Exhibit 10.10
SUPPLY AGREEMENT
This Supply Agreement is made effective this 16th day of March, 2000 by
and between Haemonetics Corporation, a corporation having its principal place
of business at 000 Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Haemonetics")
and SeraCare, Inc., a corporation having its principal place of business at
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("SeraCare").
WHEREAS, Haemonetics is in the process of obtaining approval from the
Food and Drug Administration ("FDA") to manufacture pharmaceutical solutions,
including 4% Sodium Citrate Solution, at its manufacturing facility in Union,
South Carolina; and
WHEREAS, SeraCare wishes to purchase from Haemonetics and Haemonetics
wishes to sell to SeraCare 4% Sodium Citrate Solution, subject to the
following terms and conditions.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PURCHASE AND SALE OF 4% SODIUM CITRATE SOLUTION
Beginning at least by August 1, 2000 (unless the parties mutually agree
to begin sooner), and for the term of the Agreement, SeraCare will purchase
all of its requirements for 4% Sodium Citrate Solution from Haemonetics for
use in its plasma collection centers except those that are operating under
the SOPs of a fractionator. SeraCare may not resell the solutions purchased
from Haemonetics to any third-parties. The price of the 4% Sodium Citrate
Solution will be ninety-five (95) cents per 250 ml unit, which price shall
remain fixed for the entire term of this Supply Agreement. This price does
not include any applicable state, federal or local taxes, for which SeraCare
remains responsible.
2. TERM AND TERMINATION
This Supply Agreement shall begin on the effective date above and shall
terminate on August 1, 2003 unless earlier terminated for cause. In the event
either party believes the other has breached this Agreement, it will notify
the other party of the breach, in writing, and the other party shall have 60
days to cure the breach. If the breach remains uncured for 60 days, the
non-breaching party may terminate the Agreement by providing written notice
of termination to the breaching party. The provisions of paragraphs 6, 7, 8,
and 9 herein shall survive termination of this Agreement for any reason.
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3. PAYMENT AND SHIPPING TERMS
Terms shall be net 45 days from date of invoice. Orders will be shipped
FOB Destination. Haemonetics will pay door-to-door freight. SeraCare agrees
to advise Haemonetics as soon as possible of any product damaged during
shipping and will cooperate with Haemonetics in connection with any insurance
or other claim resulting from any products damaged in shipping.
4. ORDERS
SeraCare estimates that the volume for 4% Sodium Citrate Solution shall
be between 25,000 and 50,000 units per month. SeraCare shall submit
non-binding rolling twelve month forecasts, updated quarterly. Orders and
shipment details shall be transmitted by fax or telephone or submitted
electronically to the attention of Customer Service, Commercial Plasma. All
purchase orders shall be accompanied by SeraCare's customer number. In
addition, purchase orders shall set forth (i) identification and quantity of
solution ordered; (ii) shipping instructions including address delivery; and
(iii) delivery date. Minimum orders are not required.
5. HAEMONETICS' WARRANTIES
For the shelf life of the 4% Sodium Citrate Solution, Haemonetics
warrants and represents that the 4% Sodium Citrate Solution, when shipped by
Haemonetics, shall be free of defects in design, manufacture, workmanship and
materials; shall conform to the specifications set forth in Exhibit A,
including sterility requirements; and have been manufactured, packaged, and
sold by Haemonetics in compliance with all applicable federal, state and
local laws, rules and regulations. In the event that SeraCare informs
Haemonetics that any 4% Sodium Citrate Solution does not conform to these
warranties and specifications, Haemonetics shall, at its sole option and
expense, repair or replace any and all 4% Sodium Citrate Solutions which
SeraCare gives notice are defective or which otherwise fail to comply with
the requirements of this Agreement, provided however that the product has not
been mishandled, misused, mis-stored or otherwise treated improperly by
SeraCare. In the event of any product recall, Haemonetics shall initiate all
such recalls and shall reimburse SeraCare for shipping and product replacement
costs incurred by SeraCare as a direct result of the recall.
SeraCare may, at periodic intervals, audit Haemonetics' Union, South
Carolina manufacturing facility to determine its compliance with this
Agreement and with FDA current good manufacturing process ("cGMP")
requirements. For the purpose of this quality audit, Haemonetics shall grant
SeraCare's authorized personnel reasonable access, during normal business
hours on reasonable notice, to its Union, South Carolina manufacturing,
warehousing, packaging and laboratory areas, as well as reasonable access to
documentation and reference materials during any such audits.
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SeraCare shall notify Haemonetics of any quality problems with the 4%
Sodium Citrate Solution as soon as practicable after SeraCare learns of such
problems. At Haemonetics' request, SeraCare will co-operate in the
investigation of any query or complaint concerning the 4% Sodium Citrate
Solution.
6. LIMIT OF LIABILITY
Haemonetics shall not incur any liability or obligation for damages of
any nature whatsoever to SeraCare or to any other person or entity claiming
through SeraCare or to any customer of SeraCare with respect to any 4% Sodium
Citrate Solution improperly shipped, stored, subjected to accident, damage,
misuse or abnormal, unusual or improper operating conditions or conditions
not made known or contemplated by Haemonetics at the time of this Agreement,
or applied or used for a purpose other than or at variance in any degree from
that for which designed, or used in any manner or degree beyond its proper
capacity or contrary to manufacturer instructions.
The uses and applications to which the 4% Sodium Citrate Solution may be
applied, and the results obtained from the 4% Sodium Citrate Solution, shall
be the sole responsibility of SeraCare, and Haemonetics expressly disclaims
responsibility for the use by SeraCare of the 4% Sodium Citrate Solution.
Safe and effective use of the 4% Sodium Citrate Solution should be undertaken
only by trained personnel over whom Haemonetics has no control and for whose
actions Haemonetics shall not be responsible, either to third parties or to
SeraCare.
THE WARRANTIES IN THIS AGREEMENT BY HAEMONETICS ARE EXCLUSIVE AND ALL
OTHER WARRANTIES, DIRECT OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR, OR OBLIGATED TO
ALLOW CLAIMS FOR, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER
DAMAGES OR EXPENSES OF ANY KIND WHATSOEVER.
7. CONFIDENTIAL INFORMATION
Each party shall maintain in strict confidence and not disclose to any
other person or entity, except for its own employees having a "need to know"
in connection with such party's efforts hereunder, the existence of this
Agreement or the terms or subject matter hereof, except as may be required by
law or regulation or except as may be mutually agreed by the parties.
Each party shall maintain in strict confidence the confidential or
proprietary information of the other party provided hereunder, so long as
such written proprietary or confidential information is marked as such and
such orally disclosed information is identified as such or any such disclosed
information is reasonably understood to be confidential or proprietary. Each
party shall use proprietary information of the other party solely in
connection with its proper performance hereunder and shall make no other
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use thereof of any nature whatsoever, whether during or after the term
hereof. Each party may disclose such proprietary information of the other
party solely to its own employees having a "need to know" in connection with
its proper performance hereunder who have been advised of the proprietary
nature of such information, and shall make no other disclosure of such
information of any nature whatsoever, whether during or after the term hereof.
The parties agree that the obligations of confidentiality do not apply
to information that is:
(a) in the public domain (provided that information in the
public domain has not or does not enter the public domain as the
result of disclosure by the receiving party; or
(b) known to the receiving party prior to the disclosure by
the other party; or
(c) available to a party on a non-confidential basis from a
source other than the disclosing party, which source was under
no obligation of confidentiality; or
(d) information that was independently developed, as evidenced
by written records, by the receiving party.
8. NOTICES
Any notice required to be sent by one party to the other and any
request by either party pursuant to the terms of this Agreement shall be in
writing, duly delivered to the other party in person or sent by telegram,
telex or facsimile transmission or sent by registered or certified mail, as
follows:
If to Haemonetics, to:
Xxx Xxxxxx, VP, Commercial Plasma Division
Haemonetics Corporation
000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
cc: Xxxx Xxxxx, Senior VP and General Counsel
Haemonetics Corporation
000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
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If to SeraCare, to:
Xxxxx Xxxxx, CEO
SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
9. CHOICE OF LAW
This Agreement shall be governed as to interpretation, validity,
effect, enforceability and all other substantive or procedural matters by the
laws of the Commonwealth of Massachusetts.
10. FORCE MAJEURE
Failure of either party to perform its obligations under this
Agreement shall not subject such party to any liability to the other party if
such failure is caused by any cause beyond the reasonable control of such
nonperforming party, including, but not limited to, acts of God, fire,
explosion, flood, drought, war, riot, sabotage, embargo, strikes or other
labor trouble or a national health emergency.
11. HEADINGS
All paragraph headings are for convenience only and are in no way
to be construed to be part of this Agreement.
12. ASSIGNMENT
This Agreement may not be assigned by either party without the
other party's express prior written consent. Nothing herein shall be
understood to prevent or impair Haemonetics' right to satisfy its obligations
to make the 4% Sodium Citrate Solution available by purchasing it from a
third party, as provided in this Agreement.
13. NO WAIVER OR INVALIDITY
None of the terms of this Agreement shall be deemed to be waived by
any party unless such waiver is in writing duly executed by the party to be
charged with such waiver and such writing recites specifically that it is a
waiver of the terms of this Agreement. The waiver by either party of any
breach of any Agreement, warranty or covenant contained in this Agreement
shall not be construed to act as a waiver of any subsequent breach. The
failure or delay of either party to exercise any right, power or remedy shall
not operate as a waiver thereof, and all rights, powers and remedies shall
continue in full force and effect. All rights, powers and remedies of both
parties provided for in this Agreement are cumulative and non-exclusive,
except as otherwise expressly provided. Unenforceability or invalidity of any
one or more provision hereof shall not render any other provision herein
contained unenforceable or invalid.
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14. ENTIRE AGREEMENT AND AMENDMENT
Haemonetics and SeraCare are parties to an Equipment and Supply
Agreement dated March 12, 1998, pursuant to which SeraCare must purchase
certain plasmapheresis disposable products from Haemonetics and nothing
herein is intended to modify, supersede, or in any way affect the Equipment
and Supply Agreement, which shall remain in effect according to its terms.
Except as otherwise provided herein, this Agreement constitutes the entire
agreement between the parties relating to the subject matter herein and
supersedes all prior proposals, understandings, course of conduct and
writings by and between the parties and relating to the subject matter
herein. None of the terms of this Agreement shall be deemed to be amended,
including by any future purchase orders, unless such amendment is in writing
and duly executed by all parties to this Agreement and such writing
specifically states that it is an amendment to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Supply Agreement
to be executed and delivered by their respective duly authorized officers on
the day and year first above written.
SERACARE, INC.
By /s/ Xxxxx Xxxxx 3/16/01
------------------------
Xxxxx Xxxxx
Title: Chief Executive Officer
HAEMONETICS CORPORATION
By /s/ Xxx Xxxxxx 3/16/00
-----------------------
Xxx Xxxxxx
Title: Vice President, Commercial Plasma
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