Lind Declaration

1
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESTOA

ANNEX MEDICAL, INC.; STUART LIND,
and TOM JANAS

Plaintiffs,

v.

KATHLEEN SEBELIUS, in her official
capacity as Secretary of the United States
Department of Health and Human Services;
HILDA SOLIS, in her official capacity as
Secretary of the United States Department of
Labor; TIMOTHY GEITHNER, in his official
capacity as Secretary of the United States
Department of the Treasury; UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN
SERVICES; UNITED STATES
DEPARTMENT OF LABOR; and UNITED
STATES DEPARTMENT OF THE
TREASURY,

Defendants.

Civ. No. 12-cv-02804-DSD-SER

DECLARATION OF
STUART LIND

Declaration of Stuart Lind

I, Stuart Lind, make the following declaration from personal knowledge pursuant
to 28 U.S.C. 1746:
1. I am citizen of the United States and a resident of the State of Minnesota.
2. I am the founder and president of Annex Medical, Inc., a Minnesota
corporation that designs and manufactures medical devices.
CASE 0:12-cv-02804-DSD-SER Document 11 Filed 11/21/12 Page 1 of 9
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3. I am also the founder and president of Sacred Heart Medical, Inc., a
Minnesota corporation that sells and markets medical devices manufactured by Annex
Medical.
4. I founded Annex Medical in the basement of my residential home in 1988.
In 1989, Annex Medical moved into a commercial facility. In 2000, Annex Medical
moved into its current facility, located at 6018 Blue Circle Drive, Minnetonka, Minnesota
55343.
5. Annex Medical was incorporated on September 18, 1988.
6. Annex Medical has been a family-owned business since 1996. Its
shareholders consist exclusively of family membersme and the estate of my recently
deceased father, Dean Lind. I own 202,782 shares of Annex Medical stock, or
approximately 96.5 percent of the shares, and the estate of Dean Lind owns the remaining
7,208 shares.
7. I am a devout Catholic and am steadfastly committed to following the
religious, ethical and moral teachings of the Catholic Church.
8. I attend Holy Trinity Parish, where my pastor is Father John Echert.
9. I sincerely believe and strive to adhere to Catholic teaching on the sanctity
of life, including the belief that contraception, sterilization, abortion and use of
abortifacient drugs are intrinsically evil and immoral because they are capable of
preventing or destroying a human life. (See Verified Complaint (VC) 47-52.)
10. I sincerely believe and strive to adhere to Catholic teaching on providing
for the physical needs of my employees. (VC 56-57.) Consistent with this teaching, I
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sincerely believe I have a moral and religious duty to provide for the physical needs of
my employees. As part of my commitment to fulfilling this duty, I provide a group health
insurance plan for Annex Medicals employees and their families. I consider providing
this group health plan to my employees to be an exercise of my sincerely-held religious
beliefs.
11. I strive to adhere to Catholic teaching in all aspects of my life, including
my operation of Annex Medical.
12. I personally wrote Annex Medicals mission statement to reflect my
commitment to adhere to Catholic teaching in the operation of my business. Annex
Medicals mission statement reads
The mission of Annex Medical, Inc. is to manufacture
medical products of high quality and good value, while
conducting business in a way that is pleasing to God and is
faithful to Biblical principles and values. We will accomplish
this mission from a Christian perspective that respects others
who believe differently while sharing the joy we have
received from Jesus Christ.

13. In 2001, I officially and publicly consecrated Annex Medical and Sacred
Heart Medical to the Sacred Heart of Jesus. Consecration to the Sacred Heart of Jesus is a
Roman Catholic ceremony recognizing the Kingship of Jesus Christ, in this case, over my
business. This consecration is both a public profession of my faith and a formal
commitment to operate my businesses in accordance with the teaching of Jesus Christ. A
true and correct copy of the invitation to this consecration is attached as Exhibit A.
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14. As president, I am the sole decision-maker for Annex Medical and Sacred
Heart Medical. My religious beliefs are thus reflected in my operation of these
companies.
15. When my businesses engage in or cooperate with activity that violates
Catholic teaching, I believe it is a violation of my own religious beliefs.
16. Thus, when my businesses have engaged in or cooperate with activities that
violate Catholic teaching, I have attempted, where possible, to cause them to cease such
activity or cooperation with the same.
17. For example, in 1998, I made a very difficult and costly business decision
based on my belief that I must operate my businesses in accordance with my religious
convictions. Annex Medical had developed and was successfully marketing a heart
biopsy forceps. The forceps was used on patients who had received transplanted hearts.
The heart donors were declared brain dead under certain criteria determined by the
medical community. However, I became informed that the harvesting procedure of brain
dead donors actually begins while the donors heart is beating and there is normal blood
pressure and circulation. Some within the medical profession have concluded that this
invalidates the determination that a donors life has ended. I believe that life is a
fundamental right received from our Creator and that it is morally unacceptable to end
prematurely the life of a dying person. Accordingly, I discontinued this promising
product line so as to not be complicit with this morally unacceptable act.
18. In 2002, I ended Annex Medicals 7-year relationship with American
Express, which was facilitating Annex Medicals employee retirement plans, upon
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learning that American Express contributes money to Planned Parenthood, a provider of
abortion and abortion services. A true and correct copy of correspondence between me
and American Express regarding this decision is attached as Exhibit B.
19. I have also taken proactive steps to ensure that my businesses do not
cooperate with activities I believe are sinful and immoral. For example, distributors and
sales representatives that contract with Sacred Heart Medical to purchase and market
products manufactured by Annex Medical must represent that they will at no time
distribute or represent products that are labeled with indications for contraception,
sterilization, abortion, pregnancy termination, or in vitro fertilization. True and correct
copies of sales and distribution contracts containing such representations are attached as
Exhibit C. The relevant provisions have been highlighted.
20. From my pastors comments in our parish bulletin on August 12, 2012, I
became aware that the HHS Mandate went into effect earlier that month and that it had
inspired a national controversy, including a legal challenge brought by Hercules
Industries, a Colorado corporation, and its owners.
21. Catholic teaching and my sincerely-held religious beliefs prohibit me from
intentionally participating in, paying for, facilitating access to, or otherwise cooperating
with contraception, sterilization, abortifacient drugs, and related education and
counseling.
22. Upon learning that the HHS Mandate requires businesses to include these
items in their group health plans, I contacted Blue Cross and Blue Shield of Minnesota
regarding Annex Medicals group health plan to ensure it did not provide coverage for
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any products or services I believe are sinful and immoral, including those required by the
HHS Mandate.
23. During this examination, I discovered that, although it is not currently
subject to the Mandate, Annex Medicals current group health plan provides coverage for
abortions, abortifacient drugs, sterilization and contraception supplies and prescription
medications. Thus,
24. Coverage for these drugs and services was not included knowingly as to do
so would be contrary to Catholic teaching and my sincerely-held religious beliefs.
25. Because Annex Medicals group health plan is not currently subject to the
Mandate, these drugs and services are being provided at cost to the employee. Inevitably
though, Annex Medical will be required to provide them at no cost to the employee when
its group plan becomes subject to the Mandate on the date of its next schedule annual
renewalJuly 1, 2013.
26. As I have done previously in similar circumstances that were contrary to
my religious beliefs, I took steps to cease Annex Medicals cooperation with these drugs
and services. I contacted Annex Medicals group health plan provider, Blue Cross and
Blue Shield of Minnesota, to request that Annex Medicals group health plan be modified
to exclude coverage for contraception, sterilization, abortifacient drugs and related
education and counseling.
27. Blue Cross informed me that Blue Cross did not permit Annex Medical to
modify its group health plan to omit such coverage because Blue Cross requires all group
health plans issued to employers with fewer than 50 employees to include such coverage.
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28. I then inquired with three other insurance issuers in Minnesota as to
whether they could sell a group health plan to Annex Medical that excludes coverage for
abortions, contraception, sterilization and abortifacient drugs.
29. However, none of the issuers was able to offer such a group plan. I was told
by these issuers that the HHS Mandate requires them to provide HHS Mandate-compliant
coverage in all group health plans they offer.
30. The HHS Mandate has made it impossible for me to select a group health
plan that did not include coverage for products and services that the Catholic Church
teaches are sinful and immoral.
31. I then sought the advice of my pastor, Father Echert. Through several
consultations and a meeting, Father Echert explained that since continuing to provide a
group plan to Annex Medical employees that includes coverage of innate evils was
contrary my conscience, it would be sinful for me to do so. If I could not exclude
coverage for these products and services, he explained that I must discontinue Annex
Medicals group plan in order to avoid this sin.
32. As the HHS Mandate has made it impossible for me to purchase a group
health plan that excludes these products and services, I determined I must follow the
spiritual advice of my pastor and discontinue Annex Medicals group health plan.
33. On October 22, 2012, I held a company meeting at Annex Medical to
inform my employees of my plan to seek judicial relief and, if none could be obtained, to
discontinue their group health plan on January 31, 2013. A true and correct copy of the
letter to my employees explaining my decision is attached as Exhibit D.
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34. At this meeting, Father Echert gave a presentation during which he
explained in detail why the HHS Mandate was morally and religious problematic for me.
35. Unless I receive relief from the court, I will be forced to terminate my
employees health insurance plan. This is problematic for me for several reasons. First, I
sincerely believe my Catholic faith places a moral duty on me to provide for the physical
needs of my employees. I provide health care for my employees as an exercise of this
belief. If I must discontinue health care to avoid the sin of cooperation with the HHS
Mandate, I will be prevented from exercising this belief. Second, I will expose Annex
Medical to competitive disadvantages in that I will be unable to offer an important benefit
to current and prospective employees. I am concerned this may make it more difficult to
attract and retain quality employees. The majority of Annex Medicals production
workers must fabricate delicate wire assemblies using a microscope. The wires in these
assemblies are about the same thickness as a human hair, requiring my employees to have
very fine finger dexterity. Minimum scores have been established using two standardized
manual dexterity tests that help to predict a candidates ability to succeed in this work.
My experience has shown that less than 25% of the candidates have been able to meet
both minimum scores. In addition, more than half of those hired for this microscope work
have been unable to complete the introduction period because the job was beyond their
capability. The dexterity requirement has made obtaining workers difficult. I believe it
will become even more difficult if we are prevented from offering health insurance
benefits to the small pool of qualified applicants.
Exhibit A
Exhibit A - 1
Exhibit A
Exhibit A - 2
July 12, 2001
Mr. Harvey Golub, Chairman & CEO
American Express Co.
200 Vesey St.
New York, NY 10285
Dear Mr. Golub,
I recently learned that American Express contributes to Planned Parenthood.
This letter is to request that you discontinue these contributions because they
use it to kill unborn infants.
Annex Medical's retirement plans have been with American Express since 1994.
We are very satisfied with the service but would have to move our accounts to
another company if your contributions to Planned Parenthood continue. Please
consider my request and let me know your plans.
ANNEX MEDICAL, INC.
Stuart J. Lind 2p
President
ANNEX MEDICAL, INC. 6018 Blue Circle Drive Minnetonka, MN 55343-9104 952-942-7576 FAX 952-942-7590
Exhibit B
Exhibit B - 1
CASE 0:12-cv-02804-DSD-SER Document 13-1 Filed 11/23/12 Page 1 of 3
July 23, 2001
Mr. Stuart J. Lind
Annex Medical
6018 Blue Circle Drive
Minnetonka, MN 55343-9104
Dear Mr. Lind:
Mary Beth Salerno
President
American Express Foundation
American Express Company
World Financial Center
New York. NY 1 0285-4803
Thank you for your recent correspondence to Harvey Golub to share your
concerns about American Express' support for Planned Parenthood.
American Express and the American Express Foundation support thousands of
organizations around the world which meet the criteria of our three areas of
focus: Economic Independence, Cultural Heritage and Community Service.
The decisions on our grants do not reflect any political or religious ideology.
American Express takes no stand on abortion. Our employees, clients, business
partners, and charitable grantees represent many points of view.
A diverse group of managers participate in American Express' philanthropic
program by reviewing proposals, developing programs and recommending
specific grants. Grant decisions are based on the merits of individual programs,
their adherence to our guidelines, and the organization's achievements in
meeting community needs.
In the case of Planned Parenthood, the facts are that the American Express
Foundation has contributed to two local community service projects in recent
years. One is The Hub: A Center for Change for South Bronx Teens. a project
of Planned Parenthood of New York City. This center provides a range of
services to teens such as computer workshops, job preparation, mentoring,
recreation and counseling. Our most recent grant to that program was for $5000
in 1998. The other program we have contributed to is the Special Friends
Mentoring Program, a project of the Planned Parenthood affiliate in Phoenix
which pairs adult volunteers with at-risk adolescents in one school district. Our
most recent grant to that program was for $5000 in 1996.
Thank you for your interest.
Sincerely,
1?.7 ~ .;; /...-.'
Exhibit B
Exhibit B - 2
February 1, 2002
Richard Dworsky
American Express Financial Advisors Inc.
7601 France Ave. South, Suite 600
Edina, MN 55435
Dear Rick,
.
This letter is to inform you that we will begin moving our accounts to another
company because of lack of response to my request for some commitment to
stop funding Planned Parenthood or their affiliates.
Please contact me so we can discuss the transition. Some of our employees
may want to keep their current funds at American Express. Also, we will still be
sending this month's employee contribution to you.
Rick, this action in no way reflects on your performance as our financial advisor.
I am very satisfied with the professional service you have provided Annex
Medical. Thank you for the many years of your attentive efforts .
... 5 : ~ 1 - ( J
Stuart Lind
ANNEX MEDICAL, INC. 6018 Blue Circle Drive Minnetonka, MN 55343-9104 952-942-7576 FAX 952-942-7590
Exhibit B
Exhibit B - 3
Sacred Heart Medical, Inc.
Minnetonka, MN 55343
(Principal)
hereby agree as follows:
Representative's Sales Agreement
and
Prestige Medical Products, LLC
892 Rustic Court
Brunswick Hills, Ohio 44212
(Representative)
1. APPOINTMENT. Principal appoints Representative as its exclusive sales representative for and in the area described in Appendix A
hereto (Territory) to solicit orders for those products listed in Appendix B hereto together with any improved versions thereof and such other
products as Principal may, in Principal's sole discretion, request Representative to sell in the future Productsr
accepts this appointment and agrees to diligently promote the sale of Principal's Products. Principal shall have the nght, exercisable at any t1me
and in Principal's sole discretion, to change the Products Representative is entitled to sell and the Territory within which Representative may
sell Products on thirty (30) days advance notice to Representative.
2. ORDERS AND COLLECTIONS. Orders for Products obtained by Representative shall be issued in Principal's name and forwarded
to Principal and are subject to Principal's acceptance. All invoices for orders obtained by Representative shall be rendered by Principal directly
to the purchaser thereof("Customer").
3. COMMISSIONS.
(a) Principal shall pay Representative commissions at the rate specified in Appendix C hereto (Commissions). Commissions are
payable on the actual amount received and collected by Principal for sales of Products made pursuant to orders obtained by Representative
from Customers in the Territory, exclusive of sales taxes, insurance and freight charges, interest on late payments, and any costs of collection
Principal may recover from Customer (including, without limitation, Principal's attorney's fees). Principal reserves the right, exercisable in its
sole discretion, to compromise, forgive, or otherwise address any issues associated with a Customer's delay in paying or refusing to pay any
amounts charged for Products. Principal shall have the right, exercisable at any time and in Principal's sole discretion, to change the
Commissions on thirty (30) days advance notice to Representative.
(b) Commissions will be earned by Representative upon Principal receiving and collecting payment from a Customer and will be
payable not later than the 15th day of the month following the calendar month in which payment was collected. At the time of each
Commission payment, Principal shall provide Representative with a statement showing Principal's calculation of Rerpresentative's
Commission.
(c) Principal shall charge back Commissions paid to Representative on returned products.
4. SALES POLICY. Representative shall adhere to and shall honor all prices and terms of sale that are established by Principal from
time to time. All prices and terms of sale shall be established by Principal, and Principal has the right, exercisable at any time and in Principal's
sole discretion, to change the prince and terms of sale at any time upon giving notice thereof to Representative.
5. USE OF SUBREPRESENT A TIVES. Representatives shall have the right to appoint subrepresentatives to sell Principal's products in
portions of the Territory. Subrepresentatives may, however, only be appointed with Principal's prior approval in writing, which approval will
not be unreasonably withheld. In the event subrepresentatives are appointed, they shall be bound by all of the applicable terms and conditions
of this Agreement, and Representative shall be responsible to Principal for any breach thereof (and any resulting losses or damages) by said
subrepresentatives.
6. GOVERNMENT REQUIREMENTS. Each party hereto shall comply with all statutes, ordinances, government regulations, and
governmental requirements in the conduct of its business. Failure to do so will be a material breach ofthis Agreement.
7. RELATIONSHIP OF PRINCIPAL AND REPRESENTATIVE; INDEMNIFICATION.
(a) Without limiting Representative's obligation under Section 6, Representative will conduct all of its business in its own name
and in such manner as it may see fit. Representative will pay all the expenses of its office and activities (including, without limitation, expenses
incurred in the course of selling Products) and all taxes, and will be responsible for the acts and expenses of its employees, contractors, and
representatives.
(b) Principal and Representative are not engaged in a partnership, joint venture, or any other business relationship other than the
independent sales representative relationship described in this Agreement. Nothing in this Agreement shall be construed to constitute
Representative as the partner, employee, or agent of Principal; nor shall either party have any authority to bind the other in any respect, it being
intended that each shall remain an independent contractor responsible only for its own actions.
(c) Except as otherwise stated herein, as between Principal and Representative, Principal shall be responsible for the design,
development, supply, production, and performance of the Products. Principal agrees to indemnifY, hold Representative harmless against, and to
pay all losses, costs, damages or expenses, including reasonable attorneys fees, which Representative may sustain or incur on account of
infringement or alleged infringements of patents, trademarks or tradenames resulting from the sale of the Products, or arising on account of
warranty claims or product liability claims relating to the Products. Representative will promptly deliver to Principal any notices or papers
served upon it in any proceeding covered by this indemnification commitment, and Principal will defend such litigation at its expense.
Representative shall, however, have the right to participate in the defense at its own expense.
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Exhibit C
Exhibit C - 1
(d) Representative shall be solely responsible for the conduct of its business, including, without limitation, the design and conduct
of its marketing program for the Products. Representative agrees to indemnity, hold Principal harmless against, and to pay all losses, costs,
damages or expenses whatsoever, including reasonable attorneys fees, which Principal may sustain or incur on account of Representative's
business, including without limitations, its marketing and sale of the Products. Principal will promptly deliver to Representative any notices or
papers served upon it in any proceeding covered by this indemnification commitment, and Representative will defend such litigation at its
expense. Principal shall, however, have the right to participate in the defense at its own expense.
(e) Representative currently does not and will not during the term of this Agreement distribute or represent products that are labeled
with indications for contraception, sterilization, abortion, pregnancy termination, or in vitro fertilization.
(f) Representative shall promptly inform Principal of any complaints, remarks, or suggestions from Customers regarding or relating
to any of the Products.
8. WARRANTIES AND REPRESENTATIONS.
(a) Representative agrees to make no false or misleading representations with respect to Principal or the Products. Representative shall
make no express or implied warranties to Customers or prospective customers or their representatives or to any other person on behalf of
Principal with respect to any of the Products without Principal's express prior written consent. Representative shall not advertise or promote
the Products for use in any ways contrary to Principal's directions and any legal limitations on use of the Products (such as licensing or other
regulatory limitations). Representative agrees to hold Principal harmless from all damages resulting from Representative's breach of any
obligations of this paragraph 8(a).
(b) Representative shall use his/her best efforts, and devote such time as may be reasonably necessary, to effectively sell and promote the
sale of the Products in the Territory throughout the term of this Agreement.
9. INTELLECTUAL PROPERTY RIGHTS. Principal is the sole owner of all concepts, designs, ideas, business methods, patents,
trademarks, industrial drawings, copyrights, and other intellectual property with respect to the Products ("Intellectual Property"). Represen-
tative acknowledges and agrees that the Intellectual Property is the exclusive property of Principal. Representative undertakes never to
infringe, directly or indirectly, or to use for Representative's own purposes or benefit any patent, trademark, trade secrets, copyright, and other
intellectual property rights of Principal. Representative hereby agrees to immediately disclose to, and to assign and transfer to Principal, any
and all ideas, concepts, designs, improvements and modifications, and plans that Representative may become aware ot: think of, or develop
that relate to or arise from the Products, and Representative will cooperate with Principal as Principal may request to effectively convey any
trademark, patent, copyright, or other intellectual property therein to Principal at no cost to Principal. Representative may not make any use of
Principal's Intellectual Property after termination of this Agreement that would not be allowed by this Paragraph 9 during the term of this
Agreement.
10. CONFIDENTIALITY, NONUSE, AND NONSOLICITATION. Representative acknowledges that during the course of its
relationship with Principal, it will have access to Principal's confidential business information, including, but not limited to, its trade secrets,
product data, information about Principal's customers and prospects, information about Principal's pricing, and other information concerning
the business of Principal, its marmer of operation, and its plans, processes, or other technical data ("Confidential Information"), the
dissemination of which would likely result in irreparable injury to Principal. Representative agrees at all times during the term of this
Agreement and thereafter to hold the Confidential Information in the strictest confidence, to not use the Confidential Information, except for
the benefit of Principal, and to not disclose the Confidential Information to any third party without written authorization of the President of
Principal. Representative further agrees that during the term of this Agreement and for a period of one ( 1) year thereafter, it will not, whether
on behalf of itself or any third party: provide or attempt to provide any products that are similar to or are competitive with the products
provided by or through Principal to any customer or prospective customer of Principal with whom it has had contact during the term of this
Agreement. Representative's obligations contained in this Paragraph 10 shall survive termination of this Agreement.
11. QUOTAS. Principal may from time-to-time set quotas as provided in Appendix D for sales by the Representative. If Principal fails
to set a quota for any year, the last quota set shall continue in force. Sales quotas shall be established by Principal in Principal's reasonable
judgment.
12. PROCEDURE ON TERMINATION. In the event of termination or non-renewal of this Agreement, Representative shall promptly
return to Principal all samples, literature and Product, if any, warehoused by or otherwise in the possession of Representative, the reasonable
cost of shipping to be borne by Principal.
13. TERM. This Agreement is effective the date written below and shall continue for one (1) year therefrom unless earlier terminated as
permitted below. Thereafter, this Agreement shall automatically renew for successive one (1) year periods, unless either party terminates it by
giving written notice thereof to the other no less than sixty (60) days before the end of the initial term of this Agreement or any renewal term.
Upon termination or non-renewal, Representative is entitled to the Commissions specified in paragraph 3 on all of Representative's orders for
the Products in the Territory that are received and accepted by Principal prior to the effective date of termination or non-renewal, regardless of
when Principal accepts, invoices, or ships such orders.
(a) Notwithstanding any other provision of this Agreement, this Agreement may be terminated by either Principal or Representative
upon one party hereto giving the other party sixty (60) days advance written notice of termination, which notice may be given at any time and
for any reason (or for no objective reason).
(b) In addition, this Agreement may be terminated by either Principal or Representative without said advance notice upon one party
hereto giving the other party written notice prior to the expiration of its above-stated initial term or the term of any renewal period of
termination for either of the following reasons (a) in the event that either party hereto shall file a voluntary petition for bankruptcy) or have a
petition for bankruptcy filed against it in an involuntary proceeding that is not dismissed within thirty (30) days after said filing) or places its
2
Exhibit C
Exhibit C - 2
affairs in the hands of a receiver, or enters into a composition for the benefit of creditors, or performs any other act based upon or due to its
inadequate credit position or (b) either party commits a material breach of its obligations and responsibilities under this Agreement, written
notice of said breach is given, and said breach is not cured with thirty (30) days after such written notice is given. Said notice shall describe the
alleged breach and shall describe appropriate corrective action.
14. NOTICES. Any notices required or allowed under this Agreement shall be sent to the appropriate party at the address stated in at the
beginning of this Agreement or such other address as the party may notify the other of in writing. Notices shall be effective upon receipt if
personally delivered or upon dispatch if mailed by U.S. mail, first class or certified, properly addressed and postage prepaid.
15. MISCELLANEOUS GOVERNING TERMS. This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legatees, representatives, successors, and assigns. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Minnesota. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be
an original but all of which shall constitute one and the same instrument. No failure on the part of a party hereunder to exercise and no delay in
exercising any rights hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any rights hereunder preclude any
other or further exercise thereof or the exercise of any other right. Remedies herein provided are cumulative and not exclusive of any other
remedy provided by law. All terms and words used in this Agreement shall be construed to include any other number and any other gender as
the context or sense of this Agreement or of any paragraph of this Agreement may require as if such terms or words had been fully and properly
written in the appropriate number and gender. Any exhibits to this Agreement are hereby made a part hereof. Defined terms used in the
exhibits shall have the meanings given to them in this Agreement unless otherwise stated in the exhibit( s) where the terms are used. Captions
are provided for convenience and ease of reference only and do not affect or modify the terms of any of the provisions of this Agreement. The
undersigned individuals affirm that they have read the foregoing, have had the opportunity to review the Agreement with legal counsel, and,
where signing on behalf of a corporation, are officers of, and are fully authorized by, said corporation to sign this Agreement and to thereby
bind said corporation. All of the provisions of this Agreement are separable, so if any provision of this Agreement is held to be ineffective by a
court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect unless the invalidated
provision is so fundamental to this Agreement that the remaining provisions do not reflect the parties' intent. The terms of this Agreement have
been cooperatively negotiated by and among the parties hereto, and this Agreement shall not be construed against any party hereto as its
author. Time is of the essence in the performance of this Agreement. This Agreement contains the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes any and all prior agreements and understanding between the parties with respect to the
same. This Agreement may be modified only by a written instrument executed by both parties.
IN WITNESS WHEREOF, Representative and Principal have caused this Agreement to be signed effective on the latter of the dates
specified below ("Effective Date").
Principal:
By:
Date:
Representative:
By:
Title:
Date:
Stuart Lind,
Its President
corporation
C? /1 / "Zoo7
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Prestige Medical Products, LLC
I
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APPENDIX A
REPRESENTATIVE'S TERRITORY
APPENDIXB
REPRESENTATIVE'S PRODUCTS
APPENDIXC
REPRESENTATIVE'S COMMISSION SCHEDULE
APPENDIXD
REPRESENTATIVE'S SALES QUOTA
3
Exhibit C
Exhibit C - 3
International Sales, Marketing, and Distribution Agreement
THIS AGREEMENT (the "Agreement") is effective on this 20 day of August, 2012 ("Effective Date") by and
between Sacred Heart Medical, Inc., a corporation inc<Jrporated in the State of Minnesota, USA (hereinafter called
"Sacred Heart"), having its principal offices at 6018 Blue Circle Drive, Minnetonka, Minnesota, USA 55343-9104,
and Hospital innovations Limited, having its principal offices at 19 Willowbrook Technology Park, Llandogo Road,
CardiffCF3 OEF (hereinafter called "Distributor"), and together are refened to as "Parties".
1. Purpose and Appointment.
A. Distributorship and License. Through this Agreement Sacred Heart engages Distributor, and Distributor
agrees to provide, all according to the tem1s, limitations, and conditions herein, certain sales, marketing, distribution,
and education activities, efforts, and services related to certain of Sacred Heart's products in the health care industry.
Sacred Heart hereby (a) appoints Distributor as a distributor of those products of Sacred Heatt that are set forth in
the attached Exhibit "A" under the heading "List of Products", together with improved or modified versions of said
products and such other products of Sacred Heart as may hereafter be added by Sacred Heart to said Exhibit in
writing from time to time (collectively the "Products") and (b) grants Distributor a nonexclusive license to use any of
the Products' names or trademarks, trade names, or service marks that set forth in the attached Exhibit "A" under the
heading "List of Trademarks", together with such other product names or trademarks as may be added by Sacred
Heart to said Exhibit in writing from time to time (collectively the "Trademarks"). The distributorship appointment
described in clause (a) of the preceding sentence and as further described in this Agreement below is sometimes
hereinafter referred to as the "Distributorship", and the license described in clause (b) of the preceding sentence and
as further described below in this Agreement below is sometimes hereinafter referred to as the "License").
B. Limitations. The Distributorship and License are limited to the below-defined Territory (see paragraph 2),
the below-described Term (see paragraph 5), and the other terms and conditions stated in this Agreement. Sacred
Heart reserves the right, at any time and in its sole discretion, to add individual Products or Trademarks to Exhibit A,
withdraw individual Products or Trademarks frnm Exhibit A, replace earlier versions of individual Products or
Trademarks with later versions thereof, and otherwise change, modify, or revise the lists of individual Products that
constitute the Products, and individual Trademarks that constitute the Trademarks, at any time and in its sole
discretion etlective upon giving Distributor written notice thereof. If any of the Products are improved or changed,
or if Sacred Heart produces any new Products of the same type or serving the same industry, then such improved,
changed, or new Products shall be deemed to be one of the Products and be incorporated in Exhibit "A" only upon
Sacred Heart giving Distributor written notice thereof. Distributor shall immediately cease marketing and sales of
any individual Product(s), and shall immediately cease using any individual Trademark(s), upon being given notice
of such directinn by Sacred Heart.
2. Territory.
The Distributorship and License are effectively only in the geographic area described in the attached Exhibit
"B"("Territory"). Within any portion of the Territory that is described as being Distribut<Jr's "Exclusive Territory"
in Exhibit "B", Sacred Heart agrees not to appoint other distributors with rights to sell any of the Products and not to
directly sell any of the Products itself during the Term of this Agreement. Sacred Heart reserves the right to change
the Territory and/or the Exclusive Territory effective upon ten (I 0) days notice to Distributor.
3. Commitments of Distributor. At Distributor's own expense, Distributor is responsible for the actions required
below. {See also Paragraph 4 below for additional Distributor commitments.)
A. Distributor shall not sell any of the Products to any purchaser where the shipping destination is located outside
of the Territory, and Distributor shall not ship any of Sacred Hea11's Products to any locations outside of the
Territory.
B. Distributor shall maintain sufficient inventory to timely till reasonably anticipated orders for the Products.
C. Distributor shall invoice its customers for their purchases of the Products and shall be solely responsible for
collecting all of its receivables therefore.
Exhibit C
Exhibit C - 4
D. If requested by Sacred Heart, Distributor will promptly provide reports of Products shipped from its warehouse.
E. Distributor will not alter Sacred Heart's original packaging of the Products, or repackage any Products in any
way prior to resale, except where repackaging in new outer shipping cartons is necessary due to carton damage,
where Distributor otTers the sale of the Products in units of measure necessitating alternate outer shipping
containers, or to the extent that legal requirements within the Territory require any alteration or repackaging.
Distributor will not alter or remove Sacred Heart's Product labels, instructions, warranty, or other such materials
from the packaging of the Products.
F. Distributor agrees to set up and implement sales and control procedures required to conform to existing or any
applicable governmental or other legal regulations or requirements.
G. Distributor will promptly after receiving notice of any customer Product complaint(s) or warranty claim(s) notify
Sacred Heart in writing of the customer and the nature ofthe Product complaint(s) or claim(s). Distributor shall
timely respond to any customer complaints or warranty claims related to any of the Products, and Sacred Heart
shall make itself available to consult with Distributor about the same.
H. Distributor will at no time engage in unfair or unethical trade practices and will make no false or misleading
statements or representations with regard to Sacred Heart or any Products.
1. Distributor will keep a detailed record of all orders and details of the customers that order and/or purchase
Products (including, without limitation, the names and addresses of said customers, the prices quoted and agreed
to, delivery dates, lot numbers, the specitic Products ordered and/or purchased, and the like) and supply such
details to Sacred Heart immediately upon request. Said obligation shall include, but is not limited to
maintaining such records as necessary to comply with any and all applicable laws, rules, and other governmental
record keeping and retention requirements.
J. Distributor shall comply with any and all governmental requirements and regulations affecting registration or
use of the Products within the Territory, including, without limitation, any Product registration requirements.
K. Distributor will_ at no time distribute or represent products that are labeled with indications tbr contraception,
sterilization. abortion. pregnancy termination, or in vitro fertilization.
4. Commitments of Sacred Heart. At Sacred Heart's own expense, Sacred Heart is responsible for the actions
required below.
A. Sacred Heart shall provide such catalogs, literature, and other support materials at no cost to Distributor to
enhance Distributor's sales effotts as Sacred Heart deems necessary or appropriate.
B. Sacred Heart shall keep Distributor informed of promotional activities, new Products, and policies of Sacred
Heart.
C. Sacred Heart shall refer to Distributor all inquiries related to the Products within Distributor's Exclusive
Territory.
D. Sacred Heart shall provide such pertinent sales and technical information to Distributor as Sacred Heart deems
necessary or appropriate
E. In so far as reasonably possible, Sacred Heatt will make Products available in quantities to meet Distributor's
reasonably anticipated requirements for delivery of Products within the Territory as Distributor reports the same
to Sacred Heart. Notwithstanding the foregoing statement, Sacred Heart reserves the right to accept or reject
any Distributor orders tbr Products in its sole discretion. Fulfilling and shipping accepted orders is subject to
reasonable delays due to labor disputes, transportation difficulties, government regulations, inability to obtain
raw materials, and other circumstances beyond Sacred Heart's reasonable control.
F. Sacred Heart will use reasonable efforts to extend its technical expertise to Distributor, Distributor's sales
organization, and Distributor's customers, as Sacred Heart deems appropriate and necessary in its sole
discretion.
G. Sacred Heart will, within a reasonable time after receiving notice of any customer complaint or warranty claims
received from a customer located within Distributor's Territory, advise Distributor of the customer and the
nature of the complaint or claim, in order for Distributor, if requested to do so by Sacred Heart, to properly
respond to said complaint or claim.
H. Within the USA, Sacred Heart has the authority and responsibility to respond to customer product complaints
and file MDR's as may be required by the U.S. Food and Drug Administration.
I. Sacred Heart agrees not to solicit, employ, or engage the services of any employee of Distributor or any other
entity or individual engaged by Distributor to sell Sacred Heart's Products, and Distributor agrees not to solicit,
employ, or engage the services of any employee of Sacred Heart, during the term of this Agreement and for one
2
Exhibit C
Exhibit C - 5
( l) year from the effective date of termination of the Agreement. Neither Distributor nor Sacred Heart will
employ or contract with anyone who has left the other's employ or service within six (6) months of the date the
individual or organi?..ation ceased such employment or service with or filr Distributor or Sacred Heart, as the
case may be, without prior written permission of Distributor or Sacred Heart, as applicable, to do so.
J. During the term of this Agreement, Sacred Heart may accept for exchange, at Distributor's purchase cost, any
Products which Distributor may return provided that the returned Product is in its original packaging, is in
Sacred Heart's current catalog or price list, is the cmTent version of said Product, and is not within one (I) year
of its expiration date, if any. Distributor shall pay any shipping or freight charges for any such returned
Products, and Sacred Heart shall not charge any handling, restocking or similar fees for such returned Products.
5. Term of Agreement.
This Agreement shall continue in full force and effect for six (6) months iiom date of execution hereof, unless earlier
tetminated as provided herein.
6. Sales Quotas.
Distributor agrees to meet or exceed sales quotas as stated in or from time to time as amended and restated addenda
to this Agreement's Exhibit "C"
7. Termination For Cause.
Termination for cause shall be as specified below.
A. The Agreement may be terminated by Sacred Heart if Distributor fails to meet its minimum sales performance
requirements as per Section 6 above, pmvided such failure was not caused, or materially contributed to, by
Sacred Heart's actions or failure to act.
B. The Agreement may be tem1inated by one party if the other party commits an act of bankruptcy, files a voluntary
petition for bankruptcy or reorganization, is the subject of an involuntary petition tor bankruptcy, has its affairs
placed in the hands of a receiver, enters into a composition for the benefit of creditors, or is insolvent.
C. Should either party be in material breach or noncompliance of any of the terms of this Agreement, the other
party may terminate this Agreement by giving written notice of such breach or noncompliance and the right to
correct the breach. If the breach is not corrected within thirty (30) days of the date of such notice, or if the
breach is not correctable within thirty (30) days and substantial steps have not been taken to correct the breach
within thirty (30) days of the notice to correct, then this Agreement may be terminated immediately at the end of
said thirty (30) day period.
D. In the event that termination is with cause as described in Section 7.A. above, Sacred Heart shall give
Distributor sixty (60) days' written notice of the effective date of termination and Sacred Heart shall fill all
orders placed by Distributor in accordance with this Agreement during said 60-day period preceding
termination. In the event termination is with cause as described in Section 7.B. above, the terminating party may
terminate this agreement immediately by giving written notice thereof.
8. Obligations upon Termination.
Upon tern1ination of this Agreement, Distributor will promptly return to Sacred Heart all inventory, samples,
marketing materials, Trademarks, lists of customers and prospective customers, all information about or related to
customers or prospective customers, all other literature and materials related to the Products or the Trademarks, and
all other information, documents, and materials relating or referring to Sacred Heart's Products or Trademarks.
Sacred Heart shall promptly issue payment to Distributor, or credit offsetting Distributor obligations to Sacred Heart,
for all resalable Products and usable samples at Distributor's purchase cost with no reduction for shipping, handling
or restocking or any other cause.
9. Competitive Products.
3
Exhibit C
Exhibit C - 6
It is not the intent of Distributor to sell products or technologies competitive to the Products of Sacred Heart, and
Distributor states that it is not selling, a;JQ it& AQt any competitive or conflicting products or
technologies as of the Effective Date. te the sWeGtiue DiGtril.mtor will IIOt in a business
fi!atioosfiip witft any eistri!Juter, lflftftllfftettlf8P, eP 9'/ffl8f ef tHat RFtl SWB&Ialltiall; similar IG1 Ql" tllat aro
wi*k If, after the Effective Date, Sacred Heart adds to its list of Products items that are
competitive with products of a third party that Distributor then represents or otherwise sells products of, then
Distributor shall notifY Sacred Heart of such competitive products and Distributor shall elect either to discontinue
sale of competing products or continue to sell such competitive products, notice of which Distributor shall promptly
give to Sacred Heart. ln the event that Distributor chooses to sell such competitive products, Sacred Heart may, at
its option, elect to withdraw said new Products fiom the Products Distributor may sell hereunder and contract with
any other distributor for the sale of said new Products or Sacred Heart may elect to continue the sale of said
competing Products through Distributor on a non-exclusive basis in the Territory.
10. Shipping.
Distributor shall pay the price in accordance with the terms of Section II below. Freight and insurance charges shall
be the responsibility of Distributor. Any and all export or import taxes or duties, landing charges, local taxes, and
other charges incurred in connection with the shipping of the Products or after arrival of the Products at Distributor's
port of entry shall be borne and paid by Distributor. Ownership of, and risk of Joss or damage to, all Products sold
by Sacred Heart to Distributor under this Agreement shall transfur to Distributor upon the Products no longer being
under the physical control of Sacred Heart. Distributor shall insure all shipments hereunder, warehouse to
warehouse, although Sacred Heart reserves the right to insure the same in which case Distributor shall pay the cost
thereof as described above for freight and insurance charges.
Il. Prices to Distributor
Prices paid by Distributor to Sacred Heart for Products shall be at Sacred Heart's list prices in effect at the time of
acceptance of Distributor's orders less applicable Distributor discounts, if any. Sacred Heart may change said prices
or Distributor discounts by giving Distributor at least thirty (30) days advance written notice thereof.
12. Payment.
Distributor shall make full payment prior to shipment (by certified funds or wire transfer). All payments are to be
made in U.S. dollars. Distributor will pay all costs associated with any wire transfers.
13. Confidential Information I fntellectual Property I Trademarks.
The Parties agree that this Section 13 shall govern the exchange of Confidential .lnfmmation and Intellectual
Property between them, and that it supersedes all previous agreements on this topic, either oral or written between
the Parties.
A. Sacred Heart's "Confidential Infurmation'' shall mean nonpublic information of a proprietary or confidential
nature, whether in \\<Titten or electronic form, that is owned by Sacred Heart and which relates in any way to any
of the Products, Trademarks, or the marketing, sale. or other use thereof, including, without limitation, the
Intellectual Property as that term is defined below. Confidential Information, however, shall not include any
information which Distributor can establish, by clear and convincing evidence that:
i. Is or subsequently becomes publicly available without Distributor's breach of any obligation owed
to Sacred Heart under this Agreement or any other agreement;
ii. Was known to Distributor prior to Sacred Heart's disclosure of such information to Distributor. as
evidenced by documentation on record at the time of disclosure;
iii. Became known to Distributor from a source independent from Sacred Heart and such independent
source did not breach an obligation of confidentiality owed to Sacred Heart;
iv. Was independently developed by Distributor without any breach ofthis Agreement; or
4
Exhibit C
Exhibit C - 7
v. Was originally disclosed as Confidential Information hereunder but which Sacred Heart thereafter
authorizes Distributor to use and/or disclose, and such authorization is in writing which is signed
by authorized representatives of the Parties.
B. Sacred Heart's "Intellectual Property" shall mean the Products, the Trademarks, and all patents, trade names,
trademarks, copyrights, service marks, trade secrets, business methods, concepts, designs, ideas, marketing
concepts, plans, pricing information, and other intellectual property pertaining in any way to the Products or the
Trademarks.
C. All Confidential Information, Products, Trademarks, and Intellectual Property are and shall remain the property
of Sacred Heart. By disclosing its Confidential Information and/or Intellectual Property to Distributor, Sacred
Heart does not grant or convey to Distributor, by implication, estoppel, or otherwise, any express or implied
right, title, license, or interest in or to any of the same, nor does Sacred Heart grant or convey to Distributor any
right to assert or file, register, and/or apply for intellectual property rights thereto in any country, nation,
territory, province, or jurisdiction throughout the world, and Sacred Heart shall have the sole right and
obligation to make any such filings. Distributor is not granted, and Distributor acknowledges that Distributor
does not have, any express or implied right, title, license, or interest in or to any of the Products (including,
without limitation, any and all alterations, modifications, improvements, developments, discoveries, derivatives
from, or inventions (whether patentable or not) with respect to, that arise from, or that are associated with the
Products or Distributor's sales of the Products) or the Trademarks (other than the sale and use rights granted in
this Agreement).
D. Distributor's "Confidential Inf01mation" shall mean nonpublie information of a proprietary or confidential
nature, both in tangible and intangible form, that is owned by Distributor and which Distributor designates as
being confidential at the time of disclosure to Sacred Heart. Confidential Information, however, shall not
include any information which Sacred Heart can establish, by clear and convincing evidence that:
i. Is or subsequently becomes publicly available without Sacred Heart's breach of any obligation
owed to Distributor under this Agreement or any other agreement;
ii. Was known to Sacred Heart prior to Distributor's disclosure of such information to Sacred Heart,
as evidenced by documentation on record at the time of disclosure;
iii. Became known to Sacred Heart from a source independent from Distributor and such independent
source did not breach an obligation of confidentiality owed to Distributor;
iv. Was independently developed by Sacred Heart without any breach of this Agreement; or
v. Was originally disclosed as Confidential Infonnation hereunder but which Distributor thereafter
authorizes Sacred Heart to use and/or disclose, and such authorization is in writing which is signed
by authoriz.ed representatives of the Parties.
E. Distributor's "Intellectual Property" shall mean the design, construct and organization of Distributor's Business
Intelligence System and databases, the design of Distributor's marketing tools utilizing Internet resources and
strategies developed by Distributor's marketing department, copyrights, trade secrets, and other intellectual
property rights of Distributor pertaining to specialty sales and marketing of innovative technologies.
F. All Confidential Information and Intellectual Property of Distributor is and shall remain the property of
Distributor. By disclosing its Confidential Information and Intellectual Property to Sacred Heart, Distributor
does not grant or convey to Sacred Heart, by implication, estoppel, or otherwise, any express or implied right,
title, license, or interest in or to Distributor's Confidential Information and Intellectual Property, nor does it
grant or convey to Sacred Heart any right to assert, or file, registrations and/or applications for intellectual
property rights thereto.
G. Distributor hereby agrees that any alterations, modifications, improvements, developments, discoveries,
derivatives from, or inventions (whether patentable or not) that it may make with respect to, that arise from, or
that are associated with the Products or Di:.1ributor's sales of the Products shall be and arc Sacred Heart's sole
and exclusive property and that Distributor, at no cost or expense to Sacred Heart, shall promptly disclose them
to Sacred Heart and do everything reasonably necessary to etfect the assignment and transfer of such
modifications, improvements, developments, discoveries, derivatives fiom, or inventions (whether patentable or
not) to Sacred Hea11.
H. Subject to the terms of this Agreement. Distributor may make reasonable use of the Trademarks and copyrighted
materials of Sacred Heart during the term of this Agreement for the sole purpose of advertising and promoting
the sale and distribution of the Products hereunder and subject to such restricts, rules, and regulations as Sacred
Heart may fiom time to time require in writing. All use of the Trademarks and such copyrighted materials by
Distributor shall inure to the benefit of Sacred Heart, and Distributor agrees that it will not apply anywhere at
5
Exhibit C
Exhibit C - 8
any time to effect registration as owner of any such trademarks or materials to Distributor (where or not utilizing
such marks, names and copyrighted materials). Sacred Heart hereby authorizes Distributor to use the
Trademarks during the term of this Agreement for the limited purpose of, and only in connection with,
marketing the Products in accordance with the terms and conditions of this Agreement, and Distributor shall use
the Trademarks and such copyrighted materials only as directed or approved in advance and in writing by
Sacred Heart to further and enhance sales of the Products. Distributor agrees not to use, or cause the use of, the
Trademarks or such copyrighted materials in any unlawtul or deceptive manner or in any way that shall directly
or indirectly tend to impair or lessen the value of such marks, names and materials. Nothing contained herein
shall give to Distributor any property or other interest or right in the Trademarks or such copyrighted materials
other than the mere right to use the same as specifically provided herein, which right may be terminated or
suspended at any time by Sacred Heart for any reason notwithstanding the continuance of this Agreement or any
renewal or extension thereof In any event, Distributor's right to use the Trademarks and such copyrighted
materials shall automatically terminate upon the expiration or sooner termination of this Agreement for any
reason. In all of Distributor's uses of the Trademarks, Distributor shall indicate that the Trademarks are the
property of Sacred Heart and shall conform to such guidelines for and restrictions on use as Sacred Heart may
from time to time give notice of.
14. Legal Relationship.
Sacred Heart and Distributor are not engaged in a partnership, joint venture, or any other relationship except for the
vendor and vendee relationship described in this Agreement. Nothing herein is intended or shall be construed to
authorize Distributor to create or assume any liability or obligation of any kind for or on behalf of Sacred Heart.
Likewise, nothing herein is intended or shall be construed to authorize Sacred Heart to create or assume any liability
or obligation of any kind for or on behalf of Distributor.
IS. Assignment, Successors in Interest.
Distributor shall have the right to assign its rights and/or obligations under this Agreement to a successor in interest
only with the prior written consent of Sacred Heart, which consent will not be unreasonably withheld. Sacred Heart
may assign its rights and/or obligations under this Agreement to a successor in interest or in conjunction with a sale
of substantially all of its assets affected.
16. Dispute Resolution, Applicable Law, and Venue
A. At the written request of either Sacred Heart or Distributor, any dispute regarding or ansmg from this
Agreement may be submitted to non-binding mediation before either party may commence any litigation against
the other.
B. If the mediation process described in Section 16.A. above does not resolve the dispute between the Parties, then
any controversy or claim relating to this Agreement, or its breach, or to the relationship created by this
Agreement may be settled through a process of arbitration
C. This Agreement shall be construed and interpreted in accordance with the laws of the State of Minnesota, USA
to the exclusion of the conflicts-of-la\\'5 provisions thereof. The Parties agree that the venue for any legal action
related to or arising from this Agreement shall be in the Minnesota state District Court for Hennepin County,
Minnesota, USA or the Federal District Court for the District of Minnesota, USA although any party seeking
injunctive relief may bring an action therefore in such other Court as may be necessary to secure enforceable
injunctive relief. The Parties stipulate to personal jurisdiction in Minnesota, although any party seeking
injunctive relief may bring an action therefore in such other Court as may be necessary to secure enforceable
injunctive relief.
17. Limited Warranty.
A. Sacred Heart MAKES NO WARRANTY OR REPRESENTATION AS TO THE POTENTIAL SUCCESS OF
DISTRIBUTOR'S BUSINESS OPERATIONS HEREUNDER. Distributor acknowledges having made such
investigation into the potential benefits and drawbacks of entering into this Agreement as it determined
appropriate and is relying only on its own investigation in deciding to enter into this Agreement. Distributor
6
Exhibit C
Exhibit C - 9
states and agrees that it is not relying on any information, projects, representations, or statement made by Sacred
Heart or any of its shareholders, directors, officers, employees, agents, or other representatives.
B. Sacred Heart warrants to Distributor only that the Products shall be free from substantive defects in material and
workmanship in normal use and service for one (I) year from the date such Products are shipped to Distributor,
provided the Products have not been to misuse, neglect, accident, or improper maintenance and have not
been altered by someone other than Sacred Heart or its authorized representative and further provided that tor
any Products damaged in shipment to Distributor, Distributor's sole remedy shall be against the shipper of such
Products. Sacred Heart's limited warranty of Products or pat1s thereof purchased by it from others is further
limited in scope and time to any that of any warranty given by the suppliers thereof that would benefit a
purchaser of such Products or parts thereof.
C. Distributor shall promptly notify Sacred Heart in writing of any claim or complaint it or any customer may have
against Sacred Heart with respect to the Products. Upon receipt of such notice, Sacred Heart shall have the
option to inspect the defective Products at Distributor's premises or to request that Distributor return the
defective Products, at Sacred Heart's expense, to Sacred Heatt for inspection. No Product shall be returned to
Sacred Heart without the prior written authorization of Sacred Heart.
D. Sacred Heart's sole obligations in the event of breach hereunder will be to repair or replace. at Sacred Heart's
option, defective Products or parts thereof which have been inspected on Distributor's premises or returned bv
Distributor to Sacred Heart, freight collect. within the applicable warranty period. and to deliver to Distributor
repaired or replaced Products or parts thereof F.O.B. Sacred Hea11's loading dock. In no event will Sacred
Heart be liable for any incidental, consequential, or exemplary damages arisirJE._Ql!L9L9Lielating to this
Agreement or the Products
E. Except as expressly stated in Paragraph 17B herein, SACRED HEART MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTIONS OF
EACH OF THE PRODUCTS AND, IN PARTICULAR, MAKES NO WARRANTIES AS TO THE
MERCHANTABILITY OF ANY OF THE PRODUCTS OR THE FITNESS OF ANY OF THE PRODUCTS
FOR ANY GENERAL OR PARTICULAR PURPOSE.
F. All restrictions on Sacred Heart's warranties or representations stated in this Agreement shall survive
termination of this Agreement.
18. Indemnification.
Sacred Heart hereby agrees to indemnify and hold Distributor harmless from any and all claims, causes of action,
suits, debts, losses, costs or expenses (including, without limitation, reasonable attorney's fees), judgments,
liabilities, and demands for product liability and/or patent and/or trademark inll'ingement that relate to or arise from
the sale of the Products by Distributor to its customers. excluding any of the same that result or arise from
Distributor's own actions, conduct, or failures to act.
Distributor agrees to indemnify and hold Sacred Heart harmless from any and all claims, causes of action, suits,
debts, losses, costs or expenses (including, without limitation, reasonable attorney's fees), judgments, liabilities, and
demands relating to or arising out of any violation by Distributor of any provision of this Agreement or from
Distributor's negligence or intentional misconduct as it relates to this Agreement or Distributor's performance of its
obligations hereunder.
The provisions of this Section 18 shall survive the tennination ofthis Agreement.
19. Force Majeure.
If the cause of any breach hereof or failure to perfom1 hereunder is force majeure, it shall be excused to the extent
and for the period required by such cause. Force majeure shall mean an act of God, fire or other casualty, strike or
other work stoppage, material shortage, or other cause that is beyond the control of the non-performing party.
20. Complete Agreement.
This Agreement constitutes the entire contract between Sacred Heart and Distributor. The Exhibits to this
Agreement are hereby made a part hereof. Detlned tetms used in the Exhibits shall have the meanings given to them
7
Exhibit C
Exhibit C - 10
in this Agreement unless otherwise stated in the Exhibit(s) where the terms are used. Except as specifically stated
otherwise herein, no modifications of this Agreement shall be binding on either party unless made in writing and
signed by both Parties (for example, but without limitation, Sacred Heatt may impose restrictions on the use of its
Trademarks and materials and may make changes in the Products or the Trademarks as described in this Agreement
above), and this Agreement supersedes and cancels any and all previous contracts, arrangements, or understandings
that may have existed or may exist between the Parties regarding the subject matter of this Agreement. There are no
understandings, representations or warranties of any kind expressed or implied that are not expressly set forth herein.
21. Partiallnvalidity.
Any provision of this Agreement that is held to be inoperative, unenforceable, void or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, void or invalid without affecting the remaining provisions
in that jurisdiction or the operation, enforceability or validity of that provision in any other jurisdiction, and to this
end the provisions of this Agreement are declared to be severable.
22. Counterparts.
The Agreement may be executed in any number of counterparts, and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement. Signatures may be by fax. This Agreement shall be deemed to have been executed and
delivered when all parties have received counterparts hereof executed by all parties listed on their signature pages
hereto.
23. Notices.
Any notice required or permitted by this Agreement shall be in writing and shall be sent to the appropriate party at its
address stated below or such other address as the party may hereafter notifY the other of in writing. Notices shall be
effective upon receipt if personally delivered or three (3) days after dispatch if mailed by priotity, express, expedited,
certified, or registered mail using a national mail service (such as the U.S. Postal Service) or delivered using an
internationally recognized delivery service (such as UPS, DHL or FedEx), properly addressed and postage prepaid.
If to Sacred Heart:
If to Distributor:
Sacred Heart Medical, Inc.
Minnetonka, MN 55343-9104
Attn: Stuart J. Lind, President
Fax: 952-942-7590
Hospital Innovations Limited
19 Willowbrook Technology Park
Llandogo Road
Cardiff
CF3 OEF
24. Other Miscellaneous Governing Terms.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs,
legatees, representatives, successors, and assigns. Notwithstanding the preceding sentence or any other provision of
this Agreement, neither party may assign or transfer any of their respective rights or obligations under this
Agreement to any third party without the prior written consent of the other party hereto except as provided tor in
Section 15. All references herein to Sacred Heart's approval, consent, or action mean that Sacred He-att may give or
withhold its consent, or may act or not act, in its sole discretion, unless specifically stated otherwise in the reference
to Sacred Heart's approval, consent, or action. No failure on the part of a party hereunder to exercise and no delay
in exercising any rights hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any
rights hereunder preclude any other or further exercise thereof or the exercise of any other right. Remedies herein
8
Exhibit C
Exhibit C - 11
provided are cumulative and not exclusive of any other remedy provided by law. All terms and words used in this
Agreement shall be construed to include any other number and any other gender as the context or sense of this
Agreement or of any paragraph of this Agreement may require as if such terms or words had been fully and properly
written in the appropriate number and gender. Captions are provided for convenience and case of reference only and
do not affect or modify the terms of any of the provisions of this Agreement. As used herein, reference to any
Article, Paragraph, Section, Subparagraph, or Subsection shall apply or reference to only said Article, Paragraph,
Section, Subparagraph, or Subsection of this Agreement unless specifically indicated otherwise. The undersigned
individuals affirm that they have read the foregoing, have had the opportunity to review the Agreement with their
own legal counsel, and, where signing on behalf of a legal entity, are officers of, and are fully authorized by, said
legal entity to sign this Agreement and to thereby bind said legal entity. The terms of this Agreement have been
cooperatively negotiated by and among the Patiies hereto, and this Agreement shall not be construed against any
party hereto as its author.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
ro<pnrntWn
Name; Stuart J. Lin"d:T
Title: President
Distributor: Hospital Innovations Limited
By: _:::::::;. __ ......-.._.---
Printed Name: SA.g...Arrl 1.-...... ::. '\ ;:..L - .s.
1
S.
Title; '""b' e_<2:UHX_
9
Exhibit C
Exhibit C - 12
Exhibit D
Exhibit D - 1

Lind Declaration

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Lind Declaration

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UNITED STATES DISTRICT COURT

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