Exhibit 10.54
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT is made effective as of December 21,2004 (the "Effective
Date") between BriteSmile, Inc., a Utah corporation with its principal office at
000 Xxxxx Xxxxx Xxxx, Xxxxxx Xxxxx, XX 00000 ("Buyer") and Oraceutical, LLC, a
Delaware limited liability company with its principal office at 8 00 Xxxxxxxx
Xxxxxx, Xxx, XX 0 123 8 ("Supplier").
IN CONSIDERATION OF the mutual promises and covenants herein contained, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. SCOPE OF AGREEMENT
1.1. Product Schedule. The Associated Center Procedure Kits and BriteSmile
Center Procedure Kits, and, when required, individual Kit componentry,
(the "Products") are to be supplied by Supplier and purchased by Buyer
for its BriteSmile Centers, Associated Centers, and International
Distributors hereunder and are listed in the attached Schedule A,
together with the applicable pricing and Specifications. Schedule A
may be amended to add, modify or delete Products, or to modify
pricing, Specifications or other related terms, by mutual written
agreement of the parties. In such event, the parties shall execute a
modified Schedule A or an addendum thereto, which shall be attached to
and become part of this Agreement.
1.2. Term. Unless earlier terminated in accordance with its terms, this
Agreement (a) is effective from the Effective Date and continues for an
initial term of five (5) years; and (b) shall automatically renew for
additional consecutive one (1) year periods, subject to termination as
set forth in Section 9. The initial term and all renewal terms are
collectively referred to as the "Term".
1.3. Purchase of Products by BriteSmile Centers and Associated Centers.
Buyer shall have the right to purchase, and Supplier agrees to supply
directly to Buyer, BriteSmile Centers, Associated Centers, or
International Distributors the Products at the Prices, and other terms
of this Agreement as specified in this Agreement.
2. DEFINITIONS
In addition to other terms defined in this Agreement, the following
terms, when the first letter is capitalized, have the meanings set
forth in this Section 2 (Definitions).
2.1. "Agreement" means this Supply Agreement, including all schedules and
exhibits to this Agreement as may be amended from time to time in
accordance with this Agreement.
2.2. "Associated Centers" means independent dental offices known as
BriteSmile Associated Centers who are authorized by Buyer to provide
BriteSmile Procedures to their patients and customers.
2.3. "BriteSmile Center" means a spa-style retail business establishment
using the BriteSmile brand name that provides only BriteSmile
Procedures and related approved products and merchandise to consumers.
2.4. "BriteSmile Procedure" means a teeth whitening procedure using Buyer's
authorized light activated teeth whitening system and materials, as
authorized by Buyer's policies as in effect from time to time.
2.5. "Buyer Property" means all property, including without limitation,
designs, drawings, processes, documentation, models, tools, equipment,
fixtures, appurtenances, testing materials, devices and other tangible
or intangible materials or property, owned by or licensed to Buyer and
which is furnished to Supplier.
2.6. "Delivery Date" means the particular date each Product must be
delivered to the Delivery Location, as specified on a Sales Order or as
otherwise agreed by the parties in writing.
2.7. "International Distributor" means a distributor who supplies the
BriteSmile whitening system and the AC Procedure Kits to dental
professionals located outside of the US.
2.8. "Prices" means the prices to be charged by Supplier to Buyer for each
Product, as specified in Schedule A, as may be revised from time to
time in accordance with this Agreement.
2.9. "Product" means each item listed in Schedule A, including any
applicable Specifications.
2.10. "Purchase Order" means a binding commitment by Buyer to purchase a
specified quantity of Products. Such specified quantity will be drawn
down by placement of Sales Orders by Buyer.
2.11. "Sales Order" means a binding commitment by Buyer to have Supplier
release and ship a specified quantity of Products pursuant to a
Purchase Order issued by Buyer in accordance with this Agreement.
2.12. "Specifications" means the technical and functional requirements for
the Products, as referenced in or attached to Schedule A and Exhibit 1,
as may be amended from time to time by mutual written agreement of the
parties.
3. PRODUCT PURCHASES
3.1. General. Subject to the terms and conditions of this Agreement,
Supplier shall supply, and Buyer shall purchase, Products at the
applicable Prices.
3.2. Purchase Orders. Buyer shall purchase Products by issuing Purchase
Orders to Supplier on a quarterly basis, stating the number of
Product(s) it plans to purchase over the next 180 days. Each quarterly
Purchase Order issued will take into account any adjustment in the
number of required Product(s) based on the actual Product(s) sold by
Buyer in the prior quarter. Purchase Orders shall be governed by the
terms of this Agreement.
3.3. Sales Orders. Sales Orders shall be issued in writing pursuant to a
Purchase Order, by mail or facsimile, or by electronic means as the
parties may from time to time agree. Sales Orders provided verbally are
not binding unless and until confirmed in writing as described in this
Section. Sales Orders shall be governed by the terms of this Agreement.
3.4. Order Acceptance. All Sales Orders shall be deemed to be accepted by
Supplier within 24 hours after Supplier's receipt of such Sales Orders.
Supplier shall not unreasonably withhold acceptance of a Sales Order.
Any denial of a Sales Order shall be delivered in writing to Buyer and
shall specify the reasons for the denial.
3.5. Purchase of Buyer's Existing Inventory. At Buyer's option, exercisable
within thirty (30) days of the Effective Date of this Agreement, Buyer
may sell and ship to Supplier, and Supplier shall purchase, at cost,
Buyer's existing inventory of supplies and components for the Products.
3.6. Initial Inventory Order. The parties acknowledge that prior to the date
of this Agreement, Buyer, on behalf of Supplier, placed an Inventory
Order for certain supplies and components to make the Products (the
"Inventory Order"). Upon execution of this Agreement, Buyer shall
direct shipment of the Inventory Order to Supplier, and Supplier agrees
to pay for the purchase of the Inventory Order.
4. PACKAGING, SHIPPING AND DELIVERY REQUIREMENTS
4.1. Packaging. Supplier shall at its cost, package, label and handle all
Products so as to protect them from reasonable loss or damage during
shipment and while in storage, and shall comply with other related
Buyer requirements as may be noted in Buyer's specifications. Supplier
shall at its cost provide all packaging and labeling material. Supplier
shall ensure at its cost that each shipment of Product is accompanied
by a packing slip that indicates, at minimum, Product description,
number of units, and the applicable Purchase Order and Sales Order
numbers, and shall comply with other related Buyer requirements as may
be noted in the Purchase Order and Sales Order.
4.2. Shipping Requirements. Supplier shall ship the Products to the delivery
location specified on the Sales Order in a manner ensuring that the
Products are delivered by the Delivery Date. Supplier shall comply with
the shipping, carrier and transportation instructions specified by
Buyer as may be agreed upon in a Sales Order. If Supplier ships
Products by means other than as specified by Buyer in a Sales Order,
Supplier shall pay for any resulting increase in the cost of freight.
Where Buyer does not provide shipping, carrier and transportation
instructions, Supplier shall select the best available carrier and
means of transportation on a commercially reasonable basis.
4.3. Delivery Date. Delivery Dates for Products shall be as specified on
each Sales Order, unless otherwise mutually agreed in writing. Supplier
shall use commercially reasonable efforts to accept and comply with all
Delivery Dates and quantities requested by Buyer.
4.4. Title and Risk of Loss. All Products shipped by Supplier pursuant to
this Agreement shall be FOB Lee, Massachusetts, with all risk of loss
or damage to the Products passing to Buyer upon delivery to the
carrier. Buyer shall be responsible for insuring Products against loss
or damage during shipment.
5. PRICES, INVOICING AND PAYMENT TERMS
5.1. Prices. All Prices shall be as set out in Schedule A, subject to
modification as set forth in Schedule A and in Section 5.4 below.
5.2. Invoicing and Payment. At the end of each week (or other such period
of time as may be agreed upon by the parties) during which shipments
of the particular Products are made pursuant to a Sales Order,
Supplier shall issue an invoice. All invoices shall reference the
associated Purchase Order and Sales Order numbers. Payment shall be
net thirty (30) days following the date of the invoice, less one and
one-half percent (1.5%) if received by Supplier within ten (10) days
of the date of the invoice. Notwithstanding the foregoing, Buyer shall
have no obligation to pay for Products shown on the invoice but that
have been returned to Supplier for failure to conform to Product
specifications.
5.3. Sales Taxes and Duties. Buyer is responsible for taxes and charges
imposed on Buyer by any level of government or taxing authority with
jurisdiction over Buyer at the delivery location specified in the
applicable Sales Order as a result of Buyer's purchase of Products
hereunder, excluding, however, all taxes computed upon the net income
or gains of Supplier. Buyer shall not be responsible for paying any
other taxes or charges in addition to the Prices, unless Buyer has
previously agreed in writing to pay such additional taxes or charges.
5.4. Business and Price Reviews. From time to time during the Term, Buyer
and Supplier shall, when either Buyer or Supplier requests, meet (by
telephone, videoconference or in person) to discuss Supplier's
performance, Prices and other issues relating to this Agreement,
including but not limited to, Supplier's performance with regard to
technology, quality, responsiveness, delivery and Prices. If,
following such a meeting, despite good faith negotiation between the
parties, Supplier fails to provide competitive pricing for a Product
or if Supplier has failed to comply with previously agreed targets,
then Buyer may, with thirty (30) days prior written notice to Supplier
setting out details of the failure, cancel this Agreement.
5.5. Priority of Supply. In the event of a Supplier capacity shortage with
respect to the Products for any reason, other than a failure of Buyer
to notify Supplier sufficiently in advance of an increase in demand for
Products, Supplier shall promptly inform Buyer of the reasons for and
the anticipated duration of the capacity shortage. Buyer shall be
relieved of any liability or obligation to purchase or take delivery of
any Products that Supplier cannot provide during a capacity shortage.
If Supplier's delay or nonperformance as a result of such a capacity
shortage continues for a period of more than thirty (30) days, Buyer
may immediately terminate, at no charge or liability to Supplier, the
Agreement.
6. QUALITY ASSURANCE
6.1. Quality System. If Supplier does not already have an IS0 9000 or
equivalent quality program, Supplier shall use best commercial efforts
to implement a quality system that meets IS0 9000 or equivalent no
later than six (6) months following the Effective Date of this
Agreement.
6.2. Quality System and Other Audits. Buyer may, on a quarterly basis with
at least five (5) business days prior written notice to Supplier, and
with Supplier's full cooperation, enter upon Supplier's facilities, to
review, inspect, test and to conduct audits of Supplier's operations,
plant and facilities to ensure compliance with the terms of this
Section 6, including without limitation to ensure that Supplier has
established and maintains a quality system, plant and facilities
acceptable to Buyer and that Supplier is otherwise in compliance with
its obligations under this Section 6.
6.3. Supplier Corrective Action. Where problems or deficiencies are
identified as provided for in this Section 6 (Quality Assurance),
Buyer may issue Supplier Corrective Action Requests ("SCAR) to
Supplier. Supplier shall promptly reply to a SCAR, and take immediate
corrective action acceptable to Buyer to prevent the recurrence of any
and all deficiencies or problems identified in such SCAR. To the
extent the SCAR relates to a Product, including without limitation a
problem or deficiency affecting Product quality, performance or
reliability, Buyer shall have the right to reject, and Supplier shall
at Buyer's request suspend, all further shipments of the affected
Product, without any penalty, charge or liability to be paid by Buyer
to Supplier, until the problems identified in the SCAR are corrected.
Where Supplier fails to take the appropriate corrective action as
identified in a SCAR within what Buyer, in its sole discretion, deems
to be a commercially reasonable period of time, Buyer may, at its
option, upon thirty (30) days prior written notice, either remove the
affected Product from this Agreement or terminate the Agreement,
without any penalty, charge or liability imposed upon Buyer,
notwithstanding any other term or provision hereof.
6.4. Supplier Tests. Supplier shall perform all commercially reasonable test
and inspection procedures, as well as those tests and inspections
reasonably required by Buyer, in connection with the Product.
7. WARRANTIES, SUPPORT AND INDEMNITIES
7.1. Product Warranty. Supplier warrants to Buyer for one (1) year from the
date Products are shipped to the delivery location specified by Buyer
("Warranty Period), that the Products are free from defects in design,
material and workmanship, by fully conforming to and performing in
accordance with the Specifications. Products not meeting such
warranties ("Defective Products") may be returned and Supplier shall,
promptly (a) replace the Defective Product at no cost to Buyer or (b)
issue a full credit for all amounts paid in connection with such
Defective Product. All Products replaced under warranty shall be
warranted for the remainder of the unused warranty term or for six (6)
months from shipment, whichever is longer.
7.2. Limitation of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS
OR WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY
OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS OR THEIR
CONDITION OR USE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR PARTICULAR
PURPOSE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE.
7.3. Indemnification for Third Party Claims. Supplier shall defend,
indemnify and hold harmless Buyer and its affiliates, successors,
permitted assigns, respective officers, directors, stockholders, and
employees, from and against, any loss, liability, claim, action, suit,
damage and expense (other than special, incidental, consequential or
punitive damages but including legal fees and expenses) (herein
"Damages") arising out of (i) any breach of any representation,
warranty or covenant made by Supplier hereunder; (ii) any gross
negligence on the part of Supplier or its employees, agents or other
contractors with respect to Product; and (iii) all personal injury
(including death) andlor property damage resulting from the improper
manufacture, processing, packaging, storage or handling of Product by
Supplier prior to delivery to Buyer or Buyer's designee.
Notwithstanding the preceding sentence, Supplier shall have no
obligation to defend, indemnify or hold hannless with respect to any
Damages caused in whole or in part by Products that are in compliance
with Buyer's Product Specifications.
Buyer shall defend, indemnify and hold harmless Supplier and its
affiliates, successors, permitted assigns, respective officers,
directors, stockholders, partners and employees, from and against all
Damages arising out of (i) any breach of any representation, warranty
or covenant made by the Buyer hereunder; (ii) any gross negligence on
the part of the Buyer or its employees, agents or other contractors
with respect to Product; (iii) all personal injury (including death)
and/or property damage resulting from the maintenance, handling or use
of Product after delivery to Buyer or Buyer's designee; and or (iv)
Products that are in compliance with Buyer's Product Specifications.
7.4. Consequential Damages. EXCEPT FOR SUPPLIER'S OBLIGATIONS UNDER SECTION
10.5 OR A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS PURSUANT TO
THIS AGREEMENT, IN NO EVENT SHALL A PARTY, ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, SUBCONTRACTORS OR OTHER REPRESENTATIVES BE LIABLE
TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR
INDIRECTCOSTS, EXPENSES OR DAMAGES. NOTWITHSTANDING ANY OTHER
PROVISION OF AGREEMENT, THE PARTIES AGREE THAT THEIR LIABILITIES UNDER
THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR ANY
OTHER LEGAL THEORY SHALL BE LIMITED TO DIRECT DAMAGES. DIRECT DAMAGES
SHALL BE IN LIEU OF ALL OTHER REMEDIES THAT EITHER PARTY MAY HAVE
AGAINST THE OTHER PARTY.
8. INSURANCE Supplier shall maintain during the Term, and, upon Buyer's
request, shall furnish Buyer with proof of the existence of, insurance
coverage of Supplier for comprehensive general liability insurance with
third party liability coverage protecting Buyer against all claims,
losses, costs, expenses and liabilities due to bodily injury, personal
injury (including death) and property damage, including coverage for
Supplier's contractual liabilities, of not less than Two Million U.S.
Dollars ($2,000;000).
9. EVENTS OF DEFAULT AND TERMINATION
9.1. Termination for Cause. A party may terminate this Agreement or remove
the affected Product from this Agreement: (a) in the event of a default
by the other party of any material obligation in this Agreement,
effective sixty (60) days after written notice of such default is
received by the party in default and provided that the party in default
has not remedied the default during such sixty (60) day notice period
to the non-breaching party's reasonable satisfaction.
9.2. Termination for Convenience by Buyer. Buyer may, at any time, upon
giving Supplier at least ninety (90) days prior written notice,
terminate this Agreement for convenience.
9.3. Termination for Convenience by Supplier. Supplier may, at any time,
upon giving Buyer at least one hundred eighty (1 80) days prior written
notice, terminate this Agreement for convenience. The parties agree
that the extended notice period for termination for convenience by
Supplier is necessary and appropriate due to the difficulty of finding
alternative manufacturers for the Products.
9.4. Effect of Termination. Upon termination of this Agreement, the parties
shall remain liable for any outstanding Purchase Orders and Sales
Orders, except that Buyer may cancel outstanding Sales Orders for
quality-related problems pursuant to the applicable terrns elsewhere
in this Agreement. Additionally, within sixty (30) days of termination
Buyer shall purchase from Supplier, and Supplier shall sell to Buyer,
at cost (including any freight, warehousing, and handling expenses),
all of Supplier's existing inventory of Products, including all
components used in the production and shipment of said Products, in
Supplier's possession or control, upon written notice to Supplier
within thirty (30) days, provided that (i) Buyer shall not be
obligated to purchase more than the amount reasonably anticipated to
be necessary to hlfill its needs in accordance with Purchase Orders;
and (ii) Buyer shall not be obligated to buy Products for which there
have been quality-related problems that were not resolved prior to
termination.
9.5. Survival. Notwithstanding the expiration or termination of this
Agreement, the following provisions shall each survive in accordance
with their terms: Section 2 (Definitions), Section 7 (Warranties,
Support, and Indemnities), and Section 10 (Miscellaneous Provisions).
10. MISCELLANEOUS
10.1. Mediation. In the event, despite good faith attempts, the parties are
not able to resolve a dispute under this Agreement within thirty (30)
days of a party first notifying the other of the issue giving rise to
the dispute, or such longer period of time as the parties may mutually
agree, either party may, by issuing a notice to the other party,
initially seek to settle such dispute by non-binding mediation,
provided that mediation proceedings may not be instituted until ten
(10) business days after delivery of a written notice of mediation and
where the other party has not remedied the matter within said time
period. Mediation will be conducted with a mutually agreeable
independent mediator. Both parties shall share equally all costs of
such mediation proceedings, except that each party shall bear its own
costs of its attorneys and witness fees and for the preparation for
such proceedings. This Section shall not preclude either party from
applying to any court of competent jurisdiction for preliminary or
interim equitable relief in connection with this Agreement.
10.2. Assignment. Neither party shall assign any right or interest under
this Agreement (excepting solely for moneys due or to become due)
without the prior written consent of the other party, except that
either party may assign this Agreement to any direct or indirect
successor to the business of the assigning party as the result of any
internal reorganization, merger, consolidation, acquisition,
divestiture, or similar event, provided that the assignee agrees to be
bound by the terms and conditions of this Agreement. Supplier shall be
responsible to Buyer for all work performed by Supplier's
subcontractors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their successors and permitted
assigns.
10.3. Conflicts or Inconsistencies. Unless otherwise expressly stated, if
there is any conflict or inconsistency between the main body of this
Agreement or any Schedules to or Sales Orders issued pursuant to this
Agreement, the order of precedence of interpretation, to the extent of
such conflict or inconsistency, shall be as follows: (a) the main body
of this Agreement, (b) Schedules, (c) Sales Order, except that a Sales
Order may override the terms of this Agreement if both parties
expressly agree in writing that it is intended to do so, and (d)
Purchase Orders.
10.4. Entire Agreement. This Agreement, including the Schedules, which are
attached hereto and incorporated herein by reference, comprises all the
terms, conditions and agreements of the parties hereto with respect to
the subject matter herein. This Agreement cancels and supersedes all
prior agreements and communications on the said subject matter. This
Agreement may not be varied except through a document agreed to and
signed by both parties.
10.5. Force Majeure. Neither party shall be held responsible for any delay
or failure in performance of any part of this Agreement to the extent
such delay or failure is caused by fire, flood, strike, civil,
governmental or military authority, act of God beyond its control
(collectively "Force Majeure") and without the fault or negligence of
the delayed or nonconforming party or its subcontractors. Supplier's
liability for loss or damage to Buyer Property, if any, in Supplier's
possession or control shall not be modified by this Section 10.5. When
a party's delay or nonperformance as a result of such Force Majeure
continues for a period of at least thirty (30) days, the other party
may immediately terminate, at no charge or liability to the other,
this Agreement, any outstanding Sales Order.
10.6. Governing Law. This Agreement is governed by and construed in
accordance with the applicable laws of the State of Utah and the United
States of America without regard to any conflict of laws principles.
The parties expressly agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Agreement or to transactions processed under this Agreement.
10.7. Notice. Unless otherwise expressly agreed in writing, any notice,
consent or other document required to be sent pursuant to this
Agreement shall be in writing and shall be deemed to be validly given
by the delivery thereof to its recipient, either personally, by
registered mail, prepaid mail, prepaid courier or, where a facsimile
number is provided, by facsimile transmission. Notices shall be sent to
the following:
For Buyer: For Supplier:
BriteSmile, Inc Oraceutical LLC
000 Xxxxx Xxxxx Xxxx 8 00 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX Xxx, XX 00000
Attn: Xxxx Xxx Attn: R. Xxxx Xxxxxxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
Legal notices only, copied to:
Durham Xxxxx & Xxxxxxx Banner & Witcoff, LTD
11 0 Xxxx Xxxxxxxx, Xxxxx 000 00 Xxxxx Xxxxxx, 00" Xxxxx
Xxxx Xxxx Xxxx, Xxxx 84 1 1 1 Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx Attn: Xxxxx XxXxxxxxx
Fax: (000) 000-0000 Fax: (0 00) 000-0000
Any written notice is deemed to have been received: (a) if sent by
personal delivery, registered mail or prepaid courier, at the time of
its delivery; (b) if sent by prepaid mail, on the fifth (5th) business
day following its sending; or (c) if transmitted by facsimile
transmission or other electronic means as may be permitted by this
Agreement or otherwise mutually agreed, on the first business day
following successful transmission of the facsimile or other electronic
communication, as may beu demonstrated by the sender's records. To be
valid, any legal notice issued by facsimile transmission must be
confirmed by prepaid courier.
10.8. Ownership. Nothing in this Agreement is intended to convey any right,
title or interest in any Buyer Property that may be provided to
Supplier by Buyer from time to time. Supplier shall return all Buyer
Property to Buyer upon Buyer's request. In exchange for the
consideration provided to Supplier hereunder Buyer shall have free
title to, and all ownership interest in, the Products and related
material delivered (except for software in which case Buyer is hereby
granted a license) hereunder.
10.9. Relationship. The relationship between Buyer and Supplier is intended
to be and shall be that of buyer and seller. A party and its employees,
agents and representatives shall under no circumstances be considered
agents, partners, parties to a joint venture or representatives of the
other party. Neither party shall act or attempt to act, or represent
itself, directly or by implication as agent, party to a joint venture
with the other party, partner or representative of the other, or in any
manner assume or attempt to assume or create any obligation or
liability of any kind, express or implied, on behalf of, or in the name
of, the other.
10.10. Unenforceability of Provisions. Each section and provision of this
Agreement is severable from the Agreement and if one paragraph or
provision is declared invalid, the remaining sections and provisions
shall nevertheless remain in full force and effect and the parties
shall, in good faith, negotiate an appropriate amendment to the
Agreement to replace the invalid provision. If the parties shall fail
to agree upon an appropriate amendment, then this Agreement shall be
construed (a) as if such invalid or unenforceable provision or part
thereof had been effectively modified to the extent necessary to avoid
the illegality or unenforceability of such provision, if possible, and
if not, then (b) as if such invalid or unenforceable provision or part
thereof had not been contained herein.
10.11. Waiver. No party shall be deemed to have waived the exercise of any
right that it holds under this Agreement or at law unless such waiver
is expressly made in writing. Failure of a party at any time, and for
any length of time, to require performance by the other party of any
obligation under this Agreement shall in no event affect the right to
require performance of that obligation or the right to claim remedies
for breach under the Agreement or at law. A waiver by a party of any
breach of any provision of this Agreement, unless otherwise expressly
stated in writing, is not to be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver or
modification of the provision itself, or a waiver or modification of
any right under this Agreement or at law.
10.12. Counterparts/Facsimile Signatures. This Agreement may be signed by
manual or facsimile signature in several counterparts of like form,
each of which when so executed shall be deemed to be an original and
such counterparts together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
BRITESMILE, INC. ORACEUTICAL, L.L.C.
By: /s/ Xxxx Xxx By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxx Name: Xxxx Xxxxxxxxxx
Title: Title:
Date: Date:
SCHEDULE A
LIST OF PRODUCTS AND PRICES
Product Price
Universal Procedure Kit with Gel
Universal Procedure Kit without Gel (for International)
Procedure Gel Single Syringe, Labeled
Procedure Gel Single Syringe, Unlabeled
Procedure Gel - 5 Pack
Procedure Gel - 6 Pack
Barrier Material Syringe
Masking Cream Syringe
Universal Procedure Kits shall be provided in a single pack, 5-packs, or in a
size configuration requested by BriteSmile.
Specifications:
The Procedure Kits shall be manufactured using the brand name components
specified in the attached Exhibit 1, Procedure Kit Xxxx of Materials. Supplier
shall not change any components unless agreed to in writing by Buyer. If a
specified component becomes unavailable from the designated source, Buyer may
specify a replacement component, subject to an increase in pricing for the
applicable Procedure Kits if the replacement increases Supplier's costs, which
may be passed through to Buyer.
Pricing
Prices are net 30 1 less 1.5% for net 00, XXX Xxx, XX.
Prices may be adjusted on an annual basis during the term of this Agreement,
provided however that any annual increase in price shall not exceed 2%. If there
is an increase or decrease in componentry costs, such change will be reflected
in the price.
First Addendum to Supply Agreement
This First Addendum to the Supply Agreement, dated December 21,2004 between
BriteSmile, Inc., a Utah Corporation with its principal office at 000 X. Xxxxx
Xxxx, Xxxxxx Xxxxx, XX 00000 (Buyer) and Oraceutical, LLC, a Delaware limited
liability company with its principal office at 8 00 Xxxxxxxx Xxxxxx, Xxx, XX
00000 (Supplier) is made effective as of February 1st, 2005.
1. Buyer agrees to make a prepaid deposit with Supplier in an amount equal
to thirty-five percent (35%) of the total value of the initial 6-month
Purchase Order that was placed by Buyer on January 24", 2005. This
equates to $339,818, or 35% of $970,908.15.
2. To facilitate and support Supplier, Buyer has transferred to Supplier
pre-purchased inventory in the amount of $257,402, which will be
deducted from the prepaid deposit. Buyer's cash contribution towards
the prepaid deposit shall be in the amount of $82,416, which shall be
paid to Supplier within 3 business days of execution of this addendum.
3. Buyer shall apply the prepaid deposit of $339,818 as a credit against
Supplier invoices for shipments made by Supplier, starting with
shipments made on and after June 1st , 2005. Buyer shall continue to
apply this prepaid deposit as credit until such amount is exhausted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
BRITESMILE, INC. ORACEUTICAL, L.L.C.
By: /s/ Xxxx Xxx By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxx Name: Xxxx Xxxxxxxxxx
Title: Title:
Date: Date:
Second Addendum to Supply Agreement
This Second Addendum to the Supply Agreement, dated December 21,2004 between
Inc., a Utah Corporation with its principal office at 000 X. Xxxxx Xxxx, Xxxxxx
Xxxxx, XX 00000 ("Buyer") and Oraceutical, LLC, a Delaware limited liability
company with its principal office at 8 00 Xxxxxxxx Xxxxxx, Xxx, XX 0 8
(Supplier) is made effective as of May 16, 2005
1. From the effective date until December 31st, 2005, ("Initial
Consolidation Term"), agrees to pay Supplier a weekly fee of $4,250 for
Supplier's consolidation services ("Consolidation Fee"), as defined in
Schedule A. The Consolidation Fee shall cover any and all related costs
associated with Supplier's consolidation services, including but not
limited to, the costs of warehouse space, management and
administration, labor and handling, and incidental supplies. The
Consolidation Fee shall be paid to Supplier ten (10) days of the date
of each weekly invoice.
2. Within thirty (30) days after the conclusion of the Initial
Consolidation Term, Buyer and Supplier agree to renegotiate in good
faith the Consolidation Fee based on the actual number of
consolidations performed by Supplier during said period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
BRITESMILE, INC. ORACEUTICAL, L.L.C.
By: /s/ Xxxx Xxx By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxx Name: Xxxx Xxxxxxxxxx
Title: Title:
Date: Date:
Schedule A: Definition of Consolidation
For the purpose of determining the number of weekly consolidations performed by
Supplier, the chart below provides a definition and examples of what is and is
not considered a consolidation:
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CONSOLIDATION NOT CONSOLIDATION
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DEFINITION o Multiple stocking units packed o Single stocking units that do not have to
---------- together to form as few shipping units as be packed together to form fewer shipping
possible units
o Combination of different cases of o Multiple stocking units going to a
products packed into a master carton destination that need to be palletized
o The effort to combine an order into o Any time a shipping label can be affixed
the most economical number of shipping directly to a stocking unit box and shipped
units
o Any palletization of stocking units
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EXAMPLES o Five pack of procedure kits plus five o Single five pack KT1616-5
-------- pack of gel
o Note: this example of a consolidation o Single case of toothpaste R0004
is no longer necessary, given
that the procedure kit and gel o Single case of Mouthwash R0009
have been consolidated into one
kit o Multiple stocking units for a Center that
require palletization
o Single procedure kit plus separate gel
syringe o International orders for stocking units
that require palletization
o Internet orders that require
consolidation o Shipments of product to Walnut Creek that
require palletization such as procedure kits,
o International orders that require gels, componentry.
combining stocking units into fewer
shipping units o Internet orders that do not require
consolidation
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