EXHIBIT 10.8
GENERAL BUSINESS: 000-000-0000
FAX: 000-000-0000
[LOGO] XXXXX XXXXXX INC.
000 XXXXXX XXXX
XXXXXXXX, XXX XXXX 00000
THIS AGREEMENT is entered into this 30th day of May, 1997, by and between Xxxxxx
Technologies, Inc. ('SUPPLIER') and Xxxxx Xxxxxx, Inc., its subsidiaries and
affiliates, (collectively, 'HSI') for the production, packaging and distribution
of medical devices and other goods and services as set forth in the attachments
to this AGREEMENT, to be sold to healthcare professionals labeled under the
[LOGO] Xxxxx Xxxxxx Brand, or other brand names specified by HSI ('PRODUCTS').
1. GENERAL SUPPLIER REQUIREMENTS
1.1 SUPPLIER will manufacture, label and supply for HSI, PRODUCTS. SUPPLIER hereby declares and
will provide any required Declaration of Conformity that the PRODUCTS meet all required
design and quality standards agreed upon by HSI and SUPPLIER and all such standards necessary
to legally market the PRODUCTS in all countries where HSI may elect to market and sell the
PRODUCTS.
1.1.1 Attached to this AGREEMENT are specifications and pricing for each of the PRODUCTS. The
parties anticipate that a number of additional PRODUCTS may be supplied under this AGREEMENT
and in accordance therewith, the parties will add attachments for each PRODUCT in a format
similar to the attachment labeled 'example'. Any modifications to this AGREEMENT or any
attachment must be made in writing, signed by each party and, in accordance with this
AGREEMENT.
1.2 SUPPLIER will provide technical product labeling information consistent with SUPPLIER's
regulatory filings and sufficient for safe and effective use of the PRODUCTS in accordance
with their intended use. PRODUCT'S labeling will be reviewed and approved, by SUPPLIER and by
HSI.
1.3 SUPPLIER will ensure that the PRODUCTS, including all labeling and packaging, comply fully
with applicable United States Food and Drug Administration Regulations, United States
Environmental Protection Agency Regulations, The European Community Medical Devices Directive
(MDD), International Standards Organization (ISO) Standards, and any and all other applicable
laws, rules, regulations and standards for each market covered by this AGREEMENT. SUPPLIER
shall indemnify and defend HSI for any failure to so comply. SUPPLIER agrees to complete all
applicable registrations required by any government agency. In the event SUPPLIER fails to
comply with any laws, regulations or standards noted above, SUPPLIER will be responsible for
any fines and or penalties levied upon HSI as a result of such failure to comply, and will
immediately indemnify HSI. SUPPLIER will also sign the attached Continuing Guaranty and
Indemnification.
1.3.1 SUPPLIER will provide to HSI any documents required to comply with the MDD or other
applicable regulations. Specifically, SUPPLIER will provide HSI as required by the MDD with
Summary Technical Documentation, including risk analysis information, Essential Requirements,
Summary Device Specifications and Certificate of Conformity. SUPPLIER will provide HSI with
notice of any recalls. SUPPLIER will also sign the attached Agreement of Compliance with
Medical Device Directives. SUPPLIER will provide HSI, on request, copies of release tests and
certificates of conformance for any lot or serial number of PRODUCT.
1.4 SUPPLIER will warranty the PRODUCTS against any defect in material and
workmanship. SUPPLIER will make no changes to the PRODUCTS quality or
specifications without the written consent of HSI. SUPPLIER at its sole cost
and expense will immediately replace defective PRODUCTS upon notice from
HSI. SUPPLIER agrees to compensate HSI for any necessary recall of the
PRODUCTS. SUPPLIER will also provide adequate explanation of the change and
revise any literature as required.
1.5 SUPPLIER will maintain not less than $1,000,000.00 of occurrence liability
insurance (valid in the United States and other countries where the products
are to be sold) covering the PRODUCTS to be supplied under this AGREEMENT
and shall supply HSI with certificates evidencing such coverage and shall
co-name HSI, its subsidiaries and affiliates as an additional named insured
on the occurrence liability policy. SUPPLIER will provide HSI with a copy of
insurance certificate before shipping the PRODUCTS under this AGREEMENT.
1.6 SUPPLIER represents and warrants that SUPPLIER has all necessary right and
title to all equipment, technologies and intellectual property (patents,
trademarks and trade secrets) required to make the PRODUCTS and sell the
PRODUCTS to HSI. SUPPLIER will defend any claim that the PRODUCTS infringe
any patent or other intellectual property right of any third party and will
indemnify and hold HSI harmless from any claim that the PRODUCTS infringe
any patent or other intellectual property right of any third party.
1.7 SUPPLIER will (if required) provide HSI with proof of federal, state and
foreign registrations and regulatory compliance for the PRODUCTS, prior to
the delivery of PRODUCTS to any HSI facility.
1.8 SUPPLIER will not produce or sell to third parties any products packaged
with the Schein name or any other HSI trademark, or otherwise in a way that
they might be confused with the PRODUCTS.
1.9 SUPPLIER agrees that neither SUPPLIER nor SUPPLIER'S subcontractors will
engage in illegal, discriminatory, or exploitative business practices.
2. TERM
2.1 The 'Initial Term' of this AGREEMENT commences on the date of this AGREEMENT
and terminates twelve (12) months later. The provisions of this AGREEMENT
shall be automatically renewed for additional one-year terms ('Renewal
Term'), with the first such Renewal Term to begin at the end of the Initial
Term for so long as HSI purchases at least 500 PRODUCT systems per year. If
either party wishes to terminate this agreement for cause, they shall give
the other party at least 180 days notice, during which period the other
party shall have an opportunity to cure.
3. PRICING
3.1 SUPPLIER agrees that HSI's acquisition costs for PRODUCTS shall not be
increased during the first year of the Initial Term.
3.2 SUPPLIER agrees to provide the PRODUCTS to HSI at the lowest cost offered to
any third party for substantially the same PRODUCTS in equal or smaller
quantities. Accordingly, SUPPLIER agrees to provide PRODUCTS to HSI at
prices as set forth on the attachments covering each PRODUCT purchased by
HSI from SUPPLIER. Should SUPPLIER decrease the price to any third party for
similiar quantities of substantially the same PRODUCTS, below the prices
shown in this AGREEMENT; SUPPLIER agrees to immediately offer these lower
prices to HSI.
3.3 SUPPLIER agrees to provide any proposed change to HSI's acquisition cost, in
writing, 90 days prior to the end of the Initial Term and each Renewal Term
to determine how a change in HSI's acquisition cost is to be implemented. In
any case, no cost increases will be implemented except with HSI's written
consent and with adequate notice in respect of HSI's catalog printing
cycles.
3.4 SUPPLIER agrees to keep HSI competitive to relative market acquisition costs
of like PRODUCTS. If Products with like features and of like quality become
available in the market at less than the acquisition cost set forth in
attachments to this AGREEMENT and HSI has performed acceptable 'Due
Diligence' on the PRODUCTS features and net pricing of the new, as compared
to the existing PRODUCTS, then the SUPPLIER will reduce acquisition cost on
all undelivered PRODUCTS to keep HSI competitive in the market. If SUPPLIER
will not so reduce prices, HSI may acquire the PRODUCT from any third party
who can legally supply the PRODUCT. In such event, neither HSI nor SUPPLIER
shall bear any further obligation with regard to future acquisition of the
PRODUCT.
4. SUPPLIER MARKETING SUPPORT
4.1 SUPPLIER agrees to provide promotional funding, marketing support, product
samples and rebates as the parties mutually agree are appropriate to
increase sales of the PRODUCT.
5. ORDERS
5.1 Orders under this AGREEMENT may be placed by any authorized HSI purchasing
activity. No changes will be made to the PRODUCTS or the terms of this
AGREEMENT without a written modification of this AGREEMENT approved by The
Director of the Business Development Unit or the Executive Vice President of
HSI.
5.2 SUPPLIER agrees to deliver PRODUCTS on demand within the lead times shown on
the attachments to this AGREEMENT. SUPPLIER's failure to meet these delivery
requirements will be deemed sufficient cause for HSI to cancel this
AGREEMENT or, at HSI's option, to source PRODUCTS from an alternative
manufacturer, on a temporary or permanent basis.
5.3 On established products, with such frequency as SUPPLIER reasonable
requests, HSI will provide a non-binding, rolling 12 month forecast of
purchase requirements of PRODUCTS to SUPPLIER. For newly introduced
products, a three month period will be necessary to learn patterns of
demand.
5.4 SUPPLIER will provide only [logo]Xxxxx Xxxxxx Brand product under this
AGREEMENT. If Xxxxx Xxxxxx allows SUPPLIER to temporarily ship the
SUPPLIER'S brand instead of the [logo]Xxxxx Xxxxxx Brand, SUPPLIER will
permit Xxxxx Xxxxxx to return for credit any unsold SUPPLIER brand product.
In no event, should SUPPLIER make such a substitution except with Xxxxx
Xxxxxx'x express written approval. Substitution for international sale will
not be possible. SUPPLIER will manage packaging inventory to have adequate
stocks while limiting inventory to the extent feasible to allow for labeling
change as HSI adds operations in other countries.
6. SHIPMENT AND PAYMENT TERMS
6.1 SUPPLIER will provide all shipments on an FOB origin basis. SUPPLIER will
ship PRODUCTS as directed by HSI. SUPPLIER will use any preferred carrier
which HSI specifies.
6.2 HSI will pay for PRODUCT in U.S. Dollars on payment terms of net 30 days
from the date of invoice. No invoice should be issued prior to shipment.
7. TECHNICAL SUPPORT
7.1 As the parties reasonably agree, SUPPLIER, at its expense, will provide HSI
with technical support on all PRODUCTS by offering appropriate literature,
training including on-site training at agreed upon HSI facilities, and other
technical support as is reasonable for the PRODUCTS.
8. OTHER MATTERS
8.1 In additionn to any other indemnity provisions contained herein, SUPPLIER
agrees to indemnify HSI against and defend and hold harmless HSI from any
and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties, reasonable attorneys fees and expenses, asserted
against, resulting to or representation, warranty, covenant or agreement
SUPPLIER contained in or made pursuant to this AGREEMENT or (ii) any
negligent or wrongful act or omission of SUPPLIER or its employees.
8.2 In addition to any other indemnity provisions contained herein, HSI agrees
to indemnify SUPPLIER against and defend and hold harmless SUPPLIER from any
and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties, reasonable attorneys fees and expenses, asserted
against, resulting to or imposed upon or incurred by SUPPLIER directly or
indirectly, by reason of or resulting from (i) a breach of any AGREEMENT or
(ii) any negligent or wrongful act or omission of HSI or its employees.
8.3 Any and all notices, requests, demands, consents, approvals or other
communications required or permitted to be given under any provision of this
AGREEMENT shall be in writing and shall be deemed given upon personal
delivery or the mailing by first class certified mail, return receipt
requested, postage prepaid, as follows:
If to HSI regarding any price or quality change:
Clearly identify the HSI item code for any item for which a change is proposed,
the current price and the proposed price. Xxxx the words PRICE CHANGE or QUALITY
CHANGE, as appropriate, in letters at least 1' high and send to Director - BDU,
and Product Data Management Group - Purchasing at Xxxxx Xxxxxx at the following
addresses:
Xxxxx Xxxxxx, Inc.
Attention: Director, BDU
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx, Inc.
Attention: Product Data
Management Group
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
and any authorized
HSI purchasing activity
other than XXX Xxxxxxxx
purchasing PRODUCTS
under this AGREEMENT.
If to HSI regarding any other matter:
Xxxxx Xxxxxx, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, General Counsel
If to Supplier:
Xxxxxx Technologies, Inc.
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Any party may change its address for the purposes of this AGREEMENT by notice to
the other parties given as aforesaid.
8.4 Each party acknowledges that it has read this AGREEMENT, fully understands
it, and agrees to be bound by its terms and further agrees that it is the
complete and exclusive statement of the AGREEMENT between the parties, which
supersedes and merges all prior proposals, understandings and all other
agreements, oral and written, between the parties relating to the subject
matter of this AGREEMENT. This AGREEMENT cannot be modified or altered
except by a written instrument duly executed by authorized executive
officers of both parties.
8.5 The SUPPLIER shall keep this AGREEMENT and its terms strictly confidential,
and will not provide this AGREEMENT or disclose its terms to any third
party. SUPPLIER will not use this AGREEMENT in any lawsuit or proceeeding
for any purpose, except, if necessary, to enforce this AGREEMENT. The
SUPPLIER will use its best efforts to insure that their accountants and
lawyers will keep this AGREEMENT and its terms strictly confidential.
8.6 This AGREEMENT may not be assigned by SUPPLIER unless substantially all of
the assets of SUPPLIER are transferred by merger, acquisition,
consolidation, or operation of law. In this event, SUPPLIER will notify HSI
in writing and HSI will have the right to terminate this AGREEMENT upon 30
days notice to SUPPLIER with no further obligation to SUPPLIER. Any assignee
of this AGREEMENT will continue to be bound by the terms of the AGREEMENT
and the Continuing Guaranty.
8.7 This AGREEMENT shall be governed by the laws of the State of New York excluding its principles of conflicts
of laws.
8.8 No delay or omission by either party hereto to exercise any right or power hereunder shall impair such
right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the
covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach thereof or of any other covenant herein contained. All remedies provided for in this
AGREEMENT shall be cumulative and in addition to and not in lieu of any other remedies available to either
party at law, in equity or otherwise.
8.9 If any provision of this AGREEMENT is declared or found to be illegal, unenforceable, or void, then both
parties shall be relieved of all obligations arising under such provision, but only to the extent that such
provision is illegal, unenforceable, or void, it being the intent and agreement of the parties that this
AGREEMENT shall be deemed amended by modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by substituting therefor another
provision that is legal and enforceable and achieves the same objective.
8.10 The provisions set forth in Attachment A are incorporated herein by reference and made a part hereof. In
the event any portion of Attachment A is in conflict with any other clause elsewhere contained in the
Agreement, then the terms of Attachment A shall prevail.
ACCEPTED AND AGREED TO:
Xxxxxx Technologies, Inc. Xxxxx Xxxxxx, Inc.
SUPPLIER
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxxx Xxxxxx
Name Name
President, CEO Director, Business Development Unit
Title Title
