Complete the next paragraph of this contract: THIS AGREEMENT is made July 31, 2017 BETWEEN: PROFOUND MEDICAL INC., a company incorporated under the laws of the province of Ontario and having its registered address at 2400 Skymark, Unit 6, Mississauga, Ontario L4W 5K5, Canada (hereinafter referred to as "Customer") - and - PHILIPS MEDICAL SYSTEMS NEDERLAND B.V., a company incorporated under the laws of the Netherlands with its principal place of business at Veenpluis 4-6 5684 PC Best, the Netherlands (hereinafter referred to as "Philips") Customer and Philips hereinafter also collectively referred to as the "Parties" and individually as a "Party". WHEREAS: A. Pursuant to the Asset and Share Purchase Agreement (the "Purchase Agreement") entered into on June 30, 2017 by Customer, Koninklijke Philips NV ("Philips NV") N.V. and Customer agreed to execute and deliver (or cause to be executed and delivered) certain ancillary agreements one of which is this Agreement; B. Prior to the consummation of the transactions contemplated by the Purchase Agreement, Philips manufactured the Product in-house and did not outsource the manufacturing to an independent facility, and as a result, Philips has intimate knowledge of the manufacturing process and requirements for the Product; C. Customer originally desired to take over responsibility for the manufacture of the Product immediately upon closing of the transactions contemplated by the Purchase Agreement; D. As Philips historically manufactured the Product in-house, to enable Customer to prepare for and realize the transition of the manufacturing of the Product to Customer's organization, Customer requires the assistance of Philips to continue manufacturing the Product until such time as the manufacturing process can be transitioned to Customer hereunder; E. Until such time as the manufacturing of the Product can be transitioned to Customer in accordance with the terms of this Agreement, Philips agrees to supply, as a contract manufacturer to Customer, on a temporary basis for the Term (as defined herein), the Product, and Customer wishes to buy such Products from Philips under this Agreement;
F. Customer acknowledges and agrees that it assumes all obligations and liabilities as the legal manufacturer of the Product as from the Effective Date, on the terms and conditions set out in this Agreement. NOW IT IS HEREBY AGREED as follows: 1. DEFINITIONS The following terms used in this Agreement shall have the meaning set forth below: "Affiliate" means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the specified Person. As used in this definition, "control", "controlled by" and "under common control with" means possession, directly or indirectly, of power to direct or cause the direction of management or policies of such Person (whether through ownership of securities or other partnership or ownership interests, as trustee, personal representative or executive or by contract, credit agreement or otherwise), provided that in any event, any Person which owns directly, indirectly or beneficially 50% or more of the securities having voting power for the election of directors or other governing body of a corporation or 50% or more of the partnership interests or other ownership interests of any other Person will be deemed to control such Person. "Agreement" means this Supply Agreement including any and all of its Schedules as attached hereto and as may be amended or supplemented from time to time in accordance with the provisions hereof. "Business Day" means any day other than a Saturday, Sunday or statutory holiday, in the Province of Ontario or the Netherlands. "Claim" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at Law, in equity or otherwise. "Confidential Information" means any information, provided in whatever form (including in written, electronic or oral form) or medium, which relates to either Party's or its Affiliates' business, products (hardware and software), technology, business plans, product plans, customers, customer information, specifications, designs, costs, prices, business opportunities, Know How, trade secrets, inventions, techniques, processes, algorithms, software programs, schematics and any other business or technical information disclosed by the Disclosing Party to the Receiving Party in connection with this Agreement. "Confirmation" has the meaning ascribed thereto in clause 4.4. "Contract Year" means the twelve (12) month period beginning on the Effective Date, and each subsequent twelve (12) month period during the Term.
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"Customer" has the meaning ascribed thereto in the Preamble. "Customer Indemnified Parties" has the meaning ascribed thereto in clause 10.1. "Delivery" means the actual delivery of the Product to Customer and the acceptance by Customer of the Product in accordance with clause 7.1. "Disclosing Party" as the meaning ascribed thereto in clause 14.1. "DMR" has the meaning ascribed thereto in clause 5.3. "EDI" means electronic data interchange. "Effective Date" means the Completion Date as defined in the Purchase Agreement. "Encumbrance" means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership. "Export Regulations" has the meaning ascribed thereto in clause 16.1. "Factory Test Report" means the report, the content of which is set forth in Schedule 4, that Philips shall prepare and maintain, identifying the factory tests Philips completes on the Product prior to Delivery to support its compliance with the Specifications. "Force Majeure" has the meaning ascribed thereto in clause 0. "Forecasts" means those documents setting out anticipated demand for the Product as to be more particularly described in clause 3.2. "Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction. "Intellectual Property Rights" means, in any and all jurisdictions, all: (a) patents and applications therefor, including all continuations, continuations-in-part and provisionals and patents issuing thereon, and all reissues, re-examinations, substitutions, renewals and extensions thereof (collectively, "Patents"); (b) trademarks, service marks, trade names, trade dress, logos, corporate names, Internet domain names or uniform resource locators used in connection with any global computer or electronic network, together with all translations, adaptations, derivations and combinations thereof, and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, renewals and extensions thereof; (c) industrial designs, designs and design rights; (d) copyrights, works of authorship and moral rights, and all registrations, applications, renewals, extensions and reversions thereof; (e) trade secrets, discoveries, concepts, ideas, research and development, Know How, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, quality data, procedures, designs, drawings, specifications, databases, and other proprietary or confidential information, including customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals, which would constitute a "trade secret" under applicable Law, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Patents ("Trade Secrets"); (f) inventions, processes and designs; and (g) software, and all source code, object code, data and documentation relating thereto.
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