EXHIBIT 10ii
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AGREEMENT
BY AND BETWEEN
REAGENTS APPLICATIONS, INC.
AND
XXXXXX COM. IND. LTDA
DATED: July 23, 1997
INDEX
ARTICLE 1: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2: TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3: EXCLUSIVE SALE AND DISTRIBUTION RIGHTS. . . . . . . . . . . . . 2
ARTICLE 4: TERMS AND CONDITIONS OF SALE. . . . . . . . . . . . . . . . . . 3
ARTICLE 5: NON-COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 6: COOPERATION/BEST EFFORTS. . . . . . . . . . . . . . . . . . . . 4
ARTICLE 7: PERFORMANCE STANDARDS . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 8: DUTIES OF XXXXXX. . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 9: DUTIES OF RAICHEM . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 10: TRADEMARKS, PATENTS, INTELLECTUAL PROPERTY, AND
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 11: LIMITED WARRANTY. . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 12: CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 13: TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 14: PRODUCT RECALL AND REGULATORY COMPLIANCE. . . . . . . . . . . . 13
ARTICLE 15: ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 16: GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 14
DISTRIBUTION AGREEMENT
----------------------
This Agreement is entered into this 23rd. day of July, 1997, by and between
Reagents Applications, Inc., a corporation organized and existing under the
laws of the State of Delaware, U.S.A. and having its principal place of
business at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx X.X.X. (hereinafter
referred to as "RAICHEM"), and Xxxxxx Com. Ind. Ltda, a corporation organized
and existing under the laws of Brazil and having its principal place of
business at rua Xx. Xxxx Xxxxxxx Martins, 98, Sao Paulo, Brazil (hereinafter
referred to as "XXXXXX").
RECITALS
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WHEREAS, XXXXXX desires to purchase certain in vitro diagnostic products
produced by RAICHEM; and
WHEREAS, RAICHEM desires to manufacture such products for XXXXXX to
distribute or sell said products in the territory defined below; and
WHEREAS, RAICHEM has developed or acquired and perfected the necessary
technology to manufacture certain diagnostic products; and
WHEREAS, RAICHEM has represented to XXXXXX that it has the necessary
facilities, personnel, and technology to commercially realize the manufacture
of certain diagnostic products; and
WHEREAS, XXXXXX has represented to RAICHEM that it has the necessary
facilities and personnel to commercially market and sell certain diagnostic
products manufactured by RAICHEM in the territory defined below.
NOW, THEREFORE, in consideration of the above recitals, and in
consideration of the mutual covenants and agreements hereinafter set forth,
RAICHEM and XXXXXX do hereby agree as follows:
AGREEMENT
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Article 1. Definitions
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1.1. "PRODUCT(s)" means and include(s) certain of RAICHEM's in vitro
diagnostic test kits and reagents, as set forth in Appendix 1.1 and as
amended from time to time by mutual written agreement of the parties.
1.2. "AFFILIATE" means any entity directly or indirectly controlling,
controlled by, or under common control with, a party hereto. "Control",
as used in this definition, means the ownership of fifty percent or
more of the party in question.
1.3. "TERRITORY" means Brazil.
Article 2. Term
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2.1. The initial term of this Agreement shall be for a period of five (5)
years from the date RAICHEM obtains regulatory approval from the
Brazilian Health Ministry to sell the PRODUCTs in Brazil unless
terminated as provided in this Agreement. This Agreement shall
automatically continue to be in effect after the initial term for
successive twelve-month periods unless it is terminated by either party
as provided in this Agreement, or written notice of non-renewal is
given by either party to the other at least six (6) months prior to the
expiration of the initial term or at least six (6) months prior to the
expiration of any successive twelve-month term.
Article 3. Exclusive Sale and Distribution Rights
--------------------------------------
3.1. Distribution Rights. Subject to the terms and conditions set forth in
this Agreement, XXXXXX shall have the exclusive right to market, sell
and distribute the PRODUCTs under RAICHEM's labels in the TERRITORY.
3.2. Exclusivity. During the term of this Agreement and any extensions
thereto, RAICHEM will not sell, offer to sell, license, distribute,
offer the distribution rights, market or offer marketing rights to
PRODUCTs under RAICHEM's labels within the TERRITORY.
3.3. Minimum Purchases. XXXXXX must purchase the minimum quarterly
quantities of PRODUCT set forth in Appendix 3.3. XXXXXX hereby
acknowledges that the quantities stated in Appendix 3.3 are reasonable
for the TERRITORY and are those which XXXXXX warranted to RAICHEM.
3.4. Rolling Forecast. Every three months beginning with the date this
Agreement is signed, XXXXXX shall furnish RAICHEM with a written
rolling forecast indicating the quantities of PRODUCTs that XXXXXX
estimates it will require during the following twelve (12) successive
calendar months, allocated per month. By way of example, on July 1,
XXXXXX shall deliver a rolling forecast to RAICHEM of the quantities of
PRODUCTs XXXXXX estimates it will require during the months of August
through and including the following October. On October 1, XXXXXX shall
deliver a rolling forecast of the quantities of PRODUCTS XXXXXX
estimates it will require during the months of December through and
including the following November. This rolling forecast process will
continue in this manner every third month during the term of this
Agreement.
Article 4. Terms and Conditions of Sale
----------------------------
4.1. RAICHEM's terms and conditions of sale will apply to all purchases by
XXXXXX, notwithstanding any variation as may appear on any purchase
order submitted by XXXXXX. XXXXXX shall submit purchase orders to
RAICHEM at least thirty (30) days prior to the requested delivery date.
All purchase orders must be in writing, and should contain the date of
requested shipment, the date of requested delivery and preferred
shipping instructions, if any. Payment terms are in U.S. dollars due
upon delivery of the PRODUCTs to the F.O.B. point. Any cost or charges
for currency conversion shall be borne by XXXXXX.
4.2. Shipping date. RAICHEM shall use its best efforts to have PRODUCTs
available for shipment at its manufacturing facility(ies) on the day
requested by XXXXXX in its written purchase order. RAICHEM shall use
its best efforts to ship all such orders no later than the requested
shipping date. RAICHEM shall promptly notify XXXXXX of any anticipated
delays in shipping.
4.3. Deliveries. All deliveries shall be made F.O.B. RAICHEM's plant in San
Diego, California. For purposes of this Agreement, F.O.B. shall also
mean E.X.W. when ocean shipping is not utilized. Title and risk of loss
will transfer from RAICHEM to XXXXXX upon delivery of the PRODUCT to
the F.O.B. point. Freight and insurance charges shall be borne by
XXXXXX.
4.4. Purchase Price. A current price list is attached to this Agreement in
Appendix 1.1. This price list shall remain in effect without change for
twelve (12) months after the date of this Agreement. Thereafter, prices
may be adjusted for increases in costs of labor and raw materials used
to manufacture PRODUCTS. RAICHEM will furnish XXXXXX with changes to
its price list at least sixty (60) days prior to the effective date of
any price changes. All prices quoted by RAICHEM are subject to the
addition of all sales taxes and duties which are now or may be levied
or assessed and shall be paid by XXXXXX. Any taxes which RAICHEM is
obligated to collect from its customers shall be paid by XXXXXX upon
payment of the purchase price for the PRODUCT, or in lieu of this,
XXXXXX shall provide to RAICHEM a duty or tax exemption certificate
acceptable to the appropriate taxing authorities.
Article 5. Non-Competition
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5.1. Competing Products. XXXXXX agrees that during the term of this
Agreement and any extensions thereto, neither it nor any AFFILIATE will
market or sell any goods or diagnostic tests which directly competes
with a PRODUCT. The parties acknowledge that XXXXXX currently markets
and sells diagnostic test kits which are competitive to the PRODUCTs.
During the six month period beginning on the date this Agreement is
signed, XXXXXX shall transition its customers and sub- distributors to
the PRODUCTs and stop marketing and selling such competitive diagnostic
test kits. At the end of such six month period, XXXXXX shall fully
comply with the first sentence of this Section 5.1.
Article 6. Cooperation/Best Efforts
------------------------
6.1. Best Efforts. XXXXXX will use its best efforts to sell the PRODUCTs and
will not perform any acts that might jeopardize the reputation of the
PRODUCTs or of RAICHEM. RAICHEM will not perform any acts that might
jeopardize the reputation of the PRODUCTs or of XXXXXX.
6.2. Cooperation. The spirit of this Agreement is that the two parties shall
cooperate to the fullest extent possible.
Article 7. Performance Standards
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7.1. PRODUCT Acceptance. XXXXXX shall have the right (at its own cost) to
take random samples of PRODUCTs delivered by RAICHEM for analyzing
purposes. Should the result of an analysis of any such sample deviate
from the specifications or quality control standards, RAICHEM shall be
notified and provided with samples of the PRODUCTs tested. If,
following a review of the test results and after conducting its own
tests of the sample (or if the sample is not available, RAICHEM will
use retain samples to conduct its own tests), RAICHEM agrees that such
sample does not conform to said specifications or quality control
standards, RAICHEM shall provide XXXXXX, free of any additional charge,
with new deliveries of the same quantity of the PRODUCTs as the one
from which the random samples were taken. XXXXXX shall return, at
RAICHEM's expense, the particular lot or shipment of the PRODUCT which
does not comply with the aforesaid specifications or quality control
standards. If, after investigation, RAICHEM disagrees with XXXXXX, then
the parties shall agree upon a mutually acceptable method to determine
whether or not the Products should be accepted by XXXXXX. If the
parties fail to agree upon a method within ten business days, then the
parties shall promptly agree upon an independent quality control
laboratory (the "Laboratory") to conduct an inspection of the PRODUCTs
for purposes of determining if the PRODUCTs should be accepted by
XXXXXX or replaced, at no charge, by RAICHEM. The determination of the
Laboratory shall be final and binding upon the parties and the party
that was proven incorrect in its inspection analysis shall bear the
entire cost of the Laboratory inspection.
7.2. PRODUCT Modification. Throughout the term of this Agreement, in order
to maintain and improve the PRODUCTs, RAICHEM may desire to make
certain changes in the performance or appearance of the PRODUCTs.
RAICHEM shall notify XXXXXX of all such changes in performance or
appearance. In any event, best efforts shall be made to deliver such
notification at least ninety (90) days prior to the desired or expected
implementation date.
Article 8. Duties of XXXXXX
----------------
8.1. Trade and Advertising Practices. XXXXXX agrees that it shall not engage
in any unfair trade practices or make any false or misleading
statements or representations in its advertising, printed material, or
otherwise with respect to RAICHEM and/or the PRODUCTs and/or any
trademark and/or any other proprietary property of RAICHEM. XXXXXX, at
XXXXXX'x cost, agrees to correct and/or change any such statements
which RAICHEM considers materially objectionable. If XXXXXX advertises
the PRODUCTs, such advertising shall be in compliance with all
applicable state, federal and international laws and regulations.
8.2. Advertising, Marketing and Sales of PRODUCTs. XXXXXX shall:
(A) use its best efforts to promote the sale and use of the PRODUCTS
in the TERRITORY.
(B) purchase the quarterly minimum quantities of PRODUCTS from
RAICHEM as stated in Article 3, above.
(C) have an adequate sales force to properly service the TERRITORY on
a continuous basis.
(D) have delivery personnel and motor vehicles, and/or make
arrangements with Common Carriers, in order to deliver the
PRODUCTS without any undue delay.
(E) regularly call on every customer within the TERRITORY as is
customarily done in the industry and as necessary to aggressively
and efficiently develop the market and sales of the PRODUCTS.
(F) undertake local advertising to develop demand and promote sales
of the PRODUCTs, and obtain the approval of RAICHEM on that part
of any advertising material which is of legitimate concern to
RAICHEM in order to preserve and maintain RAICHEM's commercial
image before conducting any advertising campaign in connection
with the PRODUCTs.
(G) keep RAICHEM informed on competitive conditions in the TERRITORY.
(H) maintain a one-and-one-half (1 1/2) month inventory of PRODUCTs
being purchased by customers. This will minimize the possibility
of backorders and ensure that each customer will have ready
access to inventory.
(I) include the PRODUCTs in any regular bulletin provided by XXXXXX
to its sales personnel and/or customers.
(J) Permit RAICHEM representatives to address meetings of XXXXXX
sales personnel on behalf of the PRODUCTs at times which are
mutually agreeable.
8.3. Storage of PRODUCTs. XXXXXX shall provide proper storage facilities for
the PRODUCTS giving due consideration to their character and to any
special suggestions or directions which XXXXXX shall give in respect to
a particular PRODUCT or group of PRODUCTs.
8.4. Export Issues. XXXXXX shall be responsible for any United States export
issues relating to PRODUCTs.
8.5. Licenses and Permits. XXXXXX shall assist RAICHEM in obtaining all
licenses and permits required by any governmental authority, regulatory
or otherwise, in order to import the PRODUCTs into the TERRITORY or
sell the PRODUCTs in the TERRITORY. XXXXXX agrees, at its own expense,
to comply with all applicable laws, regulations and orders governing
the sale, disposition, shipment and import of the PRODUCTs as may be
necessary to perform its obligations hereunder. Unless such information
is proprietary, RAICHEM will supply XXXXXX with any required
information (such as FDA 510(k) data) which XXXXXX shall reasonably
request for the sole purpose of complying with all applicable laws,
regulations and orders governing the sale, disposition, shipment and
import of the PRODUCTs.
8.6. Compliance with Laws. XXXXXX agrees to comply at all times with all
applicable laws of the United States, including but not limited to the
controls of re-exports of U.S.-Origin commodities and technical data
and the provisions of the Foreign Corrupt Practices Act, and similar
laws of the U.S.
8.7. PRODUCT Record Keeping. XXXXXX agrees to maintain and when required by
any governmental agency or authority, provide to RAICHEM information
that lists XXXXXX'x lot numbers of each PRODUCT with corresponding
RAICHEM lot numbers (if different), where each lot was shipped, who
purchased it and the address of the customer.
8.8. Conditions For Resale. XXXXXX shall be free to determine all terms and
conditions of resale of the PRODUCTs purchased from RAICHEM. Any
additional warranty offered by XXXXXX or any modification of RAICHEM's
limited warranty without express approval or concurrence by RAICHEM
shall be the sole responsibility of XXXXXX, and XXXXXX shall indemnify
RAICHEM for any costs, losses or damage incurred by its as a result of
any such additional warranty or modification.
8.9. Promotional Materials. XXXXXX shall be responsible for the creation and
distribution of all promotional and marketing materials and for the
development and implementation of all marketing and sales strategies.
RAICHEM shall assist XXXXXX in its efforts whenever possible.
8.10. Inspections. XXXXXX shall allow RAICHEM personnel to inspect its
facilities where the PRODUCTs are stored at any time with reasonable
advance notice given by XXXXXX to RAICHEM.
Article 9. Duties of RAICHEM
-----------------
9.1. Technical Assistance and Training. RAICHEM shall provide training and
technical assistance to XXXXXX necessary for the marketing of the
PRODUCTs. Technical assistance and training shall be provided by
RAICHEM at no charge to XXXXXX except that if the training is performed
at XXXXXX'x premises, RAICHEM's personnel shall be reimbursed by XXXXXX
for their reasonable expense of travel, meals, and lodging. All
technical assistance and training shall be performed at times
convenient to both parties.
9.2. Technical Assistance. RAICHEM shall respond in a timely manner to
XXXXXX'x inquiries and provide technical support to XXXXXX regarding
the sale, use or operation of PRODUCTs.
9.3. Good Manufacturing Practices. RAICHEM shall, at all times, manufacture
PRODUCTs in accordance with good manufacturing practices which are
generally accepted in the medical diagnostic industry.
9.4 PRODUCT Improvements. RAICHEM shall continue to utilize its research
and development capabilities to improve PRODUCTs and to keep them in
line with available scientific knowledge and know-how. All PRODUCT
improvements shall be tested and all studies shall be completed by
RAICHEM and thereafter such improvements shall be supplied to XXXXXX at
no additional cost or expense.
9.5. Sales Leads. RAICHEM shall forward to XXXXXX any and all inquiries
received from PRODUCT customers or potential PRODUCT customers within
the TERRITORY.
9.6. Promotional Materials. RAICHEM shall share with XXXXXX, in RAICHEM's
sole discretion, RAICHEM's catalogues, promotional literature,
technical bulletins, application sheets and other sales aids to assist
XXXXXX in marketing and selling the PRODUCTs.
9.7. Regulatory Approval. To the extent required by applicable laws, RAICHEM
agrees to submit the PRODUCTs for approval of the Brazilian government.
Article 10. Trademarks, Patents, Intellectual Property, and Indemnification
---------------------------------------------------------------
10.1. Right of Use. XXXXXX may use any of XXXXXX'x trademarks, trade names,
service marks, copyrights or logos of XXXXXX'x choice relating to the
marketing or sale of the PRODUCTs. All such use will be for the benefit
of XXXXXX, and RAICHEM will acquire no ownership in such marks, or
trade names, copyrights, logos or labels by virtue of such use.
10.2. Patents and Trademarks. XXXXXX acknowledges and agrees that nothing
herein shall give XXXXXX any right, title or interest in or license to
use any RAICHEM patent, trademark, service xxxx, trade name or
copyright (collectively the "Proprietary Rights"), except as expressly
set forth herein. XXXXXX shall use RAICHEM's trademarks or service
marks only in connection with the sale of PRODUCTs and may use
RAICHEM's Proprietary Rights only in connection with all advertising
and promotion of the PRODUCT. XXXXXX shall be entitled to use RAICHEM's
Proprietary Rights only for so long as this Agreement is in effect.
10.3. Infringement. RAICHEM shall undertake at RAICHEM's own expense the
defense of any suit or action for infringement of RAICHEM's United
States patents brought against XXXXXX in the United States, which suit
or action results from the sale of any PRODUCTs, provided that XXXXXX
shall have promptly advised RAICHEM in writing of each notice or claim
of infringement received by XXXXXX and of the commencement of the suit
or action. RAICHEM shall hold XXXXXX harmless from damages or other
sums which may be assessed or may become payable under any final decree
or judgment in any such suit or action or under any settlement thereof.
RAICHEM shall have sole charge and direction of the defense of any such
suit or action and of all negotiations for such settlement, but shall
use commercial reasonableness and shall consult with XXXXXX with regard
to the defense or settlement of any such suit or action. XXXXXX shall
be obligated to render all reasonable assistance which may be required
by RAICHEM at RAICHEM's expense. XXXXXX may retain counsel of its own
selection and at its own expense to advise and consult with RAICHEM's
counsel. RAICHEM may not settle any suit or action without the consent
of XXXXXX, if by such settlement XXXXXX is obligated to make any
monetary payment, to part with any property or interest therein, to
assume any obligation or to be subject to any injunction. The parties
agree that if the PRODUCTs supplied by RAICHEM are found to be
infringing on a third-party patent, RAICHEM will negotiate in good
faith with the third party to obtain a license to use the third party's
technology and, if RAICHEM fails to obtain such a license, or if
RAICHEM is subject to a permanent injunction, then XXXXXX shall have
the right to either terminate this Agreement by giving written notice
of termination to RAICHEM, and return for full credit all inventory on
hand, or negotiate with the infringed party for such a license.
RAICHEM's indemnification resulting from any infringement on third
party patent shall exclude XXXXXX'x costs involved in negotiation with
any infringed party for such a license.
10.4. Indemnification. XXXXXX agrees to defend, indemnify and hold RAICHEM
harmless from and against all loss, liability and expense (including
attorney's fees, settlements, litigation costs, and costs of appeal)
resulting from the acts or omissions of XXXXXX or its agents with
respect to its handling, storage or marketing of the PRODUCTs
including, but not limited to, XXXXXX'x sale of the PRODUCTs for use in
humans or clinical diagnosis or analysis, XXXXXX'x fraud or
misrepresentation in the use, distribution, or sale of the PRODUCTs, or
XXXXXX'x mishandling of the PRODUCTs or XXXXXX'x failure to comply with
the PRODUCTs' registration requirements in any jurisdiction in which
XXXXXX sells the PRODUCTs. Likewise, RAICHEM agrees to defend,
indemnify and hold XXXXXX harmless from all and against all loss,
liability and expense (including attorney's fees, settlements,
litigation costs, and costs of appeal) resulting from the acts or
omissions of RAICHEM or its agents with respect to its handling,
storage or manufacturing of the PRODUCTs including but not limited to
RAICHEM's fraud or misrepresentation in the manufacture or sale of the
PRODUCTs, or RAICHEM's mishandling of the PRODUCTs.
10.5. Indemnification Notice. Each party shall give prompt notice of any
claim, loss or liability for which such party seeks defense and
indemnification. If either party wishes to enter the defense of a suit
brought pursuant to the indemnification sections of this Agreement
being defended by the other party, such party may do so at its own
cost. The control of such case shall remain with the indemnifying party
unless otherwise agreed to in writing.
10.6. Settlement Notice. If either party wishes to settle a case for which
the other party is liable for indemnification, the party wishing to
settle shall first obtain the written approval of the indemnifying
party.
10.7. NEITHER PARTY WILL HAVE ANY RIGHT TO ANY INDEMNIFICATION OR OTHER
COMPENSATION FROM THE OTHER IN RESPECT OF EXPIRATION OR TERMINATION OF
THIS AGREEMENT AND/OR TERMINATION OF THEIR BUSINESS RELATIONSHIP
HEREUNDER, AND TO THE MAXIMUM LAWFUL EXTENT, EACH PARTY HEREBY WAIVES
AND RELINQUISHES ANY RIGHTS TO ANY SUCH INDEMNIFICATION OR OTHER
COMPENSATION (INCLUDING WITHOUT LIMITATION IN RESPECT OF CLAIMS FOR
LOST GOODWILL, LOST PROFITS, OR OTHER DAMAGES), WHETHER ARISING UNDER
STATUTE OR OTHERWISE.
10.8. Insurance. Each party will keep in force during the term of this
Agreement all customary forms of insurance, including but not limited
to product liability insurance, in such amounts as are prudently
required.
Article 11. Limited Warranty
----------------
11.1. Shelf Life Warranty. The PRODUCT shall have a minimum shelf life, at
the time of shipment by RAICHEM, as specified in Appendix 1.1. RAICHEM
shall not be liable for any variance from specifications or any failure
to satisfy the shelf life requirement to the extent such variance is
caused by conditions or events occurring after shipment from RAICHEM's
manufacturing facility.
11.2. PRODUCT Specification, Defective PRODUCT Notice and PRODUCT Complaints.
RAICHEM warrants that, at the time of delivery to XXXXXX, all PRODUCTs
supplied by RAICHEM meet PRODUCT specifications. Either party shall
immediately notify the other party in writing should it become aware of
any defect or condition that may render the PRODUCTs supplied by
RAICHEM in violation of the U.S. Food, Drug and Cosmetic Act, or of a
similar law of any jurisdiction where the PRODUCTs are sold by XXXXXX.
The parties shall share with each other all data on the PRODUCT
complaints including, but not limited to, complaints or information
regarding performance and/or allegations or reports of any negative
effect from the use or misuse of the PRODUCTs as soon as such data is
available. Each party will assist the other in resolving XXXXXX'x
customers' complaints. However, XXXXXX shall have sole responsibility
and authority to interact directly with XXXXXX'x customers in the
resolution of such complaints, and RAICHEM shall be responsible only
for interacting with XXXXXX in such matters.
11.3. Warranties. THE WRITTEN WARRANTIES OF RAICHEM IN THIS ARTICLE ARE THE
SOLE EXCLUSIVE WARRANTIES PROVIDED TO XXXXXX AND TO CONSUMERS AND ARE
IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, IMPLIED OR
STATUTORY. RAICHEM WARRANTS THE PRODUCT AGAINST DEFECTS IN MATERIAL AND
WORKMANSHIP UNDER THE NORMAL USE AND SERVICE FOR WHICH IT WAS DESIGNED,
FOR THE SHELF LIFE PERIOD DEFINED IN APPENDIX 1.1, RAICHEM'S OBLIGATION
UNDER THIS WARRANTY BEING LIMITED TO THE REPLACEMENT OF THE PRODUCT
DETERMINED BY IT TO BE DEFECTIVE, PLUS TRANSPORTATION COSTS FOR RETURN
OF THE PRODUCT AND RESHIPMENT OF PRODUCTS TO CUSTOMERS. UNLESS RAICHEM
HAS PRIOR WRITTEN KNOWLEDGE OF DIFFERENT TERMS, ALL REPLACEMENTS WILL
BE SHIPPED F.O.B. XXXXXX'X RECEIVING FACILITY.
Article 12. Confidentiality
---------------
12.1 Confidentiality. For the purposes of this Agreement, the term
"Confidential Information" shall be any information embodying concepts,
ideas, techniques, know-how, formulations, market data, customer lists,
PRODUCT specifications and accounting data which:
(a) is disclosed by one party hereto to the other;
(b) is claimed by the disclosing party to be secret, confidential and
proprietary to the disclosing party; and
(c) if disclosed in writing, is marked by the disclosing party to
indicate its confidential nature or if disclosed orally, is
claimed in writing by the disclosing party to be confidential
within ten (10) days following disclosure.
During the period that this Agreement remains in effect and for a
period of five (5) years following termination hereof, each party
(except as is explicitly otherwise required hereby) shall keep
confidential, shall not use for itself or for the benefit of others and
shall not copy or allow to be copied in whole or in part any
Confidential Information disclosed to such party by the other.
The obligations of confidentiality imposed upon the parties by the
foregoing paragraph shall not apply with respect to any alleged
Confidential Information which:
(a) is known to the recipient thereof, as evidenced by said
recipient's written records, prior to receipt thereof from the
other party hereto;
(b) is disclosed to said recipient after the day hereof by a third
party who has the right to make such disclosure;
(c) is or becomes a part of the public domain through no fault of the
said recipient; or
(d) is required to be disclosed by operation of law.
Article 13. Termination
-----------
13.1. Termination For Cause. Either party will have the right to terminate
this Agreement if the other party (a) assigns this Agreement or any of
its rights hereunder in violation of the provisions of this Agreement,
or (b) becomes bankrupt or insolvent, or (c) makes an assignment for
the benefit of creditors, or a receiver, trustee in bankruptcy or
similar officer appointed to take charge of all or part of its
property, and such event has not been cured within thirty (30) days of
written notice thereof by the non-breaching party. If either party
materially breaches this Agreement, including, but not limited to, (a)
XXXXXX'x failure to adhere to the non- competition requirements of this
Agreement, and (b) either party's failure to adhere to the
confidentiality provisions and restrictions on use of information set
forth in this Agreement, then notwithstanding any other provision of
this Agreement, no cure period shall be allowed and the non-breaching
party shall be entitled to terminate this Agreement immediately.
13.2. Termination For Failure to Meet Quarterly Minimum Purchases. The
parties acknowledge that the minimum quarterly purchases are very
important under this Agreement. If, at any time during the term of this
Agreement, XXXXXX fails to meet its minimum quarterly purchases as
stated in Article 3, then RAICHEM shall have the right to terminate
this Agreement upon thirty (30) days written notice to XXXXXX.
13.3. If RAICHEM is unable to register the PRODUCTs with the Brazilian Health
Ministry for sale in Brazil within twelve (12) months from the date
this Agreement is signed, then either party shall have the right to
terminate this Agreement without cause upon ninety (90) days written
notice.
13.4. Rights and Obligations on Termination. Upon termination of this
Agreement, XXXXXX shall immediately discontinue any previously
authorized use of any of RAICHEM's Proprietary Rights and shall
immediately cease all conduct that might cause anyone to believe that
XXXXXX is authorized to market or sell PRODUCTs or otherwise connected
with RAICHEM. Upon termination or expiration of this Agreement, XXXXXX
will immediately turn over to RAICHEM all promotional and other
materials given to XXXXXX by RAICHEM relating to RAICHEM's PRODUCTs.
13.5. Termination or Expiration Damages. Neither RAICHEM nor XXXXXX shall be
liable to the other, or to any other business entity solely by reason
of the expiration or termination of this Agreement so long as the
terminating party acted in good faith. Notwithstanding anything herein
to the contrary, neither party shall be liable to the other for any
indirect, special, consequential or incidental damages sustained by
reason of such termination, including but not limited to, any claim for
loss of compensation or profits or for loss of prospective compensation
or prospective profits in respect of sales of any of the PRODUCTs or on
account of any expenditures, investments, leases, capital improvements
or any other commitments made by either party in connection with their
respective business made in reliance upon or by virtue of this
Agreement or otherwise. Each party hereto agrees that if this Agreement
is terminated rightfully and in good faith by the other pursuant to the
terms of this Agreement, the terminating party shall not be liable to
the other party for any termination compensation whatsoever, whether
based upon goodwill established, clientele obtained, expenditures
incurred, investments made, activities undertaken or otherwise.
Termination of this Agreement for any reason whatsoever shall not
relieve either of the parties hereto from making payment of monies due
to the other from fulfilling obligations incurred up to the effective
date of termination or as otherwise expressly provided in this
Agreement.
13.6. Transfer of Importation License. Upon termination of this Agreement, if
it is legally possible, XXXXXX shall transfer any government or
regulatory license(s) or permit(s), if any, which authorizes or
approves the importation and sale of PRODUCTs into the TERRITORY to
RAICHEM or its nominee. RAICHEM shall reimburse XXXXXX for its
reasonable expenses incurred in obtaining such licenses and permits.
Nothing in this paragraph shall require RAICHEM to purchase such
licenses and/or permits from XXXXXX and RAICHEM shall be free to obtain
the licenses and/or permits directly from the government or regulatory
authority.
Article 14. PRODUCT Recall and Regulatory Compliance
----------------------------------------
14.1. Data Base. RAICHEM and XXXXXX shall maintain a data base to support all
claims made or to be made regarding PRODUCTs' performance.
14.2. Inquiries. Each party shall keep the other informed of any formal or
informal inquiry relating to PRODUCTs sold hereunder by any regulatory
agency of any state or national government.
14.3 PRODUCT Recall. Should PRODUCT performance or any governmental action
require the recall or withholding from market of PRODUCT sold by
RAICHEM to XXXXXX, XXXXXX shall bear the costs and expenses of recall
if such recall is the result of any fault or omission attributable to
XXXXXX and RAICHEM shall bear the costs and expenses of recall if such
recall is the result of any fault or omission attributable to RAICHEM.
Should such recall result from the equal fault of both parties, or
should it prove impossible to assign fault to the satisfaction of both
parties, the parties shall share the said costs and expenses equally.
Article 15. Arbitration
-----------
15.1. Any controversy or claim arising under or in relation to this
Agreement, except as otherwise expressly provided below, shall be
settled exclusively by arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association (AAA). There
shall be three arbitrators: one selected by RAICHEM, one selected by
XXXXXX, and one selected by the parties jointly or, failing their
agreement, selected pursuant to the rules of the AAA. The arbitration
shall be conducted in English and shall be held in Massachusetts. The
prevailing party shall be entitled to recover its costs and attorneys'
fees. The decision of the arbitrators shall be final and binding on the
parties, and judgment upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof. The provisions of
this arbitration clause shall not be applied to the determination of
questions affecting the validity or scope of any trademarks or other
intellectual property rights.
Article 16. General Provisions
------------------
16.1. Antiboycott Compliance. XXXXXX will not require or request RAICHEM to
take any action or to provide any information in the fulfillment of
this Agreement which would cause RAICHEM to violate the antiboycott
laws of the United States.
16.2. Entire Agreement. This Agreement, including the Appendices, constitutes
the entire agreement between the parties with respect to the subject
matter hereof, and may not be modified (unless expressly provided
otherwise herein) except by a writing duly signed by both parties.
16.3. Assignment, Waiver, Severability. Neither party may assign this
Agreement without the prior written consent of the other party. Failure
by either party to enforce any term hereof shall not be deemed a waiver
of future enforcement of that or any other term. If any provision of
this Agreement is declared void or unenforceable by any judicial,
administrative or arbitration authority, such action will not nullify
the remaining provisions of this Agreement.
16.4. Governing Law. This Agreement shall be governed and construed under and
according to the laws of the Commonwealth of Massachusetts, U.S.A.,
excluding its choice of laws rules. The Vienna Convention on the
International Sale of Goods is expressly excluded from application.
16.5. Relationship Created. The relationship of the parties is that of
independent contractors. Nothing in this Agreement shall be construed
as establishing an agency, joint venture or partnership between the
parties. Each party is an independent entity, and shall have sole
responsibility for its employees, even while such employees are on the
premises of the other party's facility(ies). Neither XXXXXX nor RAICHEM
shall have the right to enter into any contracts or commitments or to
make any representations or warranties, whether express or implied, in
the name of or on behalf of any other party, or to bind any other party
in any respect whatsoever, unless agreed to in writing or expressly
permitted in this Agreement.
16.6. Authority. Each party hereby represents and warrants that it has full
power and authority to enter into and perform this Agreement, without
any governmental approvals, and that its entering into and performance
of this Agreement will not conflict with any other agreement to which
it is a party or by which it is bound.
16.7. Notice. Any written notice, or statement, necessary or appropriate
under this Agreement shall be deemed to be properly given if delivered
personally in writing or sent by registered or certified mail to the
party to be notified at the address set forth above or at such other
address as either party may hereafter designate in writing. Notices or
statements may be delivered via facsimile and this shall be deemed to
be properly given if such notice or statement is thereafter sent to the
recipient via first class mail or any similar type of delivery.
16.8. Captions. The captions or paragraph headings of this Agreement do not
constitute any substantive part of this Agreement and shall not be
considered in the construction or interpretation of this Agreement.
16.9. Force Majeure. Each party hereto shall be excused from the performance
of its obligations hereunder in the event such performance is prevented
by force majeure, and such excuse shall continue for so long as the
condition constituting such force majeure and any consequences
resulting from such condition continues. In addition, in the event the
condition constituting the force majeure causes a substantial inability
by either party hereto to meet its obligations hereunder, the term of
this Agreement may, upon written agreement of both parties, be
suspended for the period of such inability, but not to exceed six (6)
months. For the purposes of this Agreement, force majeure shall mean
causes beyond either party's control including, without limitation,
acts of God; regulations or laws of any government; war, riot or civil
commotion; damage to or destruction of production facilities or
materials by fire, earthquake, storm or other disaster; manufacturing
or transportation delay, strikes or other labor disturbances, epidemic;
and failure or default of public utilities or common carriers.
IN CONSIDERATION OF the foregoing terms and conditions, XXXXXX and RAICHEM have
executed this Agreement on the day and year first written above.
REAGENTS APPLICATIONS, INC. XXXXXX COM. IND. LTDA
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------- --------------------------------
Xxxx Xxxxxxxxx, President Xxxxxxx Xxxxxx
REAGENTS APPLICATIONS, INC. XXXXXX COM. IND. LTDA
Appendix 1.1 -- PRODUCTs
===============================================================================
MINIMUM SHELF-LIFE FROM DATE
PRODUCTS (IN U.S. OF SHIPMENT DOLLARS) PRICE
---------------------- ----------------------------- ----------------------
CONFIDENTIAL TREATMENT CONFIDENTIAL TREATMENT CONFIDENTIAL TREATMENT
REQUESTED REQUESTED REQUESTED
===============================================================================
PRODUCT Specifications: See attached PRODUCT literature
CONFIDENTIAL TREATMENT REQUESTED
APPENDIX 3.3 MINIMUM PURCHASES
------------------------------
Prior to the PRODUCTs being registered with the Brazilian Health
Ministry, during each month this Agreement is in effect, XXXXXX shall purchase
_________________ minimum quantities of PRODUCTs from RAICHEM.
After the PRODUCTs are registered with the Brazilian Health Ministry,
during each quarter (three month period) this Agreement is in effect, XXXXXX
shall purchase the following quarterly minimum quantities of PRODUCTs from
RAICHEM (ALL QUANTITIES ARE STATED IN UNITED STATES DOLLARS):
YEAR 1:
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
YEAR 2:
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
YEAR 3:
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
YEAR 4:
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
YEAR 5:
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
ADDENDUM TO APPENDIX 3.3
------------------------
Minimum Purchases
-----------------
Year 1. Minimum purchases begin on the date on which 80% of the
RAICHEM products (listed on Pricing Schedule) become
registered with the Brazilian Ministry of Health.
Therefore Year 2 begins 12 months after the approval of
RAICHEM products.
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------- --------------------------------
Xxxx Xxxxxxxxx, President Xxxxxxx Xxxxxx
REAGENTS APPLICATION, INC. XXXXXX COM. IND. LTDA
