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SUPPLY/PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and effective this 18th day
of January, 2001, by and between Quantech Ltd., a Minnesota Corporation having
its principal office at 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxx, Xxxxxxxxx, the
United States of America ("QUANTECH") and Mitsubishi Chemical Corporation, a
Japanese corporation having its principal office at 0-0, Xxxxxxxxxx 0-xxxxx,
Xxxxxxx-xx, Xxxxx, Xxxxx ("MCC").
WITNESSETH THAT:
WHEREAS, QUANTECH has been engaged in the manufacture and sale of
Four Port Instrument, Eight Channel Research Instrument, Flow Cells and
Cartridges (the "Products");
WHEREAS, MCC wishes to purchase the Products from QUANTECH for MCC's
Development; and
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreement herein set forth, the parties hereby agree as follows:
ARTICLE 1 (SUPPLY AND PURCHASE)
Subject to the terms and conditions set forth herein, QUANTECH shall
sell, transfer and deliver to MCC, and MCC shall purchase and receive from
QUANTECH, the Products meeting the quality specifications as set forth in
Article 2.1 hereof.
ARTICLE 2 (SPECIFICATION)
2.1 The specifications and quantity of the Products to be delivered to MCC
hereunder (the "Specifications") shall be those as described in Exhibit
A attached hereto and made a part hereof.
2.2 Upon delivery of the Products to MCC, QUANTECH shall provide a
certificate describing the result of its test on each lot of the
Products delivered meeting the Specifications.
ARTICLE 3 (FORECAST AND ORDERING MECHANISM)
3.1 In order to help QUANTECH make its production and supply program, MCC
shall inform QUANTECH, in writing, of a forecast indicating MCC's
estimated semi-annual requirements for the Products during each such
half year period
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together with the monthly breakdown (a " Forecast"). None of the
figures indicated in each Forecast shall be interpreted as a binding
commitment of MCC; provided, however, that MCC shall use its reasonable
efforts to place purchase orders with QUANTECH for the Products so as
to follow the monthly breakdown indicated in each Forecast.
3.2 A firm purchase order for the Products may be placed by MCC in writing
(by facsimile) with QUANTECH at any time but not later than eight (8)
weeks by MCC, prior to the desired date of delivery. Each purchase
order shall indicate;
(1) the desired quantity of the Products and desired date of delivery;
and
(2) any other information as MCC deems necessary and appropriate.
3.3 Immediately but, in no event, later than one (1) week after the date of
each purchase order by MCC, QUANTECH shall provide MCC, to whoever sent
such purchase order, with a written notice (by facsimile) of its (i)
acceptance of such MCC's purchase order or (ii) difficulty (together
with the reason therefor) to meet such MCC's requirement indicated in
any part of the purchase order. Each individual sales/purchase contract
shall be deemed established and become binding between such MCC and
QUANTECH simultaneously upon QUANTECH's written acceptance of such
MCC's firm order as placed pursuant to Article 3.2 above. If any
difficulty should be indicated in QUANTECH's notice, MCC and QUANTECH
shall discuss in good faith measures to solve such difficulty.
3.4 None of the terms and conditions as may be indicated in such purchase
order of MCC or QUANTECH's acceptance which are not referred to in this
Agreement or not consistent with those of this Agreement shall have any
binding effect over the parties unless otherwise from time to time
agreed to by the parties.
ARTICLE 4 (UNIT PRICE AND PAYMENT TERMS)
4.1 The unit price payable by MCC to QUANTECH for the Products delivered
hereunder (the "Unit Price") shall be as described in Exhibit B per
attached hereto.
4.2 Each payment by MCC for the Products delivered from QUANTECH to MCC
hereunder shall be made to QUANTECH in US Currency. The U.S. currency
payments hereunder shall be determined on the basis of the telegraphic
transfer selling (TTS) rate of exchange as reported by Tokyo Mitsubishi
Bank in effect on the date such payments. Such payment shall be paid
within ninety (60) days after the delivery of the each Product. With
respect to the payment set forth herein, MCC shall be responsible for
taxes, duties or any other expenses in Japan and QUANTECH shall be
responsible for taxes, duties or any other expenses in the United
States of America.
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ARTICLE 5 (DELIVERY)
5.1 The terms of delivery of the Products from QUANTECH to MCC shall be FOB
Minneapolis St. Xxxx International Airport.
5.2 The title to and the risk of loss of the Products shall pass from
QUANTECH to MCC upon the time of delivery.
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ARTICLE 6 (PACKING)
The Products shall be packed as requested by MCC and in a
commercially reasonable fashion.
ARTICLE 7 (USE OF THE PRODUCTS)
The Products shall be used solely for the MCC's research and
development.
ARTICLE 8 (NON-CONFORMITY)
8.1 QUANTECH hereby warrants to MCC that the Products shall meet with the
Specifications at the time of the delivery.
8.2 The warranty under this Article 8 shall not be valid and available
unless MCC, so delivered, shall have sent a written notice to QUANTECH
of an alleged non-conformity of the Products to the Specifications
within one hundred eighty (180) days after the date of delivery of such
allegedly non-conforming Products.
8.3 In the event that MCC, so delivered, has proven, with proper technical
background, the alleged non-conformity of Products to have been
attributable to QUANTECH, QUANTECH shall provide MCC with replacement
Products that shall meet the Specifications without unreasonable delay.
ARTICLE 9 (DISCLAIMER)
The warranties and remedies as provided for in articles 8 above shall
be exclusive and there are no other warranties, expressed or implied, including
the warranties of merchantability, fitness of the products for any particular
purpose other than that as described in article 9 or non-infringement of third
party's intellectual property rights. In no event shall seller be liable or held
responsible to any incidental or consequential losses or damages (including, but
not limited to, economic losses or loss of profits) suffers or incurred by MCC
as a result of or in connection with the implementation of the supply of
products hereunder, except to the extent such losses or damages arise out of
gross negligence or willful misconduct of QUANTECH.
ARTICLE 10 (TERM AND TERMINATION)
10.1 This Agreement shall be valid for a period of six (6) months commencing
on the execution date hereof.
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10.2 Notwithstanding the provisions of Articles 9.1 above, each of the
parties may terminate this Agreement by giving a written notice to the
other parties in the event that either party;
(1) is declared insolvent or bankrupt, or makes an assignment or other
arrangement for the benefit of its creditors;
(2) has all or any substantial portion of its capital stock, assets or
any other property transferred by it to any third party or
expropriated by any government;
(3) is dissolved or liquidated;
(4) becomes unable to make payment or stop making payments to a third
party; or
(5) commits material default or breach of its obligation under this
Agreement, and such default or breach shall not have been cured
within thirty (30) days after the date of a written notice of such
default or breach by the non-defaulting Party.
10.3 Any expiration or termination of this Agreement shall not release any
party from any of its obligations accrued prior to the date of
expiration or termination or any liabilities to the other parties that
may incur upon such termination.
10.4 Upon termination of this Agreement for whatever reason, notwithstanding
the provisions of Article 4.2 above, the parties shall immediately pay
all then outstanding credit irrespective of their original due dates.
ARTICLE 11 (FORCE MAJEURE)
None of the parties shall be liable for any loss or damage, or delay
or failure in performing its obligation, other than any monetary obligation
against any other party, under this Agreement caused by circumstances beyond the
control of the party affected, which affects the relevant party or any other
person involved in the sale, manufacturing, supply, shipment or receipt of the
Product, including, but not limited to, acts of God, fire, flood, typhoon,
earthquake, tidal wave, landslide, plague, epidemic, quarantine restriction,
perils of the sea, war or serious threat of the same, civil commotion, blockade,
arrest or restraint of government, rulers or people, requisition of vessel or
aircraft, strike, lockout, sabotage or other labor dispute, explosion, accident
or breakdown in a whole or in part of machinery, plant, transportation or
loading facility, governmental request, guidance, order or regulation,
unavailability of transportation or loading facility, curtailment, shortage or
failure in the supply of fuel, water, electric current, other utility, or raw
material, and any other similar causes or circumstances which are beyond the
reasonable control of the party affected.
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ARTICLE 12 (NOTICE)
All notices, statements, reports, requests or other communications to
a party required or permitted hereunder shall be in writing and shall be deemed
effective and properly given when sent by registered or certified mail, or by
confirmed facsimile transmission to the person as indicated below or such other
person as may be designated by MCC or QUANTECH by such notice;
if to MCC, to:
Mitsubishi Chemical Corporation.
0-0, Xxxxxxxxxx 0-xxxxx,
Xxxxxxx-xx, Xxxxx 000-0000 Xxxxx
Attention: General Manager, Life Science Business Initiatives Department
Facsimile number: (00) 0000-0000
and, if to QUANTECH, to:
Quantech Ltd.,
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxx 00000 U.S.A
Attention: President
Facsimile number: (000) 000-0000
MCC and QUANTECH may change their respective above-specified recipient and/or
mailing address by notice to the other party given in the manner herein
prescribed. All notices shall be deemed given on the day when actually delivered
as provided above (if delivered by facsimile) or on the day shown on the return
receipt (if delivered by mail).
ARTICLE 13 (CONFIDENTIALITY)
13.1 Each of the parties (the "Receiving Party") shall keep in confidence,
and shall not disclose to any third party and use for any purpose other
than that of this Agreement, the content of this Agreement nor any
confidential information furnished from any other Party (the
"Disclosing Party"), unless otherwise specifically agreed to in writing
by the Disclosing Party; provided, however, that any of the following
information shall not be deemed as confidential information for
purposes of this Agreement:
(1) information that is publicly known at the time of receipt from
the Disclosing Party, or that becomes known to the public
after receipt by any reason not attributable to the Receiving
Party.
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(2) information that was already in possession of the Receiving Party
prior to the disclosure from the Disclosing Party.
(3) information that was furnished to the Receiving Party from any
third party as a matter of right without restriction on
disclosure.
13.2 The obligations under this Article shall survive any expiration or
termination of this Agreement for a period of five (5) years
thereafter.
ARTICLE 14 (WAIVER)
No waiver by any party of its right to enforce any provisions of this
Agreement shall constitute a waiver of such party's right to enforce such
provisions thereafter or to enforce any other provisions of this Agreement.
ARTICLE 15 (ASSIGNMENT)
Each of the party shall not assign or transfer all or any part of
this Agreement to any third party without the prior written consent of the other
parties.
ARTICLE 16 (GOVERNING LAW)
This Agreement shall be construed in accordance with the laws of the
State of New York, excluding its choice of law provisions. The Parties further
agree to submit themselves to the non-exclusive jurisdiction of the state and
federal courts of the State of New York in the event that any dispute arises
under this Agreement.
ARTICLE 17 (SEVERABILITY)
17.1 In the event that any provision of this Agreement should be deemed
unlawful or invalid, then, except as provided for herein, such
provision shall be severed from this Agreement but the remaining
provisions of this Agreement as a whole shall remain unaffected and
binding on the Parties.
17.2 Notwithstanding any other provision of this Agreement to the contrary,
if the parties' intention as originally contemplated herein should
become disturbed or to be likely disturbed to a substantial degree by
the action or order of any government authorities concerned, then the
parities shall review this Agreement and discuss in good faith
alternative solutions practically available which may include the
termination of this Agreement.
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ARTICLE 18 (ARBITRATION)
The parties hereto shall attempt to settle any dispute, controversy
or difference in connection with this Agreement and the incidental agreements in
an amicable way. In the event that such attempts should fail, then the parties
hereto agree that the dispute be exclusively and finally settled by arbitration
under the Rules of Conciliation and Arbitration of the International Chamber of
Commerce. The arbitration proceedings shall be held in Tokyo, Japan in the
English language.
ARTICLE 19 (ENTIRE AGREEMENT)
This Agreement contains the entire and final agreement of the parties
with respect to the subject matter hereof. Any and all prior memoranda of
understanding, letters of intent, promises, undertakings, representations,
agreements and understandings, written or oral, with respect to the subject
matter of this Agreement shall be hereby terminated. This Agreement may not be
altered, amended or modified in any way except by an instrument in writing
executed by the parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to execute
by their duly authorized officers.
MITSUBISHI CHEMICAL CORPORATION
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By: Xxxxxxx Xxxxxxxx
Its: General Manager,
Life Science Business Initiative
Department
QUANTECH LTD.
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By: Xxxxxx Xxxx
Its: Chief Executive Officer
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EXHIBIT A
1. SPECIFICATIONS FOR FOUR PORT INSTRUMENT (LEVEL 1 VERSION)
1-1 Module Dimension: 76 cm (W) x 64 cm (D) x 23 cm (H)
1-2 Weight: <67 kg
1-3 Power Supply: 88-264 V, 47-63 Hz
1-4 Touch Screen: 38 cm diagonal
1-5 Color: Putty
1-6 Number of Ports: Four (4)
1-7 Simultaneous Processing Capability: Four (4)
1-8 Technology: Grating SPR Technology
1-9 Reagents: Contained in Cartridge
1-10 Waste: Contained in Cartridge
1-11 Applicable Specimen: Whole Blood
1-12 Sample Introduction: Vacutainer type tube
1-13 Operating Software: Microsoft Windows
1-14 Processors: Two, 500 MHz
1-15 Memory: 256 KB
1-16 Hard Disk Drive: Two, 20GB and 12 GB
1-17 Removable Storage: 3.5 inches floppy disk and CD-ROM
1-18 Barcode Readers: Two Internal, and One External
1-19 Calibration Curve: Updatable by Datakey
1-20 Operator Interface: Clinical Mode Only
0-00 Xxxxxxxx XX Control Level, Sample Flow,
Barcode Validation,
Operator Qualification,
Sufficient Wash and Sufficient Light
1-23 Port Status: LED indicators
1-24 Printer: Monochrome Laser
1-25 Connectivity: 10/100 Base-T Ethernet
2. Specifications for Eight Channel Instrument - Same as Eight Channel
Instrument currently held by MCC.
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EXHIBIT B
1. FOUR PORT INSTRUMENT
1-1 Unit Price US$150,000
1-2 Number of Units to be purchased: up to three (3) units
1-3 Conditions for payment:
MCC will pay half of the amounts that unit price multiply number of
units to be purchased to QUANTECH within forty-five days and
remaining balance will be paid within forty-five days after receipt
by MCC of the instrument(s) by the MCC designated agent provided that
MCC has not informed QUANTECH of non-acceptance of such instruments.
2. FLOW CELL
2-1 Unit Price US$2.75
2-2 Number of Flow Cells 4,500 pcs
2-3 Conditions for payment:
MCC will pay the amounts that unit price multiply number of Flow
Cells to be purchased to QUANTECH within forty-five days upon receipt
of Flow Cells.
2-4 Flow Cell shall mean the unassembled and individual parts to be
assembled by MCC consisting of the gold coated SPR grating with
gasket and cover slip which Flow cell will be able to be used in
either the 8 Channel System or assembled into the Cartridge used in
the Four Port System.
3. EIGHT CHANNEL INSTRUMENT
3-1 Unit Price US$100,000
3-2 Number of Units to be purchased: up to two (2) units
3-3 Conditions for payment:
MCC will pay half of the amounts that unit price multiply number of
units to be purchased to QUANTECH within forty-five days and
remaining balance will be paid within forty-five days after receipt
by MCC of the instrument(s) by the MCC designated agent provided that
MCC has not informed QUANTECH of non-acceptance of such instruments.
4. CARTRIDGE
4-1 Unit Price US$fully burdened cost plus 15%
4-2 Number of Cartridges To be agreed to.
4-3 Conditions for payment:
MCC will pay the amounts that unit price multiply number of
Cartridges to be purchased to QUANTECH within forty-five days upon
receipt of Cartridges.
4-4 Cartridge shall mean the disposable used in the Four Port System to
carry human sample and be capable of holding a flow cell, but will
not contain a flow cell or any liquid reagents. MCC may request the
Cartridge contain reagents and or flow cell will pricing determined
on the entire cost of the Cartage.
