EXHIBIT 10.8
CID SUPPLY AGREEMENT
THIS CID SUPPLY AGREEMENT, effective as of the 15th day of
December, 1997 (the "Effective Date"), is between THERMO VISION
CORPORATION, a Delaware corporation having offices at 0X Xxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000, Telecopy No. 000-000-0000
("Thermo Vision") and THERMO OPTEK CORPORATION, a Delaware
corporation having offices at 0X Xxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000, Telecopy No. 000-000-0000 ("Thermo Optek")
regarding the supply by Thermo Vision of certain products to be
purchased by Thermo Optek and its affiliates.
NOW, THEREFORE, in consideration of the mutual promises,
terms and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Thermo Vision and Thermo Optek (the
"Parties") do hereby agree as follows:
For the purposes of this Agreement, an "Affiliate" of a
Party means an individual or business entity controlling,
controlled by or under common control with such Party, with
control meaning a 50% or more ownership interest.
1. Thermo Vision's Supply of Products.
(a) Thermo Vision hereby agrees to sell the Products to
Thermo Optek and its Affiliates, in accordance with the terms and
conditions of this Agreement. Subject to Paragraph 1(g)(ii)
hereof, Thermo Vision agrees not to sell the Products to any
other party which manufactures optical spectrometers of the types
manufactured by Thermo Optek. "Products" means all charge
injection devices ("CID") sensors manufactured by or on behalf of
Thermo Vision for:
(i)optical spectrometers, including without limitation
ICP, ICP-MS, AA and Arc-Spark; or
(ii)raman spectrometers and other analytical
instruments, if after the Effective Date but during the
term of this Agreement Thermo Vision and Thermo Optek
(A) enter into a research, development and supply
agreement with respect to raman spectrometers or other
analytical instruments; and (B) agree on pricing for
such raman spectrometers or other analytical
instruments.
(b) The Products shall also be deemed to include any
modifications or improvements to the CID sensors described above
which Thermo Vision or asubsidiary of Thermo Vision may develop
or manufacture, or cause to be developed or manufactured, during
the term of this Agreement, provided, however, that all such
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modifications and improvements shall have been approved by Thermo
Optek prior to inclusion in the CID sensors in order to insure
compatibility with Thermo Optek applications.
(c) As soon as practicable after the Effective Date, Thermo
Optek shall provide to Thermo Vision a non-binding forecast for
the next 12 calendar months of the anticipated requirements of
Thermo Optek and its Affiliates for the Products and indicating
the likely delivery dates to be requested. Thermo Optek shall
update this forecast each calendar quarter on a rolling basis.
(d) Thermo Optek and its Affiliates shall thereafter from
time to time place firm orders with Thermo Vision at least 6
months before the requested delivery date by the transmittal to
Thermo Vision of written orders on Thermo Optek's regular
purchase order forms, which shall be deemed accepted upon Thermo
Vision's written acceptance thereof. Such purchase orders shall
identify the Products ordered, the quantities ordered, requested
delivery date(s) and any export information required to enable
Thermo Vision to fill the order.
(e) Unless Thermo Optek or its Affiliate requests
otherwise, all Products ordered shall be packed for shipment and
storage in accordance with Thermo Vision's standard commercial
practices. It is the obligation of Thermo Optek or such
Affiliate to notify Thermo Vision and obtain Thermo Vision's
consent to any special packaging requirements (which shall be at
the expense of Thermo Optek or such Affiliate). The terms and
conditions of this Paragraph 1(e) shall be reviewed by the
Parties on an annual basis and are subject to change based on the
mutual agreement of the Parties.
(f) In the event of any discrepancy between any purchase
order and this Agreement, the terms of this Agreement shall
govern.
(g) During the term of this Agreement, Thermo Optek
shall purchase all of its requirements of Products from Thermo
Vision, and Thermo Optek shall cause all of its Affiliates to
purchase all of their requirements of Products from Thermo
Vision; provided, however that:
(i) Thermo Optek and its Affiliates shall have the
right to make a Product themselves (using their own or
third-party technology) or purchase a Product from a third party,
if: (A) Thermo Vision does not accept a firm order placed by
Thermo Optek or such Affiliate for such Product with a requested
delivery date at least 6 months after the date on which Thermo
Optek or such Affiliate placed such order; or (B) such Product
previously delivered by Thermo Vision was repeatedly found not to
conform to the agreed-upon specifications for such Product,or
Thermo Vision repeatedly and materially failed to deliver such
Product on or before the requested delivery dates (unless such
failure is due to causes beyond Thermo Vision's control) and
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(ii) Thermo Vision shall have the right to sell a
Product to a third party for use in such third party's optical
spectrometers, raman spectrometers or other analytical
instruments (the "Third Party Instruments") if: (A) as of the
Effective Date hereof, Thermo Optek (1) is not using such Product
in its optical spectrometers, raman spectrometers or other
analytical instruments, respectively, which are similar to the
Third Party Instruments, or (2) does not offer optical
spectrometers, raman spectrometers or other analytical
instruments, respectively, which are similar to the Third Party
Instruments, (B) prior to the execution by Thermo Vision of an
agreement to sell such Product to such third party (the "Third
Party Agreement"), Thermo Vision provides written notice to
Thermo Optek setting forth the material terms and conditions of
the Third Party Agreement, including without limitation, the
price per Product, the quantity of Product to be sold and the
term of the Third Party Agreement (the "Third Party Notice") and
(C) within 30 days after receipt by Thermo Optek of the Third
Party Notice, Thermo Vision has not received from Thermo Optek
Thermo Optek's written agreement to purchase such Product from
Thermo Vision for use in Thermo Optek's optical spectrometers,
raman spectrometers or other analytical instruments, as the case
may be, on substantially the same terms as those contained in the
Third Party Agreement. By way of illustration and assuming all
other conditions set forth in Paragraph 1(g)(ii) are satisfied,
Thermo Vision shall be permitted to sell a Product to a third
party for use in such third party's raman spectrometers if Thermo
Optek purchases such Product from Thermo Vision solely for use in
Thermo Optek's optical spectrometers and other analytical
instruments.
2. Compensation for Supply.
(a) For each Product purchased by Thermo Optek or one of
its Affiliates hereunder, Thermo Vision shall be paid the price
indicated in Schedule A hereto. The price of each such Product
shall be reviewed by the Parties on an annual basis and is
subject to adjustment based on the mutual agreement of the
Parties. With respect to modifications or improvements to CID
sensors which are included in the definition of Products in
accordance with Paragraph 1(b) above, Thermo Vision shall
establish a price for each such new Product which is reasonable
in light of the manufacturing cost and performance of such new
Product relative to the most closely related existing Product.
For each Product purchased by Affiliates of Thermo Optek
hereunder, such Affiliates and Thermo Optek shall be jointly and
severally liable for the payment of the price of such Product to
Thermo Vision.
(b) Each payment for Products shall be made by check in
good funds to the order of Thermo Vision or its Affiliates, and
shall be delivered to Thermo Visionwithin thirty (30) days after
the receipt by Thermo Optek or its respective Affiliate of Thermo
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Vision's invoice for such payment.
0.Xxxxxxxx and Warehousing.
(a) All deliveries of Products shall be ex works the place
of manufacture of such Products. It shall be the responsibility
of Thermo Optek or its respective Affiliate to arrange and pay
for all transportation, insurance and other charges incurred
after Thermo Vision's tender of the Products at such location.
(b) Upon agreement of the Parties and payment of any of
Thermo Vision's expenses therefor, the Products may be delivered
to Thermo Vision's warehouse facility for storage. Thermo Optek
shall thereupon pay such storage and handling fees as are within
the customary industry practice.
(c) The terms and conditions of Paragraphs 3(a) and (b)
shall be reviewed by the Parties on an annual basis and are
subject to change based on the mutual agreement of the Parties.
(d) Thermo Vision shall be responsible for preparing
invoices and shipping documents for Thermo Optek or its
respective Affiliate in respect of Products purchased hereunder;
provided, however, that Thermo Vision shall submit its invoice
for Products no earlier than the date on which Thermo Vision (i)
makes such Products available to a common carrier for pick up at
such Product's place of manufacture or (ii) delivers such
Products to Thermo Vision's warehouse facility for storage
pursuant to the agreement of the Parties.
(e) Thermo Vision agrees to use reasonable efforts to meet
the requested delivery dates set forth in accepted purchase
orders, but does not warrant that any specified delivery date
will be met. Thermo Vision assumes no responsibility or liability
for any loss or damage incurred by Thermo Optek or its Affiliates
by reason of a delay in a requested delivery date, inability to
ship or any of the reasons set forth in Paragraph 5 below.
4. Passage of Title. Beneficial ownership of, title and risk
of loss to the Products shall pass to Thermo Optek or its
Affiliates, as the case may be, when such Products are picked up
by a common carrier at the Product's place of manufacture or
delivered to Thermo Vision's warehouse facility for storage
pursuant to the agreement of the Parties. The terms and
conditions of this Paragraph 4 shall be reviewed by the Parties
on an annual basis and are subject to change based on the mutual
agreement of the Parties.
5. Force Majeure. Except for obligations of payment, each
Party shall be excused for any delay or failure to fulfill any of
their respective obligations under thisAgreement if such failure
or delay is caused by any circumstances or event beyond the
reasonable control of the Party, including without limitation any
act of God, accident, explosion, fire, storm, earthquake, flood,
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drought, peril of the sea, riot, embargo, war or foreign,
federal, state, provincial or municipal order of general
application, seizure, requisition or allocation, any failure or
delay of transportation, shortage of or inability to obtain
supplies, equipment, fuel or labor.
6. Product Warranty and Limitations on Liability.
(a) Thermo Vision warrants that upon delivery the Products
will conform to the specifications which the Parties agree to in
writing from time to time (the "Specifications"); provided,
however, that Thermo Vision shall not be liable for any losses of
Thermo Optek that arise due to misuse or mishandling of the
Products, as reasonably determined by Thermo Vision. Thermo
Vision's sole obligation with respect to claims of
non-conformance made by Thermo Optek or its Affiliates shall be,
at Thermo Vision's sole discretion, to either: (i) remedy the
non-conformance by repair or replacement; or (ii) refund of the
price paid for the Products involved. Any claims by Thermo Optek
or its Affiliates under this warranty with respect to Products
must be made to Thermo Vision in writing within 6 months after
Thermo Vision tenders such Products or delivers such Products to
Thermo Vision's warehouse facility for storage pursuant to the
agreement of the Parties, as the case may be. The terms and
conditions of this Paragraphs 6(a) shall be reviewed by the
Parties on an annual basis and are subject to change based on the
mutual agreement of the Parties.
(b) EXCEPT AS STATED ABOVE, THERMO VISION DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR
ORAL, WITH RESPECT TO THE PRODUCTS, INCLUDING ALL WARRANTIES OF
TITLE AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(c) EXCEPT FOR PRODUCT LIABILITY CLAIMS BROUGHT BY
UNAFFILIATED THIRD PARTIES WHICH ARISE FROM THE PRODUCTS NOT
CONFORMING TO THE SPECIFICATIONS, THERMO VISION'S LIABILITY FOR
DAMAGES TO THERMO OPTEK OR ITS AFFILIATES FOR ANY CAUSE
WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL
NOT EXCEED THE PRICE PAID BY THERMO OPTEK OR ITS AFFILIATE FOR
THE PRODUCT INVOLVED.
(d) THERMO VISION SHALL IN NO EVENT BE LIABLE TO THERMO
OPTEK OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF
PROFITS, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE USE,
MANUFACTURE OR SALE OF THE PRODUCTS.
7. Confidentiality. Each Party acknowledges and agrees that in
the course of its performance of this Agreement confidential
technology, trade secrets or other proprietary information
relating to the development, manufacture and sale of the Products
(hereinafter "Confidential Information") may be made known or
made available to the other party. Accordingly, during and after
the term of this Agreement, each Party hereby represents and
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agrees to the following:
(a) that each Party (the "disclosing Party") has a
proprietary interest in its own Confidential Information. During
and after the term of this Agreement, all disclosures by the
disclosing Party of its Confidential Information to the other
Party (the "receiving Party"), its agents and employees shall be
held in strict confidence by the receiving Party, which shall
disclose such Confidential Information only to those of its
agents and employees to whom it is necessary in order to properly
carry out their duties as limited by the terms and conditions
hereof. During and after the term of this Agreement, the
receiving Party shall not use the Confidential Information of the
disclosing Party except for the purposes of the receiving Party
exercising its rights and carrying out its duties hereunder. The
provision of this Paragraph 7 shall also apply to any
sublicensees, consultants or subcontractors during and after the
term of this Agreement, that the receiving Party may sublicense
or engage in connection with this Agreement. Each receiving
Party shall take necessary steps to ensure that its employees
respect the terms of this Paragraph 7.
(b) that notwithstanding anything contained in this
Agreement to the contrary, the receiving Party shall not be
liable for a disclosure of the disclosing Party's Confidential
Information if the information so disclosed:
(i) was in the public domain at the time it was
disclosed by the disclosing Party to the receiving Party, or
becomes part of the public domain thereafter through no fault of
the receiving Party; or
(ii) was known to or contained in the records of the
receiving Party at the time of disclosure by the disclosing Party
to the receiving Party and can be so demonstrated; or
(iii) becomes known to the receiving Party from a
source other than the disclosing Party without breach of such
source's confidentiality obligation, if any, to the disclosing
Party and can be so demonstrated; or
(iv) was required to be disclosed under legal or
administrative process, provided that the receiving Party has
given the disclosing Party no less than ten (10) days prior
written notice of the receiving Party's intention to make a
disclosure pursuant to this Paragraph 7(b)(iv).
8. Intellectual Property Warranty; Indemnification
(a) With respect to Paragraph 1(a)(ii) above, Thermo Optek
represents and warrants to Thermo Vision that if CID sensors for
raman spectrometers are added to the definition of Products,
Thermo Optek shall have the full right to use under written
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agreements, all patents, copyrights, trademarks, trade secrets
and other intellectual property rights (the "Intellectual
Property Rights") which will be required in order to permit
Thermo Vision to manufacture such Products. Upon adding such
sensors to the definition of Products, Thermo Optek shall grant
Thermo Vision and its Affiliates and subcontractors a worldwide,
exclusive, royalty-free license to use such Intellectual Property
Rights during the term of this Agreement for the sole purpose of
manufacturing such Products for sale to Thermo Optek and/or its
Affiliates pursuant to this Agreement.
(b) Thermo Vision represents and warrants to Thermo Optek
that it owns, or has the full right to use under written
agreements, all Intellectual Property Rights which will be used
or practiced in order for Thermo Vision to manufacture and sell
the Products described in Paragraph 1(a)(i) above. Thermo Vision
has no knowledge of any infringement of any Intellectual Property
Right of any third party which will arise out of or be incident
to Thermo Vision's use of such Intellectual Property Rights to
manufacture and sell such Products.
(c) In the event of any claim, charge, suit or proceeding
by any third party against either Party alleging infringement or
violation of any Intellectual Property Rights pursuant to this
Agreement, the other Party shall cooperate fully in the defense
of any such claim, charge, suit or proceeding. In the event that
the actions of one Party shall be determined to have solely
resulted in such allegation(s), that Party shall indemnify and
hold the other Party harmless from and against any loss arising
out of such claim, charge, suit or proceeding, not to exceed the
amounts paid by the other Party to the such third party.
(d) Notwithstanding anything contained in this Paragraph 8
to the contrary, neither Party (the "indemnifying Party") shall
have any obligation to the other Party (the "indemnified Party")
hereunder with respect to an infringement claim which arises
from: (i) any combination by the indemnified Party or any of its
Affiliates of the Products with another product not supplied by
the indemnifying Party, where such infringement would not have
occurred but for such combination; (ii) the adaptation or
modification of the Products not performed by the indemnifying
Party, where such infringement would not have occurred but for
such adaptation or modification; (iii) the misuse of the Products
or the use of the Products in an application for which it was not
designed, where such infringement would not have occurred but for
such use or misuse; or (iv) a claim based on intellectual
property rights owned by the indemnified Party or any of its
Affiliates.
9. Termination.
(a) The term of this Agreement shall commence on the date
hereof and shall continue, unless sooner terminated as set forth
below, until the tenth anniversary of the Effective Date.
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(b) In the event of breach of any provision of this
Agreement, the breaching Party shall have thirty (30) days after
written notice thereof by the non-breaching Party within which to
cure such breach. In the event such breach has not been cured
within such period of time, the non-breaching Party may on notice
to the breaching Party terminate this Agreement.
(c) Either Party may terminate this Agreement on notice to
the other Party in the event the other Party suffers a business
failure, including becoming the subject of a petition filed for
relief under any bankruptcy or insolvency law, which is not
dismissed within sixty (60) days of its filing; any general
arrangement with its creditors; or any liquidation, termination
or cessation of its business.
10. Effect of Termination.
(a) Upon the sooner to occur of (i) expiration of this
Agreement or (ii) six months after termination of this Agreement,
Thermo Vision shall immediately terminate production of the
Products described in Paragraph 1 above and each Party shall
promptly terminate all use of any Confidential Information of the
other Party.
(b) Upon expiration or termination of this Agreement, as
the case may be, each Party shall, at the request of the other
Party, either promptly return to the other Party or dispose of
all of the other Party's Confidential Information in any form
whatsoever which it may have in its possession, custody or
control (whether direct or indirect).
(c) Upon expiration or termination of this Agreement, as
the case may be, Thermo Optek shall, at the request of Thermo
Vision, repurchase all or any portion of Thermo Vision's then
existing finished goods inventory of the Products. All finished
Products shall be purchased at the price then in effect for such
Products. In the event that Thermo Optek fails to purchase all
of such inventory pursuant hereto within fourteen (14) days after
the expiration or termination of this Agreement, Thermo Vision
shall have the right to sell or dispose of such inventory, in
whatever manner it seems fit, without liability to Thermo Optek
for any reason, including without limitation infringement of any
intellectual property rights of Thermo Optek.
(d) Upon expiration or termination of this Agreement, as
the case may be, Thermo Optek and its Affiliates shall not be
released from their obligations to pay any sums then owing to
Thermo Vision and neither Party shall be released from
theobligation to perform any other duty or to discharge any other
liability that has been incurred prior thereto. Subject to the
foregoing, neither Party shall by reason of the termination of
this Agreement be liable to the other for compensation or damages
on account of the loss of profits or sales, or expenditures,
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investments or commitments in connection therewith.
11. Miscellaneous.
(a) No Party shall assign any or all of its rights or
obligations hereunder to any third party without first obtaining
the written consent thereto of the other Party, which consent
shall not be unreasonably withheld or delayed; provided, however,
that in the event of an assignment to an Affiliate of a Party or
to a purchaser of all or substantially all of the assets or stock
of a Party, through merger, consolidation, sale or otherwise, no
such consent shall be required, if the assignee agrees to be
bound by the terms hereof within five (5) days after such
assignment. The terms and provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Parties and
their respective successors and permitted assigns. Any reference
to a Party shall be deemed to include the successors thereto and
permitted assigns thereof.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts,
without regard to principles of conflicts of law and without
regard to the United Nations Convention on Contracts for the
International Sale of Goods.
(c) No amendment, modification, waiver, termination or
discharge of any provision of this Agreement, nor consent to any
departure by either Party therefrom, shall be effective unless
the same shall be in writing specifically identifying this
Agreement and the provision intended to be amended, modified,
waived, terminated or discharged and signed by both Parties, and
each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and
for the specific purpose for which given. No provision of this
Agreement shall be varied, contradicted or explained by any oral
agreements, course of dealing or performance or any other matter
not set forth in an agreement in writing and signed by both
Parties.
(d) Nothing herein contained shall be deemed to create a
joint venture, agency, partnership or employer-employee
relationship between the Parties hereto. Neither Party shall
have any power to enter into any contracts or commitments in the
name of, or on behalf of, the other Party, or to bind the other
Party in any respect whatsoever.
(e) All notices, requests and other communications to a
Party shall be in writing (including telecopy or similar
electronic transmissions), shall be addressed toRobert X.
Xxxxxxxxx on behalf of Thermo Optek or to Xxxxxxxx X. Xxxxxxx on
behalf of Thermo Vision, respectively, and shall be personally
delivered or sent by telecopy or other electronic facsimile
transmission during normal business hours or by registered mail
or certified mail, return receipt requested, postage prepaid, in
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each case to the respective address and telecopy numbers
specified above (or to such other individual, address or telecopy
numbers as may be specified in writing to the other Party hereto
from time to time). Any notice or communication given in
conformity with this Paragraph 11 (e) shall be deemed to be
effective when received by the addressee, if delivered by hand,
telecopy or other electronic facsimile transmission, and three
(3) days after mailing, if mailed.
(f) This Agreement constitutes, on and as of the date
hereof, the entire agreement of the Parties with respect to the
subject matter hereof, and all prior or contemporaneous
understandings or agreements, whether written or oral, between
the Parties with respect to the subject matter hereof are hereby
superseded in their entirety.
(g) If any provision hereof should be held invalid, illegal
or unenforceable in any respect in any jurisdiction, then, to the
fullest extent permitted by law: (i) all other provisions hereof
shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions
of the Parties hereto as nearly as may be possible; and (ii) such
invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of such provision in any
other jurisdiction. To the extent permitted by applicable law,
each Party hereby waives any provision of law that would render
any provision hereof prohibited or unenforceable in any respect.
(h) No failure on the part of either Party to exercise and
no delay in exercising any right, power, remedy or privilege
under this Agreement, or provided by statute or at law or in
equity or otherwise, shall impair, prejudice or constitute a
waiver of any such right, power, remedy or privilege or be
construed as a waiver of any breach of this Agreement or as an
acquiescence therein, nor shall any single or partial exercise of
any such right, power, remedy or privilege preclude any other or
further exercise thereof or the exercise of any other right,
power, remedy or privilege.
(i) Notwithstanding anything else in this Agreement to the
contrary, the Parties agree that Paragraphs 6, 7, 8, 10 and 11
shall survive the termination or expiration of this Agreement, as
the case may be.
(j) Each Party covenants and agrees that all of its
activities under or pursuant to this Agreement shall comply in
all material respects with all applicable laws, rules and
regulations.
(k) Headings used herein are for convenience only and shall
not in any way affect the construction of, or be taken into
consideration interpreting, this Agreement.
(l) This Agreement may be executed in counterparts, each of
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which counterparts, when so executed and delivered, shall be
deemed to be an original, and all of which counterparts, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the Parties hereto have executed this
Agreement as an instrument under seal by their duly authorized
officers.
THERMO VISION CORPORATION THERMO OPTEK CORPORATION
By: /s/ Xxxxxxxx Xxxxx Xxxxxxx
---------------------------------------
Name:
Title: President
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name:
Title: President
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SCHEDULE A
Prices
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Product Price
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CID 38 $3,000
