DISTRIBUTOR AGREEMENT TERMS AND CONDITIONS
Exhibit
10.04
2.3 Orders and Acceptance. For any purchase order, Distributor shall place the order and corresponding payment to COMPANY. Distributor shall comply with all COMPANY minimum purchase order requirements. Orders shall not be deemed accepted or binding without written notification thereof by COMPANY. This Agreement shall govern all Distributor orders, and nothing contained in Distributor’s purchase orders, confirming memos or other communications shall supersede or modify this Agreement.
TERMS AND
CONDITIONS
This
Distributor Agreement (“Agreement”) is made and entered as of August Eighteenth
Two Thousand and Eight (the “Effective Date”),
by and between BioXcell, Incorporated, a Massachusetts corporation located at
000 Xxxxxxxx Xxxxxx, Xxx 000X Xxxxxxx, XX 00000 “COMPANY”) and MediTech 1st. Canada Inc., located
at, 000 xxxx. Xxxxxx-Xxxxx, Xxxxx 000 Xxxxxxxx, Xxx., Xxxxxx X0X
0X0 (“Distributor”). In consideration of the promises and
mutual covenants contained herein, the parties agree
as
follows:
1.
DISTRIBUTION
1.1
Distribution. Subject to the terms and conditions of this Agreement and, if
applicable, a written addendum signed by COMPANY (“Addendum”), COMPANY
hereby
grants Distributor a exclusive, non-transferable right during this Agreement to
distribute certain products and services offered by COMPANY in the territory of
Canada(the “Products”).
1.2
Exclusive Distribution. Except as set forth on an Addendum, Distributor agrees
that the right of distribution granted herein is exclusive. COMPANY reserves
the right to distribute outside the territory of Canada, whether directly or
indirectly, any and all Products worldwide without restriction. COMPANY may
grant the same, similar and/or any other distribution
rights to any other entity outside the territory of Canada, including without
limitation to other distributors outside the territory of Canada, dealers and
original equipment manufacturers.
2.
PRICES, ORDERS, DELIVERIES AND PAYMENT
2.1
Prices. COMPANY shall offer the Products to Distributor based on a written or
electronic price list (the “Price List”) supplied by COMPANY. Distributor agrees
to purchase the Products in accordance with the terms and conditions noted on
the Price List. COMPANY may amend the Price List to add or delete Products and
may adjust the pricing with thirty (30) days advance notice to Distributor.
Price List revisions shall apply to all orders received after the effective date
of such revision. Product price increases shall not apply to unfulfilled
purchase orders prior to the effective date of the Purchase Price increase. At
its sole discretion, COMPANY may apply Product price decreases to pending
purchase orders accepted by COMPANY prior to the effective date of the decrease
but not yet shipped. In addition to the applicable prices and fees, Distributor
shall pay, or at COMPANY’S option reimburse COMPANY, for any and all taxes,
customs, duties, freight, insurance, shipping and related expenses associated
with the Products.
2.2
Taxes. All prices, fees and charges covered by this Agreement do not include any
federal, state, local, or foreign taxes that may be applicable to the Products,
including all non-resident withholding tax, wholesale sales taxes, value-added
taxes, goods and services tax, excise, sales, use and similar taxes and customs
duties. Distributor shall pay or reimburse COMPANY for all such taxes and other
charges. When COMPANY has the legal obligation to collect such taxes, the
appropriate amount shall be added to Distributor’s invoice and paid by
Distributor, unless and until Distributor provides COMPANY with a valid tax
exemption certificate.
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2.3 Orders and Acceptance. For any purchase order, Distributor shall place the order and corresponding payment to COMPANY. Distributor shall comply with all COMPANY minimum purchase order requirements. Orders shall not be deemed accepted or binding without written notification thereof by COMPANY. This Agreement shall govern all Distributor orders, and nothing contained in Distributor’s purchase orders, confirming memos or other communications shall supersede or modify this Agreement.
2.4
Delivery and Shipping. COMPANY shall not be liable to Distributor or any third
party if COMPANY fails to deliver an order, delivers an order incorrectly and/or
fails to meet a delivery date. If any order exceeds COMPANY’s inventory, COMPANY
shall allocate available inventory according to and in its sole discretion.
Returns are at the discretion of BioXcell.
2.5
Quarterly Forecasts. Purchase Orders Fifteen Days in Advance. On or before the
10th day of every third calendar month, Distributor shall submit to COMPANY a
forecast of all of the Distributor’s purchases of the Products for the next
quarter. Distributor shall submit to COMPANY an amendment of purchase Order at
least fifteen (15) days in advance of the requested ship date for any and all
Products.
2.6
Payment. All credit terms and terms of payment are to be determined by BioXcell,
based upon competed credit application and credit verification. Once credit
terms have been established, payments may be sent via check, credit card or wire
transfer only as follows:
(a).
Checks should be made to “BioXcell” and mailed to:
BioXcell,
Inc.
Attn:
Accounts Receivable
000
Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxx,
XX 00000, XXX
(b).
BioXcell accepts the following credit cards: Visa, Mastercard.
(c).
For wire transfer, payments shall be wired to: Centrury Bank,428 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx,00000; Transit ABA# 000000000;
Account
number: 00000000; SWIFT CODE: XXXXXXXX; Beneficiary: BioXcell, Inc.
3.
OWNERSHIP
3.1
Ownership. All right, title and interest in and with respect to the Products,
including without limitation all intellectual property rights therein, are
solely owned by and shall
remain with COMPANY, its licensors and suppliers. Distributor shall not copy,
make copies of, translate, localize, disassemble, decompile, reverse engineer,
attempt
to discover the source code of, modify, create derivative works from and/or in
any way change any part of the Products, including without limitation the
documentation,
packaging and trademarks. Registration and payment for registering
the Invocell product (up to $500.00 u.s.) will be the responsibility of
COMPANY.
4.
MARKETING OBLIGATIONS OF DISTRIBUTOR
4.1
Marketing and Support. Distributor shall maintain a staff of qualified sales and
training personnel to perform its obligations hereunder and shall actively
promote and
market the Products. Distributor shall provide first and second level support
for the Products and shall directly support its resellers and end users.
COMPANY
will provide telephone support to Distributor during COMPANY’s normal business
hours in accordance with COMPANY’S then current support program. Company will
provide adequate training for distributor sales personnel at Company’s premises,
at no cost for the first year. Distributor will cover his travel and
accommodation expenses. During first year, company may accompany
distributor during one or more of his visits to key customers. All
company travel and accommodation expenses will be covered by company. Any
further training by company shall be chargeable. Distributor shall provide its
resellers and end users with sufficient and reasonable assistance in training,
service and customer support with respect to the Products.
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4.2
Representations and Third Party Agreements. Distributor agrees that all
representations and warranties it makes with respect to the Products shall be
consistent With and
not exceed and those made by COMPANY herein. Distributor agrees that all third
party agreements and arrangements with respect to the Products, including
without limitation
agreements with resellers and end users, shall have terms and conditions equal
to and consistent with the terms and conditions of this Agreement and shall
state that
COMPANY is the intended beneficiary of these obligations and that COMPANY is
entitled to enforce its rights against both Distributor and such third
party.
5.
TRADEMARKS AND NOTICES.
5.1
Trademarks. COMPANY grants Distributor a exclusive, non-transferable, limited
license to use the Product trademarks, service marks and trade names
(“Trademarks”) solely in connection with the marketing and sales of the Products
in accordance with and during this Agreement. Distributor shall use the
Trademarks in accordance with instructions from COMPANY, which COMPANY may
revise in its discretion. Distributor agrees to cooperate with COMPANY in
facilitating COMPANY’s monitoring and control of the nature and quality of the
Products and related marketing materials and to supply COMPANY with specimens of
use of the Trademarks upon request. Distributor acknowledges the validity of the
Trademarks and the ownership of the Trademarks by COMPANY and its suppliers and
licensors. All such Trademarks shall bear the designation “™” or the designation
“®”, as specified by COMPANY. Distributor shall not challenge the rights of
COMPANY and its suppliers and licensors in any Trademarks. All goodwill and
reputation which accrues to any Trademarks in the course of Distributor’s
business shall automatically vest in COMPANY and its suppliers and licensors
without any separate or additional consideration of any kind to Distributor, and
Distributor agrees to take all such reasonable actions necessary to effect such
vesting.
5.2
Notices. Distributor shall not remove, alter or obscure any patent, trademark,
copyright or other notice or marking in or on any Product.
5.3
Prohibition of Similar Trademarks. Distributor shall not adopt, use, register,
make application for or attempt to register any acronym, trademark, trade name
or other marketing name of COMPANY or any confusingly similar xxxx, uniform
resource locator (URL), Internet domain name, or symbol as part of Distributor’s
own name or the name of any of its affiliates or as the name of any product it
markets.
6.
WARRANTY AND DISCLAIMER 6.1 Limited Warranties. COMPANY warrants to the original
end user only for 30 days from such end user’s purchase date of the Products, if
used as authorized in accordance with COMPANY specifications, will perform in
material accordance with the specifications. COMPANY warrants to the end user
only for 24 months from such end user’s purchase date that the hardware portion
of the Products, if used as authorized in accordance with COMPANY
specifications, will not have significant defects in materials or workmanship
that make the Products unusable. COMPANY makes no warranty or representation
that the Products will meet any end user’s specific requirements, that the
operation of the Products will be secure, uninterrupted or error free, or that
all defects in the Products will be corrected. COMPANY makes no warranty,
implied or otherwise, regarding the performance or reliability of any third
party products (hardware or software). Installation of any third party products
other than as authorized by COMPANY will void all warranties. In addition, use,
modification and/or repair of the Products other than as authorized by COMPANY
voids all warranties. 6.2 Warranty Return Procedures. Distributor shall be
responsible for and shall coordinate all communication with its resellers and
end users concerning warranty claims, maintenance and support requests,
including without limitation obtaining proof of purchase from the end user.
After being notified in writing, distributor shall comply with COMPANY’s current
latest standard Product return procedures, which COMPANY may change from time to
time. Unless Distributor returns a Product in accordance with COMPANY’s limited
warranty and latest current standard product return procedures, Distributor
shall not return any Product. At its option, COMPANY shall repair or replace
defective Products that are covered by COMPANY’s limited warranty and returned
in accordance with COMPANY’s standard procedures by using new or like-new parts
or Products, or provide a refund of the price paid to COMPANY for such Product.
Distributor shall pay for all shipping charges, insurance, taxes, duties, and
others charges for all RMA shipments. COMPANY shall pay freight charges on
shipments to and from Distributor of Product repaired or replaced under
warranty; however, Distributor shall pay all duties, customs, taxes and
other charges on such shipments. Products that COMPANY determines are not
defective, not under warranty or not returned in compliance with COMPANY’s
return procedures shall be returned to Distributor and Distributor shall pay all
freight, insurance, duty, taxes and others charges related to these Products. A
company generated authorization number shall accompany all returns or will not
be accepted.
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6.3
DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE
EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION, COMPANY MAKES NO
REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ANY OF THE
PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS
AGREEMENT OR ANY OTHER COMMUNICATION, AND THEY SPECIFICALLY DISCLAIM ANY IMPLIED
WARRANTY OR CONDITION OF SECURITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND/OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. THERE IS NO
WARRANTY OR REPRESENTATION THAT THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED, FAULT-TOLERANT, SECURE OR ERROR-FREE. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, THE SOLE LIABILITY OF COMPANY, AND THE SOLE REMEDY,
RELATING TO ANY AND ALL APPLICABLE WARRANTIES SHALL BE, AT COMPANY’S OR OPTION,
TO REPAIR THE PRODUCT, REPLACE THE PRODUCT, OR PROVIDE A REFUND FOR THE PRICE
PAID TO COMPANY FOR THE PRODUCT.
7. TERM
AND TERMINATION
7.1 Term
and Termination. This Agreement shall become effective on the Effective Date and
shall expire one (1) year thereafter unless earlier terminated in accordance
with this Agreement. This Agreement may be renewed for additional one (1) year
periods by mutual agreement of the parties. This Agreement is not an “evergreen”
contract or of indefinite duration. Any party may terminate this Agreement, with
cause, by giving 90 days written notice.
7.2
Termination for Insolvency. This Agreement shall terminate, without notice, (i)
upon the institution by or against Distributor of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of
Distributor’s debts, (ii) upon Distributor’s making an assignment for the
benefit of creditors, or (iii) upon Distributor’s dissolution or ceasing to
function as an on going business concern.
7.3 No
Damages or Other Rights Upon Termination. In making this Agreement, all parties
have considered that they will make expenditures in preparing for performance
under this Agreement and will possibly sustain losses and damages in the event
of its termination. However, the parties expressly agree that the rights of
termination in this Agreement are absolute. The parties agree that no party
shall be liable to any other party for any damages, compensation, payments,
costs or other types of losses arising out of termination of this Agreement, and
the parties expressly waive all such damages, compensation, payments, costs and
losses, including without limitation those related to goodwill, prospective
profits, anticipated sales, and amounts spent on training, advertising, market
development, leases and other investments. Distributor agrees that any contracts
or other arrangements it enters into with any third parties relating to the
Products will be consistent with and subject and subordinate to the rights of
termination in this Agreement. Distributor will indemnify and hold COMPANY
harmless against any and all liability, loss, damages, costs and expenses
incurred in connection with claims by any such third party.
7.4
Effect of Termination and Survival of Certain Terms. In the event that this
Agreement expires or is terminated, Distributor shall immediately pay all
outstanding amounts payable hereunder. Upon expiration or termination of this
Agreement, in case distributor is in possession of inventory with a reasonable
expiry date, the COMPANY should allow Distributor to sell inventory within 90
days or if it chooses not to, Company will be under obligation to buy back such
inventory at Distributor landed cost.. All provisions concerning termination,
ownership of intellectual property rights and trademarks, indemnification,
limitation of liability, disclaimer of warranties, governing law, jurisdiction
and venue shall survive the termination and expiration of this
Agreement.
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8.
LIMITATION OF TOTAL LIABILITY
THE
COMPANY SHALL INDEMNIFY THE DISTRIBUTOR AGAINST ANY LIABILITY INCURRED BY THE
DISTRIBUTOR IN RESPECT OF DAMAGE TO PROPERTY, DEATH, OR PERSONAL INJURY ARISING
FROM ANY FAULT OR DEFECT IN THE MATERIALS OR WORKMANSHIP OF THE PRODUCTS AND ANY
REASONABLE COSTS ARISING IN CONNECTION WITH THE LIABILITY (A “RELEVANT
CLAIN”).TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISTRIBUTOR AGREES
THAT THE AGGREGATE, CUMULATIVE LIABILITY OF COMPANY FOR ALL CLAIMS RELATED TO
THIS AGREEMENT AND/OR THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION (WHETHER IN
CONTRACT, TORT, UNDER STATUTE OR OTHERWISE), SHALL BE LIMITED TO THE AMOUNT PAID
BY DISTRIBUTOR FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. DISTRIBUTOR
AGREES THAT SUCH AMOUNT IS SUFFICIENT TO SATISFY THE ESSENTIAL PURPOSE OF THE
PROVISIONS OF THIS AGREEMENT AND THAT SUCH A LIABILITY IS A FAIR AND REASONABLE
ESTIMATE OF ANY LOSS AND DAMAGE LIKELY TO BE SUFFERED IN THE EVENT OF ANY
WRONGFUL ACT OR OMISSION BY COMPANY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR COST OF PROCUREMENT OF
SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, OR ANY SPECIAL, INDIRECT,
RELIANCE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY, RELATED TO THIS AGREEMENT OR THE PRODUCTS. THIS LIMITATION SHALL
APPLY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
DISTRIBUTOR AGREES THAT THE PRICE OF THE PRODUCTS REFLECTS THIS ALLOCATION OF
RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY. SHALL HAVE NO
LIABILITY WITH RESPECT TO DISTRIBUTOR’S END USERS, RESELLERS AND/OR ANY OTHER
THIRD PARTIES. NOTWITHSTANDING THE TERMS OF THIS SECTION, COMPANY DOES NOT
EXCLUDE LIABILITY IN RESPECT OF PERSONAL INJURY OR DEATH EXCEPT TO THE MAXIMUM
EXTENT THAT IT CAN BE EXCLUDED OR LIMITED BY LAW.
9.
CONFIDENTIAL INFORMATION. “Confidential Information” means any information,
technical data, or know-how that, if disclosed in written form, is designated in
writing to be confidential or proprietary, or if disclosed orally, is summarized
and confirmed in writing within thirty (30) days as being confidential or
proprietary. Notwithstanding the foregoing, all Price Lists, Product
information, the terms and conditions of this Agreement and any Addendum are
deemed Confidential Information. Confidential Information does not include
information, technical data or know-how that (i) is in the possession of the
receiving party at the time of disclosure as shown by the receiving party’s
files and records in existence prior to the time of disclosure, or (ii) prior to
or after the time of disclosure becomes part of the public knowledge or
literature, not as a result of any wrongful inaction or action of the receiving
party, or (iii) is developed independently by the receiving party without use of
or reference to the Confidential Information of the disclosing party, or (iv) is
properly acquired from a third party having the right to disclose such
information, (v) is approved in writing for release by the disclosing party; or
(vi) is required to be disclosed by administrative or judicial action, provided
that the disclosing party is afforded sufficient time in advance to oppose or
limit such disclosure. Each party agrees not to use Confidential Information
disclosed to it by the other party for its own use or for any purpose except to
perform as required under this Agreement. Neither party shall disclose the
Confidential Information of the other party to third parties or to its own
employees except employees who are required to have the information in order to
carry out the contemplated business discussions. Each party has had or shall
have employees to whom Confidential Information of the other is disclosed sign a
non-disclosure agreement in content substantially similar to this Agreement.
Each party agrees that it shall take all reasonable efforts to avoid disclosure
of Confidential Information of the other including efforts at least as great as
those used to protect its own confidential information. Each party agrees to
notify the other party in writing of any misuse or misappropriation of any
Confidential Information of the other which may come to its
attention.
10.
MISCELLANEOUS
10.1
Independent Relationship. The relationship of COMPANY and Distributor is
independent and only that of a vendor and vendee. Nothing contained in this
Agreement shall create any agency, employment, partnership, joint venture or
similar relationship between COMPANY and Distributor for any purpose. No party
shall have any right whatsoever to incur any liabilities or obligations or to
make any warranties on behalf of or binding upon another party.
10.2
Indemnification. Distributor agrees to indemnify and hold COMPANY harmless
against any claim, liability, expenses, judgments, attorney fees and damages
that COMPANY becomes liable for by reason of Distributor’s breach of this
Agreement or Addendum, or by reason of any act or omission of Distributor in
marketing, selling or supporting the Products. Company agrees to the same
indemnification to Distributor.
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10.3
Force Majeure. Except for payment of monies, no party shall be liable for its
failure to perform any obligations on account of strikes, shortages, failure or
acts of suppliers, riots, insurrection, fires, flood, storm, explosions, acts of
God, war, acts of terrorism whether actual or threatened, acts of a public
enemy, epidemics, quarantines, Governmental action, labor conditions,
earthquakes, material shortages or any cause which is similar to those
enumerated or beyond the reasonable control of such party.
10.4
Non-assign ability and Binding Effect. The parties shall not assign or transfer
this Agreement, except that COMPANY may assign and transfer its rights and
obligations under this Agreement to an affiliate, parent or subsidiary of
COMPANY. Subject to the foregoing sentence, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their successors and
permitted assigns.
10.5
Notices. Any notice to be given under this Agreement shall be delivered to the
address specified above postage prepaid, and if to COMPANY to its Legal
Department (i) by registered or certified mail, (ii) by overnight courier, (iii)
by fax, or (iv) by first class mail. Notice so given shall be deemed effective
when first sent.
10.6
Governing Law; Jurisdiction; Venue. This Agreement shall not be governed by the
1980 UN Convention on Contracts for the International Sales of Goods; rather,
this Agreement shall be governed by and construed under the laws of the State of
Massachusetts without regard to conflicts of laws principles. The state and
federal courts in and for Beverly, MA shall have exclusive jurisdiction for any
disputes related to this Agreement, an Addendum or the Products, and the parties
consent to the personal jurisdiction and venue of these courts.
10.7
Export Law Compliance. Distributor understands and recognizes that the Products
and other materials made available under this Agreement are subject to the
export administration regulations of the United States Department of Commerce,
other United States government laws and regulations related to the export of
technical data and equipment and products, and applicable foreign laws and
regulations. Distributor shall be solely responsible for compliance with all
such laws and regulations, and agrees to comply, and to ensure that its
resellers comply, with all such laws and regulations, including any future
modifications thereof. Distributor and its resellers shall be solely responsible
for obtaining any necessary export licenses and exemptions. All Products and
related information and materials are prohibited for export or re-export to a
number of countries and persons, including without limitation Cuba, Iran, Iraq,
Libya, North Korea, Sudan, and Syria, and to any person or entity on the U.S.
Department of Treasury’s list of Specially Designated Nationals, Specially
Designated Narcotics Traffickers and Specially Designated
Terrorists.
10.8
Compliance With Law. Distributor shall provide, pay for, be responsible for, and
keep in good standing all licenses, permits or other applicable approvals
pertaining to activities engaged in by Distributor that may be required.
Distributor shall comply in all respects with all applicable laws and
regulations, including without limitation federal, state, local and foreign laws
and regulations, pertaining to the distribution of the Products and its
obligations and activities under this Agreement.
10.9
Severability. If any provision of this Agreement is found to be invalid,
unlawful or unenforceable by a court of competent jurisdiction, such invalid
term shall be severed from the remaining portion of this Agreement, which will
continue to be valid and enforceable to the fullest extent permitted by
law.
10.10
Entire Agreement. This Agreement consists of the terms and conditions herein and
constitutes the entire Agreement between the parties which supersedes all prior
agreements, discussions and understandings, whether oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may be
executed in faxed counterparts, each of which shall be deemed an original and
all of which together shall constitute one instrument. This Agreement may be
modified only by a written Amendment hereto executed by duly authorized
representatives of all the parties.
10.11
Language. This Agreement is in English only, which shall be controlling in all
respects. All communications and notices shall be in English.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives on the dates set forth below.
DISTRIBUTOR:
Meditech
1st.Canada,Incorporated
By: s/Xxxxxx Xxxxxx
Printed
Name: Xxxxxx
Xxxxxx,X.Xx.,
X.Xx.
Title:
President
Date:
August 19,
2008
BioXcell,
Incorporated
By: s/Xxxx X
Xxxxxxx
Printed
Name: Xxxx Xxxxxxx
Xxxxxxx
Title: Vice President, Sales &
Mktg.
Date:
August 21,
2008
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