Exhibit 10.1
SUPPLY AGREEMENT
This Agreement is made and entered into as of November 24, 2004, (the "Effective
Date") by and between:
Accelr8 Technology Corporation, 0000 X. Xxxxxxxx, Xxxx 0-000, Xxxxxx, XX 00000,
("Accelr8"); and Xxxxxx Jenaer Glas GmbH ("SCHOTT"), Xxxx-Xxxxxx-Xxxxxxx 00,
00000 Xxxx, Xxxxxxx, each a Party and collectively the Parties to this
Agreement.
WITNESSETH:
Whereas the Parties wish Accelr8 to supply SCHOTT with materials for a market
development period; and SCHOTT wishes Accelr8 to serve as XXXXXX'x supplier of
OptiChem TM- Streptavidin coated microarraying slides (the "Product(s)") which
SCHOTT wishes to re-sell and Accelr8 is willing to supply and sell the same to
SCHOTT; and Acce1r8 wishes SCHOTT to provide a reciprocal Supply Agreement for
glass substrates during the period when Accelr8 manufactures slides; the Parties
agree to the terms and conditions hereinafter set forth,
Now, therefore, in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. TERMS OF SALES AND PURCHASE OF THE PRODUCTS
1.1 Supply. During the term of this Agreement, Accelr8 will sell the
Products to SCHOTT on a non-exclusive basis as defined in the Exclusive
Technology Transfer License, and SCHOTT will purchase the Products from Accelr8,
in accordance with the terms and conditions set forth herein. During the term of
this Agreement, Accelr8 will purchase glass substrates from SCHOTT for use in
the products supplied to Schott and for general manufacturing. During the term
of the agreement, Accelr8 will not sell to coated substrate competitors other
than SCHOTT for resale.
1.2 Placement of Orders. Prior to the execution of this Agreement, SCHOTT
has the right to place an initial order for one thousand (1,000) Products, which
are to be treated under the same terms and conditions as Products purchased
within the term of this Agreement. Within the term of this Agreement, SCHOTT
will purchase an additional nine thousand (9,000) Products at a shipment rate of
approximately 1,600 per month. Accelr8 and SCHOTT will cooperatively exert best
efforts to resolve any complaints by SCHOTT customers who have been supplied
with comparable Products manufactured prior to the execution of this Agreement.
1.3 Failure or Delay in Supply. Accelr8 shall not be liable for any failure
or delay in filling SCHOTT orders due to any events beyond the reasonable
control of Accelr8; provided, however, that Accelr8 shall notify SCHOTT promptly
of anticipated delays, and shall use all reasonable commercial efforts to fill
such orders as soon as possible.
1.4 Additional Licensing Option. Accelr8 grants an exclusive option to
SCHOTT until December 31, 2005, to negotiate an exclusive license for the
application of OptiChemR coatings on microtiter plates. In return, SCHOTT will
provide 7,500 glass slide substrates to Accelr8 at no charge.
1.5 Free Samples. Accelr8 will provide 100 Products to SCHOTT at no charge
prior to the execution of this Agreement. In return, SCHOTT will provide 100
glass slide substrates to Accelr8 at no charge.
2. SHIPMENT OF THE PRODUCTS
2.1 Packaging and Shipment. SCHOTT will supply Accelr8 with slide mailers
and pouches with SCHOTT labeling. Acce1r8 shall deliver the Products to SCHOTT
at the address and in the manner specified on the Purchase Order. Accelr8 shall
use reasonable efforts to package the Product for shipment in a manner that
assures it will arrive at XXXXXX'x facility in good condition and within the
agreed quality specifications. The coated substrates must remain stable with a
shelf life of at least six (6) months effective from the respective shipment
date of the Products ex Denver (i. e., meet the specifications listed in
Attachment B and the product warranty listed in Attachment D) when using the
handling instructions provided by Accelr8.
2.2 Packing List. Accelr8 shall include a packing list with each shipment
of the Product which win contain the following information: (i) SCHOTT purchase
order number; (ii) Accelr8 Product number, (iii) quantity of Product; (iv)
Accelr8 lot number; and (v) Certificate of Quality, as set forth in Attachment
B. Accelr8 will send SCHOTT copies of each invoice and packing list via
facsimile at the time of shipment.
2.3 Notification. Accelr8 shall notify SCHOTT promptly, it: at the time it
receives a purchase order for Product it does not have in its inventory
sufficient raw materials, products, or components to manufacture the Product
covered by the Purchase Order, or if it has reason to believe that it may not be
able to meet one or more delivery dates due to problems with its _operations or
supply of raw materials, parts, or components. After SCHOTT receives Accelr8's
notice, the parties shall discuss in good faith how to fulfill XXXXXX'x purchase
order.
3. PRICING OF THE PRODUCTS
The price for the Products sold to SCHOTT shall be the price set forth in
Attachment A The price for the Products shall be valid commencing on the
Effective Date, and shall be firm for six (6) months from the Effective Date.
4. QUALITY CONTROL
4.1 Quality Specifications. The Products shall meet the Specifications as
set forth in Attachment B hereto upon delivery to SCHOTT, and shall be subject
to quality control inspections by Accelr8, in accordance with Accelr8's quality
control standards, which Aecelr8 shall disclose to SCHOTT.
4.2 Inspection; Non-Conformity SCHOTT shall inspect the Products upon
receipt. If SCHOTT shall discover damage to the packaging with apparent damage
to the Products, or incorrect contents, SCHOTT shall promptly notify Accelr8,
but in no event later than fifteen (15) days after receipt of the Products,
intended for SCHOTT internal use, or within 15 days within XXXXXX'x receipt of
non-conforming products complaint from XXXXXX'x customers. Upon request by
Accelr8, SCHOTT shall return the damaged or incorrect Products to Accelr8.
Accelr8 shall use reasonable commercial efforts to replace such Products within
fifteen (15) days, but in any event within thirty (30) days. In the event
Acce1r8 is not able to make such replacement, . Accelr8 shall refund the cost of
damaged Products to SCHOTT. These remedies are SCHOTI" s exclusive remedies.
4.3 Manufacturing Changes. Accelr8 shall notify SCHOTT in writing of any
changes it plans to make in raw materials or their supplier or in its
manufacturing procedures or processes at least sixty (60) days before making the
changes. SCHOTT will have the right, but not the obligation, to review and
approve the proposed changes, provided that such approval shall not be
unreasonably withheld, and provided further that, if SCHOTT does not notify
Accelr8 within thirty (30) days of receipt of such notice from Accelr8, SCHOTT
shall be deemed to have approved such changes. In the event of production
changes, Accelr8 and SCHOTT will cooperatively exert best efforts to resolve
issues attributable to said changes that arise from complaints by SCHOTT
customers who have compared Products manufactured before and after said changes.
4.4 MSDS. Accelr8 shall provide SCHOTT with complete and accurate Material
Safety Data Sheets ("MSDS's") for the Products which Accelr8 sells to SCHOTT
pursuant to this Agreement. Accelr8 agrees that SCHOTT may refer to the
information provided by Accelr8 when informing its employees and customers about
the risks associated with the Products and the safe handling and use of the
Product.
5. PAYMENT
SCHOTT shall pay for all Products purchased from Acce1r8 which conform to
the Specifications as defined in Attachment B within thirty (30) days after
receipt of the invoice for such Products. All Payments due hereunder shall be
made in U.S. dollars (USD) by bank transfer.
6. SALES AND MARKETING
6.1 SCHOTT has the exclusive right (as defined in the Exclusive Technology
Transfer. License) to sell Products on its own to any account, with the
exception of the accounts listed in Attachment X. XXXXXX may participate in
marketing with Accelr8 to those accounts listed in Attachment C, with the
provision that revenue from these accounts belongs to Accelr8 during the term of
this Agreement.
6.2 Accelr8 agrees to provide best reasonable efforts to assist SCHOTT with
technical support as SCHOTT introduces the Products to new accounts. SCHOTT may
request additional support under the terms of the Exclusive Technology Transfer
License.
7. FORCE MAJEURE
Neither party shall be liable to the other for any failure to make or take
any delivery of the Product, to the extent that such failure is caused by any
act of God, war, civil commotion, strike, or other industrial dispute or any
other occurrence or event outside the reasonable control of either party.
Provided, however, that if any such failure should occur under such
circumstances, the party at mutt shall promptly notify the other in writing, and
if such failure shall continue for a period of more than three (3) calendar
months, the other party may terminate the Agreement to take effect immediately
without recourse from the other.
8. DURATION. TERMINATION AND BREACH
8.1 Term. This Agreement shall commence on the Effective Date and shall
remain in force for a period of six (6) months or until complete delivery,
unless otherwise terminated under any provision of this Agreement.
8.2 Default. Either party may terminate this Agreement for any material
breach by the other party thirty (30) days after giving written notice to the
breaching party requiring it to make good such breach, if the breach remains
uncured at the end of the notice period.
8.3 Bankruptcy. Either party may terminate this Agreement with immediate
effect by written notice if the other party shall file for bankruptcy, shall be
adjudicated bankrupt, shall take advantage of applicable insolvency laws, shall
make an assignment for the benefit of creditors, shall be dissolved, or shall
have a receiver appointed for its property.
9. REPRESENTATIONS AND WARRANTIES
Product Warranty. ACCELR8S WARRANTS ITS PRODUCTS AGAINST DEFECTS IN
MATERIALS AND WORKMANSHIP, WITHIN THE EXPIRATION DATE IDENTIFIED ON PRODUCT
PACKAGING, SUBJECT TO STORAGE WITHIN THE LIMITS SPECIFIED ON PRODUCT LABELING,
AND SUBJECT TO CUSTOMER'S APPLICATION OF THE PRODUCTS ACCORDING TO ACCELR8'S
INSTRUCTIONS FOR USE. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
NONINFRINGEMENT, MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
A copy of Accelr8's standard terms of sale to end users is provided as
Attachment D and shall be included into the agreement while clauses of standard
terms of sale refer to warranties and limited-use matters.
10. APPLICABLE LAW
This Agreement shall be construed and interpreted in accordance with the
laws of the state of Colorado.
11. ARBITRATION
This Agreement is made on the basis of mutual confidence, and it is
understood that the differences, if any, during the life of this Agreement
should freely be discussed between the two Parties.
In the event the Parties hereto cannot satisfactorily settle any claim.
disagreement or controversy arising out of: or related to, this Agreement or its
interpretation, performance, nonperformance, breach of respective right and
obligations hereunder, such disagreement or dispute arising in connection with
or related to this Agreement shall be finally settled under the Rules of
conciliation and Arbitration of the International Chamber of Commerce by one or
more arbitrators appointed in accordance with the said Rules. Any arbitration
brought by SCHOTT or Accelr8 shall be brought in Denver, Colorado.
12. CONFIDENTIALITY
12.1 Confidential Information. During the validity of this Agreement, as
well as for five (5) years thereafter, SCHOTT and Accelr8 will keep secret any
Confidential Information received from the other under this Agreement unless and
to the extent such Confidential Information:
o which the receiving party can demonstrate by written evidence to be in
the public domain (provided that information in the public domain has
not or does not come into the public domain as the result of
unauthorized disclosure by the receiving party or any employees
thereof),
o is or subsequently becomes general public knowledge without fault of
the receiving party,
o has been obtained from a Third Party without obligation toward the
disclosing party, or
o has been developed independently by receiving party without recourse
to inform obtained hereunder.
12.2 Certain Obligations. During the term of this Agreement and for a
period of five (5) years from the termination or expiration of this Agreement
and subject to the limitations listed above, SCHOTT and Accelr8 agree:
o to use confidential information only for the purposes contemplated
under this Agreement,
o to treat the Confidential Information as it would its own proprietary
information which in no event shall be less than a reasonable standard
of care,
o to take all reasonable precautions to prevent the disclosure to the
Confidential Information to a Third Party without written consent of
the other party, and
o to only disclose the Confidential Information to those Affiliates, and
to those employees and agents of its and its Affiliates, who have a
need to know such Confidential Information for the purposes set forth
herein and who are subject to obligations of confidentiality
substantially similar to those set forth herein.
12.3 Disclosure of Agreement. Notwithstanding the above provisions for
confidentiality, the Parties agree that either Party may publicly disclose the
existence of this Agreement in the interest of fair disclosure to shareholders.
In such an event, the issuing Party will obtain the review and approval of the
non-issuing Party, which approval will not be unreasonably withheld.
Specifically the Parties agree to issue a joint press release immediately
subsequent to the execution of this Agreement.
12.4 Termination. Upon termination of this Agreement and upon the request
of the disclosing party, the receiving party shall promptly return to the
disclosing party, at its request, all copies of Confidential Information
received from such party, and shall return or destroy, and document the
destruction of: all Confidential Information of the other party in any form
except for one (1) copy retained for archival purposes.
13. MISCELLANEOUS
13.1 Assignments. This Agreement shall not be assignable by the other party
to any third party without the written consent of the other party, which consent
will not be withheld unreasonably.
13.2 Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof: and all prior understandings,
representations and warranties between the parties are superseded by this
Agreement.
13.3 Amendments. Changes and Additional provisions to this Agreement shall
be binding for the parties only if mutually agreed upon in writing and signed
effectively by the parties. This Agreement may be used as a basis for further
supply agreements between SCHOTT and Accelr8, in which case the Parties agree
that Attachments A and B will be amended and adjusted accordingly and signed by
both parties.
13.4 Severability. If any sentence, paragraph, clause or combination of
this Agreement is in violation of any law or is found to be otherwise
unenforceable, such sentence, paragraph, clause or combination of the same shall
be deleted and the remainder of this Agreement shall remain binding, provided
that such deletion does not alter the basic structure of this Agreement.
13.5 Notices. All notices, requests, demands, and other communications
relating to this Agreement shall be in writing, and shall be sent by mail, or
facsimile transmission. Notices sent by mail shall be sent by express mail or
the equivalent, registered or certified, postage prepaid, and shall be deemed to
have been given on the date actually received. Notices sent by facsimile
transmission shall be deemed to have been given on the date that confirmation of
successful transmission is documented. Notices shall be sent as follows:
If to SCHOTT:
Attention: Xx. Xxxx Weluneier
Microarray Solutions
XXXXXX Xxxxxx Xxxx, XxxX
00000 Xxxx, Xxxxxxx
Tel: x00 (0) 0000-00000000
Fax: x00 (0) 0000-000000
If to Acce1r8:
Attention: Xxxxxx X. Xxxxxx
Accelr8 Technology Corporation
0000 Xxxxx Xxxxxxxx
Xxxx 0-000
Xxxxxx, XX 00000 XXX
Tel: 0 (000) 000-0000
Fax: 0 (000) 000-0000
Either party may change its address for notices or facsimile number at any
time by sending written notice to the other party.
13.6 Independent Contractor. Nothing herein shall create any association,
partnership, joint venture or the relation of principal and agent between the
Parties hereto, it being understood that each party is acting as an independent
contractor, and neither Party shall have the authority to bind the other or the
other's representatives in any way.
13.7 Waiver. No delay on the part of either Party hereto in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any power or right hereunder preclude other or further
exercise thereof or the exercise of any other power or right.
13.8 Counterparts. This Agreement may be executed in counterparts
(including facsimile signatures), each of which shall be deemed to be an
original and both of which shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives.
XXXXXX Jenaer Glas GmbH
By: __________________________
Name: ________________________
Title: _______________________
DATE: ________________________
By: __________________________
Name: ________________________
Title: _______________________
DATE: ________________________
ACCELR8 TECHNOLOGY CORP.
By: __________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman and CEO
Date: 11/29/04
