THE TWO YEAR PERIOD
ENDING ON THE NINTH ANNIVERSARY HEREOF SELL AT LEAST ONE HUNDRED AND TWENTY-FIVE
PERCENT (125%) OF THE NUMBER OF APPLIANCES IT SOLD DURING THE TWO YEAR PERIOD
ENDING ON THE SEVENTH ANNIVERSARY HEREOF, SUCH APPOINTMENT SHALL BECOME
NON-EXCLUSIVE WITHOUT FURTHER ACTION BY THE PARTIES AS OF THE END OF THE TWO
YEAR PERIOD DURING WHICH A SHORTFALL OCCURS.
So long as such appointment shall remain exclusive, VTAL shall (i) refer all
inquiries concerning the Appliance to EZEM and (ii) not supply, market or sell
the Appliance, either directly or indirectly, on its own, through distributors,
sub-distributors or sub-licensees or on an OEM basis and (iii) EZEM shall be
authorized to hold itself out as the only authorized seller of the Appliance in
the Territory.
Should such appointment become non-exclusive, VTAL agrees that
it will nevertheless not, so long as this Agreement remains in effect, appoint
as a distributor of the Appliance Bracco, Tyco/Mallinckrodt, Nycomed or Schering
AG/MedRad or any of their Affiliates, including their subsidiaries.
3.2.
DEALER AND SERVICE ASSOCIATES.
EZEM WILL MARKET THE APPLIANCE IN
THE UNITED STATES ONLY DIRECTLY TO CUSTOMERS, HOWEVER, THE PARTIES ANTICIPATE
THAT DEALER ASSOCIATES AND/OR SERVICE ASSOCIATES WILL BE UTILIZED IN SOME OR ALL
OF THE BALANCE OF THE TERRITORY.
THE PARTIES SHALL DISCUSS THE BEST MEANS OF
SELECTING SUCH DEALER AND SERVICE ASSOCIATES AND PROMOTING THE SALE AND SUPPORT
OF APPLIANCES IN MARKETS OUTSIDE THE UNITED STATES.
VTAL SHALL, UPON EZEM'S
REQUEST AND AT EZEM'S EXPENSECOOPERATE IN ASSISTING EZEM IN SEEKING TO APPOINT
VTAL'S VITREA 2 SOFTWARE, AS WELL AS OTHER, DEALERS AS DEALER ASSOCIATES.
THE
PARTIES AGREE THAT THE APPLIANCE MAY NOT BE SOLD THROUGH A DEALER ASSOCIATE
OUTSIDE THE UNITED STATES EXCEPT TO THE EXTENT THAT SUCH RELATIONSHIP HAS BEEN
ESTABLISHED WITH A MUTUALLY ACCEPTABLE DEALER ASSOCIATE IN THE COUNTRY OR PART
THEREOF WHERE THE APPLIANCE IS TO BE INSTALLED AND MAINTAINED.
EZEM SHALL
REMAIN FULLY LIABLE FOR THE PERFORMANCE OF ANY DEALER OR SERVICE ASSOCIATE AND
EZEM HEREBY INDEMNIFIES AND HOLDS VTAL HARMLESS FROM ALL DAMAGES, LOSSES, COSTS
OR EXPENSES ARISING IN ANY MANNER FROM ANY ACT OR OMISSION ON THE PART OF ANY
DEALER ASSOCIATE.
IF NO SALES OF AN APPLIANCE SHALL HAVE TAKEN PLACE IN A
PRIMARY COUNTRY WITHIN EIGHTEEN (18) MONTHS OF THE LATER OF (I) VTAL RELEASE OF
THE APPLIANCE FOR DISTRIBUTION AND (II) THE DATE THAT GOVERNMENT APPROVALS
REQUIRED FOR THE FULLY AUTHORIZED SALE, DISTRIBUTION AND USE OF THE APPLIANCE IN
SUCH COUNTRY ARE OBTAINED, THE APPOINTMENT SET FORTH IN SECTION 3.1 SHALL BECOME
NON-EXCLUSIVE WITH RESPECT TO SUCH COUNTRY WITHOUT FURTHER ACTION BY THE PARTIES
AS OF THE END OF SUCH EIGHTEEN (18) MONTH PERIOD.
3.3.
EXCEPTION AT CUSTOMER INSISTENCE.
IN THE EVENT THAT A PROSPECTIVE
CUSTOMER APPROACHES VTAL AND INSISTS THAT IT OBTAIN AN APPLIANCE DIRECTLY FROM
IT AND NOT THROUGH EZEM, OR IN THE EVENT THAT EZEM APPROACHES A PROSPECTIVE
CUSTOMER WHICH TAKES THE SAME POSITION, THE PARTY SO INFORMED BY SUCH POTENTIAL
CUSTOMER SHALL SO INFORM THE