Common use of Marketing Arrangements Clause in Contracts

Marketing Arrangements. 10.01 IDEXX will be responsible for all marketing arrangements for the Analyzers and the VETTEST slides. IDEXX may appoint any of OCD’s medical/surgical dealers as distributors of or agents for the Analyzers and the VETTEST slides but will not be obliged to do so. 10.02 IDEXX will be responsible for the establishment of dealer performance criteria for all dealers including OCD’s medical/surgical dealers (if any are appointed by IDEXX as distributors of the Analyzers and the VETTEST slides). 10.03 IDEXX will keep OCD informed of and consult with OCD as to marketing arrangements for the Analyzers and the VETTEST slides but will not be obligated to OCD beyond the terms of this Agreement in connection with such marketing arrangements. 10.04 OCD hereby grants to IDEXX the exclusive right to distribute, to customers in the veterinary market, under the terms set forth in this Section 10.04, VITROS slides and VITROS analyzers that run solely VITROS slides. The parties also agree to use good faith, commercially reasonable efforts to negotiate a definitive distribution agreement not later than December 31, 2003. Notwithstanding any other provision of this Section 10.04, OCD and its affiliates shall continue to have the right to sell, directly or through distributors, VITROS analyzers and VITROS slides to all persons that are current VITROS end-user customers as of the Commencement Date, and to renew or extend the term of any contracts with such customers or, solely for the purpose of sales to such customers, with such distributors. The parties shall discuss terms for any sales opportunity in the veterinary market in good faith, on a case-by-case basis. OCD shall be responsible, at its sole expense, for providing warranty and out-of-warranty service and support to any customers to whom IDEXX sells a VITROS analyzer; provided that such analyzer is then covered by a maintenance agreement between OCD and that customer. IDEXX shall not modify or customize any VITROS product supplied hereunder, or remove or alter any product labels or re-label any products, packaging or related materials for VITROS product supplied hereunder. OCD shall provide IDEXX, without charge, with such training in the marketing and sale of VITROS products and with such marketing and technical assistance and product information as OCD may, in its discretion, consider necessary to assist with the promotion and sale of the products; provided that OCD’s training obligation shall be limited to training employees of IDEXX to train other IDEXX employees and sales agents. IDEXX shall defend and indemnify OCD from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of any claim resulting from (a) any negligent act or omission or any willful misconduct by IDEXX in connection with the VITROS products supplied by OCD under this Section 10.04 or (b) any statement, representation or warranty made by IDEXX or any of its agents with respect to a VITROS product that is not contained in the labeling or package insert and is not otherwise approved by OCD in writing or (c) any breach of IDEXX’s covenants in the preceding paragraph. OCD shall defend and indemnify IDEXX from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of any claim (i) for injuries or death to persons or animals or damage to or destruction of tangible property arising out of the use of VITROS products sold under this Section 10.04 (whether claimed by reason of breach of warranty, negligence, product defect or other similar cause of action, regardless of the form in which any such claim is made) or (ii) that any VITROS product sold under this Section 10.04 infringes a patent, copyright, trademark or trade secret of a third party; provided that this clause (ii) shall not apply to any claim arising out of the use of any product in conjunction with products not supplied by OCD. The indemnity procedures set forth in Section 16.06 shall apply to this Section 10.04. The provisions of this Section 10.04 shall apply only within the Exclusivity Territory. Furthermore, the provisions of this Section 10.04 granting IDEXX exclusivity shall (a) automatically terminate immediately upon the termination of Section 9.02 and (b) not apply to any instruments weighing more than 200 pounds, or to any slides sold for use on such instruments, unless and until the parties have executed the distribution agreement contemplated by this Section 10.04.

Marketing Arrangements. 10.01 IDEXX will be responsible for all marketing arrangements for the Analyzers and the VETTEST slides. IDEXX may appoint any of OCD’s medical/surgical dealers as distributors of or agents for the Analyzers and the VETTEST slides but will not be obliged to do so. 10.02 IDEXX will be responsible for the establishment of dealer performance criteria for all dealers including OCD’s medical/surgical dealers (if any are appointed by IDEXX as distributors of the Analyzers and the VETTEST slides). 10.03 IDEXX will keep OCD informed of and consult with OCD as to marketing arrangements for the Analyzers and the VETTEST slides but will not be obligated to OCD beyond the terms of this Agreement in connection with such marketing arrangements. 10.04 OCD hereby grants to IDEXX the exclusive right to distribute, to customers solely in the veterinary market, under the terms set forth in this Section 10.0410.4, VITROS slides and VITROS analyzers that run solely VITROS slides. The parties also agree to use good faith, commercially reasonable efforts to negotiate a definitive distribution agreement not later than December 31, 2003. OCD agrees to refer any inquiries for VITROS analyzers in the veterinary market to IDEXX, and shall not accept any orders for such analyzers in the veterinary market. IDEXX agrees to refer any inquiries for VITROS analyzers outside the veterinary market to OCD, and shall not accept any orders for such analyzers outside the veterinary market. Notwithstanding any other provision of this Section 10.04, OCD and its affiliates shall continue to have the right to sell, directly or through distributors, VITROS analyzers and VITROS slides to all persons that are current VITROS end-user customers as of the Commencement Date, and to renew or extend the term of any contracts with such customers or, solely for the purpose of sales to such customers, with such distributors. The parties shall discuss terms for any sales opportunity in the veterinary market in good faith, on a case-by-case basis. OCD shall be responsible, at its sole expense, for providing warranty and out-of-warranty service and support to any customers to whom IDEXX sells a VITROS analyzer; provided that such analyzer is then covered by a maintenance agreement between OCD and that customer. IDEXX shall not modify or customize any VITROS product supplied hereunder, or remove or alter any product labels or re-label any products, packaging or related materials for VITROS product supplied hereunder. OCD shall provide IDEXX, without charge, with such training in the marketing and sale of VITROS products and with such marketing and technical assistance and product information as OCD may, in its discretion, consider necessary to assist with the promotion and sale of the products; provided that OCD’s training obligation shall be limited to training employees of IDEXX to train other IDEXX employees and sales agents. IDEXX shall defend and indemnify OCD from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of any claim resulting from (a) any negligent act or omission or any willful misconduct by IDEXX in connection with the VITROS products supplied by OCD under this Section 10.04 or (b) any statement, representation or warranty made by IDEXX or any of its agents with respect to a VITROS product that is not contained in the labeling or package insert and is not otherwise approved by OCD in writing or (c) any breach of IDEXX’s covenants in the preceding paragraph. OCD shall defend and indemnify IDEXX from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of any claim (i) for injuries or death to persons or animals or damage to or destruction of tangible property arising out of the use of VITROS products sold under this Section 10.04 (whether claimed by reason of breach of warranty, negligence, product defect or other similar cause of action, regardless of the form in which any such claim is made) or (ii) that any VITROS product sold under this Section 10.04 infringes a patent, copyright, trademark or trade secret of a third party; provided that this clause (ii) shall not apply to any claim arising out of the use of any product in conjunction with products not supplied by OCD. The indemnity procedures set forth in Section 16.06 shall apply to this Section 10.04. The provisions of this Section 10.04 shall apply only within the Exclusivity Territory. Furthermore, the provisions of this Section 10.04 granting IDEXX exclusivity shall or restricting sales or marketing by or on behalf of OCD shall, (a) automatically terminate immediately upon the termination of Section 9.02 9.04(a) and (b) not apply to (i) any instruments weighing more than 200 pounds, or to any slides sold for use on such instruments, unless and until the parties have executed the distribution agreement contemplated by this Section 10.0410.04 and (ii) Ortho-Clinical Diagnostics K.K. until January 1, 2004.