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EXHIBIT 10(X)
DIAGNOSTIC DISTRIBUTORSHIP AGREEMENT
This Agreement, entered into on this 20th day of September, 1996, by and
between:
ORION DIAGNOSTICA, INC.
X.X. Xxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
a corporation organized under the laws of the State of New York hereinafter
referred to as SUPPLIER; and
NEOGEN CORPORATION
000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
XXX
hereinafter referred to as DISTRIBUTOR.
W I T N E S S E T H
WHEREAS, SUPPLIER manufactures foodborne bacteria diagnostic products and
desires to sell its products through a distributor; and
WHEREAS, DISTRIBUTOR desires to purchase the SUPPLIER'S foodborne bacteria
diagnostic products for resale to end users; and
WHEREAS, the parties desire to enter into a distributorship agreement
governing their relationship;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. PRODUCT
1.1 Products: The products covered by this Agreement are those products
and accessories set forth and attached hereto in Exhibit A ("Products"),
together with the parts and components necessary for the repair and replacement
thereof.
Exhibit A may be amended from time to time by mutual written consent of
the parties.
1.2 Product Modifications: SUPPLIER shall make available for sale to
DISTRIBUTOR any improved or updated version of the products by notice to
DISTRIBUTOR (which notice shall include all of the same type of information and
level of detail as set forth on Exhibit A hereto, proposed manufacturing and
delivery
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schedules, proposed pricing and minimum annual volumes and, to the
extent available, working prototypes, clinical data, and documented test
results). DISTRIBUTOR shall have sixty (60) days from the receipt of such
notice to notify SUPPLIER that it has accepted such product modification as a
product subject to the terms and conditions hereof. If DISTRIBUTOR fails to so
accept the product modification, SUPPLIER shall not be bound by the terms of
this agreement with respect to such product modification, and SUPPLIER shall be
free to sell the product modification, without limitation of prices and
quantities with respect to which the prices are equal or greater to those
proposed to DISTRIBUTOR for the quantities involved in such sales, but not at
lesser prices unless SUPPLIER re-offers such product modification, to
DISTRIBUTOR at such price pursuant to the terms hereof and DISTRIBUTOR fails to
so accept such product modification, at such price.
1.3 Shelf Life: SUPPLIER represents and warrants that all products with a
limited shelf life will have a minimum four and one-half (4-1/2) months
remaining shelf life at date of shipment.
2. DISTRIBUTORSHIP AND TERRITORY
2.1 Exclusivity: SUPPLIER hereby grants to DISTRIBUTOR, and DISTRIBUTOR
accepts, the non-exclusive right for three (3) months after execution of this
agreement and the exclusive right thereafter to sell, distribute, and service
the products in the food and industrial market for the term of and pursuant to
the conditions of this agreement.
2.2 Territory: The territory in which the DISTRIBUTOR has the exclusive
right to sell and distribute shall be the United States. Distributor shall
also have non-exclusive rights to distribute Products in Canada and South and
Central America, in countries mutually agreed upon in writing.
3. ORDERS; VOLUME
3.1 Orders: DISTRIBUTOR shall make purchases by submitting firm purchase
orders to SUPPLIER.
3.2 Volume: DISTRIBUTOR'S twelve (12) month projected purchase volume is
________________ tests. DISTRIBUTOR agrees to purchase and SUPPLIER agrees to
supply and ship products at a rate consistent with this projected volume.
4. SHIPPING AND DELIVERY
4.1 Shipping: SUPPLIER shall ship all products F.O.B. Somerset, New
Jersey. SUPPLIER will ship all Products for which it has received a firm
purchase order within thirty (30) days of order receipt. The parties agree
that time is of the essence regarding delivery of Products.
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5. PRICE AND PAYMENT TERMS
5.1(a) Initial Price: The initial price for the products shall be as set
forth on Exhibit A attached hereto and made a part hereof, and shall remain in
effect for at least one (1) year from the date hereof. Such prices and any
subsequent prices shall not exceed prices offered by SUPPLIER to any other
distributor or purchaser for similar quantities of the products sold on no less
favorable terms and conditions, and DISTRIBUTOR shall enjoy the benefits of any
discounts that SUPPLIER offers to its other customers for prompt payment or
otherwise.
5.1(b) Subsequent Prices: No less than ninety (90) days prior to the end
of the one (1) year period described above for any product (and each subsequent
such period), SUPPLIER and DISTRIBUTOR agree to meet and to negotiate in good
faith the prices for the product for the succeeding one (1) year period. If
the parties are unable to reach an agreement prior to the commencement of the
subsequent one (1) year period, the price for the product shall be the prices
then currently in effect. However, once agreement is reached on a new price,
all units purchased during the subsequent one (1) year period will be
re-invoiced at the agreed upon price. The price negotiations between the
parties shall take into consideration the current market conditions effecting
the sale of the products and the rate of inflation as determined in reference
to the United States Department of Labor, Bureau of Labor Statistics, Producer
Price Index, and the exchange rate between the U.S. and Finland currencies.
Those components relating to the allocation or re-allocation of overhead,
overtime (whether authorized or not), debt service due to refinancing of plant
and equipment, and any other items of cost or expense not directly related to
the production of the products shall be excluded from the negotiations of the
products' prices.
5.2 Payment Terms: Payment terms shall be full amount due 30 days from
date of invoice.
6. PACKAGING
6.1 Packaging: SUPPLIER will supply products in sizes and packaging
configurations corresponding to those set forth in Exhibit A. SUPPLIER will
print lot numbers conspicuously on both outer shipping cartons and on inner
packs. SUPPLIER will print expiration date conspicuously on both outer
shipping cartons and on inner units of dated products.
7. TERMS AND TERMINATION
7.1 Terms: The term of this Agreement shall be for three (3) years,
commencing on date first shown on page one of this Agreement. The term with
respect to each product shall automatically renew for additional periods of one
(1) year each unless either party shall notify the other to the contrary by the
date ninety (90) days prior to the end of the initial term or ninety (90) days
prior to the end of any renewal term with respect to such product or until such
later date as the parties may otherwise
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agree in writing.
7.2 Termination: Notwithstanding the foregoing, this Agreement may be
terminated for cause at any time as follows:
a. In the event of default or material breach of the terms of
this Agreement by either party, written notice may be given to the
defaulting party. Thereafter, the defaulting party shall have
thirty (30) days to cure said breach. In the event that said breach
has not been cured within said thirty (30) day period, this
Agreement shall terminate on the thirtieth (30th) day following the
notice of default.
b. In the event of nationalization, expropriation, liquidation
or bankruptcy of, or an assignment for the benefit of creditors of,
or a declaration of insolvency by, either party.
c. Notwithstanding the Term specified in Section 7.1 above,
Supplier shall have the right to terminate or convert this agreement
to a non-exclusive agreement upon prior written notice within thirty
(30) days after the first anniversary date of this agreement if
purchases do not equal or exceed 4,000 boxes for the first year; or
within thirty (30) days after the second anniversary if purchases do
not equal or exceed 8,000 boxes for the second year.
8. WARRANTIES, INDEMNITY, AND RECALL
8.1 Warranties: SUPPLIER warrants that the Products will conform to the
specifications set forth in product literature and Exhibit A and that they will
be merchantable and fit for their intended purpose.
8.2 Indemnity: SUPPLIER will indemnify and hold DISTRIBUTOR harmless from
any and all claims, actions, costs, expenses or damages, including attorney's
fees and expenses, resulting from any actual or alleged patent infringement in
the use or sale of the products. Warranties otherwise arising in connection
with the sale or use of the products where such liability results from the act
or omission of SUPPLIER shall be limited to the free replacement of the
product(s) in question. Such indemnity shall not apply if claims arise solely
as a result of the DISTRIBUTOR'S making representations about the Products
which are inconsistent with the warranties and representations of the SUPPLIER.
8.3 Recall: In the event of a confirmed Product failure, or a recall
ordered by a government agency, SUPPLIER agrees to reimburse DISTRIBUTOR for
all recall Products including shipping.
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9. TRADEMARKS
9.1 Trademark License: SUPPLIER hereby reserves the
exclusive right to SUPPLIER'S trademarks.
10. MISCELLANEOUS
10.1 Force Majeure: No failure or omission by the parties hereto in the
performance of any obligations of this Agreement shall be deemed a breach of
this Agreement nor create any liability if the same shall arise from any cause
or causes beyond the control of the parties, including, but not limited to, the
following, which, for the purpose of this Agreement shall be regarded as beyond
the control of the parties in question: act of God, acts or omissions of any
government or any rules, regulations or orders of any governmental authority or
any officer, department, agency or instrumentality thereof; fire, storm, flood,
earthquake, insurrection, riot, invasion or strikes. The affected party shall
use its best efforts to remedy the effects of such force majeure. Any force
majeures shall not excuse performance by the party, but shall postpone
performance, unless such force majeure continues more than ninety (90) days.
In such event, the other party may cancel its obligations hereunder.
10.2 Assignment: Neither party may assign this Agreement without the
prior written consent of the other party.
10.3 Notices: Any notice required or permitted to be given under the
terms of this Agreement shall be in writing, shall be given manually or by mail
or telegram.
10.4 Entire Agreement: This Agreement, including exhibits constitutes the
entire Agreement between the parties relating to the subject matter hereof and
cancels and supersedes all prior agreements and understandings, whether written
or oral, between the parties with respect to such subject matter.
10.5 Modifications, Waiver: This Agreement may not be modified orally and
no modification or any claimed waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom enforcement of
such modification or waiver is sought.
10.6 Relationship of the Parties: This Agreement does not constitute
either party the agent or legal representative of the other for any purpose
whatsoever.
10.7 This Agreement shall be construed and enforced in accordance with the
Laws of the State of Michigan, USA.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives:
SUPPLIER DISTRIBUTOR
By:____________________________ By:___________________________
Title:_________________________ Title:________________________
Date:__________________________ Date:_________________________
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EXHIBIT A
PACKAGE PRICE TO
PRODUCT CONFIGURATION DISTRIBUTOR*
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*Prices are FOB Somerset, New Jersey, USA.
Funds to be paid in currency of the United States
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