, warranties, terms, conditions, undertakings or collateralagreements, express, implied or statutory, between the Parties other than asset forth in this Agreement.  In theevent of any conflict between the provisions of this Agreement and theprovisions of any purchase order made by the Distributor hereunder, theprovisions of this Agreement will prevail.

 

14.05       **Amendment and Waiver**

 

No modification of or amendment to this Agreement will bevalid or binding unless set forth in writing and duly executed by both of theParties hereto and no waiver of any breach of any term or provision of thisAgreement will be effective or binding unless made in writing and signed by theparty purporting to give the same and, unless otherwise provided, will belimited to the specific breach waived.

 

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14.06       **Benefit of the Agreement**

 

This Agreement will enure to the benefit of and be bindingupon the respective successors and permitted assigns of the Parties hereto.

 

14.07       **Assignment**

 

***

 

14.08       **Severability**

 

Any provision of this Agreement that is held to be inoperative,unenforceable or invalid in any jurisdiction shall be inoperative,unenforceable or invalid in that jurisdiction without affecting any otherprovision hereof in that jurisdiction or the operation, enforceability orvalidity of that provision in any other jurisdiction, and to this end theprovisions hereof are declared to be severable.

 

14.09       **Survival**

 

The following provisions shall survive the expiration or termination ofthis Agreement: Sections 3.08, 4.04, 5.01(5), 5.02(1), 6.01, 6.02, 8.01 to8.05, 9.02, 11.02(6), 13.01 and 13.02.

 

14.10       **Language**

 

The Parties recognize having requested that the Agreementand all documents pertaining hereto be drafted in the English language. *Les parties reconnaissent avoir exigé que ce contrat et tousles documents qui y sont relatifs soient rédigés en langue anglaise.*

 

**INWITNESS WHEREOF**, the Parties have executed this Agreement as of the datewritten above, by their authorized officers, who by signing confirm theirauthority and intention to bind the Party they represent.

 
| **DRAXIMAGE LLC**                   |
|-------------------------------------|
| ** **                          | ** ** |
| Per:                                | /s/*** |   |
|                                | *** |
|                                | *** |
|                                |   |
| **MEDI-PHYSICS INC.,**              |
| **doing business as GE HEALTHCARE** |
|                                |   |
| Per:                                | /s/*** |   |
|                                | *** |
|                                | *** |

 

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