EXHIBIT
10.1
This
Product Development, Marketing and Distribution Agreement (“Agreement”) is
entered into this 8th day of May, 2007 (“Effective Date”), by and between
Applied DNA Sciences, Inc. a Nevada corporation with its principal place of
business at 00 Xxxxxx Xxxxxxxx Xx, Xxxxx Xxxxx XX 00000 (“ADNAS”) and Champion
Thread Company, Inc., a North Carolina Corporation, with offices at 0000 Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx XX 00000, (“CTC”).
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WHEREAS,
ADNAS is in the business of Sales and
Marketing of DNA anti-counterfeit and security
products;
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WHEREAS,
ADNAS owns exclusive rights to certain
proprietary technologies involving the extraction, recombination,
encapsulation, and preservation of botanical DNA, (the DNA
“Technologies”); |
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WHEREAS,
the DNA Technologies are used to
forensically authenticate products, to detect and deter counterfeiting,
to
protect brands and intellectual property assets, to provide enhanced
security for physical plant, documents, identification cards, passports,
drivers licenses, currencies, databases and other products and
applications, and can be embedded into various industrial and consumer
products, including but not limited to, sewing threads, fabrics and
yarns
and textile chemicals; |
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WHEREAS,
CTC is in the business of manufacturing
and selling textile products and is an established developer,
manufacturer, aggregator, supplier and distributor of sewing threads,
fabrics, yarns, labels, ribbons, tapes, textile chemicals, pigments
and
other products which are commonly used in the textile, garment, shoe,
luxury goods, bags, accessories and home furnishings industries and
CTC
has an extensive base of clients and suppliers in those industries,
and
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WHEREAS,
CTC owns exclusive rights to certain
proprietary technologies involving the process of using binding agents
for
embedding, implanting or attaching botanical DNA to thread, and has
developed the technology and is capable of embedding DNA markers in
its
products (“the Application Technologies”); and has experience in multiple
aspects of the textile industry in North America and internationally;
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WHEREAS,
ADNAS has appointed CTC to act as an
independent reseller of ADNAS products under the terms and conditions
set
forth in that certain Valued Added Reseller Agreement entered February
16,
2004 (the “VAR Agreement”); and |
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WHEREAS,
the parties wish to enter into this
Agreement as a novation, to supersede and replace said VAR Agreement
and
to jointly produce, market and distribute DNA-enhanced security threads,
fabrics, yarns, labels, ribbons, tapes, textile chemicals, pigments
and
other products, which products, (the “Products”), shall utilize and
integrate the DNA Technologies and the Application Technologies
(collectively “the Technologies”). |
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NOW
THEREFORE, In consideration of the above
recitals and mutual covenants and benefits provided herein, the Parties
agree as follows: |
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For
purposes of this Agreement, the following terms will have the
following meanings: |
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A.
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”DNA
Technologies“ mean the proprietary
technologies and know how owned exclusively by ADNAS involving the
extraction, recombination, encapsulation, and preservation of botanical
DNA and the embedding, implanting or attaching of botanical DNA into
various products including, but not limited to, textile products;
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B.
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”Application
Technologies” mean the
proprietary technologies and trade secrets owned exclusively by CTC
involving the embedding, implanting or attaching of botanical DNA
technologies in textile products. |
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C.
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”ADNAS
Materials” mean DNA markers and
related ADNAS’ products employing the DNA Technologies including hardware
and software, as identified on ADNAS’ then-current price list, excluding
any ADNAS security products that require special authorization, as
determined by ADNAS. |
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D.
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”CTC
Materials” mean fibers, solvents, dyes,
finishes, sewing threads, fabrics, yarns, labels, ribbons, tapes, textile
chemicals, pigments and other products which are commonly used in the
textile, garment, shoe, luxury goods, bags, accessories and home
furnishings industries, and related CTC products involving Application
Technologies. |
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E.
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”Product”
means
enhanced security threads,
fabrics, yarns, labels, ribbons, tapes, textile chemicals, pigments
and
other textile products, which utilize and integrate the DNA Technologies
and the Application Technologies. |
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F.
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”End
Users” mean individuals or entities
that purchase the Products for their own use and not for further
distribution or sale. |
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G.
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”Territory”
means
the geographical
location(s) and/or markets identified as follows:
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The
Territory for CTC is sewing thread, yarn, wowen labels, printed
labels that are commonly used in textile applications (labels made
of
fibrous material then printed on) worldwide.
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H.
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DNA
Technologies and Application Technologies together shall
be referred to as “Technologies”. |
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A.
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CTC
and ADNAS shall each identify existing products to be enhanced
by application of the DNA Technologies.
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B.
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Each
party, shall individually design, develop, and own their
respective Technologies and shall jointly market the Products, which
shall
be compatible with the business of the parties and which shall contain
the
Technologies. |
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C.
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The
parties shall jointly: (i) define specifications of the
Products, including Material Safety Data Sheet (MSDA) data, ; (ii)
identify applications for the Products; (iii) develop standards to
insure
the maximum performance and reliability of the Products; (iv) develop
effective authentication protocols; (v) develop and implement protocols
to
protect the respective intellectual property rights associated with
the
Products; and, (vi) assure secure storage, transportation and client
custodial control and accountability for the Products
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3.0
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TERMS
OF DISTRIBUTION AND
LICENSE. |
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Scope
of Appointment. Subject to the terms
and conditions of this Agreement, ADNAS hereby appoints CTC and CTC
hereby
accepts such appointment as ADNAS’ reseller of the ADNAS Materials to End
Users located in the Territory for a term of four (4) years with automatic
renewals annually thereafter, (unless notice of non-renewal is provided
in
writing ninety (90) days in advance of the expiration of the original
term, or unless the agreement is terminated in writing signed by both
parties.) The initial 4-year period will begin on the Effective Date.
The
parties expressly agree during this term that CTC shall serve as the
exclusive distributor for Products in the Territory.
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3.1
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As
an Authorized Reseller, CTC is required to:
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a.
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Provide
containers of chemicals for DNA marking, prepaid to the
ADNAS US facilities. These containers will be mixed with ADNAS Materials
and returned (Prepaid) to the CTC manufacturing facility in Kings
Mountain, NC, or as designated in writing by CTC. Appropriate controls
will be maintained by both parties to assure security. Alternately,
ADNAS
may elect to provide the DNA marker to be embedded into the chemicals
at
CTC facility, or at another facility of convenience, upon the mutual
written consent of the parties |
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b.
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Maintain
as employee(s) a minimum of one (1) ADNAS-trained
Installation/Technical Support Person.
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c.
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Promote,
market and resell ADNAS Materials as embedded in the
Products to the best of its ability during the term of this AGREEMENT.
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3.2
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As
an Authorized Reseller, CTC will receive and ADNAS is required
to provide: |
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a.
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Selling
rights on all available ADNAS TECHNOLOGIES, PRODUCTS, or
SERVICES to be resold to END USERS, including, but not limited to the
following: |
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i.
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Security
printing products for all sewing thread,
yarn, labels, tags or ink based identification applications related
to
finished products as set forth at paragraph 1.0 “G”, above.
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3.3
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In
the exercise of CTC’s rights under this Agreement, CTC will
always market and resell the ADNAS materials in combination with
substantial added value in the form of CTC materials, products or services
and/or Technologies. CTC also has the right to sell or solicit sales
of
other ADNAS products (in addition to the ADNAS Materials that form
the
subject of this Agreement) on a non-exclusive basis to other End Users,
with the written consent of ADNAS (which shall not be unreasonably
withheld) upon terms to be mutually agreed between the parties.
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a.
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CTC
will pay to ADNAS a *** (***) royalty on gross sales (less any
sales taxes, shipping, handling fees, and extrodinary expenses incurred
during shipping (tariffs, etc.) of Product (Sentinel and other Products)
after predetermined costs directly related to the manufacturing of
the
product and agreed to by both parties have been deducted where CTC
initiates first contact with a potential End User which produces a
sale to
that End User. |
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b.
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CTC
will pay to ADNAS a *** (***) royalty on gross sales (less any
sales taxes, shipping, handling fees, and extrodinary expenses incurred
during shipping (tariffs, etc.) of Product, SigNature and other Products
after predetermined costs directly related to the manufacturing of
the
product and agreed to by both parties have been deducted where ADNAS
initiates first contact with a potential End User which produces a
sale to
that End User. |
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c.
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CTC
will pay royalties owed to ADNAS within ten (10) working days
after CTC receives payment by the End User. Conversion from foreign
currency, if any, shall be based upon the conversion rate published
in the
Wall Street Journal on the day the payment is received from the End
User.
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d.
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CTC
will provide to ADNAS copies of all CTC invoices to End Users
within ten (10) working days of the date of the shipment of the DNA
marked
product. CTC will provide quarterly royalty reports to ADNAS detailing
the
gross sales and costs for the previous quarter along with the royalties
paid for the fiscal quarter. Quarterly reports will be due within thirty
(30) days after the end of each quarter.
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e.
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The
above royalty percentages may be changed either higher or lower
when mutually agreed in writing by both parties.
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f.
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In
the event ADNAS introduces a Client and such Client purchases
regular thread and other non-DNA products from CTC, then CTC shall
pay
ADNAS a sales commission of *** (***) of the gross sales to such Client.
The commission shall be paid by CTC for as long as CTC continues to
transact business with such Client. |
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g.
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In
the event CTC introduces a Client and such Client purchases
regular thread and other non-DNA products from ADNAS, then ADNAS shall
pay
CTC a sales commission of *** (***) of the gross sales to such Client.
The
commission shall be paid by ADNAS for as long as ADNAS continues to
transact business with such Client. |
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h.
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ADNAS
shall have the right, upon prior written notice to CTC, not
more than once in CTC’s fiscal year, to engage an independent
nationally-certified auditing firm selected by ADNAS and acceptable
to
CTC, which acceptance shall not be unreasonably withheld or delayed,
to
have access during normal business hours of CTC as may be reasonably
necessary to verify the accuracy of the royalty reports required to
be
furnished pursuant to Section 3.4(d) of this Agreement. If such audit
shows any underpayment of royalties, then, within thirty (30) days
after
Party’s receipt of such report, CTC shall remit to ADNAS:
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(a)
the amount of
such underpayment; and |
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(b)
if such
underpayment exceeds 10 percent (10%) of the total royalties owed for
the
fiscal year then being reviewed, the reasonably necessary fees and
expenses of such auditing firm performing the audit. Otherwise, such
fees
and expenses shall be borne solely by ADNAS. Any overpayment of royalties
shall be fully creditable against future royalties payable in any
subsequent royalty period. |
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4.0
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MATERIALS
SUPPLIED DURING PRODUCT DEVELOPMENT.
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A.
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For
purposes of Product development and/or improvement, CTC may
request ADNAS to provide samples of ADNAS Materials. ADNAS, at its
cost,
agrees to provide ADNAS Materials and information as reasonably requested
by CTC and as necessary for the evaluation, development, manufacturing,
marketing or distribution of the Product. CTC agrees that the ADNAS
Materials and Technologies shall be used only for the purpose of
evaluating, developing and manufacturing the Products and shall be
used
for no other purpose without the prior written consent of ADNAS, and
any
such use shall be under terms that shall equitably accommodate the
financial interests of ADNAS. CTC agrees to comply with all reasonable
security and chain of custody requirements imposed in writing by ADNAS
governing the proper protection, security and control of the ADNAS
Materials. |
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B.
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For
purposes of Quality Control and/or improvement, ADNAS may
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request
CTC to provide samples of CTC’s current products or
materials involving the Application Technologies. CTC, at its cost,
agrees
to provide CTC products or materials as reasonably requested by ADNAS
and
as necessary to the evaluation, testing, development, manufacturing,
marketing and distribution of the Product. ADNAS agrees that the CTC
products and materials shall be used only for the purpose of evaluating
and developing Products and shall be used for no other purpose without
the
prior written consent of CTC, and any such use shall be under terms
that
shall equitably accommodate the financial interests of CTC. ADNAS agrees
to comply with all reasonable security and chain of custody requirements
imposed in writing by CTC governing the proper protection, security
and
control of the CTC materials. |
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C.
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To
the extent either party does not have formal security or chain
of custody requirements, the parties agree to develop mutually acceptable
protocols for the secure storage and custody of any ADNAS Materials
and/or
CTC Materials transferred in accordance with this Agreement.
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D.
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Unless
otherwise agreed, ADNAS and CTC will each provide the
Materials required to develop and/or test the Products as samples at
no
cost to each other. |
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E.
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DNA
reader technology, including at least one Real Time Polymerase
Chain Reaction Reader (PCR), shall be initially provided by ADNAS to
CTC
at no charge to CTC; All additional Readers and/or reader technology
shall
be purchased or leased at CTC’s expense. ADNAS shall, at its expense,
provide CTC with training on PCR operations solely for demonstration
purposes to clients and prospective clients. All DNA extraction and
authentication protocols shall be carried out by exclusively by ADNAS.
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5.0
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MATERIALS,
INVENTORY AND SECURITY.
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A.
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Production
and Marketing. In the course of Product
development, manufacture, subsequent marketing and distribution, the
Product will be produced by CTC at its facilities, or at the facilities
of
CTC sub-contractors. Both CTC and ADNAS shall market the Product to
their
customers and shall meet, as necessary, to ensure there is no duplication
of effort. ADNAS will not be engaged in the manufacture, storage or
distribution of Product. As the primary manufacturer of such Product,
CTC
will control the production, storage and distribution facilities and
shall
undertake the primary responsibility for secure custody of the Product
and
all materials, security information and technologies utilized in the
production of the Product (except as to each party’s respective duty to
develop and protect their own Technologies). CTC will maintain
manufacturing records for Product, which records will be made available
during regular business hours for ADNAS to audit not more than once
per
year or as required due to client concerns regarding ADNAS Technologies
in
Products. |
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B.
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Storage
and Security. ADNAS and CTC will develop
mutually acceptable protocols for the secure storage and custody of
Products and ADNAS DNA Materials at the production facilities of CTC
or at
the facilities of any CTC subcontractor and at the facilities of clients.
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C.
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ADNAS
Packaging. CTC will distribute the Products
to End Users with all warranties and disclaimers and license agreements
intact as shipped from ADNAS. CTC will take all steps reasonably requested
by ADNAS to inform End Users of any applicable restrictions and
limitations regarding the use of the Products.
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D.
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Support.
CTC will provide End Users with
first-line technical support for the Product. Such first-line support
will
include, without limitation, assistance and consultation on the use
of the
Product, timely responses to End Users’ questions concerning use of the
Product, and the diagnosis and correction of problems encountered by
End
Users in regard to the Product. ADNAS will provide additional technical
support from product research and development technology lab when needed.
ADNAS will provide CTC with such second-line technical support as
necessary and at ADNAS’ expense. |
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E.
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CTC
Pricing. CTC, in consultation with ADNAS,
shall determine the actual retail prices at which the Product will
be sold
to End Users. |
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1.
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Subject
to the terms and conditions of this Agreement, ADNAS grants
to CTC a non-exclusive license to use ADNAS’ logos and trademarks to be
used in association with the Products (“ADNAS Trademarks”) to promote and
market the Products, provided that CTC’s use of the ADNAS trademarks is in
accordance with ADNAS’ then-current trademark usage guidelines. CTC
acknowledges and agrees that ADNAS owns the ADNAS trademarks and that
any
and all goodwill derived from the use of the ADNAS trademarks by CTC
hereunder inures solely to the benefit of ADNAS. CTC hereby acknowledges
that ADNAS owns all right, title and interest in the ADNAS trademarks
,
together with the goodwill attaching thereto, that may inure to it
in
connection with this Agreement or from its use of the Trademarks
hereunder. CTC will not apply to register any ADNAS trademarks, trade
name, service xxxx or other designation that is confusingly similar
to any
trademark of ADNAS. |
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2.
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Subject
to the terms and conditions of this Agreement, CTC grants
to ADNAS a non-exclusive license to use CTC’s logos and trademarks to be
used in association with the Products (“CTC Trademarks”) to promote and
market the Products, provided that ADNAS’ use of the CTC trademarks is in
accordance with CTC’s then-current trademark usage guidelines. ADNAS
acknowledges and agrees that CTC owns the CTC trademarks and
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that
any and all goodwill derived from the use of the CTC
trademarks by ADNAS hereunder inures solely to the benefit of CTC.
ADNAS
hereby acknowledges that CTC owns all right, title and interest in
the CTC
trademarks, together with the goodwill attaching thereto, that may
inure
to it in connection with this Agreement or from its use of the Trademarks
hereunder. ADNAS will not apply to register any CTC trademarks , trade
name, service xxxx or other designation that is confusingly similar
to any
trademark of CTC. |
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6.0
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REQUISITIONS
AND
ACKNOWLEDGEMENTS |
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A.
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DNA
Material Supply. The parties agree to jointly
and continuously determine DNA material stockpile requirements sufficient
to meet the production requirements of CTC. ADNAS shall stockpile in
the
US at a facility(s) selected by ADNAS and approved by CTC, sufficient
DNA
Materials to ensure at all times the adequate and on-time supply of
DNA
Material in quantities sufficient to fully meet the production
requirements of CTC in a timely manner.
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B.
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DNA
Material Security. The supporting inventory of
any ADNAS DNA Materials will be held by ADNAS at secure storage facilities
within the continental United States as selected by ADNAS and approved
by
CTC. Delivery to CTC will be made under secure transportation conditions
by the selected security storage and transportation company.
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C.
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Delivery.
ADNAS will use commercially reasonable
efforts to deliver the ADNAS Materials at the times specified in its
written acknowledgment of a requisition for ADNAS Materials. ADNAS
will
not be liable to CTC or to any other party for any delay in the delivery
of the ADNAS Materials not directly attributable to ADNAS.
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D.
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Shipment.
ADNAS will package and ship the ADNAS
Materials in accordance with standard commercial practices. The ADNAS
Materials will be shipped prepaid to the location specified on CTC’s
requisition, by a mode of shipment selected by ADNAS. Title, except
to the
extent the ADNAS Materials contain or consist of software or firmware,
will pass to CTC upon ADNAS’ delivery of the ADNAS Materials to the
facility site of CTC or to the facility site of any authorized CTC
subcontractor as designated by CTC. |
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E.
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Ordering.
All requisitions for ADNAS Materials
submitted by CTC will be sent to ADNAS at the address set forth above,
email address(es) or via facsimile. All requisitions will specify the
type
and quantity of the ADNAS Materials requested and the delivery date
requested, and will be sent to the attention of Xx. Xxxxx X. Xxxxxxx
with
copies to XxxXxx Xxx and Xxxx Xxxxxx . All of CTC’s requisitions will be
governed exclusively by the terms and conditions of this Agreement.
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F.
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Acceptance.
A requisition will be confirmed or
declined by ADNAS in writing, by email, or facsimile within five
(5)
business days of its receipt. |
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A.
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The
parties shall establish an agenda to identify specific Products
to be developed. |
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B.
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The
parties agree to develop and agree in writing a Sales &
Marketing Plan to undertake joint sales and marketing efforts to promote
the Products into the target markets and to target clients. The Sales
& Marketing Plan shall identify and prioritize clients, define product
categories and applications, program marketing activities, news releases,
trade show participation, web seminars and direct electronic mailing
campaigns. The parties shall create industry-specific and
customer-specific marketing and presentation Materials and shall mount
comprehensive trade publicity programs for the Products as they are
developed. |
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C.
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ADNAS
and CTC agree to introduce each other to their respective
clients and strategic marketing partners.
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D.
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Within
the guidelines of the Sales & Marketing Plan, each of
the parties shall provide Technical Sales support to the other party
and
each shall make appropriate staff or Consultants available to participate
in sales calls and meetings with target clients. Technical Sales support
shall be provided by each party at its own cost, unless circumstances
impose an undue burden upon one party, in which case the parties shall
arrange cost-sharing as may be appropriate and such cost sharing shall
be
set forth in writing, and signed by both parties
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A.
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ADNAS,
at its expense, shall defend any suit brought against CTC on
the grounds that use of the ADNAS Materials or DNA Technologies for
the
intended purpose or purposes, as furnished by ADNAS, infringes any
United
States patent and shall pay the amount of any judgment that may be
awarded
against CTC in any such suit provided and upon condition that CTC shall
(a) promptly deliver to ADNAS all infringement notices and other papers
received by or served upon CTC, (b) permit ADNAS to take charge of
the
defense of such suit and compromise the same, if deemed advisable by
ADNAS, and (c) assist in every reasonable way in the conduct of such
defense. |
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B.
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CTC,
at its expense, shall defend any suit brought against ADNAS on
the grounds that use of the Application Technologies for the intended
purpose or purposes, as furnished by CTC, infringes any United States
patent and |
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shall
pay the amount of any judgment that may be awarded against
ADNAS in any such suit provided and upon condition that ADNAS shall
(a)
promptly deliver to CTC all infringement notices and other papers received
by or served upon ADNAS, (b) permit CTC to take charge of the defense
of
such suit and compromise the same, if deemed advisable by CTC, and
(c)
assist in every reasonable way in the conduct of such defense.
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C.
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In
the event that CTC shall be enjoined by a court of competent
jurisdiction from which no appeal can be taken, from selling or using
the
Products for the intended purpose or purposes on the ground that such
sale
or use of the Product infringes any such United States or other patent,
or
it is established to ADNAS satisfaction, upon due investigation, that
sale
or use of the Product infringes any such United States or other patent,
ADNAS at its option may either (i) procure for CTC a license to sell
and/or use the Products, (ii) modify the Products so as to make it
non-infringing without seriously impairing its performance, (iii) replace
the Products with a product that is substantially equal but
non-infringing, or (iv) accept the return of the Product from CTC.
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D.
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In
the event that ADNAS shall be enjoined by a court of competent
jurisdiction from which no appeal can be taken, from selling or using
the
Products for the intended purpose or purposes on the ground that such
sale
or use of the Product infringes any such United States or other patent,
or
it is established to ADNAS satisfaction, upon due investigation, that
sale
or use of the Product infringes any such United States or other patent,
CTC, at its option may either (i) procure for ADNAS a license to sell
and/or use the Products, (ii) modify the Products so as to make it
non-infringing without seriously impairing its performance, (iii) replace
the Products with a product that is substantially equal but non-infringing
(cover), or (iv) accept payment for the Product by ADNAS, and dispose
of
the Product of at the direction of ADNAS.
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E.
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ADNAS
shall be responsible for assuring and insuring the integrity
of any patent or trademark application process regarding the ADNAS
Materials and for safeguarding by reasonable measures the confidentiality
of all proprietary or trade secret information related to the ADNAS
Materials to be used as components in the Products.
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F.
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ADNAS
shall supply to CTC technical specifications for the ADNAS
Materials including, but not limited to, MSDS data, suitability for
commercial use, stability in environmental and application conditions,
safety for use in products exposed to the skin or general human
occupational and end-use product exposure, technologies, methods and
materials for successful analysis of the DNA component of the products,
and specifications for use in marketing materials that describe the
characteristics of the ADNAS Materials. |
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G.
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CTC
shall be responsible for assuring and insuring the integrity of
any patent or trademark application process regarding the CTC materials
and for safeguarding by reasonable measures the confidentiality of
all
proprietary or trade secret information related to the CTC Materials
to be
used as components in the Products. |
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H.
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ADNAS
shall secure Insurance for the Loss of Goods in Transit
together with coverage against damages that may arise there from, for
the
ADNAS materials. |
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I.
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CTC
shall secure Insurance for the Loss of Goods in Transit to end
users(s) or ADNAS together with coverage against damages that may arise
therefrom, for the CTC materials and the Products.
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J.
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Each
party shall be responsible for acquiring and/or maintaining
Product Liability Insurance and shall provide documentation of such
insurance or other financial responsibility, upon demand of the other
party. |
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K.
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ADNAS
and CTC shall jointly determine Warranty and shelf-life
limitations. |
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The
parties recognize that each party shall disclose to the other
information concerning suppliers, clients, distributors, agents, brokers,
buyers, sellers, technical data, performance data, pricing details,
formulas, processes, commissions, discounts, information relating to
competitors and other information which the parties have acquired through
their investment of time, expense and effort and which may constitute
confidential proprietary business information, intellectual property,
and/or trade secrets. The parties acknowledge and agree that during
the
term of this Agreement, and in the course of the discharge of the duties
hereunder, the parties shall have access to and become acquainted with
information concerning the operation of the other party, including,
financial, personnel, sales, manufacturing, buying, planning, and other
information owned by and regularly used in the operation of the business
of each party and each party shall also receive information of a
proprietary nature regarding the constitution, formulation, pricing
and
effectiveness of the Products and both parties hereto accept that such
information as outlined above constitutes the Confidential Information
of
the providing party. The parties hereto agree not to disclose any such
Confidential Information, directly or indirectly, to any other person
or
party, except as may be necessary for such person or party to pursue
sales
as a function of this Agreement and such person or party shall have
executed a Confidentiality Agreement undertaking, binding that person
or
party to conditions of confidentiality identical to those contained
in
this Agreement. The obligations of confidentiality contained in this
Section shall survive expiration or earlier termination of this Agreement.
|
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10.0
|
NON-CIRCUMVENTION
AND
NON-COMPETITION. |
| |
A.
|
|
In
Consideration of this Agreement each party agrees not to attempt
in any manner to commercially exploit, either directly or indirectly,
the
proprietary business concepts and Technologies or any of the Confidential
Information without the other party’s prior written consent. The parties
specifically understand and agree that this prohibition is specifically
intended to include any direct or indirect solicitation of the other’s
customer/client contacts by either party’s then current Providers,
Suppliers, Agents, Employees and/or Representatives.
|
| |
B.
|
|
CTC
hereby undertakes not to manufacture for the purpose of sales
or distribution, products incorporating other DNA Technologies, which
are
competitive to the DNA technologies of ADNAS, without written permission
of ADNAS, and under conditions to be mutually agreed. CTC reserves
the
right to incorporate non-DNA-based identification taggants in CTC
products, independently of or in combination with the DNA technologies
of
ADNAS. |
| |
C.
|
|
ADNAS
hereby undertakes not to supply for the purpose of sales,
distribution or manufacture, ADNAS Materials to be used in goods which
are
competitive to the Products, without the written permission of CTC
and
under conditions to be mutually agreed. ADNAS reserves the right to
incorporate other identification markers in conjunction with the ADNAS
materials independently or in combination with the ADNAS technology
and/or
Materials. |
| |
11.0
|
CHOICE
OF LAW AND
JURISDICTION. |
All
disputes over the meaning and interpretation of this Agreement shall be resolved
by conciliation and mediation and if mediation is unsuccessful, then disputes
shall be finally settled by a single arbitrator selected by ADNAS and CTC.
If
ADNAS and CTC cannot agree on an arbitrator, then disputes shall be resolved
by
an Arbitration Panel comprising one arbitrator appointed by ADNAS, one
arbitrator appointed by CTC, and a Chairman of the Arbitration Panel appointed
by the first two arbitrators. Any such arbitration proceeding shall be conducted
in accordance with the arbitration rules and procedures of the American
Arbitration Association; shall be held at a location agreed by the parties
or by
their designate arbitrator(s) in or near Charlotte, North Carolina; and judgment
upon the arbitration award may be entered in any court having jurisdiction.
In
order to initiate procedures for dispute resolution by conciliation, mediation
and arbitration either party may give written notice to the other of intention
to resolve a dispute, and absent satisfactory resolution, then to arbitrate.
Such notice shall contain a statement setting forth the nature of the dispute
and the resolution sought.
If,
within
thirty (30) days of such notice a resolution by conciliation between the parties
themselves or by mediation has not been achieved to the satisfaction of both
parties, and if within sixty (60) days from said written notice an arbitrator
or
Arbitration Panel has not been appointed with an arbitration schedule
satisfactory to both parties, then either party may proceed with judicial
remedies.
Either
Party reserves the right and power to proceed with direct judicial remedies
against the other
Party
without conciliation, mediation or arbitration for the purpose of seeking
injunctive relief (particularly for injunctions respecting the intellectual
properties and/or trade secrets referenced herein)
This
Agreement is entered into in the State of North Carolina and the parties hereby
acknowledge, consent and submit to the jurisdiction of the courts of North
Carolina for the purpose of seeking the entry and enforcement of any judgment
that may arise in connection with this Agreement, and expressly waive any
objection to venue in the Superior Court of Xxxxxx County, North Carolina and/or
the United States District Court for the Western District of North Carolina.
This Agreement shall be construed and enforced in accordance with the laws
of
the State of North Carolina.
|
|
All
notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall
be
given in writing and may be addressed as follows:
|
|
|
Applied
DNA Sciences, Inc.
Att’n: Xxxx Xxxxxx
00 Xxxxxx
Xxxxxxxx Xx
Xxxxx Xxxxx XX 00000
Tel: 000-000-0000
Fax:
000-000-0000 |
|
|
Xxx
Xxxxxxx
Xxxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000 000-0000
Fax: 000 000-0000
|
|
|
Champion
Thread Company, Inc.
Att’n: Xxxxxx X. Xxxxxx, III or
W. Xxxxxxx Xxxxxx
0000 Xxxx Xxxxxxxx Xxxx.
Xxxxxxxx XX 00000
Tel: 000-000-0000
Fax: 704-868-3885BLE>
|
|
|
Xxxxxxx
X. Xxxxx, Xx.
Gray, Layton, Xxxxx Solomon, Sigmon, Xxxx
& Xxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 facsimile
|
|
|
All
written notices and responses required herein may be made by
certified mail, overnight carrier service or e-mail, and must be supported
by a record of delivery and receipt. |
|
|
This
Agreement constitutes the complete and exclusive statement of
understanding among the Parties. It supersedes all prior written or
oral
statements, including any prior representation, statement, condition,
or
warranty, except as expressly provided otherwise herein. This Agreement
may not be amended without the written consent of all of the Parties
and
represents a final agreement of the parties. No change or modification
of
this Agreement shall be valid unless the same be in writing and signed
by
all parties hereto and attached hereto as a supplement and made an
integral part of this Agreement. |
| |
14.0
|
|
TERMINATION
AND
VOIDABILITY. |
|
|
In
the event any party hereto becomes insolvent as evidenced by the
filing of any petition in bankruptcy, the appointment of a receiver,
or
has its business activity suspended or curtailed as a result of any
criminal prosecution or imposition of any civil penalty by a court
of
competent jurisdiction for violation of e.g., the securities or anti-trust
laws of the United States or any state thereof, then this Agreement
shall
be voidable in the sole discretion of the other party.
|
|
|
a.
Failure by either party to correct, within 90 days following
written notification by the other party, any defect in quality or in
the
timely delivery of materials or Product.
|
|
|
b.
Violation of the terms and conditions of Confidentiality and
Non-Disclosure. |
|
|
c.
Failure of CTC or ADNAS to correct any non-payment of royalties,
within 90 days following written notification by the other party.
|
|
|
The
Parties acknowledge that a violation or threatened violation of
this Agreement or any of its provisions may cause irreparable injury;
that
the Agreement concerns unique and special materials, properties and
processes, and that money damages alone would be an inadequate remedy;
and
that, in addition to any other remedies available at law or in equity,
such a violation or threatened violation of this Agreement or any of
its
provisions may be subject to a restraining order, injunctive relief,
a
decree of specific performance or other similar remedy in order to
specifically enforce the provisions of this Agreement.
|
|
|
Waiver
of Breach. The waiver by a party of
a breach of any provision of this Agreement by the other party shall
not
operate or be construed as a waiver of any subsequent breach.
|
|
|
Counterparts
This
Agreement may be executed
in counterparts, each of which shall be deemed an original and together
shall constitute one and the same agreement.
|
|
|
Partial
Validity. The terms contained in
this Agreement are considered reasonable by the parties, but in the
event
that any provision shall be found to be void but would be valid if
some
part thereof were deleted, or the period or area of application reduced,
such restriction shall apply with such modification as may be necessary
to
make it valid and effective. Each provision of this Agreement shall
be
considered separable; and if, for any reason, any provision or provisions
herein are determined to be invalid and contrary to any existing or
future
law, such invalidity shall not impair the operation of or affect those
portions of this Agreement which are valid.
|
|
|
Force
Majeure. Any delays in, or failure
of, performance of any Party to this Agreement shall not constitute
a
default hereunder, or give rise to any claim for damages, if and to
the
extent caused by occurrences beyond the control of the Party affected,
including, but not limited to, acts of God, acts of terrorism, strikes
or
other concerted acts of workmen, civil disturbances, fires, floods,
earthquakes, explosions, riots, war, rebellion, sabotage, acts of
governmental authority or failure of governmental authority to issue
licenses or approvals which may be required.
|
|
|
Binding
Effect. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors, assigns, heirs, and personal representatives.
|
|
|
Sections,
Subtitles, and Captions. Whenever
reference is made to a section of this Agreement by a single number
without decimals, such reference shall include all decimal sections
bearing the same principal number. Subtitles and paragraph captions
are
inserted for convenience of reference and do not constitute part of
the
Agreement. |
|
|
Construction:
In
construing this Agreement,
plural terms shall be substituted for singular and singular for plural
in
any place in which the context so requires.
|
|
|
Authority
to Contract. Both parties hereto
warrant that they are validly organized corporations, in good standing
under the laws of their states of incorporation, and have the authority
to
enter into this Agreement. |
|
|
IN
WITNESS WHEREOF, each of the Parties below has caused this
Agreement to be executed by its duly authorized representatives as
of the
date hereof. |
| For ADNAS by: |
For ADNAS by: |
| |
|
Name:
Xxxxx X Xxxxxxx
Title: CEO
|
Name:
Xxxx Xxxxxx
Title: Comptroller |
| |
|
| For CTC by: |
For CTC by: |
| |
|
| |
|
Name:
Xxxxxx X. Xxxxxx, III
Title: CEO |
Name:
W. Xxxxxxx Xxxxxx
Title: Vice-President
|
16
