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EXHIBIT 10.14
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT
HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION]
PRODUCT SUPPLY AGREEMENT
This Agreement is entered into as of July 3, 1997 by and between
Quidel Corporation, a Delaware corporation having a place of business at 00000
XxXxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("QUIDEL") and Heska Corporation, a
California corporation having a place of business at 0000 Xxxxx Xxxxx Xxxxx,
Xxxx Xxxxxxx, Xxxxxxxx 00000 ("HESKA").
RECITALS
A. QUIDEL has developed diagnostic tests for HESKA and desires to
manufacture such tests in commercial quantities for sale and distribution by
HESKA.
X. XXXXX desires to have the diagnostic tests developed by QUIDEL
manufactured by QUIDEL exclusively for sale to HESKA.
NOW, THEREFORE, in consideration of the mutual promises in this
Agreement, the parties agree as follows:
1. DEFINITIONS
1.1 "Affiliate" shall mean any company,
corporation, or business in which a party owns or controls at least a fifty
percent (50%) ownership interest or which owns or controls such an interest in
such party.
1.2 "Development Agreement" shall mean the
Restated Product Development Agreement between the parties effective as of July
3, 1997.
1.3 "Effective Date" shall mean the date on which
this Agreement has been signed by authorized representatives of both parties.
This date shall be inserted in the opening paragraph of this Agreement.
1.4 "Event of Default" shall have the meaning
given in Section 7.1 below.
1.5 "Product" shall mean a diagnostic test as set
forth on Exhibit A hereto, as such Exhibit may be amended from time to time as
provided in Section 2.1 below.
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1.6 "Specifications" shall mean the detailed
technical specifications for a Product as described in Section 2.1 below.
1.7 "USDA" shall mean the United States
Department of Agriculture and any successor agency regulating manufacture and
sale of the Products.
2. PURCHASE OF PRODUCTS.
2.1 Products Subject to Agreement. HESKA may
purchase from QUIDEL those products listed and described on Exhibit A attached
hereto (the "Products") meeting the respective specifications for such Products
set forth on Exhibit B (the "Specifications"). Additional products may be
added to this Agreement upon mutual agreement of the parties and by
substituting a revised Exhibit A and adding an additional schedule to Exhibit B
relating to such new product.
2.2 Order of Precedence. All purchases of
Products by HESKA shall be made on the terms of this Agreement; provided,
however, that in the event of any conflict between the terms of this Agreement
and the typewritten terms of any of HESKA's accepted purchase orders, the order
of precedence shall be (i) any typewritten specially negotiated terms of any
of HESKA's accepted purchase orders set forth on the face of such purchase
order and (ii) this Agreement. All other terms and conditions contained in
HESKA's or QUIDEL's standard form purchasing and selling documents shall be
disregarded.
2.3 Purchase Orders. HESKA shall submit firm
purchase written orders for Products at least 90 days prior to the date of
shipment specified therein. HESKA's purchase orders shall (1) state the
quantity of each Product, (b) specify the delivery location, and (c) state the
desired date of delivery. Any purchase orders submitted by HESKA shall be
subject to acceptance as to quantities and delivery dates by an authorized
representative of QUIDEL at QUIDEL's principal sales office. Any order not
rejected within five (5) business days shall be deemed accepted. Once so
accepted, QUIDEL shall use commercially reasonable efforts to meet the delivery
dates and quantities set forth on such purchase orders.
2.4 Forecasts. No later than the tenth day of
each month after the Effective Date, HESKA will provide QUIDEL with a twelve
month rolling forecast (each, a "Product Forecast") which will state: (a) the
number of each type of Product which HESKA forecasts that it will order in each
month, and (b) the month in which HESKA forecasts it will request delivery.
QUIDEL's lead time for Products is six weeks, and the forecasted delivery date
for each order will conform to such lead time requirements. HESKA will be
bound by each of its then current Product Forecasts, but only as follows:
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(a) All forecasts within the
first three months of the then current Product Forecast are firm and may not be
decreased in any subsequent Product Forecast, although with respect to the
third month HESKA may increase the number of any particular Product to be
delivered in that third month by up to twenty- five percent (25%).
(b) In any subsequent Product
Forecast, HESKA may increase or decrease freely the number of any particular
type of Products it would order during the fourth and any subsequent months.
(c) Any changes in forecast
greater than those allowed by Section 2.4(a) require the written consent of
QUIDEL. Any decrease in the number of units which HESKA has committed to
purchase under Section 2.4(a), including any failure to deliver a purchase
order for such number of units, shall be treated as a cancellation under
Section 2.5 below.
2.5 Cancellation. HESKA may cancel accepted
purchase orders as follows. To the extent that any canceled order relates to
Products scheduled for delivery more than three (3) months from the
cancellation date, HESKA shall have no obligation to QUIDEL. To the extent
that any canceled order relates to Products scheduled for delivery within three
(3) months from the cancellation date, HESKA shall pay to QUIDEL an amount
equal to the price set forth on Exhibit A for the canceled Products.
2.6 Obsolete and Surplus Supplies. QUIDEL agrees
that it shall order chemicals, packaging components and other supplies for use
in HESKA's Products only in prudent quantities to meet the current portion of
HESKA's Product Forecasts or to meet minimum quantity packaging material as
stated in Exhibit A. HESKA shall purchase from QUIDEL all chemicals, packaging
components and other supplies acquired specifically for HESKA's products to the
extent that such supplies either (a) have become obsolete due to changes in the
Specifications requested by HESKA or (b) are in excess of 150% of twelve
months' requirements based upon the then current Product Forecast. Within
thirty (30) days after QUIDEL's written request to HESKA therefor, with
reasonable supporting detail in such request, HESKA will pay QUIDEL at QUIDEL's
cost for such supplies which QUIDEL is not able to use in its manufacturing
process or resell at its cost. QUIDEL will use commercially reasonable efforts
to minimize the amount of HESKA's liability for compensation under this Section
2.6.
2.7 Artwork. HESKA shall provide all necessary
artwork for labeling and packaging. All such artwork shall remain the property
of HESKA.
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2.8 [
]
3. PRICES AND PAYMENT.
3.1 Prices. HESKA shall pay the unit price for
each accepted Product as set forth on Exhibit A. The prices on Exhibit A
include manufacturing, packaging and such other services as are indicated on
Exhibit A. The prices set forth on Exhibit A shall be in effect for twelve
(12) months from the effective date (or for new Products, twelve (12) months
from the date such Product is added to Exhibit A). At any time after the
initial twelve (12) month period, either QUIDEL or HESKA shall have the right
to request renegotiation of prices, based upon increases or reductions of cost,
increases in HESKA volume and other relevant factors. The parties agree to
negotiate any such price changes in good faith and to provide any reasonably
necessary supporting documentation. All orders placed prior to the effective
date of any increase shall be billed at the pre-increase net prices. All
prices are F.O.B. QUIDEL's manufacturing facility, and are exclusive of taxes,
freight and insurance, which shall be stated separately on the invoice to and
paid by HESKA.
3.2 Payment. QUIDEL shall invoice upon shipment.
Terms of payment are net thirty (30) days from the invoice date.
4. DELIVERY.
4.1 Transportation and Risk of Loss. QUIDEL
shall arrange transportation of the Products by carrier acceptable to HESKA to
HESKA's specified delivery destination. Title to and risk of loss of the
Products shall pass to HESKA at the time of delivery to the specified carrier.
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4.2 Delivery Delay. HESKA may, at no additional
charge, request a one time delivery delay under an individual purchase order,
provided such request is submitted to QUIDEL not fewer than ten (10) days prior
to the accepted delivery date and delivery is to be delayed not more than sixty
(60) days from the accepted delivery date. If HESKA requests a delivery delay,
HESKA agrees to accept the Product with any reduction in shelf life up to the
amount of days covered by the delay request. A request to reschedule a
shipment except as permitted in this Section 4.2 shall be treated as a
cancellation.
4.3 Inspection. HESKA shall have a period of
thirty (30) business days from the date of receipt of any shipment to inspect
and reject any shipment. Within forty-five (45) business days, HESKA shall
return any rejected Product to QUIDEL, freight prepaid, together with a written
statement as to the grounds for rejection and identifying the exact quantity
rejected. QUIDEL shall, within twenty (20) business days, deliver to HESKA
replacement Products meeting the Specifications and shall credit HESKA with
HESKA's freight charges in returning rejected Products.
5. QUALITY CONTROL AND REGULATORY COMPLIANCE.
5.1 Quality Control Procedures. QUIDEL shall
manufacture the Products to meet the Specifications and in accordance with the
USDA approved Outline of Production. QUIDEL agrees that its quality control
procedures shall be applied in the same rigorous manner as those procedures and
checks which are applied to products for its own use and sale.
5.2 Notification. Each party agrees to notify
the other within two (2) business days of learning of the failure of any batch
of Products to meet the Specifications or QUIDEL's quality control procedures.
5.3 Changes to Specifications. HESKA may request
that QUIDEL make changes to the Specifications for any Product. QUIDEL shall
evaluate each such request and shall notify HESKA within thirty (30) days of
the expected impact upon pricing, delivery and quality of such changes and of
any regulatory issues arising out of such changes. QUIDEL may, but shall not
be obligated, to implement any such changes. QUIDEL shall not make any
revisions or changes to the Specifications without the prior written consent of
HESKA.
5.4 Regulatory Compliance. QUIDEL shall be
responsible for obtaining and maintaining at its expense any regulatory
approvals required to be a licensed establishment for manufacture of the
Products and required for each Product for further manufacture. HESKA shall be
responsible for obtaining and maintaining at
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its expense all federal and state registrations and approvals required for the
final Products. The parties agree to cooperate reasonably to enable each party
to obtain such registrations and approvals.
5.5 Documentation and Audit Procedures. Each
party shall maintain the originals of all required regulatory documentation to
be kept by the manufacturer, the product license holder or the seller, as the
case may be. Each party shall allow representatives of the other party, upon
reasonable notice and at reasonable intervals, to examine, audit and copy such
documentation during regular business hours for product liability, regulatory
and quality control purposes.
5.6 Maintenance of Licenses. QUIDEL agrees to
maintain a package of documentation as directed by HESKA regarding QUIDEL's
compliance with USDA manufacturing Practices that relates to the Products being
sold to HESKA and that complies with USDA regulations. QUIDEL will update this
package promptly to reflect any material changes in a Product's manufacturing
process or any changes in USDA requirements. QUIDEL agrees to provide this
package to HESKA as reasonably requested by HESKA.
5.7 Notifications.
(a) Of QUIDEL. QUIDEL agrees
that it will promptly (and in any event within one (1) business day) notify
HESKA of any contact, claim or other communication initiated by the USDA or any
foreign counterparts that relates to, or may relate to, any Products and a copy
of such communication, to the extent that it relates to a Product, shall be
provided to HESKA. In addition, prior to initiating any contact with the USDA
or any foreign counterparts relating to any Product, QUIDEL will provide HESKA
with the opportunity to review and approve the substance of any such
communication. QUIDEL will provide HESKA with copies of any such
communications actually sent to the extent that they relate to a Product. Any
communication relating to routine regulatory filings, notices and reports and
other non-adverse communications, either initiated by QUIDEL or by any
regulatory agency, that does not relate to a Product need not be provided. In
addition, QUIDEL will notify HESKA the same business day of any inspection of
QUIDEL's facilities by the USDA or any foreign counterpart and will provide a
copy of any reports or other communications relating to such inspection to the
extent that they relate to QUIDEL's manufacture of the Products.
(b) Of HESKA. HESKA agrees that
it will promptly notify QUIDEL of any contact, claim or other communication by
any entity or agency that relates to, or may relate to, HESKA's ability to
perform its responsibilities herein. Any communication (other than routine
regulatory filings, notices and reports and other
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non-adverse communications), either initiated by HESKA or by any regulatory
agency that references a Product in this Agreement or the submission of any
such Product will immediately be brought to the attention of QUIDEL and a copy
of such communication, to the extent that it relates to a Product, shall be
provided to QUIDEL.
5.8 Insurance. Each party will maintain product
liability insurance covering its performance of its obligations hereunder with
a minimum limit of liability of $1,000,000 in the aggregate. Each party will
also maintain insurance to protect both parties from claims under any Worker's
Compensation Acts and from any other damages from personal injury including
death, which may be sustained by their respective agents, servants or employees
and the general public and/or claims of property damage which might be
sustained from any one of them due to the negligence of a party, in amounts
mutually determined. Each party shall, upon request, furnish the other a
certificate of insurance.
6. WARRANTIES.
6.1 Product Warranty. QUIDEL warrants to HESKA
that the Products will conform to their applicable Specifications through their
respective expiration dates and will be manufactured in accordance with all
applicable governmental statutes and regulations and with the outline of
production applicable to such Products. Upon failure of any unit of Product to
comply with the foregoing warranty, QUIDEL will promptly replace such unit with
a unit that does comply or, if unable to replace it, promptly refund in cash to
HESKA the amount paid by HESKA for such unit. QUIDEL will pay all shipping
costs associated with the replacement of Products.
6.2 Exclusions. The foregoing warranties will
not apply to the extent of any defects caused by improper or inadequate
handling or storage of Products by HESKA.
6.3 No Other Warranties. THE FOREGOING
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED
INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
6.4 Product Recall. QUIDEL shall substitute
Product at no cost to HESKA to complete any Product recall required under
applicable regulations by subsequent determination that the Product was not
produced in accordance with its Specifications when released to HESKA or was
not produced in compliance with applicable regulations or the approved outline
of production. HESKA shall be responsible for all other recalls.
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7. CONTINGENT MANUFACTURING LICENSE
7.1 Event of Default. The term "Event of
Default" shall mean (a) failure of QUIDEL to deliver Products within fifteen
(15) days after the delivery date on the accepted purchase order, (b) failure
of QUIDEL to deliver Products conforming to QUIDEL's warranties herein, (c)
QUIDEL's failure to comply with material regulatory standards and requirements
applicable to the manufacture and sale of the Products, (d) QUIDEL's general
inability to pay its debts as they become due, admission in writing of
inability to pay its debts generally or assignment for the benefit of creditors
or the filing by or against QUIDEL of any bankruptcy insolvency, liquidation,
winding up, reorganization, arrangement or similar proceeding, which proceeding
is not stayed or dismissed within sixty (60) days or entry of an order for
relief or the appointment of a receiver, trustee or similar official, (e)
HESKA's having a reasonable basis to believe that QUIDEL will be unable to
deliver Products conforming to QUIDEL's warranties herein, and (f) QUIDEL's
breach of any covenant or obligation under this Agreement. Notwithstanding the
foregoing, no Event of Default shall be deemed to exist under subsections (a),
(b), (c), (e) or (f) above until sixty (60) days after written notice from
HESKA to QUIDEL specifying the condition or event giving rise to such Event of
Default, if such condition or event is capable of cure and QUIDEL promptly
commences and prosecutes such cure to completion in all material respects
within such sixty (60) day period.
7.2 Grant of Manufacturing License. Upon an
Event of Default as specified above and expiration of the applicable cure
period, HESKA shall immediately have the right and license upon written notice
to QUIDEL to manufacture and have manufactured Products and to use, modify,
market, sell, license and sublicense such Products. QUIDEL agrees, upon
receipt of such written notice from HESKA, to use its best efforts to cooperate
promptly (and in any event within ten (10) business days) with HESKA to
transfer to an alternative manufacturer specified by HESKA all manufacturing
documentation relating to the production of the Products, including, but not
limited to, standard operating procedures, xxxx of materials, designs,
drawings, lists of tooling and materials required for the creation of new
tooling, quality assurance protocols and other test materials and all computer
programs reasonably necessary to enable such other manufacturer to manufacture
the Products.
7.3 Scope of License. The license granted under
Section 7.2 shall be a perpetual, worldwide, paid-up, assignable, royalty-free
(subject to any royalty obligations to third parties), exclusive license.
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8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS
OF GOODWILL, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THE
SALE OF, OR AGREEMENT TO SELL, PRODUCTS TO HESKA. THIS LIMITATION SHALL APPLY
EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. CONFIDENTIALITY
9.1 Basic Obligations. Each party agrees, both
during the term of this Agreement and for a period of five years thereafter, to
hold all information given to it by the other party that is identified as
confidential (the "Confidential Information"), in confidence, and not to make
the Confidential Information available in any form to any third party or to use
the Confidential Information for any purpose other than the purposes described
in this Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its employees
or agents in violation of this Agreement, including limiting disclosure to
employees or other persons who have a need to know and who have signed
appropriate confidentiality agreements. This restriction on disclosure shall
not apply to the extent that any Confidential Information (a) is or becomes a
part of the public domain through no act or omission of the receiving party;
(b) was in the receiving party's lawful possession prior to the disclosure and
had not been obtained by the receiving party from the disclosing party; (c) is
lawfully disclosed to the receiving party by a third party without restriction
on disclosure; or (d) is independently developed by the receiving party by
personnel not having access to the Confidential Information.
9.2 Attorney-Client Protected Information. In
the event that a party should reasonably request from the other party, for
purposes of evaluating any claim or potential claim of infringement of
proprietary rights or any other claim relevant to this Agreement, any
Confidential Information that is protected by the attorney- client and/or
attorney work product privileges, including notes and work papers, opinion
letters and any other information in whatever form generated by an attorney or
exchanged between an attorney and his client ("Attorney-Client Protected
Information"), the receiving party agrees that, notwithstanding Section 9.1
above, (a) the receiving party shall not duplicate, copy or otherwise reproduce
such Attorney-Client Protected Information for any purpose whatsoever; (b)
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Attorney-Client Protected Information shall neither be used by nor disclosed to
any employees or representatives of the receiving party except for attorneys
representing the receiving party and employees who will participate in
evaluating the merits of any such claim, and (c) the receiving party shall
return all Attorney-Client Protected Information to the disclosing party upon
its completion of the evaluation referenced above.
10. TERM AND TERMINATION
10.1 Term. The initial term of this Agreement
shall be for a period of five (5) years, commencing on the Effective Date, and
shall automatically renew thereafter for additional renewal terms of twelve
(12) months each, unless either party gives at least twelve (12) months prior
written notice to the other that it does not wish to renew this Agreement.
10.2 Termination for Breach. This Agreement may
be terminated by either party immediately if the other party commits any
material breach of this Agreement which has not been remedied within sixty (60)
days of written notice thereof.
10.3 Performance on Termination. Upon termination
of this Agreement for any reason: (a) QUIDEL shall fill any confirmed purchase
orders for delivery on the order delivery dates (unless QUIDEL terminates this
Agreement for non-payment by HESKA) and HESKA shall pay QUIDEL for all such
Products not later than ten (10) days after receipt of the invoice therefor;
(b) all raw materials and bulk antigen furnished by HESKA shall be returned;
(c) all costs of unused raw materials and packaging shall be paid by HESKA as
provided in Section 2.6. QUIDEL acknowledges that the Products contain
intellectual property of HESKA and, except for Products manufactured as
provided in subsection (a) above, upon the expiration or termination of this
Agreement for any reason QUIDEL shall cease manufacture of the Products and
shall not sell Products to any party.
10.4 Survival. The obligations of the parties
under Sections 6, 8, 9, 11, 12 and 13 shall survive the termination or
expiration of this Agreement.
11. RECORDS AND INSPECTION
11.1 Record Retention. Both parties shall
maintain records with respect to obligations to itself and the other party
under this Agreement. The records shall be retained for a period of not less
than two (2) years or such longer period as required by law or regulation. All
records relating to the manufacture, stability and quality control of all
Products shall be retained for a period of not less than two (2) years
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from the date of expiration of each batch of each Product to which such records
pertain.
11.2 Records Inspection. Each party may request
to inspect and reproduce during normal business hours any records of the other
party for any purpose reasonably related to the proper purposes of this
Agreement. Such request shall be given at least ten (10) business days prior
to the requested inspection date.
12. INDEMNIFICATION.
12.1 Intellectual Property Indemnification.
QUIDEL shall defend and indemnify HESKA against any claim that any Products
furnished and used as provided in this Agreement infringes a patent or
copyright owned by a third party, and shall pay any costs and damages incurred
by HESKA in such action, including reasonable attorneys' fees. This obligation
shall not apply to the extent any such claim is based upon any biological
materials supplied by HESKA. This obligation is contingent upon HESKA
notifying QUIDEL promptly in writing of such claim, giving QUIDEL sole control
of the defense and all related settlement negotiations, and providing QUIDEL
with all assistance and information necessary for the defense. If any Product
is held to infringe, or QUIDEL believes it may infringe, QUIDEL shall at its
sole option either modify such Product to be non-infringing, or obtain a
license for HESKA to continue using the Product. QUIDEL shall have no
obligation hereunder for the modification of the Products or combination,
operation or use of the Products with materials not furnished by QUIDEL if such
infringement would have been avoided without such modification or combination.
12.2 HESKA Indemnity. HESKA shall indemnify and
hold QUIDEL harmless from all claims, losses and damages which arise from any
failure by HESKA to comply with any of the requirements of this Agreement,
including export and governmental requirements, any actions taken by HESKA or
its employees and agents in marketing its products, and any other act or
omission of HESKA, its agents and employees.
13. INTELLECTUAL PROPERTY RIGHTS.
13.1 Trademarks and Trade names. HESKA
acknowledges that it does not have, nor shall it acquire, any interest in any
QUIDEL trademark or trade name by virtue of this Agreement. The Products
distributed by HESKA under this Agreement shall bear trademarks or trade names
different than those used by QUIDEL for its own products. HESKA shall own
rights in such trademarks or trade names and QUIDEL shall not acquire any
rights in such trademarks and trade names by virtue of this Agreement.
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13.2 Ownership of Intellectual Property. Each
party acknowledges that no transfer of ownership of or license to any
intellectual property is contemplated by this Agreement except as specifically
provided herein.
14. GENERAL PROVISIONS
14.1 Entire Agreement. This Agreement, including
its exhibits, embodies the entire understanding of the parties, there being no
promises, terms, conditions or obligations, oral or written, express or
implied, other than those contained herein. This Agreement may only be amended
by a written document signed by authorized representatives of both parties.
14.2 Notice. Any notice required to be given
hereunder shall be in writing and may be given by facsimile transmission to the
facsimile number for such party set forth below or personal delivery (including
by professional courier) at, or mailing (by first class receipted prepaid mail)
to, the address of the party contained in this Agreement, or such other
facsimile number or address as such party may have notified the other of
pursuant to this Section. In the case of facsimile transmission or personal
delivery, such notice shall be deemed to have been given upon the date of such
transmission or delivery. In the case of mailing, such notice shall be deemed
to have been given seven days after such mailing. Notices shall be addressed
to the attention of the President.
14.3 Relationship of the Parties. Nothing in this
Agreement shall constitute or be deemed to constitute a joint venture or
partnership between the parties. The relationship between QUIDEL and HESKA
shall be that of independent contractors.
14.4 Transfer and Assignment. Neither party may
assign or sublicense any of its rights or obligations hereunder to any person,
including any affiliate, without the prior written consent of the other party,
provided, however, that a party may assign this Agreement without the other
party's consent in connection with the sale, by merger of otherwise, of
substantially all of a party's business relating to the subject matter hereof.
Subject to the foregoing, this Agreement shall accrue to the benefit of and be
binding upon the successors and assigns of the parties.
14.5 Force Majeure. Neither party shall be liable
for any failure to perform any of its obligations hereunder (other than the
payment of money) which results from act of God, the elements, fire, flood,
component shortages, force majeure, riot, insurrection, industrial dispute,
accident, war, embargoes, legal restrictions or any other cause beyond the
reasonable control of the party, provided, however,
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that if such inability extends for more than ninety (90) days, the other party
shall have the right to terminate this Agreement immediately upon written
notice.
14.6 Severability. If any provision in this
Agreement is found or held to be invalid or unenforceable, then the meaning of
said provision shall be construed, to the extent feasible, so as to render the
provision enforceable, and if no feasible interpretation would save such
provision, it shall be severed from the remainder of this Agreement which shall
remain in full force and effect unless the severed provision is essential and
material to the rights or benefits received by either Party. In such event,
the parties shall use their best efforts to negotiate, in good faith, a
substitute, valid and enforceable provision or agreement which most nearly
effects their intent in entering into this Agreement.
14.7 No Waiver. No waiver of any term or
condition of this Agreement shall be valid or binding on a party unless the
same has been mutually assented to in writing by both parties. The failure of
a party to enforce at any time any of the provisions of this Agreement, or the
failure to require at any time performance by the other party of any of the
provisions of this Agreement, shall in no way be construed to be a present or
future waiver of such provisions, nor in any way affect the ability of a party
to enforce each and every such provision thereafter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written by their duly authorized representatives.
QUIDEL CORPORATION HESKA CORPORATION
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxx X. Xxxxxxxxx
----------------------- -----------------------------------------
Name Xxxxxx X. Xxxxxxx Name Xxxx X. Xxxxxxxxx
--------------------- ---------------------------------------
Title President and CEO Title President & CEO
-------------------- --------------------------------------
Facsimile 000 000-0000 Facsimile 000 000 0000
---------------- ----------------------------------
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EXHIBIT A
Products and Pricing
Products
1. Feline Heartworm Antigen Test Kit having the specifications attached
as Exhibit B-1.
2. Canine Heartworm Antibody Test Kit having the specifications attached
as Exhibit B-2.
Pricing.
QUIDEL will supply units of Products to HESKA at a price per unit of [ ] for
tests in strip format and [ ] for tests in cassette format. Price is FOB
QUIDEL packaged as described in Exhibit C.
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EXHIBIT B-1
Specifications for Feline Heartworm Antigen Test Kit
NEW PRODUCT DESIGN SPECIFICATIONS
Feline Heartworm Antibody Test Kit
HESKA/QUIDEL TEST
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SPECIFICATION SPECIFICATION
========================================= ======================================
1. MARKET/SEGMENT In-clinic
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2. FORMAT One-step
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3. TECHNOLOGY Lateral flow antibody detection
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4. TYPE OF SPECIMEN [ ] anticoagulated whole blood,
serum or plasma, cat
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5. STORAGE OF SPECIMEN Uncoagulated whole blood fresh or
stored at 2(degree)-7(degree) C [
]
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6. [ ] [ ]
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7. [ ] [ ]
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8. [ ] [ ]
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9. [ ] [ ]
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10. [ ] [ ]
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11. END OF TEST INDICATOR yes or no
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12. [ ] [ ]
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13. [ ] [ ]
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14. [ ] [ ]
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15. TOTAL ASSAY TIME (RUN TIME) 5 min or less
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16. [ ] [ ]
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17. [ ] [ ]
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18. [ ] [ ]
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19. [ ] [ ]
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20. KIT SIZE 25, 10 and 1
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21. [ ] [ ]
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21 April 1997
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EXHIBIT B-2
Specifications for Canine Heartworm Antibody Test Kit
NEW PRODUCT DESIGN SPECIFICATIONS
Canine Heartworm Antigen Test Kit
HESKA/QUIDEL TEST
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SPECIFICATION SPECIFICATION
========================================= ======================================
1. MARKET/SEGMENT In-clinic
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2. FORMAT One-step
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3. TECHNOLOGY Lateral flow antibody detection
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4. TYPE OF SPECIMEN [ ] anticoagulated whole blood,
serum or plasma, cat
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5. STORAGE OF SPECIMEN Uncoagulated whole blood fresh or
stored at 2(degree)-7(degree) C [
]
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6. [ ] [ ]
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7. [ ] [ ]
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8. [ ] [ ]
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9. [ ] [ ]
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10. [ ] [ ]
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11. END OF TEST INDICATOR yes or no
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12. [ ] [ ]
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13. [ ] [ ]
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14. [ ] [ ]
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15. TOTAL ASSAY TIME (RUN TIME) 5 min or less
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16. [ ] [ ]
----------------------------------------- --------------------------------------
17. [ ] [ ]
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18. [ ] [ ]
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19. [ ] [ ]
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20. KIT SIZE 25, 10 and 1
----------------------------------------- --------------------------------------
21. [ ] [ ]
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21 April 1997
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EXHIBIT C
Specifications for Packaging and Kit Configuration
PACKAGING CONFIGURATION
Ten or twenty-five foil pouched cassettes in unit tray
One directional insert packaged in unit carton
Ten unit cartons per shipper
Description of Packaging Components
Unit Carton Notched tuck top style
0.024 clay coated solid bleached sulphate
Automatic bottom
Printed four colors
Ten cassette configuration includes insert for holding
cassettes
Package Insert 40 # opaque smooth
printed two color
At least one page with one fold (or as needed to meet
regulatory or licensing requirements)
Shipper #200, C Craft carton
shipper will contain ten kits
Pipettes Ten or twenty-five calibrated pipettes in sealable plastic
bag
