EXHIBIT 10.21
DISTRIBUTORSHIP AGREEMENT
This Agreement, made and entered into to be effective as of the 19th day of
March, 1998 by and between:
MATRITECH, INC.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
a corporation organized under the laws of the state of Delaware, hereinafter
referred to as SUPPLIER; and
XXXXXX XXXXXXXX SCIENTIFIC, A DIVISION OF
XXXXXX SCIENTIFIC COMPANY L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
a company organized under the laws of the state of Delaware, hereinafter
referred to as DISTRIBUTOR.
WITNESSETH
WHEREAS, SUPPLIER desires to sell and/or market its products through the
use of a distributor, and
WHEREAS, DISTRIBUTOR desires to purchase the SUPPLIER's products for resale
to customers; and
WHEREAS, the parties desire to enter into a distributorship agreement
governing their relationship;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. PRODUCT
1.1 Products: The Products covered by this Agreement are those products set
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forth and attached hereto in Exhibit A ("Products"), manufactured by or for
SUPPLIER, together with accessories, parts and components necessary for their
maintenance and repair. Exhibit A may be amended from time to time by mutual
consent of the parties.
1.2 Improved or Updated Products: SUPPLIER shall offer to DISTRIBUTOR in
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writing the right to distribute any improved or updated Products developed by
SUPPLIER during the term of this Agreement on the same terms as set forth
herein. For any period during which the arrangement between the parties for
distribution of any Products is exclusive, DISTRIBUTOR shall accept distribution
rights with respect to improved or updated Products, if at all, in writing,
within
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sixty (60) days after SUPPLIER advises DISTRIBUTOR of the availability of
such improved or updated Products. In the event DISTRIBUTOR elects not to
exercise such right as to all or any of the products so offered by SUPPLIER
within such period, SUPPLIER may distribute any such rejected improved or
updated products to any third party on terms no more advantageous than those
offered to DISTRIBUTOR.
1.3 Shelf Life: SUPPLIER represents and warrants that all Products with a
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limited shelf life have been so indicated on Exhibit A with the useful life
of each Product stated in months from the date of manufacture.
1.4 MSDS: SUPPLIER shall provide required Material Safety Data Sheets for
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any Product containing hazardous chemicals as required by Federal, state or
local law.
2. GRANT OF RIGHTS
2.1 DISTRIBUTOR's Distribution Rights: SUPPLIER hereby appoints DISTRIBUTOR
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and DISTRIBUTOR accepts the appointment as the exclusive distributor of the
Products in the Territory (as defined below) during the term and pursuant to the
provisions of this Agreement. The rights granted herein shall not be construed
to confer any license rights upon DISTRIBUTOR, by implication, estoppel or
otherwise, to use or practice any of SUPPLIER's patents or other intellectual
property. If and to the extent that DISTRIBUTOR performs its rights and
obligations under this Agreement through an affiliate, DISTRIBUTOR shall cause
such affiliate to be bound by all the terms and conditions of this Agreement.
2.2 SUPPLIER's Distribution Rights: SUPPLIER reserves the right to sell the
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Products in the Territory, and may sell components of the Products in
different formats to other parties within the Territory.
2.3 Territory: The territory in which the DISTRIBUTOR has the exclusive
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right to sell and distribute the Products shall be all hospitals and commercial
laboratories in the United States. DISTRIBUTOR shall not sell or otherwise
distribute any Products to any person or entity in the Territory if DISTRIBUTOR
has reason to believe that such person or entity intends to resell or
redistribute the Products outside of the Territory.
2.4 Competitive Product: Except as otherwise set forth in this Section 2.4,
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DISTRIBUTOR shall not market, advertise, distribute or sell any products in the
Territory that are directly competitive with the Products. Notwithstanding the
foregoing, DISTRIBUTOR shall have the right to distribute and sell any products
of a third party competitive with the Products listed on Exhibit A in the event
SUPPLIER is more than sixty (60) days delinquent in its shipping obligation for
the Products. Nothing contained herein shall in any way restrict DISTRIBUTOR's
activities outside the Territory. Additionally, the sale of a product licensed
by SUPPLIER to a supplier of DISTRIBUTOR in a different format shall not
constitute a breach of this Agreement by SUPPLIER.
2.5 Best Efforts: DISTRIBUTOR shall use reasonable efforts to sell and
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promote the sale of Products within the Territory during the term of this
Agreement.
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3. ORDERS; VOLUME
3.1 Orders: DISTRIBUTOR shall make purchases by submitting firm purchase
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orders to SUPPLIER. The minimum Product order by DISTRIBUTOR is [CONFIDENTIAL
TREATMENT REQUESTED*] kits. Concurrent with the execution of this Agreement by
both parties, DISTRIBUTOR agrees to place an initial order for [CONFIDENTIAL
TREATMENT REQUESTED*] kits of the Product.
3.2 Minimum Annual Purchase Targets: DISTRIBUTOR's estimated minimum annual
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purchase targets are set forth on Exhibit B. SUPPLIER acknowledges that this is
a non-binding estimate only, and not a commitment to purchase.
4. SHIPPING AND DELIVERY
4.1 Shipping: SUPPLIER shall ship all Products F.O.B. Shipping Point to
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the location designated by DISTRIBUTOR, freight prepaid and absorbed by
SUPPLIER. SUPPLIER shall ship Products to DISTRIBUTOR, via a carrier
selected by SUPPLIER.
4.2 Purchase Forecast: On or before the first day of each calendar quarter,
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DISTRIBUTOR is obligated to provide SUPPLIER with a twelve (12) month rolling
unit purchase forecast covering the following twelve (12) months. Such forecast
is not a purchase order and is nonbinding.
4.3 Obsolete Inventory: Any Products owned by DISTRIBUTOR and rendered
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unsalable, in DISTRIBUTOR's reasonable opinion, due to: (i) a material change in
any Product specification, (ii) discontinuation or elimination by SUPPLIER of
any Product from its product offering, or (iii) release by SUPPLIER of any
improved or updated version of any Product without providing DISTRIBUTOR at
least ninety (90) days written notice prior to release of the improved or
updated version of the Product shall be repurchased from DISTRIBUTOR by SUPPLIER
within thirty (30) days following DISTRIBUTOR's request in writing therefor at
the price paid for such Product(s) by DISTRIBUTOR. SUPPLIER shall additionally
pay for return freight and related transportation and insurance charges for all
such Products.
4.4 Shelf Life: SUPPLIER shall ship Products so that [CONFIDENTIAL TREATMENT
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REQUESTED*] of the shelf life described in Exhibit A will be remaining at the
time of shipping to DISTRIBUTOR's warehouse but in no event less than
[CONFIDENTIAL TREATMENT REQUESTED*] of shelf life must be remaining. SUPPLIER
agrees to take back for full invoice credit plus shipping charges any dated
Products shipped contrary to this provision.
4.5 Delivery: Provided SUPPLIER's firm purchase order agrees within twenty-
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five percent (25%) with the preceding quarters rolling unit forecast, then
SUPPLIER shall ship all Products for which it has received a firm purchase order
within [CONFIDENTIAL TREATMENT REQUESTED*] of order receipt. SUPPLIER agrees
that time is of the essence regarding its delivery of Products.
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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5. SALES AND MARKETING SUPPORT
5.1 Training: SUPPLIER shall provide to DISTRIBUTOR's sales personnel, at
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a location as the parties may agree, such training in the demonstration and
use of the Products as may be reasonably requested by DISTRIBUTOR, and for
such training purposes shall make available, at SUPPLIER's expense, the
necessary instructors, training material and Products for demonstration.
DISTRIBUTOR shall provide transportation and lodging expenses for
DISTRIBUTOR personnel for the training of DISTRIBUTOR representatives by
SUPPLIER.
5.2 Technical Support: SUPPLIER shall provide technical support to
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DISTRIBUTOR's sales personnel and customers, and promptly provide to DISTRIBUTOR
such additional technical information developed or acquired by SUPPLIER from
time to time as may reasonably be expected to be of assistance to DISTRIBUTOR in
fulfilling its obligations hereunder. SUPPLIER shall provide at its own expense
a toll free long distance telephone service for sales and customer support.
5.3 Literature: SUPPLIER shall provide, at its expense, reasonable
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quantities of such instruction manuals and point of sale literature as may, from
time to time, be requested by DISTRIBUTOR for use in connection with the
marketing, sale and distribution of the Products. Subject to DISTRIBUTOR's prior
written approval, DISTRIBUTOR's name may be incorporated in SUPPLIER's
advertising literature intended for distribution by DISTRIBUTOR's sales
representatives. If requested to do so by DISTRIBUTOR, SUPPLIER shall furnish
DISTRIBUTOR with suitable copy and photographs for use by DISTRIBUTOR in
cataloging the Products.
5.4 Sales Reports: At SUPPLIER's request, DISTRIBUTOR shall submit to
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SUPPLIER such reports as are customarily provided to suppliers similarly
situated with SUPPLIER including, but not limited to, [CONFIDENTIAL TREATMENT
REQUESTED*].
6. PRICE AND PAYMENT TERMS
6.1 Price: SUPPLIER shall supply and ship Product at the prices or at the
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discount(s) shown in Exhibit A through [CONFIDENTIAL TREATMENT REQUESTED*]
("Firm Price Period").
6.2 Price Increases: After the expiration of the Firm Price Period, prices
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may be increased [CONFIDENTIAL TREATMENT REQUESTED*] to be effective January 1
of the next following calendar year. SUPPLIER shall give at least ninety (90)
days prior written notice to the DISTRIBUTOR of any price increase. Such price
increases shall be [CONFIDENTIAL TREATMENT REQUESTED*]. Shipments shall be
billed at the price in effect at time of order placement.
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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Notice of price changes shall be sent to,
PRICING DEPARTMENT
Xxxxxx Scientific Company L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to:
CENTRAL PURCHASING
Xxxxxx Scientific Company L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
6.3 Payment Terms: Payment terms shall be [CONFIDENTIAL TREATMENT
REQUESTED*] from the date of receipt of an accurate invoice. DISTRIBUTOR shall
not be in breach of this Agreement unless payment from the DISTRIBUTOR is more
than [CONFIDENTIAL TREATMENT REQUESTED*] overdue. All undisputed invoice amounts
shall be paid within [CONFIDENTIAL TREATMENT REQUESTED*].
6.4 Resale: DISTRIBUTOR shall be entitled to resell Products on such terms
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as it may, in its sole discretion, determine, including without limitation,
price, returns, credit and discounts.
6.5 Special Pricing: SUPPLIER and DISTRIBUTOR agree that the pricing
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contained in Exhibit A, Section B is [CONFIDENTIAL TREATMENT REQUESTED*].
6.6 Performance Incentives: Commencing with the effective date of this
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Agreement, all Product(s) kits purchased by DISTRIBUTOR in a given year
which are in excess of the Minimum Annual Purchase Targets set forth in
Exhibit B shall result in a [CONFIDENTIAL TREATMENT REQUESTED*] rebate per
kit payable by SUPPLIER to DISTRIBUTOR. Any such rebate due DISTRIBUTOR
shall be paid by SUPPLIER within thirty (30) days after the end of the
applicable year.
7. PACKAGING
7.1 Packaging: SUPPLIER shall supply Products in sizes and packaging
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configurations corresponding to those set forth in Exhibit A, as it may be
amended from time to time. SUPPLIER may, at its sole option, prepare and xxxx
all outer packaging purchased by DISTRIBUTOR with DISTRIBUTOR's catalog numbers.
7.2 Lot Numbers and Expiration Date: SUPPLIER shall print lot numbers and
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expiration date, if any, conspicuously on both outer shipping cartons and on
inner shelf packs.
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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8. TERM AND TERMINATION
8.1 Term: The initial term of this Agreement shall be from the effective
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date first set forth above through [CONFIDENTIAL TREATMENT REQUESTED*]. After
the expiration of the initial term, the Agreement shall renew for additional
terms of one (1) year with annual mutual written agreement.
8.2 Termination: Notwithstanding the foregoing, this Agreement may be
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terminated for cause at any time as follows:
(i) In the event of default or material breach of the terms of this
Agreement by either party (except the confidentiality provisions), written
notice thereof may be given to the defaulting party. Thereafter, the defaulting
party shall have thirty (30) days to cure said breach. In the event that said
breach has not been cured within said thirty (30) day period, the non-defaulting
party may terminate this Agreement on or within a reasonable period after the
expiration of the cure period.
(ii) Either party may terminate this Agreement immediately upon notice
to the other party in the event of a breach of the confidentiality provisions or
in the event of nationalization, expropriation, liquidation or bankruptcy of, or
an assignment for the benefit of creditors or insolvency of either party,
(iii) SUPPLIER may terminate this Agreement on [CONFIDENTIAL TREATMENT
REQUESTED*] and each subsequent annual anniversary date in the event DISTRIBUTOR
fails to achieve Minimum Annual Purchase Targets set forth in Exhibit B, but
must provide at least thirty (30) days prior written notice of such termination.
9. PROCEDURES ON TERMINATION
9.1 Procedures: On the termination of this Agreement, except for cause
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pursuant to Section 8.2 (ii), SUPPLIER shall continue to honor DISTRIBUTOR's
orders for Products up to the effective date of termination and for a period of
sixty (60) days thereafter, provided such orders are not greater than ten
percent (10%) above the quantities established during the sixty (60) days prior
to the date of the notice of termination, and DISTRIBUTOR shall pay for all such
Products in advance of shipping.
9.2 Survival: The rights and duties of each party under this Agreement and
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the Exhibits hereto in respect of performance prior to termination shall survive
and be enforceable in accordance with the terms of this Agreement.
9.3 Existing Inventory: In the event this Agreement is terminated by
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DISTRIBUTOR due to a breach by SUPPLIER, SUPPLIER shall repurchase from
DISTRIBUTOR, at DISTRIBUTOR's request and at DISTRIBUTOR's current cost
therefor, such Products as are then owned by DISTRIBUTOR. Delivery of Products
repurchased from DISTRIBUTOR hereunder shall be F.O.B. origin, freight collect.
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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10. WARRANTIES, INDEMNITY, RECALL AND INSURANCE
10.1 Warranties: In addition to the warranties of SUPPLIER set forth in
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this Agreement in the Continuing Guaranty which is attached hereto as Exhibit C,
SUPPLIER warrants that the Products will conform to the specifications set forth
in SUPPLIER's product literature and Exhibit A; and that they will comply and be
manufactured, packaged, sterilized (if applicable), labeled and shipped by
SUPPLIER in compliance with all applicable federal, state and local laws,
orders, regulations and standards.
10.2 Remedy: Should any Product fail to conform to the express limited
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warranties set forth in Section 10.1, SUPPLIER shall replace such product at no
additional charge. Such warranties shall not apply to Products that have been
damaged due to accident or disaster or have been modified without the written
consent of SUPPLIER.
THE WARRANTIES STATED HEREIN ARE EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANY OTHER PROVISION HEREOF, SUPPLIER SHALL NOT BE LIABLE FOR ANY
LOST PROFITS, LOSS OF GOODWILL OR OTHER ECONOMIC LOSS, OR FOR ANY COLLATERAL,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, MULTIPLE OR PUNITIVE DAMAGES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) OF ANY KIND WITH RESPECT TO SUPPLIER'S SALE OF THE
PRODUCTS DELIVERED TO DISTRIBUTOR BY SUPPLIER PURSUANT TO THIS AGREEMENT, EVEN
IF ADVISED OF THE POSSIBILITY OF THE SAME, OR WHICH MAY ARISE FROM THE SALE OR
USE OF THE PRODUCTS. UNLESS THE PRODUCTS ARE USED IN ACCORDANCE WITH THE
DIRECTIONS PROVIDED, ANY WARRANTIES MADE HEREIN ARE VOID AND OF NO EFFECT. THE
FOREGOING LIMITATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
10.3 Continuing Guaranty: SUPPLIER shall execute and abide by the terms of
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DISTRIBUTOR's Continuing Guaranty, a copy of which is attached hereto as Exhibit
C and incorporated herein by reference. The terms and provisions of the
Continuing Guaranty shall survive the termination of this Agreement. With
respect to SUPPLIER's indemnification set forth in clause (i) of paragraph E of
the Continuing Guaranty, SUPPLIER shall have the sole and exclusive right to
evaluate any suit, claim or proceeding brought against DISTRIBUTOR alleging that
a Product purchased by DISTRIBUTOR from SUPPLIER and sold pursuant to this
Agreement infringes any intellectual property rights of others and to take any
and all legal action SUPPLIER shall deem appropriate with respect thereto.
DISTRIBUTOR shall have the right to participate and be represented in any such
suit by its own counsel at its own expense, but DISTRIBUTOR shall not agree to,
and SUPPLIER shall have no liability for, any settlement, compromise or
dismissal of such suit, or the costs incurred in connection therewith, without
SUPPLIER's consent. Should the use of any Product by DISTRIBUTOR or its
customers be enjoined, or if SUPPLIER believes that the use or sale of the
Products may infringe the intellectual property rights of others, SUPPLIER may,
at its option, require the DISTRIBUTOR to discontinue sales of the allegedly
infringing Product and shall either (i) substitute an equivalent non-infringing
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Product, (ii) modify the Product so that it no longer infringes but remains
equivalent or (iii) obtain for DISTRIBUTOR, at SUPPLIER's own expense, the right
to continue use of such item. The foregoing states the entire liability of
SUPPLIER for such actual or claimed infringements of third-party intellectual
property rights. SUPPLIER shall have no liability for any suit, claim or
proceeding brought against DISTRIBUTOR or SUPPLIER in which and to the extent
the alleged infringement arises from the combination of SUPPLIER's Products
purchased pursuant to this Agreement with products supplied by the DISTRIBUTOR
or others.
10.4 Insurance: On or prior to execution of this Agreement, SUPPLIER shall
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provide DISTRIBUTOR with a Certificate of Insurance which meets the
requirements of paragraph D of the Continuing Guaranty. SUPPLIER shall provide
DISTRIBUTOR with renewal insurance certificates during the term of this
Agreement, without demand therefor by DISTRIBUTOR. Further, SUPPLIER agrees to
maintain such insurance coverage for two (2) years beyond the termination or
expiration of this Agreement, howsoever occurring. This obligation shall survive
the termination or expiration of this Agreement.
10.5 DISTRIBUTOR Responsibilities for Record Keeping, Regulatory Actions
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and Complaint Handling
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(i) The DISTRIBUTOR shall maintain records of all Product shipments,
including the name and address of the party to whom the device was shipped, the
number of units shipped to each recipient, and the lot number(s) included in
each shipment. Records must be retained for a period of two (2) years from the
date of shipment.
(ii) In the event of any regulatory action requested by SUPPLIER or
required by the FDA, the SUPPLIER shall be responsible for providing notice to
all recipients of the Product which may be required by applicable law, rule,
statute, regulation, guideline or otherwise. The DISTRIBUTOR agrees to cooperate
with SUPPLIER in order that SUPPLIER can comply with any notice obligations. In
addition,
(a) Upon notification of the regulatory action and if requested by
SUPPLIER or required by the FDA, the DISTRIBUTOR must quarantine the Product
until the SUPPLIER authorizes the DISTRIBUTOR to resume release and shipment.
(b) In the event of a regulatory action and upon request by SUPPLIER
or the FDA, the DISTRIBUTOR must provide complete records of shipment, including
the name and address of each recipient the number of units shipped, and the lot
number(s).
(c) If the DISTRIBUTOR is visited by FDA in connection with a
regulatory action related to the Product, notice of the FDA contact must be
provided and any FDA form 483 reports and/or Establishment Inspection Reports
(EIRs) must be forwarded to the SUPPLIER within twenty-four (24) hours.
(iii) The DISTRIBUTOR must promptly (but in any event within any time
period required by applicable law, rule or regulation) notify SUPPLIER of
any complaints received related to the Product and provide the name, address
and telephone number of the party
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submitting the complaint. All complaints should be referred to the SUPPLIER's
technical service representative.
11. TRADEMARKS
11.1 Trademarks and Trade Names: SUPPLIER recognizes that DISTRIBUTOR is
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the owner of the trademarks and trade names connoting DISTRIBUTOR or DISTRIBUTOR
products which it may elect to use in distribution and sale of the Products, and
that SUPPLIER has no right or interest in such trademarks and trade names.
11.2 Trademark License: SUPPLIER hereby grants to DISTRIBUTOR the royalty-
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free right to use SUPPLIER's trademarks on SUPPLIER's Products during the term
of this Agreement, it being expressly understood that if DISTRIBUTOR elects to
use SUPPLIER's trademarks during the term of the Agreement, DISTRIBUTOR shall
properly do so and shall discontinue the use of such trademarks in any new
published material following the termination hereof. Following the termination
of this Agreement, SUPPLIER grants DISTRIBUTOR the right to continue to use its
trademarks in connection with sale or service of Products purchased by
DISTRIBUTOR during the term of this Agreement. DISTRIBUTOR disclaims any rights
to SUPPLIER's trademarks other than the said license.
12. CONFIDENTIALITY
The parties expressly agree to hold as confidential ("Confidential
Information") the existence and terms of this Agreement as well as any
information which is designated in writing by the disclosing party as
confidential, provided such information is clearly marked as confidential,
and the disclosing party obtains a signed receipt or agreement from the
receiving party acknowledging that such information is confidential. In the
event Confidential Information is exchanged according to these guidelines,
such information will be retained by the other party in confidence for a
period of two (2) years following the termination of this Agreement. The
transmittal of such information is and shall be upon the express condition
that the information is to be used solely to effectuate this Agreement; and
the receiving party shall not use, publish, or disclose said information, in
whole or in part, for any purpose other than that stated herein. SUPPLIER
expressly acknowledges and agrees that DISTRIBUTOR's customer names, address
and key contacts are and shall be the Confidential Information of
DISTRIBUTOR. Notwithstanding the foregoing, the above restrictions on
disclosure and use shall not apply to any information which the party can
show by written evidence, was known to it at the time of receipt, or which
may be obtained from third parties who are not bound by a confidentiality
agreement, or which is in the public domain.
13. MISCELLANEOUS
13.1 Force Majeure: The obligations of either party to perform under this
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Agreement shall be excused during each period of delay if such delay arises from
any cause or causes which are reasonable beyond the control of the party
obligated to perform, including, but not limited to, the following: acts of God,
acts or omissions of any government, or any rules, regulations or orders of any
governmental authority or any officer, department, agency or instrumentality
thereof;
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fire, storm, flood, earthquake, insurrection, riot, invasion or strikes. The
affected party shall use its best efforts to remedy the effects of such force
majeure. Any force majeure shall not excuse performance by the party, but shall
postpone performance, unless such force majeure continues for a period in excess
of ninety (90) days. In such event, the party seeking performance may cancel its
obligations hereunder.
13.2 Assignment: Neither this Agreement nor any right or obligation
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hereunder is assignable or transferable by either party, in whole or in part,
without the prior written consent of the other party except to a third party who
or which acquires all or substantially all of the business of the assigning
party by merger, sale of assets or otherwise.
13.3 Notices: Any notice required by this Agreement shall be in writing and
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shall be deemed sufficient if given personally or by registered or certified
mail, postage prepaid, or by any nationally recognized overnight delivery
service, addressed to the party to be notified at the address set forth in the
initial paragraph of this Agreement. Either party may, by notice to the other,
change its address for receiving such notices.
13.4 Entire Agreement: This Agreement, including exhibits, constitutes the
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entire agreement between the parties relating to the subject matter hereof and
cancels and supersedes all prior agreements and understandings, whether written
or oral, between the parties with respect to such subject matter.
13.5 Existing Obligations: SUPPLIER warrants that the terms of this
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agreement do not violate any existing obligations or contracts of SUPPLIER.
SUPPLIER shall protect, defend, indemnify, and hold harmless DISTRIBUTOR from
and against any claims, demands, liabilities or actions which are hereafter made
or brought against DISTRIBUTOR and which allege any such violation.
13.6 Modifications, Waiver: No amendment, modification or claimed waiver of
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the terms of this Agreement shall be binding on either party unless reduced to
writing and signed by an authorized officer of the party to be bound. In
ordering and delivery of the Products, the parties may employ their standard
forms, but nothing in those forms shall be construed to modify or amend the term
of this Agreement.
13.7 Relationship of the Parties: This Agreement does not constitute either
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party as the agent or legal representative of the other for any purpose
whatsoever. DISTRIBUTOR covenants and warrants that it will not act or represent
itself directly or by implication as agent for SUPPLIER and will not attempt to
create any obligation, or make any unauthorized representation, on behalf of or
in the name of SUPPLIER.
13.8 Public Announcements: Except as may be required by law, SUPPLIER shall
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not issue or cause to be issued any press release or public announcement or
otherwise disclose the existence of this Agreement or the transactions
contemplated hereby except as and to the extent that DISTRIBUTOR and its parent
jointly agree, in writing.
13.9 Governing Laws: This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
MATRITECH, INC.
By: /s/ Xxxxx Xxxxxx
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Title: President & COO
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Date:
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XXXXXX XXXXXXXX SCIENTIFIC, A DIVISION OF
XXXXXX SCIENTIFIC COMPANY, L.L.C.
By: /s/ X.X. Xxxxxxx
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Title: V.P. Marketing
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Date:
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EXHIBIT A
A. DEFINITIONS
1. Existing Accounts means those accounts which have purchased or are
purchasing Product(s) from SUPPLIER as of the date of this Agreement. The
following customers shall be deemed to be Existing Accounts:
2. Imminent Accounts means accounts which have been contacted by SUPPLIER
and have not ordered Products from SUPPLIER as of the effective date of
this Agreement but which do, in fact, order Products from DISTRIBUTOR or
SUPPLIER within ninety (90) days with from the effective date of this
Agreement. SUPPLIER agrees to provide DISTRIBUTOR a list of all such
accounts within ten (10) days from the date of this Agreement.
Additionally, on or before the 100th day after the effective date of this
Agreement, SUPPLIER agrees to provide DISTRIBUTOR a revised list
indicating which of the potential customers actually ordered Products
from SUPPLIER or DISTRIBUTOR within the ninety (90) day period from the
effective date of this Agreement.
3. Product(s) means the Matritech NMP22 Test Kit, a 96 Well Microplate Elisa
test kit for the quantitative determination of NMP22 in urine.
B. PRICING
Customers Price to DISTRIBUTOR
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Existing and Imminent Accounts The price charged or quoted the
account less [CONFIDENTIAL TREATMENT
REQUESTED*] for the term of this
Agreement. Revenues derived from price
increases from such customers after
expiration of the customer committed
period in force on the effective date
of this Agreement shall remain with
DISTRIBUTOR.
All other accounts (except [CONFIDENTIAL TREATMENT
Existing or Imminent Accounts) REQUESTED*] per kit
C. SHELF LIFE
The Product has a shelf life of [CONFIDENTIAL TREATMENT REQUESTED*].
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT B
MINIMUM ANNUAL PURCHASE TARGETS
YEAR AMOUNT
---- ------
[CONFIDENTIAL TREATMENT REQUESTED*] [CONFIDENTIAL TREATMENT REQUESTED*]
[CONFIDENTIAL TREATMENT REQUESTED*] [CONFIDENTIAL TREATMENT REQUESTED*]
[CONFIDENTIAL TREATMENT REQUESTED*] [CONFIDENTIAL TREATMENT REQUESTED*]
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT C
CONTINUING GUARANTY
A. Matritech, Inc. (hereinafter referred to as "Seller"), having its principal
office and place of business at 000 Xxxxxx Xx., Xxxxxx, XX 00000, hereby
guarantees that all Products (including their packaging, labeling and
shipping) comprising each shipment or other delivery hereinafter made by
Seller (hereinafter referred to as "Products") to or on the order of Xxxxxx
Scientific Company L.L.C., a Delaware limited liability company, having its
principal place of business at 0000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, or to any of its branches, divisions, subsidiaries, affiliates, or any
of their customers (hereinafter collectively referred to as "Xxxxxx"), are,
as of the date of such shipment or delivery, in compliance with applicable
federal, state and local laws, and any regulations, rules, declarations,
interpretations and orders issued thereunder, including, without limitation,
the Federal Food, Drug and Cosmetic Act, as amended, and conform to
representations and warranties made by Seller in its advertising, product
labeling and literature.
B. Further, with respect to any Product that is privately labeled for Xxxxxx,
Seller agrees to make no change in such Products or the Xxxxxx artwork on the
labeling or packaging relating thereto without first obtaining the written
consent of Xxxxxx. Seller recognizes that Xxxxxx is the owner of the
trademarks and trade names connoting Xxxxxx which it may elect to use in the
promotion and sale of such private label Products and that Seller has no
right or interest in such trademarks or trade names. Seller shall
periodically analyze and review packaging and labeling for any Products which
are private labeled for Xxxxxx to ensure conformity with the provisions of
paragraph A hereof and the adequacy of Product warnings and Instructions.
C. Seller hereby agrees that it will reimburse Xxxxxx for all reasonable out-of-
pocket costs and expenses incurred in connection with any product corrective
action or recall relating to the Products which is requested by Seller or
required by any governmental entity.
D. Seller agrees to procure and maintain product liability insurance with
respect to the Products and contractual liability coverage relating to this
Guaranty, with insurer(s) having Best's rating(s) of A- or better, naming
Xxxxxx as an additional insured (Broad Form Vendors Endorsement), with
minimum limits in each case of [CONFIDENTIAL TREATMENT REQUESTED*]. Seller
shall promptly furnish to Xxxxxx a certificate of insurance and renewal
certificates of insurance evidencing the foregoing coverages and limits. The
insurance shall not be canceled, reduced or otherwise changed without
providing Xxxxxx with at least ten (10) days prior written notice.
E. Seller agrees to and shall protect, defend, indemnify and hold harmless
Xxxxxx (and with respect to Subparagraph E. (i) below, Xxxxxx'x customers)
from any and all claims, actions, costs, expenses and damages, including
attorney's fees and expenses arising out of: (i) any actual or alleged
patent, trademark or copyright infringement in the design, composition, use,
sale, advertising or packaging of the Products;
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(ii) any breach of the representations or warranties set forth in this
Guaranty; (iii) the sale or use of the Products where such liability results
from the act or omission of Seller (whether for breach of warranty, strict
liability in tort, negligence or otherwise). Likewise, Xxxxxx shall indemnify
and hold harmless Seller from any and all claims, actions, costs, expenses
and damages, including attorney's fees and expenses in connection with the
promotion and sale of the Products by Xxxxxx arising out of the negligence or
other wrongful acts or omissions of Xxxxxx.
F. Seller agrees to and shall provide to Xxxxxx Material Safety Data Sheets and
other Information concerning any Product as required by then applicable
federal, state or local law.
G. Seller agrees to and shall accept, at its facility, all of Xxxxxx'x unsold or
expired Products containing hazardous chemicals, materials or substances for
disposal, recycling or use. Xxxxxx shall be responsible for packing and
transportation costs to Seller. Seller shall be responsible for all other
costs, including, without limitation, any costs associated with Seller's
disposal, recycling or use.
H. If the Products to be furnished by Seller are to be used in the performance
of a U.S. government contract or subcontract, those clauses of the
applicable U.S. Government procurement regulation which are mandatorily
required by Federal Statute to be included in U.S. Government subcontracts
shall be Incorporated herein by reference including, without limitation, the
Fair Labor Standards Act of 1938, as amended.
I. The representations and obligations set forth herein shall be continuing and
shall be binding upon the Seller and his or its heirs, executors,
administrators, successors and/or assigns, whichever the case may be, and
shall inure to the benefit of Xxxxxx, its successors and assigns and to the
benefit of its officers, directors, agents and employees and their heirs,
executors, administrators, and assigns.
J. The agreements and obligations of Seller set forth in this Guaranty are in
consideration of purchases made by Xxxxxx from Seller and said obligations
are in addition to (and supersede to the extent of any conflict) any
obligations of Seller to Xxxxxx or Xxxxxx to Seller. This Guaranty shall be
effective upon the first sale to Xxxxxx of any Product by Seller, and the
obligations of Seller under this Guaranty shall survive and be enforceable in
accordance with its terms.
SELLER
MATRITECH, INC.
--------------------------------------------------------------------------------
Name Under Which Seller's Business Is Conducted
/s/ Xxxxx Xxxxxx
--------------------------------------------------------------------------------
Signature of Authorized Representative
President & COO
--------------------------------------------------------------------------------
Title Date
DISTRIBUTOR
/s/ X.X. Xxxxxxx
--------------------------------------------------------------------------------
Signature of Authorized Representative
V.P. Marketing
--------------------------------------------------------------------------------
Title Date
ADDENDUM TO EXHIBIT A
EXISTING ACCOUNTS STATE IMMINENT ACCOUNTS STATE
----------------- ----- ----------------- -----
[CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT TREATMENT TREATMENT
REQUESTED*] REQUESTED*] REQUESTED*] REQUESTED*]
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH MATERIAL HAS
BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
