Supply Agreement
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CONFIDENTIAL
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This Agreement is entered into as of
February 20, 2009 (the “Effective Date”) by and between Oculus Innovative
Sciences, Inc., a Delaware corporation, having its principal place of business
at 0000 X. XxXxxxxx Xxxx., Xxxxxxxx, Xxxxxxxxxx 00000 ("Seller"), and BioDrain
Medical, Inc., a Minnesota corporation, having its principal place of business
at 0000 Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0, Xxxxxxx Xxxxxxx, Xxxxxxxxx
00000 ("Buyer").
WHEREAS, Seller manufactures certain
products which it is willing to provide to Buyer on the terms and subject to the
conditions of this Agreement; and
WHEREAS, Buyer wishes to purchase
certain of such products from Seller for use with its own products, and Seller
is willing to supply Buyer with such products;
NOW, THEREFORE, in consideration of the
foregoing premises and the mutual promises and covenants set forth below, Seller
and Buyer mutually agree as follows:
ARTICLE
1
DEFINITIONS
1.1 "Agreement " means
this License and Supply Agreement, as amended from time to time.
1.2
“Buyer Product”
means a private labeled liquid, used solely for the “Permitted Use” as that term
is defined below.
1.3 “Contract Year” means
each twelve (12) month period following and having as its anniversary the
Effective Date of the agreement, during the term of the Agreement.
1.4 "EPA" means the United
States Environmental Protection Agency.
1.5 "FDA" means the United
States Food and Drug Administration.
1.6
"First Commercial
Sale" means the first commercial sale of the Buyer Product by Buyer to a
customer.
1.7 "Initial Term" shall
have the meaning set forth in Section 6.1 hereof.
1.8
“Liquid Solution
Specification” means the specifications for the liquid formulation of the
Seller Solutions set forth on Exhibit A, and the
attached Material Safety Data Sheet and Ingredient Sheet. Exhibit A and the
attached Material Safety Data Sheet and Ingredient Sheet are attached hereto and
by this reference incorporated herein.
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1.9 “Minimum Order
Requirements” means the minimum quantity for each period to be ordered by
Buyer and manufactured by Seller which are specified on Exhibit B,
incorporation in Buyer Products for sale to customers (purchased under Article
III) received by Seller in a Contract Year.
1.10 “Permitted Use” means
as a liquid used to clean the BioDrain Fluid Management system and future
related products developed or sold by Buyer pertaining to infectious fluid
management applications in hospitals, surgical centers or any other areas where
Buyer products are sold.
1.11 “Proprietary Rights”
means patent rights, copyrights, trade secret rights and all other intellectual
and industrial property rights of any sort.
1.12
"Seller
Solution" means the liquid solution supplied hereunder by Seller, with no
claims made by the Company that conform to the Liquid Solution Specifications as
defined above.
1.13 “Specifications” means
the Liquid Solution Specifications.
1.14
“Technology”
means inventions (whether or not patentable), ideas, processes, formulas and
know-how directly related to the Seller Solution as formulated for the Permitted
Use which are owned by Seller and used by it as of the date of this Agreement,
and improvements thereto which are developed and owned by Seller during the term
of this Agreement.
1.15 “Territory” means the
world.
1.16 “Customer”
means the user of the Seller Solution for the Permitted Use.
ARTICLE
II
LICENSE
GRANT
2.1 Proprietary Rights
License. On the terms and subject to the conditions of this Agreement,
Seller hereby grants to Buyer an exclusive license under its Proprietary Rights
in the Technology; provided, however, that: (i) if Buyer fails to meet its
Minimum Volume Requirements specified on Exhibit B for any
specified period, Seller may, at its option, terminate the
agreement.
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2.2 Trademark. All
promotional materials and Buyer Product packaging may include in easily
readable, non-obscured type that is not less than 25% the size of the other
names and notices the xxxx “Microcyn” (or for product shipped outside the United
States such other trade name for “Microcyn” that Seller gives Buyer notice as
appropriate for the country into which the Buyer Product will be shipped), and a
legend that Seller owns such xxxx and any reasonable proprietary markings and
notices of Seller. Buyer will confer with Seller prior to
distributing Buyer Product outside the United States to determine the
appropriate trade name for use in each country.
Buyer
shall market the Buyer Product under a name agreeable to both parties, and the
associated xxxx specified by Buyer, and such name and xxxx shall be exclusively
owned by Buyer. Seller shall have no rights in the name, xxxx and
designation that will be specified and used by Buyer for the Buyer
Product. Seller shall not unreasonably withhold approval on use
of Buyer’s name. Buyer may use the “Microcyn” name and xxxx to describe the
active ingredient in Buyer Product, but may not use or register the name
”Oculus” or the ”Microcyn” name or any other name or xxxx of Seller or that is
confusingly similar to any such xxxx, anywhere in the world.
2.3
No Implied
License. Buyer acknowledges that Seller grants no license, by
implication or otherwise, except for the licenses expressly set forth in this
Article II.
ARTICLE
III
SALE AND
PURCHASE OF SOLUTION
3.1
Sale and
Purchase. On the terms and conditions set forth in this Agreement, Seller
agrees to sell to Buyer such quantities of Seller Solution as Buyer may order to
satisfy 100% of Buyer's requirements for Seller Solution for use in Buyer’s sale
of Buyer Products ("Requirements"), except as provided in Section 6.3
below.
3.2 Quantity;
Forecasts.
(a) Buyer shall deliver to Seller once
every calendar quarter a 12-month forecast of Buyer’s projected Requirements of
Seller Solution (“Forecast”). The first Forecast shall be provided to
Seller no less than one (1) full calendar quarters prior to the time when the
First Commercial Sale of Buyer Products is projected to
occur. No Forecast shall be binding or treated as a firm
order.
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Buyer
shall deliver to Seller at least thirty (30) days prior to First Commercial Sale
of Buyer Products or at least thirty (30) days after Execution Date written
below of this Agreement, which ever is first a firm order for the initial
calendar quarter commencing on the First Commercial Sale date. No
Forecasts or orders need be given for any period after the term of this
Agreement.
(b)
Buyer's forecasts and orders shall reflect its good-faith expectations of
customer demand, and Buyer shall act in a commercially reasonable manner to
schedule orders to avoid creating production capacity problems for
Seller.
3.3 Delivery.
(a) All customs, duties,
costs, taxes, insurance premiums, and other expenses associated with
transportation from Seller’s location to Buyer’s facility shall be at Seller’s
expense.
(b) All customs, duties, costs, taxes,
insurance premiums, and other expenses associated with transportation from
Seller’s location to Buyer’s customers shall be at Seller’s
expense.
(c) Seller shall assist Buyer in
arranging any desired shipping insurance (in amounts that Buyer shall determine)
and transportation, via ground freight unless otherwise specified in writing, to
any destination specified in writing from time to time by Buyer.
(d) Seller shall manufacture Seller
Solution in a facility with a current ISO 13485 certification for medical device
design and manufacturing, and shall be compliant with all US and International
regulations and laws that are applicable and consistent with this
certification.
3.4 Rejection of Seller Solution
in Case of Nonconformity.
(a) On the terms of this Agreement,
Buyer may reject any portion of any shipment of Seller Solution that does not
conform in all material respects with the Specifications.
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Seller
shall supply to Buyer with each delivery of Seller Solution a document(s)
reflecting, for each batch of Seller Solution, laboratory data substantiating
conformity of the Seller Solution to the appropriate Specifications and shall
retain a sample of each batch of Seller Solution shipped to
Buyer. Buyer shall have the right, in its discretion but at its
expense, to test Seller Solution within fourteen (14) days of delivery, using a
laboratory of Buyer’s choice, for conformity to the
Specifications. If Buyer rejects Seller’s Solution due to
non-conformity of the Seller Solution with the appropriate Specifications,
Seller may, within five (5) days of notice of the rejection, request examination
of Seller’s batch sample of Seller Solution by a third-party laboratory chosen
jointly by the parties (an “Independent Lab”), in which event the Independent
Lab shall examine Seller’s batch sample of Seller Solution for conformity to the
Specifications. The party whose laboratory results are inconsistent
with conformity/non-conformity findings of the Independent Lab shall pay the
costs of the Independent Lab, as well as the laboratory costs of the other party
incurred in testing the disputed batch.
In order
to reject a shipment, Buyer must (i) give notice to Seller of Buyer's rejection
of the shipment within thirty (30) days of receipt together with a reasonably
detailed written indication of the reasons for such rejection. If no such notice
of rejection is timely received, Buyer shall be deemed to have accepted such
delivery of Seller Solution.
(b) Buyer shall not be
obligated to pay for Seller Solution that is rejected by Buyer unless the
Independent Lab concludes that Seller’s batch sample conformed to the
Specifications. Seller shall be responsible for costs of shipment, insurance,
duties, customs and fees incurred in connection with justifiably rejected Seller
Solution, and Buyer shall be responsible for any costs of shipment, insurance,
duties, customs and fees incurred in connection with wrongfully rejected Seller
Solution. Seller shall use commercially reasonable efforts to deliver
to Seller no more than fourteen (14) days after the receipt of Buyer’s notice of
rejection and Buyer’s request for re-shipment a replacement shipment of Seller
Solution which, unless justifiably rejected pursuant to the terms of this
Agreement, shall be purchased by Buyer as provided in this
Agreement. After receipt of Buyer’s notice of rejection, Seller shall
submit a batch sample of the rejected Seller Solution to the Independent Lab or,
if it does not submit the batch sample to the Independent Lab within fifteen
(15) days, Buyer’s rejection shall be deemed to be justifiable. If
the Independent Lab determines that Seller Solution conformed to the
Specifications and that Buyer improperly rejected Seller Solution, Buyer shall
be obligated to pay for the improperly rejected Seller Solution, and shall be
obligated to pay for any replacement Seller Solution requested by
Buyer.
(c) Unless Seller requests the return
of a rejected batch within thirty (30) days of receipt of Buyer's notice of
rejection, Buyer shall dispose of, at Seller’s cost, such batch promptly and
provide Seller with certification of such disposal. Buyer shall, upon
receipt of Seller's request for return, promptly dispatch said batch to Seller,
at Seller's cost; provided, however that Buyer may retain a sample of said batch
until conformity of the Seller Solution in finally resolved by the Independent
Lab.
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3.5 Other
Obligations.
(a) Buyer and Seller agree to ascertain
and comply with all applicable laws and regulations and standards of industry or
professional conduct in connection with the use of the Buyer Products and the
distribution and promotion of Buyer Products.
(b) Buyer shall have the right to
perform post-market studies on Buyer Product, however Buyer shall not publish
and shall not authorize the publication of, any post-market study results
without the prior and not unreasonably withheld consent of Seller. If
Buyer contracts for, or sponsors a post-market study by a third party (if
permitted under this Agreement), such contract shall prohibit the third-party
from publishing such study unless mutually consented and such consent not
unreasonably withheld to by Seller and Buyer in writing.
(c) Buyer agrees to market and label
the Buyer Products consistent with all applicable regulatory label
claims. Buyer is responsible for obtaining all applicable label
claims, but these claims must apply only to the intended use.
Buyer
shall not, and shall cause its sublicensees not, to make any representations or
warranties relating to Seller Solution except for those representations
contained in this Agreement. Buyer
agrees not to make, and agrees to cause its sublicensees not to make, any
representation or warranty, whether oral or in writing, regarding the Buyer
Product that is not consistent with the label claims authorized in the country
in which Buyer Products are marketed. Buyer agrees to notify, and to
cause those with whom it contracts to notify, customers that use of the Buyer
Product is restricted to the Permitted Use.
(d) Buyer
and Seller agree to immediately notify one another of any serious adverse event
resulting from use of Buyer Product with Seller Solution, or any actual or
potential government action related to a Seller Solution or Buyer Product (but
in no event later than 24 business hours thereafter) and, if and to the extent
requested by Seller in writing as a result of a communication from the FDA, EPA,
or other regulatory entity, to suspend distribution of the Buyer
Products.
(e) Buyer and Seller agree to keep and
make reasonably available for the other’s use and copying, in connection with an
FDA-recommended recall, for one year after termination of this Agreement (or
longer if required by applicable law or regulation) records of all Buyer Product
and Seller Solution sales and customers sufficient to adequately administer a
recall of any Seller Solution or Buyer Product and to cooperate fully in any
decision by Seller to recall, retrieve and/or replace any Seller Solution based
on communications with the FDA or other regulatory authority.
(f) Buyer agrees to provide to Seller
each month a report of all inventory of Seller Solution in the inventory of
Buyer at each month end. Such reports shall include the unit count of
all Seller Solution units, and locations of such units, as well as the carrying
value of such units. Buyer shall provide such a report to Seller
within three (3) business days following each calendar month
end.
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ARTICLE
IV
ROYALTIES,
PRICE AND PAYMENTS
4.1 Price. Buyer shall
pay to Seller for Seller Solution the amounts set forth on Exhibit B in United
States dollars.
4.2 Method of Payment.
All payments for the purchase of Seller Solution due hereunder to Seller shall
be paid to Seller in United States dollars in the United States not later than
forty-five (45) days following the invoice date of the applicable
order.
ARTICLE
V
CONFIDENTIALITY
5.1
Confidentiality.
Each party recognizes the importance to the other of the other's Proprietary
Information. In particular the parties recognize that the Technology and other
of Proprietary Information (and the confidential nature thereof) are critical to
the business of Buyer and Seller and that Buyer and Seller would not enter into
this Agreement without assurance that such technology and information and the
value thereof will be protected as provided in this Article 5 and elsewhere in
this Agreement.
Accordingly,
each party agrees as follows:
(a) The
party receiving Proprietary Information (the “Receiving Party”) of the other
party, which information shall be specifically identified as proprietary or
confidential, (the “Disclosing Party”) agrees (i) to hold the Disclosing Party's
Proprietary Information in confidence and to take all reasonable precautions to
protect such Proprietary Information (including, without limitation, all
precautions the Receiving Party employs with respect to its confidential
materials), (ii) not to divulge any such Proprietary Information or any
information derived therefrom to any third person, provided, however, that Buyer
may disclose, subject to a written non-disclosure agreement, Proprietary
Information to third parties with a need to know solely for the purpose of
validating manufacturing, distribution and sale viability, and (iii) not to
remove or export from the United States or reexport any such Proprietary
Information or any direct product thereof (e.g., Products by whomever made)
unless expressly consented to in writing by the other party and except in
compliance with all licenses and approvals required under applicable U.S. and
foreign export laws and regulations, including without limitation, those of the
U.S. Department of Commerce. Any employee given
access to any such Proprietary Information must have a legitimate “need to know”
and shall be similarly bound in writing. Without granting any right or license,
the Disclosing Party agrees that the foregoing clauses (i), (ii) and (iii) shall
not apply with respect to information the Receiving Party can document (i) is in
or (through no improper action or inaction by the Receiving Party, agent or
employee) enters the public domain (and is readily available without substantial
effort), or (ii) was rightfully in its possession or known by it prior to
receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by
another person without restriction, or (iv) was independently developed by it by
persons without access to such information and without use of any Proprietary
Information of the Disclosing Party. The Receiving Party must promptly notify
the Disclosing Party of any information it believes comes within any
circumstance listed in the immediately preceding sentence and will bear the
burden of proving the existence of any such circumstance by clear and convincing
evidence. Each party’s obligations under this Article 5 shall terminate five (5)
years after the termination or expiration of this Agreement.
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(b) Immediately
upon termination of the Receiving Party's license under Article 2, the Receiving
Party will turn over, or shall cause to have turned over, to the Disclosing
Party all Proprietary Information of the Disclosing Party and all documents or
media containing any such Proprietary Information and any and all copies or
extracts thereof. Buyer shall notify Seller of and keep only such
proprietary information as is necessary for legal and or regulatory
purposes.
(c) The
Receiving Party acknowledges and agrees that due to the unique nature of the
Disclosing Party's Proprietary Information, there can be no adequate remedy at
law for any breach of its obligations hereunder, that any such breach may allow
the Receiving Party or third parties to unfairly compete with the Disclosing
Party resulting in irreparable harm to the Disclosing Party, and therefore, that
upon any such breach or any threat thereof, the Disclosing Party shall be
entitled to appropriate equitable relief (without the posting of any bond) in
addition to whatever remedies it might have at law and to be indemnified by the
Receiving Party from any loss or harm, including, without limitation, lost
profits and attorney's fees, in connection with any breach or enforcement of the
Receiving Party's obligations hereunder or the unauthorized use or release of
any such Proprietary Information. The Receiving Party will notify the Disclosing
Party in writing immediately upon the occurrence of any such unauthorized
release or other breach. Any breach of this Article 5 will constitute a material
breach of this Agreement.
ARTICLE
VI
TERMINATION,
RIGHTS AND
OBLIGATIONS
UPON TERMINATION
6.1 Term. Unless
terminated by either party pursuant to the other provisions of this Article VI,
this Agreement shall continue in effect until five (5) years from the Effective
Date (the "Initial Term"), and shall thereafter continue and
automatically renew on an annual basis unless terminated by either party by
giving thirty (30) days’ written notice prior to the expiration of the Initial
Term or any extension thereof.
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6.2
Termination for
Failure to Commercialize. Seller may terminate this Agreement
immediately if the First Commercial Sale does not occur within six months
following the Effective Date of this Agreement.
6.3
Termination for
Failure to Meet Minimum Order Requirements. If Buyer fails to
order from Seller an amount, which is equal to or greater than the Minimum Order
Requirement for such calendar year, then Seller may, in addition to any other
rights it has under this Agreement, terminate the Agreement on thirty (30)
business days’ written notice to Buyer.
If Seller
does not terminate this Agreement following a failure of Buyer to meet the
Minimum Order Requirements within thirty (30) business days following the end of
the calendar year in which the failure occurred, Buyer may request of Seller, in
writing and within sixty (60) business days of the end of the calendar year in
which the failure occurred, a written letter from Seller waiving the rights of
Seller to terminate this Agreement at a later date for that particular failure.
Seller will then respond with such a written waiver within ninety (90) business
days of the calendar year in which the failure occurred.
6.4 Termination by Mutual
Agreement. This Agreement may be terminated upon mutual
written agreement of the parties.
6.5 Termination for
Default. If either party materially defaults in the performance of any
material agreement, condition or covenant of this Agreement, the defaulting or
non-complying party shall have ninety (90) days to remedy after receipt by the
defaulting party of a notice thereof from the other party. If the
default or non-compliance has not been remedied in ninety (90) business days (or
thirty (30) business days in the case of non-payment), then the party not in
default may terminate this Agreement without penalty, unless, within said ninety
(90) business days, the defaulting party has initiated remedial action
reasonably satisfactory to the party not in default.
6.6 Rights and Obligations on
Expiration or Termination. Except to the extent expressly provided to the
contrary, the following provisions shall survive the termination of this
Agreement: Article I, Section 3.5(e), Article V, this Section 6.7 and Articles
VII and VIII. Any rights of Seller to payments accrued through termination as
well as obligations of the parties under firm orders for purchase and delivery
of Seller Solutions at the time of such termination shall remain in effect,
except that in the case of termination under Section 6.6, the terminating party
may elect whether obligations under firm orders will remain in effect and except
that Seller will have no obligation with respect to Delivery Dates more than six
(6) months after termination.
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6.7 Continuation of
Supply.
(a)
Following the termination of this Agreement by Seller , Seller shall be
obligated to continue to fulfill Buyer orders on a non-exclusive basis for six
(6) months following the termination under the same terms of this Agreement
other than the exclusive nature of the Agreement assuming the Seller in
compliance with this agreement.
(b)
Following the expiration of this Agreement or non-renewal of this Agreement at
any time by Buyer and or Seller, the Seller shall be obligated to continue to
fulfill Buyer orders on a non-exclusive basis for six (6) months following the
expiration under the same terms of this Agreement other than the exclusive
nature of the Agreement assuming the Seller is in compliance with this
agreement.
ARTICLE
VII
WARRANTY
AND INDEMNIFICATION
7.1 Warranties. Seller
warrants to Buyer that, when shipped to Buyer by Seller, the Seller Solutions
will conform in all material respects to the applicable Specifications at the
time of shipment to Buyer. Seller further warrants to Buyer that, to
its knowledge, the Seller Solution does not infringe any third party Proprietary
Rights.
BUYER’S
SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTIES OR FOR
SELLER SOLUTION DEFECTS SHALL BE ITS RIGHT TO DEMAND REPLACEMENT OF
NON-CONFORMING UNITS OF SELLER SOLUTION FOR WHICH FULL DOCUMENTATION AND PROOF
OF NONCONFORMITY IS PROVIDED TO SELLER AFTER REJECTION AND TESTING FOR
NONCONFORMITY AS PROVIDED HEREIN. EXCEPT FOR THE FOREGOING
WARRANTIES, SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
SELLER SOLUTIONS. SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY
REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
7.2 Seller
Insurance.
Seller
shall carry an insurance policy or policies, which shall name Buyer as an
additional insured, covering, in the following amounts, any and all losses for
death or bodily injury, patent claims, and any costs incurred by Buyer in
connection with any recall of Buyer Product or Seller Solution caused by Seller
for death or bodily injury on account of Seller: $2,000,000/occurrence, and
$2,000,000 general aggregate.
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7.3 Buyer Indemnification and
Insurance.
(a) Buyer
shall indemnify Seller against any and all liability, damages and cost and
expenses, including reasonable attorneys' fees, made against or sustained by
Seller arising from the death of, or bodily injury to, any person on account of
use of Buyer Product, provided that such harm is unrelated to Seller Solution
being in Buyer’s Product.
At the
time of First Commercial Sale, Buyer shall carry an insurance policy or
policies, which shall name Seller as an additional insured, covering, in the
following amounts, any and all losses for death or bodily injury caused by Buyer
Product, provided that such loss was solely attributable to the Seller Solution;
$2,000,000/occurrence, and $2,000,000 general aggregate.
(b) Buyer
will also indemnify Seller from any liability, damages, costs and expenses,
including reasonable attorneys’ fees, that result from Buyer’s or one or more of
Buyer’s sublicensee’s failure to market or label the Buyer Products as required
herein, and Buyer’s failure to effectively notify Buyer’s and its sublicensee’s
customers of the restrictions on use and properly disclaim to its customer all
warranties and liabilities on behalf of Seller to the same extent as disclaimed
herein.
7.4 Limitations to
Indemnity. The indemnities of Sections 7.2 and 7.3 shall not apply (i) if
the indemnified party fails to give the indemnifying party prompt notice of any
claim it receives and such failure materially prejudices the indemnifying party,
or (ii) unless the indemnifying party is given the opportunity to approve any
settlement. Furthermore, the indemnifying party shall not be liable
for attorneys' fees or expenses of litigation of the indemnified party unless
the indemnified party gives the indemnifying party the opportunity to assume
control of the defense or settlement.
7.5 Settlement. The
indemnified party shall not be entitled to settle any of the above-mentioned
claims without the consent of the indemnifying party, which consent shall not be
unreasonably withheld. However, if for any reason the indemnifying
party refuses to grant consent to the indemnified party to settle a claim, the
indemnifying party shall bear the indemnified party’s legal costs in defending
of the claim.
7.6 Incidental and
Consequential Damages. EXCEPT FOR WILLFUL BREACH BY
A PARTY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ARTICLE 5
(CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT.
7.7 Abandonment,
Insolvency. In the event that, at any time and for any reason,
Seller abandons efforts to produce and supply Seller Solution in liquid form, or
if Seller files for bankruptcy protection and such proceeding is not dismissed
within ninety (90) business days, Buyer has the right to an uninterrupted supply
of Seller Solution from Seller, or the surviving entity of such a transaction
under the same terms of this Agreement.
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ARTICLE
VIII
MISCELLANEOUS
8.1 Entire Agreement.
This Agreement contains the entire agreement of the parties regarding the
subject matter hereof and supersedes all prior agreements, understandings and
negotiations regarding the same. This Agreement may not be modified or
supplemented except by a written instrument signed by both parties. Furthermore,
it is the intention of the parties that this Agreement be controlling over
additional or different terms of any order, confirmation, invoice or similar
document, even if accepted in writing by both parties, and that waivers and
amendments shall be effective only if made by negotiated waiver agreements
clearly understood by both parties to be an amendment or waiver.
8.2 Severability. If any
provision of this Agreement shall be held illegal or unenforceable, that
provision shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and
enforceable.
8.3 Further Assurances.
Each party hereto agrees to execute, acknowledge and deliver such further
instruments, and to do all such other acts as may be reasonably necessary or
appropriate in order to carry out the purposes and intent of this
Agreement.
8.4 Use of Party's Name, Press
Release. Except as provided in Article II herein, no right, express or
implied, is granted by this Agreement to either party to use in any manner the
name or trademark of the other. Within seven (7) business days
following execution of this Agreement, each party may release a mutually
acceptable and approved in advance in writing press release (or other public
announcement) announcing the execution of this Agreement.
8.5 Assignment,
Successorship. This Agreement may be assigned by either party
to any third party that succeeds to substantially all of a party’s
assets or business that constitutes the subject matter of this Agreement,
whether by reason of stock sale, merger, or asset sale, so long as the assignee
agrees in writing to be bound by the terms of this Agreement.
8.6 Notice
Delivery. All notices, consents, or approvals required by this
Agreement shall be in writing sent by certified or registered air mail, postage
prepaid, or by confirmed facsimile to the parties at the addresses set forth in
the preamble of this Agreement or such other addresses as may be designated in
writing by the respective parties. Notices shall be deemed effective
on the date of mailing.
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8.7 Relationships of the
Parties. Both parties are independent contractors under this Agreement.
Nothing contained in this Agreement is intended nor is to be construed so as to
constitute Seller and Buyer as partners, agents or joint venturers with respect
to this Agreement. Neither party hereto shall have any express or implied right
or authority to assume or create any obligations on behalf of or in the name of
the other party or to bind the other party to any contract, agreement or
undertaking with any third party.
8.8 Waiver. The waiver by
either party of a breach of any provisions contained herein shall be in writing
and shall in no way be construed as a waiver of any subsequent breach of such
provision or the waiver of the provision itself.
8.9 Applicable Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to the conflicts of laws provisions thereof or
the United Nations Convention on the International Sale of Goods. The exclusive
jurisdiction and venue of any action with respect to this Agreement shall be in
New York, and each of the parties hereto submits itself to the exclusive
jurisdiction and venue of such courts for the purpose of any such action.
Service of process in any such action may be effected in the manner provided in
Section 8.6 for delivery of notices. The prevailing party in any legal action to
enforce or interpret this Agreement shall be entitled to reasonable costs and
attorneys' fees.
8.10
Captions.
Paragraph captions are for convenience only and in no way are to be construed to
define, limit or affect the construction or interpretation hereof.
8.11
Force Majeure.
A party shall not be liable for nonperformance or delay in performance (other
than of obligations regarding payment of money or confidentiality) caused by any
event reasonably beyond the control of such party including, but not limited to
wars, hostilities, revolutions, riots, civil commotion, national emergency,
strikes, lockouts, epidemics, fire, flood, earthquake, force of nature,
explosion, embargo, or any other Act of God, or any law, proclamation,
regulation, ordinance, or other act or order of any court, government or
governmental agency.
8.12
Export Control;
Corruption.
(a) Buyer shall comply with the U.S.
Foreign Corrupt Practices Act and all applicable export laws, restrictions, and
regulations of the U.S. Department of Commerce, the U.S. Department of Treasury
and any other any U.S. or foreign agency or authority. Buyer will not export or
re-export, or allow the export or re-export of any product, technology or
information it obtains or learns pursuant to this Agreement (or any direct
product thereof) in violation of any such law, restriction or regulation,
including, without limitation, export or re-export to Cuba, Iran, Iraq, Libya,
North Korea, or any other country subject to U.S. trade embargoes, or to any
party on the U.S. Export Administration Table of Denial Orders or the U.S.
Department of Treasury List of Specially Designated Nationals, or to any
prohibited destination in any of the Country Groups specified in the then
current Supplement No. 1 to Part 740 or the Commerce Control List specified in
the then current Supplement No. 1 to Part 738 of the U.S. Export Administration
Regulations (or any successor supplement or regulations).
|
|
CONFIDENTIAL
|
|
(b) Buyer shall obtain and bear all
expenses relating to any necessary licenses and/or exemptions with respect to
the export from the U.S. of any Seller Solution to any location in compliance
with all applicable laws and regulations prior to delivery thereof by Seller. If
Buyer is involved in a transaction that gives Buyer reason to suspect that any
product, technology or information it obtains or learns pursuant to this
Agreement will be exported, re-exported, or diverted in violation of any such
laws, restrictions or regulations (including, without limitation, knowledge of
suspect end users, abnormal transaction circumstances, or other Bureau of Export
Administration "red flag" indicators), then Buyer will take appropriate steps to
terminate such transaction, notify the correct U.S. agency, and give notice to
Seller.
IN
WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the date first written above.
|
SELLER:
Oculus
Innovative Sciences, Inc.
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|
|
Signature:
/s/Xxxxxx X. Xxxxxx
|
|
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Name/Title
(print): Chief Financial Officer
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|
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Date:
3/12/09
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BUYER:
|
|
|
Signature:
/s/ Xxxxx Xxxxxxxx
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|
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Name/Title
(print): CEO
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Date:
3/16/09
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CONFIDENTIAL
|
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Exhibit
A
Seller
Solution (Liquid) Specifications and Claims
Liquid
Solution Specification (including shelf life):
Seller
Solution is a non-regulated superoxidized solution based on the Microcyn
platform technology manufactured with a free available chlorine concentration of
100 ppm to 225 ppm, a pH range of 4 to 6, and a phosphate buffer.
Seller
Solution, in liquid form, shall conform in all respects to the Liquid Solution
Specifications (including the attached Material Safety Data Sheet and Ingredient
Sheet), and shall be shipped in a 32-ounce “ringed carafe” bottle or, if the
parties mutually agree, different containers at prices mutually agreed to by the
parties (the “Package specifications”).
The shelf
life of the product will be at least twenty four (24) months, from the date of
manufacturing.
Liquid
Solution Claims
There are
no EPA or FDA regulated claims, or any unregulated claims, made or implied by
Seller as to the efficacy or use of the Seller Solution. For clarity,
Seller Solution is void of any claims as to it’s efficacy or
use. Buyer is responsible for any and all label content and any and
all claims made on the label of the Buyer Products or associated marketing
material of the Buyer Products. Buyer will provide an electronic
version of the label to Seller for printing purposes only. Seller
shall not have the obligation or right to review the given label, and will not
be held responsible for any content or claims made on the given label for Buyer
Products.
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CONFIDENTIAL
|
|
Exhibit
B
Prices
and Minimum Order Requirements
Prices:
The
following prices are for 750ml to 946ml of Seller Solution in a 32-ounce “ringed
carafe” bottle, or different bottle as mutually agreed upon by Buyer and Seller,
including cap, label, and shipping to Buyer or other holding facility in the
US. Price does not include any additional shipping costs to ship from
Buyer’s or other’s warehouse to the end customer. All orders shall be
made in case denominations, 32-case denominations, or 768-case denominations,
with unit prices as follows:
For the
first 50,000 bottles ordered by Buyer:
|
Load
|
Pallet
|
Case
|
||||||||||
|
Order
size (case)
|
768 | 32 | 1 | |||||||||
|
Order
size (bottles)
|
9,216 | 384 | 12 | |||||||||
|
Price
per case (12 bottles)
|
||||||||||||
|
Price
per unit (bottle)
|
||||||||||||
After the
first 50,000 bottles have been ordered by Buyer:
|
Load
|
Pallet
|
Case
|
||||||||||
|
Order
size (cases)
|
768 | 32 | 1 | |||||||||
|
Order
size (bottles)
|
9,216 | 384 | 12 | |||||||||
|
Price
per case (12 bottles)
|
||||||||||||
|
Price
per bottle
|
||||||||||||
Minimum
Order Requirements:
|
Calendar
Year
|
2009
|
2010
|
2011
|
2012
|
2013
and calendar
years
thereafter
|
|||||||||||||||
|
Minimum
bottles purchased
|
15,000 | 175,000 | 500,000 | 1,000,000 | 1,500,000 | |||||||||||||||
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|
CONFIDENTIAL
|
|
Incentive
Price Discounts:
Seller
shall grant to Buyer a per-bottle price discount for Buyer reaching the
following purchasing milestones during a calendar year. Only one of
the following discounts will apply at any time, and will last for the remainder
of that year and the succeeding calendar year in which the milestone was met.
Once the milestone is met and the discount is applied for the following calendar
year, and if in that following year the bottles purchased falls below the
milestone, then the discount applied to the next year can only decrease to the
discount related to the prior milestone. For example, if in 2011 the
Seller purchases more than 1.5 million bottles, then the discount applied for
calendar year 2012 is $***.Then if the actual amount purchased for 2012 was less
than 0.5 million bottles, then the discount would drop only one level to
$..
|
Bottles
Purchased
|
Per-Bottle
Discount
|
|
|
500,000
|
*** | |
|
1,000,000
|
*** | |
|
1,500,000
|
*** | |
|
2,000,000
|
*** |
*** This
material has been omitted pursuant to a request for confidential treatment and
filed separately with the Securities and Exchange Commission.
