Exhibit 10.6
MASTER PURCHASE CONTRACT
This MASTER PURCHASE CONTRACT (the "Contract"), dated as of July 1,
1999, is by and between HemaSure Inc., a Delaware corporation (the "Vendor"),
and The American National Red Cross, a not-for-profit corporation chartered by
an act of Congress (the "Purchaser").
RECITALS
WHEREAS the Vendor is the developer and manufacturer of the HemaSure
r\LS Prestorage Leukoreduction Filtration System (the "Filtration System") for
the reduction of leukocytes in red blood cells; and
WHEREAS the Purchaser desires to purchase Filtration Systems for use in
its blood collection and filtration programs at various facilities of American
Red Cross Blood Services (each, a "Red Cross Center") located throughout the
United States.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Term. The term of this Contract is three (3) years and two (2)
months, beginning July 1, 1999 and ending August 31, 2002, unless extended or
earlier terminated pursuant to Sections 2.2 or 12 below. The Contract consists
of a fourteen (14) month period (July 1, 1999 - August 31, 2000) and two (2)
consecutive twelve (12) month periods beginning on September 1, 2000 (each of
such three separate periods is herein referred to as a "year" of the Contract
Term, including the fourteen (14) month period).
2. Purchase and Sale Obligations.
2.1 Pricing Levels. The Vendor agrees to sell Filtration Systems
to the Purchaser, and the Purchaser agrees to purchase such Filtration Systems
from the Vendor, at the confidential quantity and price levels set forth on
Schedule I hereto and incorporated herein.
2.2 Minimum Purchase Requirement. In the first year of the
Contract Term, the Purchaser shall purchase from the Vendor and the Vendor must
provide not fewer than
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400,000 Filtration Systems. In the second year of the Contract Term, the
Purchaser shall purchase from the Vendor and the Vendor must provide not
fewer than 700,000 Filtration Systems. In the third year of the Contract Term,
the Purchaser shall purchase from the Vendor and the Vendor must provide not
fewer than 1,000,000 Filtration Systems. In the event that the Purchaser fails
to meet the minimum purchase requirement in any Contract Term year, the
remaining number of Filtration Systems necessary to meet such minimum purchase
requirement will be added on to the minimum purchase requirement of the
subsequent Contract Term year. In the event that the Purchaser fails to meet the
minimum purchase requirement in the third year of the Contract Term, the term of
this Contract shall be extended for one year during which time the Purchaser
must purchase the remaining number of Filtration Systems as are necessary to
meet the minimum purchase requirement of the previous year.
2.3 Surcharge. In the event that the Purchaser fails to satisfy
the minimum purchase requirements set forth in Section 2.2 of the Contract for
any year of the Contract Term, the Purchaser must pay to the Vendor a surcharge
of $1.50 per Filtration System purchased. For example, if 350,000 Filtration
Systems were purchased for Contract Year 1, there would be an aggregate
surcharge of $525,000 (350,000 x $1.50). In that situation, the Purchaser is
then required to purchase a minimum of 750,000 Filtration Systems in Contract
Year 2 to avoid the application of a surcharge for that year. The same method of
surcharge calculation shall apply to any subsequent Contract years as well. The
surcharges set forth in this section 2.3 shall not apply if Vendor is unable to
provide such Filtration Systems or to force majeure events as set forth in
Section 16.1.
2.4 Purchase Volume Credits.1 If, (i) as a direct result of the
Purchaser's efforts either the Australian Red Cross or the Japanese Red Cross
place orders for the purchase of Filtration Systems from the Vendor and (ii) on
or prior to June 30, 2000 the Japanese Red Cross or the Australian Red Cross, as
the case may be, executes and delivers to the Vendor a definitive, firm
commitment agreement to purchase Filtration Systems from the Vendor, and shall
in fact purchase such Filtration Systems, then, the volume of such purchases,
when and as made and paid for, will be added to the volume of the Purchaser's
purchases for the purpose of computing price level volumes for the Purchaser
hereunder.
2.5 Purchaser Affiliates. The price levels available to the
Purchaser under this Contract will be made available to domestic affiliates of
the Purchaser pursuant to written purchase contracts with the Vendor containing
terms satisfactory to the Vendor. The Purchaser will provide the Vendor with a
list of such domestic affiliates of the Purchaser on a semi-annual basis,
together with documentation reasonably satisfactory to the Vendor evidencing
such domestic affiliate status.
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1 To be discussed.
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2.6 Price Level Adjustments. If as a result of any technological
development or manufacturing process improvements in respect of manufacturing
technologies, filtration media or other significant aspects of the manufacturer
or production of the Filtration System the Vendor achieves and realizes a
substantial reduction in the Vendor's current estimated volume cost of
production and manufacture of such Filtration Systems as of the date hereof, the
Vendor will discuss with the Purchaser, and effect, a fair and reasonable
downward adjustment in the price level set forth in Section 2.1 above; provided,
however, the Vendor shall only be required to effect such a downward price
adjustment under the circumstances detailed in the previous sentence and not in
respect of any production or manufacturing cost or expense savings associated
with increased volume production, economies of scale, or otherwise.
3. Purchase Orders.
3.1 Form of Purchase Orders. Purchase orders for Filtration
Systems shall be submitted to the Vendor in writing, via facsimile, or via
telephone with a confirmation in writing, and shall specify the desired quantity
of Filtration Systems, delivery date and delivery location. The Vendor shall
designate persons within its customer services department who will be
responsible for receiving telephone orders from the Purchaser's representatives.
Telephone orders must be placed between 8:30 a.m. and 5:30 p.m. Eastern Time.
The Vendor may institute a new procedure for placing orders, including a system
through which purchase orders are electronically generated; provided, however,
that such new ordering procedure does not result in additional costs to the
Purchaser.
3.2 Authorized Purchasing Representatives. Unless the Purchaser
notifies the Vendor in writing, purchase orders shall be placed separately with
the Vendor for each Red Cross Center by the Purchasing Office located at the
Blood Services Area Office in Dedham, MA, Charlotte, NC, Detroit, MI, St. Louis,
MO or Phoenix, AZ. Each Area Office shall provide to the Vendor a list of
personnel who are authorized to place purchase orders with the Vendor. The
Vendor shall accept purchase orders only from such authorized personnel.
4. Payment.
4.1 Accepted Goods. Payment is due for all goods accepted as set
forth in Section 5.3 below.
4.2 Time of Payment. Separate invoices will be sent by the Vendor
to each Blood Services Area Office that placed an order with the Vendor. Payment
is due to the Vendor within thirty (30) days of the date of the invoice, such
invoices to be dated and mailed no earlier than the day of product shipment to
the Red Cross Center. The Vendor shall assess service and/or interest charges of
up to 1% per month on any past due amounts.
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5. Delivery.
5.1 Freight Charge. All shipments will be FOB Marlborough, MA, in
accordance with instructions received from the Purchaser.
5.2 Packaging. The Vendor shall package and xxxx the Filtration
Systems for shipment in accordance with industry standards for safe shipment by
common carrier. Packaging shall comply with applicable Interstate Commerce
Commission regulations appropriate to the mode of transportation. The exterior
of each shipping container shall be marked with the following information: (i)
description, (ii) quantity, (iii) purchase order number, (iv) the Vendor's name,
(v) weight of container. A document containing the following information shall
accompany each shipment: (i) name and address of consignee, (ii) name and
address of shipper, (iii) purchase order number, (iv) Red Cross Center xxxx of
lading number (if any), and (v) a description of the material shipped which
includes item number, lot number, quantity, number of boxes, and package number.
5.3 Acceptance of Goods. Before accepting a shipment of goods
ordered, the Purchaser shall have the right to inspect and test such goods at
its own cost. Inspection and acceptance of shipments will be conducted by the
Red Cross Center that placed the purchase order and must be completed within 14
calendar days of delivery. Goods may be rejected only if they do not materially
conform to the specifications of the order or the terms of this Contract. In the
event that a shipment is so rejected, (i) the Purchaser shall deliver written
notice to the Vendor informing the Vendor of the reasons for the rejection and
the quantity of rejected goods and (ii) the Vendor shall as soon as is
practicable inform the Purchaser of the Vendor's return instructions, which
instructions the Purchaser shall comply with. The Vendor will bear the cost of
any necessary inspection of goods sent as replacement for the nonconforming
shipment. Any rejected goods may be returned to the Vendor at the Vendor's
expense.
6. Periodic Reports and Notices by the Vendor.
6.1 Product Purchase Reports. The Vendor shall provide the
Purchaser with a Product Purchase Report, every calendar quarter during the Term
of this Contract, which shall set forth the following information with respect
to Filtration Systems purchased by the Purchaser in the previous quarter: (i)
item description, (ii) stock number, (iii) unit of measure, (iv) total number of
units purchased per Red Cross Center, (v) price per unit, and (vi) amount
billed. Product purchase reports should also contain a summary of the
year-to-date purchases by the Purchaser, broken down by Red Cross Centers which
purchased Filtration Systems.
6.2 Quality Control/Inspection Report. The Vendor shall provide
the Purchaser with a Quality Control Report, on a quarterly basis, which shall
detail any problems with the Filtration Systems reported by the Red Cross
Centers. The quality control report shall contain the following information: (i)
the Red Cross Center which reported the problem, (ii)
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the date on which the Red Cross Center experienced a problem, (iii) the Red
Cross Center's product lot number, (iv) the nature of the problem reported, (v)
the diagnosis of the problem and the solution, and (vi) the dates the
problematic product was shipped and received.
6.3 Defective Product Reports and Notice. The Vendor shall provide
the Purchaser with a Defective Product Report, on a quarterly basis, which shall
detail any deficiencies or defects in Filtration Systems already delivered to
the Purchaser. In addition, the Vendor must notify the relevant Red Cross Center
of any defects in Filtration Systems delivered to such Center within one
business day of the Vendor's discovery of such defect.
7. Representations and Warranties of the Vendor
7.1 Generally. The Vendor warrants and represents that: (i) the
rights conveyed in this Contract do not and shall not infringe upon or violate
any right of any third party; (ii) the Vendor possesses full power and authority
to enter into this Contract and convey the rights herein granted to the
Purchaser without the consent of any third party; (iii) the Vendor is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it was organized; (iv) this Contract, when executed and
delivered by the Vendor, will be the legal, valid and binding obligation of it,
enforceable against it in accordance with its terms; and (v) the execution,
delivery and performance of this Contract does not and will not conflict with,
or constitute a breach or default under, the Vendor's charter documents or any
material agreement, contract, commitment, or instrument to which the Vendor is a
party or require the consent, approval or authorization of any governmental or
regulatory authority.
7.2 Patent/Trade Secret Protection. The Vendor, at its own
expense, will defend any suit which may be brought against the Purchaser for the
infringement of United States patent(s), trademark(s), copyright(s), trade
secret(s) or other proprietary right by goods, equipment, software, materials or
information prepared, developed or supplied in connection with performance of
this Contract and in such suit, the Vendor will pay all costs and satisfy any
final judgement or award for such infringement. The Vendor's foregoing
obligations are subject to the conditions that the Vendor is notified of the
suit within a reasonable time after the Purchaser becomes aware of it and the
Vendor has the full right and opportunity to conduct the defense of any such
action. If the use of such goods, equipment, software, materials or information
by the Purchaser is prevented by permanent injunction, or the Vendor's inability
to procure the right for the Purchaser to continue using the goods, equipment,
software, material or information at a reasonable cost, the Vendor agrees to
accept return of the infringing goods, equipment, software, materials or
information and refund the total amount the Purchaser has paid the Vendor under
this Contract.
7.3 Compliance with Applicable Laws. The Vendor warrants and
represents that any goods furnished under this Contract will be manufactured in
material compliance with the minimum conditions required under the Fair Labor
Standards Act of
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1936, as amended, and any applicable rules or regulations of the Food
and Drug Administration ("FDA") and all other applicable local state and
federal laws, rules or regulations.
7.4 Product Warranty. The Vendor warrants and represents that the
goods delivered hereunder shall be free from defects in materials and
workmanship, when given normal, proper and intended usage, and that product
performance will meet or exceed applicable FDA requirements and other mutually
agreed standards. Except with respect to latent or hidden defects, the
representations and warranties of the Vendor shall not survive any acceptance or
payment by the Purchaser for such Products. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, NEITHER THE VENDOR NOR ANY OF ITS REPRESENTATIVES HAS MADE OR MAKES ANY
EXPRESS OR IMPLIED WARRANTIES TO PURCHASER CONCERNING THE GOODS DELIVERED
HEREUNDER.
8. Representations and Warranties of the Purchaser. The Purchaser
warrants and represents that: (i) the Purchaser possesses full power and
authority to enter into this Contract without the consent of any third party;
(ii) the Purchaser is duly organized, validly existing and in good standing
under the laws of the United States; (iii) this Contract, when executed and
delivered by the Purchaser, will be the legal, valid and binding obligation of
it, enforceable against it in accordance with its terms; and (iv) the execution,
delivery and performance of this Contract does not and will not conflict with,
or constitute a breach or default under, the Purchaser's charter documents or
any material agreement, contract, commitment, or instrument to which the
Purchaser is a party or require the consent, approval or authorization of any
governmental or regulatory authority.
9. Defective Products. If at any time during any Term of this Contract,
defects are discovered by the Purchaser in any Filtration Systems sold by the
Vendor to the Purchaser under this Contract, the Vendor shall, within thirty
days of the return of the defective Filtration System, at its option and its
sole cost, either repair or replace the product or issue a credit to the
Purchaser for such defective product. In no event shall the Vendor have any
other liability or obligation to the Purchaser for defective products beyond
those expressly set forth in this Section 9.
10. Material Changes to Product. The Vendor must obtain the Purchaser's
prior written consent, which consent may not be unreasonably withheld, to any
material changes in the design or manufacture of the Filtration Systems. The
Vendor must provide 60 days' prior written notice of any such material changes.
If such changes are not reasonably acceptable to the Purchaser, the Vendor must,
if not so prohibited by applicable law, rule or regulation, continue to provide
the original product at no additional charge, or this will be cause for
termination of this Contract by the Purchaser without any penalty. The Vendor
must give the Purchaser reasonable prior notice of any scheduled material change
in the manufacture of equipment, package insert changes, supplies or disposables
which would affect the operating procedures with respect to the Filtration
Systems or the quality of the Filtration Systems. The
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notification by the Vendor must include the nature of the change and the
expected impact on performance.
11. Cooperation Between the Vendor and the Purchaser.
11.1 Product Support. Each Red Cross Center placing an order for
Filtration Systems with the Vendor will receive Prestorage Leukoreduction
Filtration Stands free of charge, based on the following formula: one stand for
every 12,500 filter units per year (34 cases/month). The Vendor will provide the
Red Cross Centers with standard operating procedures and training materials
necessary in the operation of the Filtration Systems. In the first year of this
Contract, the Vendor will reasonably cooperate with and assist two Red Cross
Centers designated by the Purchaser to convert such Centers to 100%
leukoreduction. Such cooperation will include assistance in developing marketing
materials as well as assistance in maintaining optimal operational conditions at
the Centers.
11.2 Contract Update Meetings. Representative of the Vendor and
the Purchaser shall meet at their mutual discretion and convenience to discuss
issues pertaining to this Contract.
11.3 Access to Documents and Vendor's Facilities. The Vendor
agrees to permit the Purchaser reasonable access to all records, data and
facilities of the Vendor related to purchases under and performance of this
Contract during the term of this Contract and for a period of two (2) years
following the expiration or termination of this Contract. The Vendor further
agrees that the Purchaser may (i) conduct, from time to time as it reasonably
determines (but not more than twice in any twelve month period), quality audits
of the Vendor's facility to determine the Vendor's material compliance with Part
820 of the Code of Federal Regulations 21 (Quality System Regulations) and (ii)
conduct a review and audit of the Vendor's computer and accounting systems to
determine material compliance with reasonable "Year 2000" compliance standards
to be mutually agreeable to the Vendor and the Purchaser. The Vendor covenants
and agrees with the Purchaser to use commercially reasonable efforts to remedy
any material deficiencies discovered by the Purchaser during the foregoing
audits, and any failure by the Purchaser to do so shall constitute a Termination
for Breach pursuant to Section 12.1 below (subject to the cure periods set forth
therein); provided, however, that with respect to clause (ii) of the preceding
sentence, the Vendor shall not be deemed to have breached this Agreement unless
the discovered non-compliance (and subsequent failure to cure) has a material
adverse effect on the operations of the Purchaser or on the ability of the
Vendor to fulfill its obligations under this Agreement.
All records, files, reports, manuals, studies, photographs,
negatives, source code (including hard copies of all programs), calibration and
performance records, development and validation records, change control
documents, security and access records and records management documents, and all
other documents relating to performance under this Contract, including all
documents relating to all third-party software used herein, will be
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made available to the Purchaser or to persons and or entities to which the
Purchaser is required by law, regulation or otherwise to grant access to such
documents, immediately upon request at any time during performance under
this Contract and for a period of five (5) years after final payment for all
deliverables and services provided by the Vendor. If a longer retention time is
required by law or regulatory agency, the Purchaser will notify the Vendor prior
to the end of the Contract.
It is further agreed that the Vendor will provide immediate access
to the Purchaser or its representatives and the FDA to all documents relating to
the performance of the deliverables and services under this Contract. The Vendor
will allow prompt access during normal business hours to the Purchaser, and
immediate access to the FDA, to all such documents and to its facilities where
work is performed under this Contract or support is provided in connection with
the deliverables or services provided under this Contract at any time (with
reasonable advance notice in the case of the Purchaser's access) for purposes of
FDA inspections or other requests for access by the FDA.
11.4 Adequate Supply. At least thirty (30) days before the end of
each calendar quarter, the Purchaser will prepare and furnish to the Vendor an
annual forecast, by month, for the following four calendar quarters, specifying
the proposed quantity of r\L S Filtration Systems which will be purchased for
delivery during each month of that year. The Vendor hereby guarantees that it
will be able to provide, at a minimum, the quantities of Filtration Systems
reflected in the minimum purchase requirements for each of the Contract years
(Section 2.2). The Vendor shall undertake reasonable efforts to ensure that all
the Purchaser's additional quantity needs for Filtration Systems are met by the
Vendor.
11.5 Customer, Technical Service and Training. The Vendor shall
designate one employee who shall have primary responsibility for servicing this
Contract and the Vendor shall make this employee reasonably available during
normal business hours to discuss Contract issues with the Purchaser. The Vendor
shall maintain a Technical Services Department for the purpose of providing
on-site training, as well as technical follow-up support with regard to the
Purchaser's use of Filtration Systems. The Vendor shall provide for a two-day,
on-site, hands-on training program at each participating American Red Cross
Regional Center. American Red Cross Centers and their personnel may direct
technical questions to the Vendor using a toll-free number, to be provided by
the Vendor, or such American Red Cross Center may contact the Vendor's Technical
Services trainers directly via telephone or pager. The Vendor's Technical
Services Trainers shall also be available to the Purchaser to provide seminars
on an area basis or to attend any regional meetings where their presence and
input will be of value to the American Red Cross.
12. Termination.
12.1 For Breach. The Purchaser may terminate this Agreement,
without any liability except to pay for accepted filters, on thirty (30) days
prior written notice if the Vendor
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is in material breach of this Agreement and has not cured such breach within
thirty (30) days of written notice of such breach. The Vendor may terminate this
Agreement on thirty (30) days prior written notice, if the Purchaser is in
material breach of this Agreement and has not cured such breach within thirty
(30) days of written notice of such breach.
12.2 FDA. In the event that the FDA revokes approval of the
Filtration System, the Purchaser or the Vendor, effective immediately, may
terminate this Contract without any liability except to pay for accepted
filters.
12.3 Technological Change. If (i) as a result of a technological
change, new products become available which provide substantial improvements in
the safety of blood services or the efficiency of blood collection, through
automated collection or filtration strategies or viral inactivation systems or
other methods currently unknown and (ii) it can be shown by mutually agreed upon
independent experts in the blood collection field that any such new product
described in the preceding clause provides a substantial and meaningful clinical
benefit or substantial and material economic advantage compared to the
Filtration System, then the Purchaser, upon delivery to the Vendor of the
results of such independent experts' analysis and thirty (30) days prior written
notice, may terminate this Contract without any liability except to pay for
accepted filters.
12.4 For Change in Circumstances. The Purchaser may terminate this
Contract with ninety (90) days prior written notice at any time prior to the
completion of the Contract if the Purchaser has no further requirement for the
use of leukoreduction filters generally. In the event of such termination, the
Vendor agrees to cease immediately all work for the Purchaser and the liability
of the Purchaser shall be limited to payment for filters already delivered.
12.5 For Change in Policy or Mandate. The Purchaser may terminate
this Contract by thirty (30) days prior written notice at any time prior to
completion of the Contract if (i) there has occurred any material change in the
policies or mandates of the American National Red Cross that make such
termination necessary or desirable and (ii) the Purchaser has purchased from the
Vendor, and has paid for, not fewer than 2.1 million Filtration Systems
hereunder. In the event of such a termination, the Purchaser promptly shall pay
to the Vendor all amounts due and payable hereunder through the effective date
of such termination, plus an amount equal to all costs and expenses incurred by
the Vendor and, directly or indirectly, associated with the manufacture and/or
sale of the Filtration Systems to the Purchaser hereunder, including, but not
limited to, costs and expenses in respect of facilities, equipment, materials,
labor and otherwise.
13. Indemnification.
13.1 By The Vendor. The Vendor agrees to indemnify and hold
harmless the Purchaser and its governors, directors, officers, employees,
volunteers and agents against any
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liability, claim, cost or expense (including reasonable attorneys' fees) with
respect to bodily injury, death, and property damage arising from the
willful misconduct or negligent activity of the Vendor, its directors, officers,
employees or agents during its performance of its responsibilities under this
Contract, including but not limited to any claim against the Purchaser for
infringement of patent rights owned or held by competitors of the Vendor. The
Vendor further agrees to indemnify the Purchaser, its governors, directors,
officers, employees, volunteers and agents from and against any loss, damages,
costs, or expenses ("liability") in connection with any claim arising from any
defect in the Filtration Systems, or in the provision of any services pursuant
to this Contract, or by reason of the nature of the materials contained in said
Filtration Systems or provision of service, except to the extent that the final
order of a court of competent jurisdiction has determined that a proportion of
such liability thereof was caused either by an alteration in, tampering with, or
non-intended usage of the Filtration Systems by the Purchaser or by the willful
misconduct or negligent activity of the Purchaser, its directors, officers or
employees, in which case, the Purchaser shall be responsible solely for its
proportionate share of the liability.
13.2 Defense Obligations. In the event that the Vendor or the
Purchaser is, or both are, the subject of a third party claim, action, or
proceeding alleging injury or damages as a result of any manufacturing defect in
the Filtration System or in the provision of services pursuant to this Contract,
or for infringement of a patent held by a competitor of the Vendor, each party
shall provide the other with prompt notice thereof. The Vendor shall defend or
provide for the defense of such claim, action or proceeding at its sole costs
and expense. The Purchaser shall execute such documents and instruments deemed
necessary by the Vendor or its counsel and not in conflict or derogation of the
Purchaser rights under this Agreement. The Purchaser shall take such other
reasonable action the Vendor may request to assist the Vendor in its efforts on
such matters, including the provision of reasonable testimony or trial
assistance. The Purchaser shall not interfere with or take any steps to settle
such action. The Vendor shall reimburse the Purchaser for its documented and
reasonable out-of-pocket expenses in connection with providing any assistance
under this Section.
14. Insurance. The Vendor shall maintain the following insurance
coverages in full force and effect for the Term of this Contract.
(i) 1) Commercial General Liability Insurance in an amount of
at least $10,000,000 (Ten Million Dollars) naming the Purchaser an
additional insured party; 2) an auto liability policy with at least
$1,000,000 (One Million Dollars) in coverage; and 3) Workers'
Compensation coverage covering each party's own employees with
statutory limits for each jurisdiction where the work required
under this Contract is performed (including monopolistic states if
any work is to be performed in one or more of them) and an
employers' liability policy with at least the following limits,
$250,000 per accident, $500,000 per disease, and $250,000 disease
(each employee).
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(ii) The Vendor further agrees to maintain not less than
$10,000,000 (Ten Million Dollars) of products liability coverage
naming the Purchaser as an additional insured party with respect to
any product sold to the Purchaser. Said products liability coverage
shall include coverage for claims made against the policy for
injury occurring as a result of a flaw or problem with the design
or manufacture of the Filtration Systems.
(iii) The Vendor agrees to maintain full replacement value "All
Risk" property insurance on all property and equipment of the
Vendor used under this Contract, and said property insurance shall
insure at all times all Filtration Systems being manufactured and
the Vendor agrees to waive any right of subrogation for loss or
damage to any of the Vendor's property at, on, or in the Red Cross
Center's or the Vendor's facilities. The Vendor agrees to obtain,
if required in such property insurance, a waiver of subrogation in
favor of the Purchaser. Said property insurance shall include
Business Interruption and Extra Expense coverage for such losses
arising from loss or damage to aforementioned Vendor property
without expectation of contribution from any such insurance the
Purchaser may maintain.
(iv) The Vendor shall, at its sole expense, keep in force
policies of insurance in the amounts as specified, and as required
by statute, with carriers reasonably satisfactory to the Purchaser;
and said insurance will be written as primary policy coverage and
not contributing with, or in excess of any insurance which the
Purchaser shall carry. Certificates of insurance evidencing all of
the above coverages and conditions (types and amounts) shall be
produced upon written request and remain in full force and effect
during the term of this Contract. The Vendor shall supply evidence
of its property insurance on an XXXXX "Evidence of Property
Insurance" form 27. The Vendor's certificate(s) of insurance shall
provide for not less than thirty (30) days written notice of
cancellation, non-renewal or reduction in terms and conditions
below that required herein to the other party.
15. Dispute Resolution.
15.1 Initial Conferences. It is the intention of the parties
hereto to settle amicably all differences or disputes arising from this Contract
by conference and negotiation. The parties hereto will first attempt to resolve
any working level disputes through a Contract Management Advisory Committee
which shall be composed of an equal number of representatives of the Purchaser
and the Vendor. In the event that any problem or dispute is not so resolved,
either party may, upon written notice to the other, request that the matter be
referred to senior management officers within each respective organization with
the express authority to resolve the problem or issue. Such representatives
shall meet or confer at least once in good faith to negotiate a resolution. If
the representatives are unable to resolve the
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problem or dispute within 21 calendar days, any party may take the matter to the
Dispute Resolution Procedure set forth below. No Party may institute litigation
until such procedure has been completed unless, and to the extent that, doing so
is necessary to avoid irreparable harm.
15.2 Dispute Resolution Procedure. If any problem or dispute
arising out of, or related to, this Contract is not resolved by the parties
hereto in the manner described above, at the request of either of the parties,
the matter shall be submitted to mediation, or to such other form of dispute
resolution acceptable to both of the parties hereto. The mediation shall be
conducted in accordance with the Center for Public Resources Model Procedure for
Mediation of Business Disputes.
16. General Provisions.
16.1 Force Majeure. In the event that any party is prevented from
performing, or is unable to perform, any of its obligations under this Contract
due to any act of God, fire, casualty, flood, war, strike, lock out, failure of
public utilities, injunction or any act, exercise, assertion or requirement of
governmental authority, epidemic, destruction of production facilities,
insurrection, inability to procure materials, labor, equipment, transportation
or energy sufficient to meet manufacturing needs, or any other cause beyond the
reasonable control of the party invoking this provision, and if such party shall
have used its best efforts to avoid such occurrence and minimize its duration
and has given prompt written notice to the other party, then the affected
party's performance shall be excused and the time for performance shall be
extended for the period of delay or inability to perform due to such occurrence.
16.2 Confidentiality. Except as otherwise required by law, rule or
regulation, the terms of this Agreement shall be held in confidence by the
parties hereto. No party shall originate any publicity, news release or other
public announcement relating to this Agreement or the existence of an
arrangement between the parties without the prior written approval of the other
party, except as otherwise may be required by law, rule or regulation.
Each party may designate any or all of its information, data,
written and/or verbal communications developed, accessed, provided, or
referenced during the performance of this Contract as Confidential.
The Purchaser and the Vendor acknowledge and agree that if during
the term of this Contract such information is designated confidential and is
disclosed by one party to the other, such Confidential Information shall not be
used for any purpose other than those necessary to directly further the purposes
of this Contract, and each party shall hold all such confidential information in
the strictest confidence and shall not voluntarily sell, transfer, publish,
disclose, display or otherwise make available to any third persons such
confidential information or any portion thereof without the express written
consent of the other party. The
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Vendor and the Purchaser shall protect the confidences of the confidential
information and prevent its unauthorized dissemination and each use commercially
reasonable efforts to protect the confidentiality of all such information
consistent with the manner in which they protect their most confidential
business information.
In the event either Party receives a subpoena or other validly
issued administrative or judicial process requesting Confidential Information of
the other party, it shall provide prompt notice to the other of such receipt so
that such party may seek a protective order or other appropriate remedy to
obtain confidential treatment of such Confidential Information and (i) cooperate
with such other party with respect to taking legally available steps to resist
or narrow such request or demand and (ii) if disclosure of such information is
legally required, exercise its commercially reasonable efforts to obtain an
order or other reliable assurance that confidential treatment will be accorded
to such Confidential Information.
For the purposes of this Contract, Confidential Information shall
include all information designated in writing as Confidential by the Parties.
The prices and terms and conditions set forth in this Contract are deemed
Confidential Information.
16.3 Public Statements. The Vendor shall not use or reference the
name or emblem of The American National Red Cross, including issuing any press
releases or otherwise making any public statement with respect to this Contract
(unless such press release or statement is required by applicable law,
regulation or the requirements of any listing agreement with any applicable
stock exchange), without the prior written consent of the Purchaser, which
consent will not be unreasonably delayed or withheld.
16.4 No Agency. Nothing contained in this Agreement shall be
deemed to constitute any party as the agent or representative of any other
party.
16.5 Survival of Obligations. All obligations of any party which,
by their nature, require performance after the expiration or termination of this
Agreement, shall survive the expiration or termination of this Agreement.
16.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, in a venue in
the Commonwealth of Virginia, without regard to its conflicts of law rules or
principals.
16.7 Entire Agreement. This Agreement constitutes the entire
agreement between the parties as to the purchase of r\LS Prestorage
Leukoreduction Filtration Systems and supersedes all prior and contemporaneous
agreements and understandings, whether oral or written, relating to the subject
matter hereof. No waiver, consent, modification or change of terms of this
Contract shall bind any party unless in writing signed by both the Vendor and
the
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Purchaser, and then such waiver, consent, modification or change shall be
effective only in the specific instance and for the specific purpose given.
16.8 Headings. Captions and headings contained in this Agreement
have been included for ease of reference and convenience and shall not be
considered in interpreting or construing this Agreement.
16.9 Assignments. Neither party may assign this Contract without
the consent of the other party hereto. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
16.10 Tax Exempt Status of American Red Cross. Notwithstanding any
other provision in this Agreement, the Parties acknowledge that the Purchaser
shall not be required to engage in any activity that compromises the charitable
tax exempt status of, or presents a reasonable likelihood of the imposition of
intermediate sanctions under Section 4958 of the Internal Revenue Code of 1986,
as amended, on the American Red Cross. The Purchaser is a not-for-profit
charitable institution exempt from the payment of sales and use taxes. The
Vendor is responsible for requesting and obtaining all tax exemption numbers as
required, and the Purchaser shall reasonably cooperate with, and assist the
Vendor, in obtaining such tax exemption numbers.
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860681.5
IN WITNESS WHEREOF, the parties hereto, acting through their duly authorized
officers, have executed this Master Purchase Contract as of the date first set
forth above.
HEMASURE INC. THE AMERICAN NATIONAL RED CROSS
By: /s/ Xxxx X. XxXxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------ --------------------------
Name: Xxxx X. XxXxxxx Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Title: Contracting Officer
Executive Officer
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