Exhibit 10.11
EQUIPMENT AND SUPPLIES AGREEMENT
This Equipment and Supplies Agreement is made and entered into as of
this 9th day of December, 1998 by and between Haemonetics Corporation, a
Massachusetts corporation having its principal place of business at 000 Xxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as
"Haemonetics") and SeraCare, Inc., a California corporation having its
principal place of business at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "SeraCare").
RECITALS
WHEREAS, Haemonetics manufactures automated plasmapheresis collection
equipment, known as PCS and PCS-2 systems, and consumable disposables
consisting of bowls and harnesses ("the Disposables"). The PCS Units and
PCS-2 Units, together with all additions and accessories, and all spare parts
supplied by Haemonetics, are collectively referred to as the "Equipment," and
WHEREAS, SeraCare operates one or more plasma collection centers and
uses or could use Equipment and Disposables in the conduct of its business,
and
WHEREAS, Haemonetics is willing to provide SeraCare with Equipment and
SeraCare is willing to purchase from Haemonetics exclusively all of the
Disposables that are to be used with the Equipment.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and subject to the terms and
conditions of this Agreement, the parties agree as follows:
ARTICLE 1 - LOAN OF THE EQUIPMENT
1.1 GENERALLY. Haemonetics will loan to SeraCare, free of charge, the PCS-2
Equipment listed on Schedule A attached hereto and made a part hereof, as it
may be amended from time to time. The number of PCS-2 Units loaned shall be
sufficient to generate at least five (5) bowls per day per machine per five
(5) day week. SeraCare agrees that the Equipment shall be used solely for the
operation of the SeraCare Centers. SeraCare further agrees that, once the
Equipment is placed in a Center, SeraCare will not substitute a competitive
plasmapheresis system during the entire term of this Agreement.
1.2 DELIVERY/MOVEMENT OF EQUIPMENT. The Equipment provided by Haemonetics
pursuant to this Agreement shall be delivered and installed at the locations
set forth in Schedule A and shall remain at such Centers unless a Center
closes. SeraCare shall not move the Equipment to another location nor make
any alterations, additions, nor improvements to the Equipment except with the
prior written consent of Haemonetics, which
consent shall not be unreasonably withheld. SeraCare shall provide written
notification two (2) weeks in advance of proposed changes in location of any
of the Equipment from the Center to which it has been delivered by
Haemonetics. Any Equipment moved by SeraCare shall be in accordance with
Machine Movement Guidelines set forth by Haemonetics (Schedule D).
The parties agree that the number of PCS-2 Units located at a Center may
be changed from time to time based upon utilization of PCS-2 machines. By the
10th day of each month, SeraCare will provide a report for each Center, which
shall include the number of machines at the Center, the total number of
donations made at the Center in the preceding calendar month, and the total
downtime hours of the PCS-2 Units, in order to calculate utilization and
downtime rates. If SeraCare fails to timely provide a report on all the
Centers, Haemonetics will calculate the utilization rate using the prior
quarter's actual shipments and the number of Haemonetics machines in SeraCare
inventory.
SeraCare may dispose of components of the Equipment approved by
Haemonetics and return those components which are re-usable, replaced in the
course of regular maintenance performed by SeraCare in accordance with PCS or
PCS-2 Service and Maintenance Manuals furnished by Haemonetics.
In the event a Center is sold by SeraCare, SeraCare will inform the new
owners of this Agreement and the PCS-2 Equipment will continue to be used at
the Center throughout the term of this Agreement.
1.3 SPARE PARTS: Haemonetics will provide a supply of replacement parts,
initially consisting of those items listed as repair spare parts on Schedule
B, as the same may be amended from time to time. Haemonetics, at its own
expense, will provide to SeraCare additional spare parts as, when, and to the
extent that, Haemonetics, in its sole discretion, determines that further
spare parts are necessary or expedient in keeping the Equipment operational.
This does not include parts which are sent as a result of negligence by
SeraCare or center personnel not following Haemonetics' operating or repair
policy or procedures.
1.4 REMOVAL OF EQUIPMENT. Haemonetics agrees that Haemonetics will not remove
the Equipment or any portion thereof from any Center during the term of this
Agreement, except that Haemonetics will have the right to remove the
Equipment, or any portion thereof at its sole election, upon the occurrence
of any default by SeraCare under the terms of this Agreement.
1.5 EQUIPMENT REMOVAL - SERACARE'S COOPERATION. When the Equipment is removed
from the Center or Centers, for any reason whatsoever, SeraCare shall provide
to Haemonetics access to such Center or Centers during usual business hours
and shall provide such cooperation and assistance as may be required to carry
out the purpose and intent of this Agreement.
1.6 OWNERSHIP OF EQUIPMENT. Haemonetics retains, and will continue to retain,
absolute and exclusive ownership of, and all right, title and interest to,
the Equipment and every component thereof. SeraCare hereby expressly
acknowledges that SeraCare has and
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obtains no ownership or other right, title or interest in or to the
Equipment. SeraCare expressly acknowledges that it has no right to purchase
or otherwise acquire title to or an ownership interest in the Equipment or
any component thereof. SeraCare agrees that it will cooperate with
Haemonetics in providing notice and acknowledgement of Haemonetics' absolute
ownership of the Equipment, including allowing Haemonetics to affix labels to
the Equipment or any part, as may be practicable; providing written notice of
Haemonetics' ownership of the Equipment to any party claiming a security
interest in any assets owned by SeraCare; and filing or allowing Haemonetics
to file one or more Uniform Commercial Code financing statements in the place
or places provided for filing financial statements in the state in which the
Center is located and/or the state in which SeraCare has its principal place
of business, giving notice of Haemonetics' ownership of the Equipment, and in
such case, SeraCare agrees to execute such financing statements.
1.7 FREIGHT CHARGES. Freight charges for installing, moving, and/or returning
the Equipment shall be as follows:
(a) Installation of Equipment at any Center - Freight charges shall be
borne by Haemonetics.
(b) If Equipment is removed for any reason based upon request by
SeraCare - Freight charges shall be borne by SeraCare.
(c) If Equipment is moved between Centers, freight charges will be borne
by SeraCare.
Disposables prices below include freight.
ARTICLE 2 - PURCHASE OF DISPOSABLES
2.1 GENERALLY. SeraCare hereby agrees that it shall purchase all Disposables
used in the operation of the Equipment exclusively from Haemonetics.
2.2 TARGET BOWL UTILIZATION. Target bowl utilization rate system-wide is 5 or
greater per day, per machine (based on 5 bowls per day; 5 days per week).
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2.3 PRICE. The purchase price of the Disposables will be in accordance with
the schedule below.
TOTAL ANNUAL PLASMA PRICE (BOWLS AND HARNESSES
PROCEDURE VOLUME RESPECTIVELY)
-------------------------------------------------------------------------------
Below 200,000 $6.40 and 1.60
200,000 - 299,999 $6.30 and 1.60
300,000 - 450,000 $6.20 and 1.60
450,001 - 600,000 $6.10 and 1.60
600,001 - 800,000 $6.05 and 1.55
800,001 and over $6.00 and 1.50
Anticoagulant List Number 17204 will be provided to the following centers at
a cost of $1.05, per 250 ml. bag, plus freight charges.
Lancaster; Reading; York; Laredo; Providence
2.4 PRICE ADJUSTMENTS FOR MACHINE USAGE. The prices set forth above are
based on an average system-wide bowl utilization target rate per day of five
(5) bowls per machine per day and on the minimum number of Centers listed on
Schedule A. For any quarter in which the utilization rate is lower than 5.0,
a $.05 adjustment to the bowl price will be made to the prices above for each
0.1 bowls/per day difference from the target utilization rate.
Machine usage shall be calculated by dividing the number of
procedures/number of machines/days in the quarter. Price adjustments for
machine usage will be made quarterly and will be retroactive for the previous
quarter.
2.5 QUARTERLY AND OTHER REPORTS. SeraCare will provide to Haemonetics, at
least one month before the end of Haemonetics' quarters, a quarterly product
usage plan. SeraCare will provide Haemonetics with an update to the current
forecast monthly. SeraCare will provide Haemonetics with a yearly forecast
covering Haemonetics' fiscal year (April-March) before the prior February.
2.6 DELIVERY AND PAYMENT TERMS. Terms of Purchase for Disposables shall be
FOB truck Haemonetics' place of business in Braintree, Massachusetts or place
of pick-up within the continental United States. SeraCare shall pay the net
amount of the purchase price for all Disposables within thirty (30) days of
the invoice date.
2.7 THIRD PARTY SALES BY SERACARE. SeraCare may not sell Disposables
purchased from Haemonetics to any third parties.
ARTICLE 3 - INSTALLATION, TRAINING AND MAINTENANCE
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3.1 INSTALLATION. Haemonetics will deliver or has previously delivered the
Equipment to the Centers and will install or has installed the Equipment and
will make or has made them operational at its sole cost and expense.
3.2 INITIAL TRAINING. Coincidentally with the full conversion of a Center to
the Equipment or with the addition of a new Center, Haemonetics will schedule
a full basic training program and document said training for each fully
automated Center at a time mutually agreed to by SeraCare and Haemonetics.
3.3 REPAIR TRAINING. Haemonetics will offer quarterly regional maintenance
training programs at no cost to SeraCare at mutually agreeable times and
dates and on reasonable notice, but Haemonetics shall have no obligation for
the payment of transportation or living expenses of SeraCare'e employees to
attend such workshops.
3.4 FURTHER TRAINING. SeraCare shall reimburse Haemonetics for the cost of
transportation and lodging of Haemonetics employees for any further training
programs conducted at a Center at SeraCare's request. Such trainings shall be
scheduled at mutually convenient times and dates and upon reasonable notice.
3.5 MANUALS. At the time of the installation of the Equipment at a Center,
Haemonetics shall deliver to SeraCare a minimum of one (1) Operator's Manual
and one Service Manual per Center for the current version of the Equipment
which SeraCare shall keep at such Center.
3.6 EQUIPMENT MAINTENANCE AND REPAIR. SeraCare, at its own cost and expense,
shall keep the Equipment in good repair, condition, and working order and
shall furnish any and all labor required to keep the Equipment in good
mechanical and working order, which includes without limitation all "routine"
maintenance and repair as provided in the Basic Care and Maintenance section
of the PCS/PCS-2 Service and Maintenance Manual; provided, however, that
Haemonetics shall provide to SeraCare, at no cost to SeraCare, any additional
spare parts as, when, and to the extent that Haemonetics, in its sole
discretion, determines that further spare parts are necessary or appropriate
in keeping the Equipment operational, with the expenses of consumable spare
parts listed on Schedule C. SeraCare shall notify Haemonetics via the
Haemonetics "800 Hotline" number, as soon as reasonably possible, of any
defect in, or malfunction of, any Equipment or Disposables, and Haemonetics,
Hotline engineer will, as soon as reasonably possible, contact the Center
Manager or Center Haemonetics trained technician and direct the Center how to
perform the necessary repair, if appropriate. If appropriate, the Hotline
Engineer will schedule a service call as soon as practicable after SeraCare's
request for repair. All necessary parts for the repair should be ordered
through the "800 Hotline" number and upon receipt of such order, parts will
be delivered to the Center as soon after the request as reasonably possible.
The Center employees shall not misuse or abuse the Disposables,
Equipment or any component thereof and shall not permit any of the
Disposables, Equipment or any component thereof to be used in a manner not
conforming to the Operator's Manual and the procedures established in the
Haemonetics training program. If part or equipment failure is due to the
Center's employees, negligence, abuse, or misuse, then the Center, not
Haemonetics, will be
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responsible for part cost and expense and for the expense of repair of any
Equipment so misused or abused.
3.6 ANNUAL PREVENTIVE MAINTENANCE. Haemonetics agrees that it will perform
all non-routine maintenance and will conduct annual preventive maintenance on
the Equipment on or before the first anniversary date of the last preventive
maintenance performed, all at its sole cost and expense.
3.7 PARTS REPLACEMENT. Haemonetics will provide replacement parts at no
charge as requested by SeraCare in order to maintain product performance. All
"Returnable Spare Parts" are to be returned in accordance to procedure for
returning spare parts in Schedule C. Centers which do not return returnable
spare parts will not be able to reorder parts until previous spare parts are
returned. Replacement of the parts set forth in Schedule D shall be
considered part of routine maintenance within the meaning of this Agreement.
Replacement of all other parts shall constitute non-routine maintenance.
3.8 REIMBURSEMENT FOR DAMAGE. SeraCare agrees to reimburse Haemonetics for
the full cost of any repair to the Equipment resulting from misuse or abuse
by SeraCare. Abuse or misuse includes, but is not limited to, any damage
incurred due to maintenance not in accordance with the PCS/PCS-2 "Service and
Maintenance Manual" and the "PCS/PCS-2 Operator's Manual". SeraCare will be
responsible for damage to the Equipment resulting from the actions of
Contract Supplier employees.
ARTICLE 4 - TERM
4.1 INITIAL TERM. This Agreement supersedes and and all previous agreements
between the parties. The term of this Agreement shall commence on the date
first set forth above and shall remain in effect for three (3) years from
that date. It shall thereupon expire unless extended as provided below.
4.2 AUTOMATIC RENEWAL/TERMINATION. Upon the completion of the term of this
Agreement, this Agreement shall be automatically extended for a further six
months, unless either party has given notice to the other of its intention to
terminate the Agreement at the expiration of the then current term. To be
effective such notice shall be made as required for all notices pursuant to
this Agreement and shall be made not later than one (1) year prior to the
expiration of this Agreement. The terms and conditions of this Agreement
shall remain in effect during the extended period.
4.3 SURRENDER OF EQUIPMENT. Upon the expiration of this Agreement, SeraCare
shall surrender all Equipment and spare parts to Haemonetics, and Haemonetics
shall remove the same from the Centers, at its own cost and expense. SeraCare
will reimburse Haemonetics for the book value of any equipment or parts not
so returned.
ARTICLE 5 - DEFAULT BY SERACARE
5.1 PROCEDURE. Upon the occurrence of any event of default under this
Agreement, Haemonetics will notify SeraCare, in writing, of the default and
SeraCare will have sixty (60)
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days to cure such default. In the event the default is not cured within sixty
(60) days, Haemonetics shall have the right to terminate this Agreement and
to remove the Equipment, or any part or parts thereof, at its election,
without limiting any other rights or remedies at law or in equity that
Haemonetics may have.
5.2 EVENTS OF DEFAULT. SeraCare shall be in default hereunder upon the
occurrence of any of the following specified events:
(i) SeraCare shall fail to make any payment due from SeraCare to Haemonetics,
arising either under this Agreement or under any other Agreement with
Haemonetics, promptly when due (within 30 days of invoice) or shall fail to
keep or observe any warranty or covenant of SeraCare contained in this or any
other Agreement with Haemonetics now or hereafter existing.
(ii) Any warranty, representation, or statement by SeraCare shall have been
false in any material respect when made or furnished.
(iii) There shall occur, due to the negligence, gross negligence or
intentional misconduct of SeraCare, any material loss, theft, damage or
destruction of the Equipment or any part thereof.
(iv) SeraCare shall suspend or discontinue its business or shall become
insolvent, or a petition under any present or future bankruptcy or insolvency
law seeking liquidation, reorganization or other settlement or arrangement
with creditors shall be filed by or against SeraCare, or SeraCare shall admit
in writing its inability to its debts as they become due, or SeraCare shall
make an assignment or enter into a trust indenture for the benefit of its
creditors, or a trustee or receiver of SeraCare or of any substantial part of
SeraCare's property shall be appointed, or any petition, complaint or motion
requesting such appointment shall be filed.
(v) SeraCare shall fail to obtain United States Food and Drug Administration
approval for the operation of any Center, as equipped with the Equipment,
within one year after installation of the Equipment, or at any time
thereafter such approval shall be suspended, withdrawn or revoked. In this
case, the Agreement may be terminated as to only that Center.
(vi) SeraCare shall fail to pay in full when due any federal, state or local
tax, including taxes due from SeraCare and taxes collected by SeraCare such
as sales taxes or withholding taxes.
(vii) The United States Food and Drug Administration withdraws SeraCare's
license or plasma collection via autopheresis cannot be performed within the
approved licenses.
(viii) SeraCare sells all or substantially all of its business assets and
SeraCare agrees to notify Haemonetics of any such sale in writing three (3)
months prior to any such sale.
5.3 RIGHT TO REMOVE EQUIPMENT. Upon the occurrence of any such event of
default and at all times thereafter, Haemonetics shall have the right to take
possession of the Equipment
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with or without judicial process and has SeraCare's consent to enter, with
advance notice, each Center during regular business hours for such purpose
without any hindrance from SeraCare and without the further consent of
SeraCare. Should Haemonetics seek to take possession of any or all of the
Equipment by court process, SeraCare hereby irrevocably waives any bonds and
any surety or security relating thereof required by any statute, court rule
or otherwise as an incident to such possession and waives any demand for
possession prior to the commencement of any suit or action to recover
possession and waives the right to trial by jury with respect thereto.
Further SeraCare agrees that any claim it may have against Haemonetics shall
only be asserted by separate action pursuant to section 8.11 of this
Agreement.
If SeraCare disputes Haemonetics' determination that a default has
occurred, SeraCare's sole remedy will be to surrender the Equipment and assert
a claim in accordance with Section 8.11 hereof. In no event shall SeraCare
contest or interfere with Haemonetics' right to remove the Equipment.
5.4 LANDLORD'S WAIVER. If any Center is leased by SeraCare, then SeraCare
agrees that, if required by Haemonetics, SeraCare will attempt to obtain from
SeraCare's landlord an acknowledgment of Haemonetics' exclusive ownership of
the Equipment, a waiver of any landlord's lien or other claim against the
Equipment, and an Agreement to provide access to the Center to permit
Haemonetics to remove the Equipment in the event of any default by SeraCare
hereunder, all in form and substance reasonably acceptable to Haemonetics.
ARTICLE 6 - DEFAULT BY HAEMONETICS
6.1 PROCEDURE. Upon the occurrence of any event of default under this
Agreement, SeraCare will notify Haemonetics in writing of the default and
Haemonetics will have sixty (60) days to cure such default. In the event the
default is not cured within sixty (60) days, SeraCare shall have the right to
terminate this Agreement, in addition to any other rights or remedies at law
or in equity that SeraCare may have.
6.2 EVENTS OF DEFAULT. Haemonetics shall be in default hereunder upon the
occurrence of any of the following specified events:
(i) Haemonetics shall fail to keep or observe any warranty or covenant of
Haemonetics contained in this Agreement with SeraCare.
(ii) Any warranty, representation, or statement by Haemonetics shall have
been false in any material respect when made or furnished.
(iii) Haemonetics shall suspend or discontinue its business or shall become
insolvent, or a petition under any present or future bankruptcy or insolvency
law seeking liquidation, reorganization or other settlement or arrangement
with creditors shall be filed by or against Haemonetics, or Haemonetics shall
admit in writing its inability to pay its debts as they become due, or
Haemonetics shall make an assignment or enter into a trust indenture for the
benefit of its creditors, or a trustee or receiver of Haemonetics or of any
substantial part of
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Haemonetics' property shall be appointed, or any petition, complaint or
motion requesting such appointment shall be filed.
(iv) FDA takes any regulatory action that prohibits the manufacture, sale and
distribution of all plasma collection devices, including the PCS, PCS2 or any
new generation of plasma collection devices. Termination shall be effective
as of the date of the FDA action.
ARTICLE 7 - WARRANTIES, LIMITATION, DISCLAIMER AND WAIVER
7.1 HAEMONETICS' WARRANTY ON EQUIPMENT AND DISPOSABLES. Haemonetics warrants
to SeraCare that the Equipment, when installed, and the Disposables, when
delivered, will be free of defects in workmanship or material. Should any
failure to conform to this warranty become apparent, Haemonetics, upon
prompt written notice and compliance by SeraCare with such instructions as
Haemonetics shall give with respect to the return of defective Equipment,
shall correct such nonconformity by repair or replacement of the defective
Equipment or Disposables or, with respect to Disposables only and at
Haemonetics' sole election, may issue a credit for the value of any defective
Disposables. Correction in the manner provided above shall constitute a
fulfillment of all liabilities of Haemonetics with respect to the quality of
the Equipment and Disposables. In no event shall SeraCare be entitled to
special, incidental, punitive, consequential or other damages for any breach
by Haemonetics of any warranty or of any provision of this Agreement.
Haemonetics shall keep the Equipment free and clear of any and all
levies, liens, restrictions, and encumbrances and shall pay any and all
applicable license fees, registration fees, assessments, charges, and taxes
(municipal, state, and federal) which may now or hereafter be imposed upon
the ownership, leasing, renting, sale or possession of the Equipment,
excluding, however, all taxes on or measured by SeraCare's net income.
7.2 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES OF QUALITY WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SERACARE HEREBY WAIVES
ALL OTHER REMEDIES, WARRANTIES, GUARANTIES OR LIABILITIES, EXPRESS OR IMPLIED
INCLUDING ANY OBLIGATION OF HAEMONETICS WITH RESPECT TO FITNESS,
MERCHANTABILITY AND CONSEQUENTIAL DAMAGES, WHETHER OR NOT OCCASIONED BY
HAEMONETICS' NEGLIGENCE.
7.3 SERACARE'S WARRANTIES. SeraCare shall use the Equipment and Disposables in
a careful and proper manner and shall comply with all federal, state,
municipal, and other applicable laws, ordinances, and regulations which
relate to the possession, use, and/or maintenance of the Equipment or
Disposables. If at any time during the term hereof Haemonetics supplies
SeraCare with labels, or other markings, stating that the Equipment is owned
by Haemonetics, SeraCare shall affix and keep the same on a prominent place
on the Equipment.
SeraCare further represents and warrants to Haemonetics that SeraCare shall
keep the Equipment free and clear from any and all liens, encumbrances,
security interest or other
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restrictions. SeraCare further represents and warrants that it shall not
sell, offer for sale, transfer, assign, mortgage, sublet, hypothecate, or
otherwise dispose of the Equipment or Haemonetics' interest therein.
7.4 COMPLIANCE WITH LAWS. SeraCare and Haemonetics shall comply with all
valid, applicable, federal, state or local statutes, laws, ordinances, rules,
regulations or other governmental orders relating to the transaction
contemplated hereby.
7.5 CALCULATION OF LOSSES IN THE EVENT OF TERMINATION. If either party
terminates this Agreement as set forth in Article 5 or Article 6, the parties
shall use their best efforts to agree on an amount payable to the other
party for its damages and costs as a result of termination. If the parties
fail to agree, the matter shall be submitted to binding arbitration, pursuant
to this Agreement, for a determination of this amount. In no event shall
Haemonetics be liable for consequential damages in the event of termination.
ARTICLE 8 - MISCELLANEOUS
8.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties thereto and their respective successors and
assigns, but SeraCare shall have no right to assign this Agreement without
the prior written consent of Haemonetics which shall not be unreasonably
withheld.
8.2 INDEMNIFICATION BY HAEMONETICS. Haemonetics hereby indemnifies SeraCare
and agrees to hold SeraCare harmless from any liability to a third party or
employee of SeraCare imposed on SeraCare by reason of loss, damage or injury
suffered by such third party or employee of SeraCare resulting from
Haemonetics' negligence in the repair, manufacture or installation of the
Equipment or Disposables. Haemonetics agrees that Haemonetics will maintain
liability insurance in an amount of not less than one million dollars
($1,000,000) and will provide to SeraCare, from time to time upon request,
certificates evidencing such insurance coverage.
8.3 INDEMNIFICATION BY SERACARE. SeraCare hereby indemnifies Haemonetics
and agrees to hold Haemonetics harmless from any liability to a third party
imposed upon Haemonetics by reason of any loss, damage or injury suffered by
such third party resulting from SeraCare's negligence in the care or custody
of the Equipment or the Disposables or from SeraCare's misuse or negligent
use of the Equipment or the Disposables, or any use thereof by SeraCare not
in conformity with proper procedures as described in the Haemonetics Service
and Maintenance and/or PCS/PCS-2 Operators Manuals as amended, or from
SeraCare's repair of the Equipment. SeraCare agrees that SeraCare will
maintain liability insurance in an amount not less than one million dollars
($1,000,000) and will provide to Haemonetics, from time to time upon request,
certificates evidencing such insurance coverage.
8.4 INSURANCE. Haemonetics will maintain at its sole cost and expense its
own insurance for loss, theft, vandalism and fire occurring to or causing
damage to the Equipment or any part thereof during the term of this Agreement
as it may hereafter be extended. SeraCare agrees to give notice promptly to
Haemonetics of any event which could give rise to any claim
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by Haemonetics under any such policy of insurance maintained by it. SeraCare
shall have no right to or under any such policy of insurance or any claim
made by Haemonetics thereunder. In the event of any casualty loss to the
Equipment or any part thereof, is deemed Haemonetics responsibility, and
Haemonetics shall make every reasonable effort to replace the Equipment with
a Unit of equal value; however, it shall not be under any obligation to
replace the Equipment. In the event any Equipment is lost, stolen or damaged
by the elements and is not promptly replaced by Haemonetics, SeraCare's
obligations under this Agreement shall terminate as to such Equipment unless
the loss, theft or damage to the Equipment was caused by SeraCare's
negligence, gross negligence, or intentional misconduct. In the event that
any Equipment is lost, stolen or damaged as a result of SeraCare's
negligence, gross negligence, or intentional misconduct, SeraCare will pay to
Haemonetics the book value at the time of the loss, damage or theft of the
Equipment.
8.5 CONFIDENTIALITY. SeraCare acknowledges that the terms and provisions
hereof, including without limitation, the prices of Disposables sold by
Haemonetics hereunder, are confidential and SeraCare agrees not to disclose
this contract or any term or condition thereof to any person except as
required by law. SeraCare agrees to treat this Agreement with confidentiality
and to make the contents thereof known only to those employees who, by the
nature of their jobs, are required to have such knowledge. This provision
shall not be deemed to constitute an agreement by SeraCare not to seek and
obtain review of this Agreement by SeraCare's legal counsel. In addition, in
connection with the negotiation or performance of this Agreement, SeraCare
and Haemonetics may obtain proprietary information of the other party.
SeraCare and Haemonetics agree to maintain as confidential any information of
the other party so obtained which is either specifically designated as
confidential or which a reasonable person would understand to be confidential.
8.6 NO WAIVER. None of the terms of this Agreement shall be deemed to be
waived by any party unless such waiver is in writing duly executed by the
party to be charged with such waiver and such writing recites specifically
that it is a waiver of the terms of this Agreement. The waiver by either
party of any breach of any Agreement, warranty or covenant contained in this
Agreement shall not be construed to act as a waiver of any subsequent breach.
The failure or delay of either party to exercise any right, power or remedy
shall not operate as a waiver thereof, and all rights, powers and remedies
shall continue in full force and effect. All rights, powers and remedies of
both parties provided for in this Agreement are cumulative and non-exclusive,
except as otherwise expressly provided.
8.7 NO INVALIDITY. Unenforceability or invalidity of any one or more
provision hereof shall not render any other provision herein contained
unenforceable or invalid.
8.8 ENTIRE AGREEMENT/AMENDMENTS. This Agreement constitutes the entire
agreement between the parties relating to the subject matter herein and all
prior proposals, understandings, course of conduct and writings by and
between the parties and relating to the subject matter herein. None of the
terms of this Agreement shall be deemed to be amended unless such amendment
is in writing and duly executed by all parties to this Agreement and such
writing specifically states that it is an amendment to this Agreement.
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8.9 NOTICES. Any notices required to be sent by one party to the other
pursuant to the terms of this Agreement and any request made by SeraCare
shall be effective only if such notice or request is in writing, duly
delivered to the other party. Such written notice or request shall be deemed
to be duly delivered if delivered in person or sent by telegram, telex or
facsimile transmission or sent by registered mail, as follows:
If to Haemonetics
XXX XXXXXX
VICE PRESIDENT, COMMERCIAL PLASMA
Haemonetics Corporation
000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
cc: Xxxx Xxxxx
Corporate VP and General Counsel
Haemonetics Corporation
000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
If to SeraCare
XXXXX XXXXX
SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
8.10 CHOICE OF LAW. This Agreement shall be governed as to interpretation,
validity, effect, enforceability and all other substantive or procedural
matters by the laws of the Commonwealth of Massachusetts.
8.11 ARBITRATION. Any claim or dispute concerning questions of law or fact
arising out of, or relating to, this Agreement or any alleged breach thereof
which is not disposed of by Agreement of the parties, including without
limitation any claim concerning the interpretation or validity of this
agreement, upon written demand of one of the parties, shall be determined,
solely and exclusively, by a single arbitrator sitting in accordance with the
Rules of Commercial Arbitration of the American Arbitration Association then
in force at its office in Boston, Massachusetts. If the parties cannot agree
upon a single arbitrator within ten (10) days after demand by either of them
for arbitration, then each party shall select one arbitrator from a list of
arbitrators supplied by the American Arbitration Association. The two
arbitrators so selected shall then choose a third arbitrator in order that
the dispute may be finally resolved by a majority of the panel of three
arbitrators so selected. The decision of award of the arbitrator or
arbitrators shall be final and binding unless determined by a court of
competent jurisdiction to have been fraudulent, capricious, arbitrary or so
grossly erroneous
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as to imply bad faith. Judgment shall be entered in a court of competent
jurisdiction. The expense of the arbitration shall be shared equally by the
parties, unless the arbitration award states that the expense shall be
otherwise assessed. Any such arbitration shall take place in Boston,
Massachusetts. Notwithstanding the foregoing, in the event both parties hereto
are named as defendants by an arms length third party plaintiff asserting a
claim against both Haemonetics and SeraCare, then and in such event, either
Haemonetics or SeraCare may seek the resolution of their respective indemnity
rights and obligations under Sections 8.2 and 8.3, arising from such claim in
said proceedings.
In no event shall Haemonetics' right to remove the Equipment described
above be prevented by or conditional upon the pendency or resolution of any
arbitration pending pursuant to this Agreement or any award resulting
therefrom. The issue of removal or Haemonetics' right of removal of the
Equipment shall be non-arbitrable in any event. In any conflict between the
provisions of this section and the provisions of Section 5.4, the provisions
of Section 5.4 shall control.
8.12 ATTORNEYS' FEES. In the event of arbitration or litigation arising out
of or in connection with this Agreement, each party shall bear its own
attorneys' fees and costs therein incurred, unless otherwise determined by
the arbitrator(s) or court.
8.13 FORCE MAJEURE EVENTS. Failure of either party to perform its
obligations under this Agreement shall not subject such party to any liability
to the other party if such failure is caused by any cause beyond the
reasonable control of such nonperforming party, including, but not limited
to, acts of God, fire, explosion, flood, drought, war, riot, sabotage,
embargo, strikes or other labor trouble or a national health emergency.
8.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The provisions relating to
the return of the Equipment, confidentiality, indemnity, and dispute
resolution shall survive the termination of this Agreement.
8.15 PURCHASE ORDERS. In the event of a conflict between the provisions of
any purchase order submitted hereunder and the terms of this Agreement, then
the terms of this Agreement shall prevail.
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IN WITNESS WHEREOF, the parties have caused this Equipment and Supplies
Agreement to be executed and delivered by their respective duly authorized
officers on the day and year first above written.
SERACARE, INC.
By /s/ Xxxxx Xxxxx Date 3/12/99
----------------------- ---------------
Xxxxx Xxxxx
Chairman, President and CEO
HAEMONETICS CORPORATION
By /s/ Xxx Xxxxxx Date 3/8/99
----------------------- ---------------
XXX XXXXXX
VP, COMMERCIAL PLASMA
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LIST OF OMITTED SCHEDULES
The following Schedules to the Equipment and Supplies Agreement between
Haemonetics Corporation and SeraCare, Inc. dated December 9, 1998, have been
omitted from this Exhibit and shall be furnished supplementally to the
Commission upon request:
Schedule A Automated Centers
Schedule B List of Repair Spare Parts
Schedule C Consumable Spare Parts and Spare Parts Return Guidelines
Schedule D Replacement of Parts Deemed Routine Maintenance and Haemonetics
Machine Transfer Policy
Schedule E No Schedule E (intentionally left blank)
Schedule F Haemonetics Commercial Plasma Center Monthly Report
