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Exhibit 10.9
CID SUPPLY AGREEMENT
THIS CID SUPPLY AGREEMENT, effective as of the ___ day of ________, 1997
(the "Effective Date"), is between THERMO VISION CORPORATION, a Delaware
corporation having offices at 0X Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000,
Telecopy No. 000-000-0000 ("Thermo Vision") and THERMO OPTEK CORPORATION, a
Delaware corporation having offices at 0X Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000, Telecopy No. 000-000-0000 ("Thermo Optek") regarding the supply by Thermo
Vision of certain products to be purchased by Thermo Optek and its affiliates.
NOW, THEREFORE, in consideration of the mutual promises, terms and
conditions hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Thermo Vision and
Thermo Optek (the "Parties") do hereby agree as follows:
For the purposes of this Agreement, an "Affiliate" of a Party means an
individual or business entity controlling, controlled by or under common control
with such Party, with control meaning a 50% or more ownership interest.
1. THERMO VISION'S SUPPLY OF PRODUCTS.
(a) Thermo Vision hereby agrees to sell the Products to Thermo Optek and
its Affiliates, in accordance with the terms and conditions of this Agreement.
Subject to Paragraph 1(g)(ii) hereof, Thermo Vision agrees not to sell the
Products to any other party which manufactures optical spectrometers of the
types manufactured by Thermo Optek. "Products" means all charge injection
devices ("CID") sensors manufactured by or on behalf of Thermo Vision for:
(i) optical spectrometers, including without limitation ICP, ICP-MS,
AA and Arc-Spark; or
(ii) raman spectrometers and other analytical instruments, if after
the Effective Date but during the term of this Agreement Thermo
Vision and Thermo Optek (A) enter into a research, development
and supply agreement with respect to raman spectrometers or other
analytical instruments; and (B) agree on pricing for such raman
spectrometers or other analytical instruments.
(b) The Products shall also be deemed to include any modifications or
improvements to the CID sensors described above which Thermo Vision or a
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subsidiary of Thermo Vision may develop or manufacture, or cause to be developed
or manufactured, during the term of this Agreement, PROVIDED, HOWEVER, that all
such modifications and improvements shall have been approved by Thermo Optek
prior to inclusion in the CID sensors in order to insure compatibility with
Thermo Optek applications.
(c) As soon as practicable after the Effective Date, Thermo Optek shall
provide to Thermo Vision a non-binding forecast for the next 12 calendar months
of the anticipated requirements of Thermo Optek and its Affiliates for the
Products and indicating the likely delivery dates to be requested. Thermo Optek
shall update this forecast each calendar quarter on a rolling basis.
(d) Thermo Optek and its Affiliates shall thereafter from time to time
place firm orders with Thermo Vision at least 6 months before the requested
delivery date by the transmittal to Thermo Vision of written orders on Thermo
Optek's regular purchase order forms, which shall be deemed accepted upon Thermo
Vision's written acceptance thereof. Such purchase orders shall identify the
Products ordered, the quantities ordered, requested delivery date(s) and any
export information required to enable Thermo Vision to fill the order.
(e) Unless Thermo Optek or its Affiliate requests otherwise, all Products
ordered shall be packed for shipment and storage in accordance with Thermo
Vision's standard commercial practices. It is the obligation of Thermo Optek or
such Affiliate to notify Thermo Vision and obtain Thermo Vision's consent to any
special packaging requirements (which shall be at the expense of Thermo Optek or
such Affiliate). The terms and conditions of this Paragraph 1(e) shall be
reviewed by the Parties on an annual basis and are subject to change based on
the mutual agreement of the Parties.
(f) In the event of any discrepancy between any purchase order and this
Agreement, the terms of this Agreement shall govern.
(g) During the term of this Agreement, Thermo Optek shall purchase all of
its requirements of Products from Thermo Vision, and Thermo Optek shall cause
all of its Affiliates to purchase all of their requirements of Products from
Thermo Vision; PROVIDED, HOWEVER that:
(i) Thermo Optek and its Affiliates shall have the right to make a
Product themselves (using their own or third-party technology) or purchase
a Product from a third party, if: (A) Thermo Vision does not accept a firm
order placed by Thermo Optek or such Affiliate for such Product with a
requested delivery date at least 6 months after the date on which Thermo
Optek or such Affiliate placed such order; or (B) such Product previously
delivered by Thermo Vision was repeatedly found not to conform to the
agreed-upon specifications for such Product,
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or Thermo Vision repeatedly and materially failed to deliver such Product
on or before the requested delivery dates (unless such failure is due to
causes beyond Thermo Vision's control) and
(ii) Thermo Vision shall have the right to sell a Product to a third
party for use in such third party's optical spectrometers, raman
spectrometers or other analytical instruments (the "Third Party
Instruments") if: (A) as of the Effective Date hereof, Thermo Optek (1) is
not using such Product in its optical spectrometers, raman spectrometers or
other analytical instruments, respectively, which are similar to the Third
Party Instruments, or (2) does not offer optical spectrometers, raman
spectrometers or other analytical instruments, respectively, which are
similar to the Third Party Instruments, (B) prior to the execution by
Thermo Vision of an agreement to sell such Product to such third party (the
"Third Party Agreement"), Thermo Vision provides written notice to Thermo
Optek setting forth the material terms and conditions of the Third Party
Agreement, including without limitation, the price per Product, the
quantity of Product to be sold and the term of the Third Party Agreement
(the "Third Party Notice") and (C) within 30 days after receipt by Thermo
Optek of the Third Party Notice, Thermo Vision has not received from Thermo
Optek Thermo Optek's written agreement to purchase such Product from Thermo
Vision for use in Thermo Optek's optical spectrometers, raman spectrometers
or other analytical instruments, as the case may be, on substantially the
same terms as those contained in the Third Party Agreement. By way of
illustration and assuming all other conditions set forth in Paragraph
1(g)(ii) are satisfied, Thermo Vision shall be permitted to sell a Product
to a third party for use in such third party's raman spectrometers if
Thermo Optek purchases such Product from Thermo Vision solely for use in
Thermo Optek's optical spectrometers and other analytical instruments.
2. COMPENSATION FOR SUPPLY.
(a) For each Product purchased by Thermo Optek or one of its Affiliates
hereunder, Thermo Vision shall be paid the price indicated in Schedule A hereto.
The price of each such Product shall be reviewed by the Parties on an annual
basis and is subject to adjustment based on the mutual agreement of the Parties.
With respect to modifications or improvements to CID sensors which are included
in the definition of Products in accordance with Paragraph 1(b) above, Thermo
Vision shall establish a price for each such new Product which is reasonable in
light of the manufacturing cost and performance of such new Product relative to
the most closely related existing Product. For each Product purchased by
Affiliates of Thermo Optek hereunder, such Affiliates and Thermo Optek shall be
jointly and severally liable for the payment of the price of such Product to
Thermo Vision.
(b) Each payment for Products shall be made by check in good funds to the
order of Thermo Vision or its Affiliates, and shall be delivered to Thermo
Vision
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within thirty (30) days after the receipt by Thermo Optek or its respective
Affiliate of Thermo Vision's invoice for such payment.
3. DELIVERY AND WAREHOUSING.
(a) All deliveries of Products shall be ex works the place of manufacture
of such Products. It shall be the responsibility of Thermo Optek or its
respective Affiliate to arrange and pay for all transportation, insurance and
other charges incurred after Thermo Vision's tender of the Products at such
location.
(b) Upon agreement of the Parties and payment of any of Thermo Vision's
expenses therefor, the Products may be delivered to Thermo Vision's warehouse
facility for storage. Thermo Optek shall thereupon pay such storage and handling
fees as are within the customary industry practice.
(c) The terms and conditions of Paragraphs 3(a) and (b) shall be reviewed
by the Parties on an annual basis and are subject to change based on the mutual
agreement of the Parties.
(d) Thermo Vision shall be responsible for preparing invoices and shipping
documents for Thermo Optek or its respective Affiliate in respect of Products
purchased hereunder; PROVIDED, HOWEVER, that Thermo Vision shall submit its
invoice for Products no earlier than the date on which Thermo Vision (i) makes
such Products available to a common carrier for pick up at such Product's place
of manufacture or (ii) delivers such Products to Thermo Vision's warehouse
facility for storage pursuant to the agreement of the Parties.
(e) Thermo Vision agrees to use reasonable efforts to meet the requested
delivery dates set forth in accepted purchase orders, but does not warrant that
any specified delivery date will be met. Thermo Vision assumes no responsibility
or liability for any loss or damage incurred by Thermo Optek or its Affiliates
by reason of a delay in a requested delivery date, inability to ship or any of
the reasons set forth in Paragraph 5 below.
4. PASSAGE OF TITLE. Beneficial ownership of, title and risk of loss to the
Products shall pass to Thermo Optek or its Affiliates, as the case may be, when
such Products are picked up by a common carrier at the Product's place of
manufacture or delivered to Thermo Vision's warehouse facility for storage
pursuant to the agreement of the Parties. The terms and conditions of this
Paragraph 4 shall be reviewed by the Parties on an annual basis and are subject
to change based on the mutual agreement of the Parties.
5. FORCE MAJEURE. Except for obligations of payment, each Party shall be
excused for any delay or failure to fulfill any of their respective obligations
under this
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Agreement if such failure or delay is caused by any circumstances or event
beyond the reasonable control of the Party, including without limitation any act
of God, accident, explosion, fire, storm, earthquake, flood, drought, peril of
the sea, riot, embargo, war or foreign, federal, state, provincial or municipal
order of general application, seizure, requisition or allocation, any failure or
delay of transportation, shortage of or inability to obtain supplies, equipment,
fuel or labor.
6. PRODUCT WARRANTY AND LIMITATIONS ON LIABILITY.
(a) Thermo Vision warrants that upon delivery the Products will conform to
the specifications which the Parties agree to in writing from time to time (the
"Specifications"); PROVIDED, HOWEVER, that Thermo Vision shall not be liable for
any losses of Thermo Optek that arise due to misuse or mishandling of the
Products, as reasonably determined by Thermo Vision. Thermo Vision's sole
obligation with respect to claims of non-conformance made by Thermo Optek or its
Affiliates shall be, at Thermo Vision's sole discretion, to either: (i) remedy
the non-conformance by repair or replacement; or (ii) refund of the price paid
for the Products involved. Any claims by Thermo Optek or its Affiliates under
this warranty with respect to Products must be made to Thermo Vision in writing
within 6 months after Thermo Vision tenders such Products or delivers such
Products to Thermo Vision's warehouse facility for storage pursuant to the
agreement of the Parties, as the case may be. The terms and conditions of this
Paragraphs 6(a) shall be reviewed by the Parties on an annual basis and are
subject to change based on the mutual agreement of the Parties.
(b) EXCEPT AS STATED ABOVE, THERMO VISION DISCLAIMS ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCTS,
INCLUDING ALL WARRANTIES OF TITLE AND IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
(c) EXCEPT FOR PRODUCT LIABILITY CLAIMS BROUGHT BY UNAFFILIATED THIRD
PARTIES WHICH ARISE FROM THE PRODUCTS NOT CONFORMING TO THE SPECIFICATIONS,
THERMO VISION'S LIABILITY FOR DAMAGES TO THERMO OPTEK OR ITS AFFILIATES FOR ANY
CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT
EXCEED THE PRICE PAID BY THERMO OPTEK OR ITS AFFILIATE FOR THE PRODUCT INVOLVED.
(d) THERMO VISION SHALL IN NO EVENT BE LIABLE TO THERMO OPTEK OR ANY THIRD
PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, OR FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION
WITH, THE USE, MANUFACTURE OR SALE OF THE PRODUCTS.
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7. CONFIDENTIALITY. Each Party acknowledges and agrees that in the course of
its performance of this Agreement confidential technology, trade secrets or
other proprietary information relating to the development, manufacture and sale
of the Products (hereinafter "Confidential Information") may be made known or
made available to the other party. Accordingly, during and after the term of
this Agreement, each Party hereby represents and agrees to the following:
(a) that each Party (the "disclosing Party") has a proprietary interest in
its own Confidential Information. During and after the term of this Agreement,
all disclosures by the disclosing Party of its Confidential Information to the
other Party (the "receiving Party"), its agents and employees shall be held in
strict confidence by the receiving Party, which shall disclose such Confidential
Information only to those of its agents and employees to whom it is necessary in
order to properly carry out their duties as limited by the terms and conditions
hereof. During and after the term of this Agreement, the receiving Party shall
not use the Confidential Information of the disclosing Party except for the
purposes of the receiving Party exercising its rights and carrying out its
duties hereunder. The provision of this Paragraph 7 shall also apply to any
sublicensees, consultants or subcontractors during and after the term of this
Agreement, that the receiving Party may sublicense or engage in connection with
this Agreement. Each receiving Party shall take necessary steps to ensure that
its employees respect the terms of this Paragraph 7.
(b) that notwithstanding anything contained in this Agreement to the
contrary, the receiving Party shall not be liable for a disclosure of the
disclosing Party's Confidential Information if the information so disclosed:
(i) was in the public domain at the time it was disclosed by the
disclosing Party to the receiving Party, or becomes part of the public
domain thereafter through no fault of the receiving Party; or
(ii) was known to or contained in the records of the receiving Party
at the time of disclosure by the disclosing Party to the receiving Party
and can be so demonstrated; or
(iii) becomes known to the receiving Party from a source other than
the disclosing Party without breach of such source's confidentiality
obligation, if any, to the disclosing Party and can be so demonstrated; or
(iv) was required to be disclosed under legal or administrative
process, provided that the receiving Party has given the disclosing Party
no less than ten (10) days prior written notice of the receiving Party's
intention to make a disclosure pursuant to this Paragraph 7(b)(iv).
8. INTELLECTUAL PROPERTY WARRANTY; INDEMNIFICATION.
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(a) With respect to Paragraph 1(a)(ii) above, Thermo Optek represents and
warrants to Thermo Vision that if CID sensors for raman spectrometers are added
to the definition of Products, Thermo Optek shall have the full right to use
under written agreements, all patents, copyrights, trademarks, trade secrets and
other intellectual property rights (the "Intellectual Property Rights") which
will be required in order to permit Thermo Vision to manufacture such Products.
Upon adding such sensors to the definition of Products, Thermo Optek shall grant
Thermo Vision and its Affiliates and subcontractors a worldwide, exclusive,
royalty-free license to use such Intellectual Property Rights during the term of
this Agreement for the sole purpose of manufacturing such Products for sale to
Thermo Optek and/or its Affiliates pursuant to this Agreement.
(b) Thermo Vision represents and warrants to Thermo Optek that it owns, or
has the full right to use under written agreements, all Intellectual Property
Rights which will be used or practiced in order for Thermo Vision to manufacture
and sell the Products described in Paragraph 1(a)(i) above. Thermo Vision has no
knowledge of any infringement of any Intellectual Property Right of any third
party which will arise out of or be incident to Thermo Vision's use of such
Intellectual Property Rights to manufacture and sell such Products.
(c) In the event of any claim, charge, suit or proceeding by any third
party against either Party alleging infringement or violation of any
Intellectual Property Rights pursuant to this Agreement, the other Party shall
cooperate fully in the defense of any such claim, charge, suit or proceeding. In
the event that the actions of one Party shall be determined to have solely
resulted in such allegation(s), that Party shall indemnify and hold the other
Party harmless from and against any loss arising out of such claim, charge, suit
or proceeding, not to exceed the amounts paid by the other Party to the such
third party.
(d) Notwithstanding anything contained in this Paragraph 8 to the contrary,
neither Party (the "indemnifying Party") shall have any obligation to the other
Party (the "indemnified Party") hereunder with respect to an infringement claim
which arises from: (i) any combination by the indemnified Party or any of its
Affiliates of the Products with another product not supplied by the indemnifying
Party, where such infringement would not have occurred but for such combination;
(ii) the adaptation or modification of the Products not performed by the
indemnifying Party, where such infringement would not have occurred but for such
adaptation or modification; (iii) the misuse of the Products or the use of the
Products in an application for which it was not designed, where such
infringement would not have occurred but for such use or misuse; or (iv) a claim
based on intellectual property rights owned by the indemnified Party or any of
its Affiliates.
9. TERMINATION.
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(a) The term of this Agreement shall commence on the date hereof and shall
continue, unless sooner terminated as set forth below, until the tenth
anniversary of the Effective Date.
(b) In the event of breach of any provision of this Agreement, the
breaching Party shall have thirty (30) days after written notice thereof by the
non-breaching Party within which to cure such breach. In the event such breach
has not been cured within such period of time, the non-breaching Party may on
notice to the breaching Party terminate this Agreement.
(c) Either Party may terminate this Agreement on notice to the other Party
in the event the other Party suffers a business failure, including becoming the
subject of a petition filed for relief under any bankruptcy or insolvency law,
which is not dismissed within sixty (60) days of its filing; any general
arrangement with its creditors; or any liquidation, termination or cessation of
its business.
10. EFFECT OF TERMINATION.
(a) Upon the sooner to occur of (i) expiration of this Agreement or (ii)
six months after termination of this Agreement, Thermo Vision shall immediately
terminate production of the Products described in Paragraph 1 above and each
Party shall promptly terminate all use of any Confidential Information of the
other Party.
(b) Upon expiration or termination of this Agreement, as the case may be,
each Party shall, at the request of the other Party, either promptly return to
the other Party or dispose of all of the other Party's Confidential Information
in any form whatsoever which it may have in its possession, custody or control
(whether direct or indirect).
(c) Upon expiration or termination of this Agreement, as the case may be,
Thermo Optek shall, at the request of Thermo Vision, repurchase all or any
portion of Thermo Vision's then existing finished goods inventory of the
Products. All finished Products shall be purchased at the price then in effect
for such Products. In the event that Thermo Optek fails to purchase all of such
inventory pursuant hereto within fourteen (14) days after the expiration or
termination of this Agreement, Thermo Vision shall have the right to sell or
dispose of such inventory, in whatever manner it seems fit, without liability to
Thermo Optek for any reason, including without limitation infringement of any
intellectual property rights of Thermo Optek.
(d) Upon expiration or termination of this Agreement, as the case may be,
Thermo Optek and its Affiliates shall not be released from their obligations to
pay any sums then owing to Thermo Vision and neither Party shall be released
from the obligation to perform any other duty or to discharge any other
liability that has been incurred prior thereto. Subject to the foregoing,
neither Party shall by reason of the
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termination of this Agreement be liable to the other for compensation or damages
on account of the loss of profits or sales, or expenditures, investments or
commitments in connection therewith.
11. MISCELLANEOUS.
(a) No Party shall assign any or all of its rights or obligations hereunder
to any third party without first obtaining the written consent thereto of the
other Party, which consent shall not be unreasonably withheld or delayed;
PROVIDED, HOWEVER, that in the event of an assignment to an Affiliate of a Party
or to a purchaser of all or substantially all of the assets or stock of a Party,
through merger, consolidation, sale or otherwise, no such consent shall be
required, if the assignee agrees to be bound by the terms hereof within five (5)
days after such assignment. The terms and provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Parties and their respective
successors and permitted assigns. Any reference to a Party shall be deemed to
include the successors thereto and permitted assigns thereof.
(b) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without regard to principles of
conflicts of law and without regard to the United Nations Convention on
Contracts for the International Sale of Goods.
(c) No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure by either Party
therefrom, shall be effective unless the same shall be in writing specifically
identifying this Agreement and the provision intended to be amended, modified,
waived, terminated or discharged and signed by both Parties, and each such
amendment, modification, waiver, termination or discharge shall be effective
only in the specific instance and for the specific purpose for which given. No
provision of this Agreement shall be varied, contradicted or explained by any
oral agreements, course of dealing or performance or any other matter not set
forth in an agreement in writing and signed by both Parties.
(d) Nothing herein contained shall be deemed to create a joint venture,
agency, partnership or employer-employee relationship between the Parties
hereto. Neither Party shall have any power to enter into any contracts or
commitments in the name of, or on behalf of, the other Party, or to bind the
other Party in any respect whatsoever.
(e) All notices, requests and other communications to a Party shall be in
writing (including telecopy or similar electronic transmissions), shall be
addressed to Xxxxxx X. Xxxxxxxxx on behalf of Thermo Optek or to Xxxxxxxx X.
Xxxxxxx on behalf of Thermo Vision, respectively, and shall be personally
delivered or sent by telecopy or
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other electronic facsimile transmission during normal business hours or by
registered mail or certified mail, return receipt requested, postage prepaid, in
each case to the respective address and telecopy numbers specified above (or to
such other individual, address or telecopy numbers as may be specified in
writing to the other Party hereto from time to time). Any notice or
communication given in conformity with this Paragraph 11 (e) shall be deemed to
be effective when received by the addressee, if delivered by hand, telecopy or
other electronic facsimile transmission, and three (3) days after mailing, if
mailed.
(f) This Agreement constitutes, on and as of the date hereof, the entire
agreement of the Parties with respect to the subject matter hereof, and all
prior or contemporaneous understandings or agreements, whether written or oral,
between the Parties with respect to the subject matter hereof are hereby
superseded in their entirety.
(g) If any provision hereof should be held invalid, illegal or
unenforceable in any respect in any jurisdiction, then, to the fullest extent
permitted by law: (i) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intentions of the Parties hereto as nearly as may be possible; and (ii)
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, each Party hereby waives any provision of
law that would render any provision hereof prohibited or unenforceable in any
respect.
(h) No failure on the part of either Party to exercise and no delay in
exercising any right, power, remedy or privilege under this Agreement, or
provided by statute or at law or in equity or otherwise, shall impair, prejudice
or constitute a waiver of any such right, power, remedy or privilege or be
construed as a waiver of any breach of this Agreement or as an acquiescence
therein, nor shall any single or partial exercise of any such right, power,
remedy or privilege preclude any other or further exercise thereof or the
exercise of any other right, power, remedy or privilege.
(i) Notwithstanding anything else in this Agreement to the contrary, the
Parties agree that Paragraphs 6, 7, 8, 10 and 11 shall survive the termination
or expiration of this Agreement, as the case may be.
(j) Each Party covenants and agrees that all of its activities under or
pursuant to this Agreement shall comply in all material respects with all
applicable laws, rules and regulations.
(k) Headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration interpreting, this
Agreement.
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(l) This Agreement may be executed in counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as an
instrument under seal by their duly authorized officers.
THERMO VISION CORPORATION THERMO OPTEK CORPORATION
By:___________________________ By:_________________________
Name: Name:
Title: Title:
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SCHEDULE A
Prices
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Product Price
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CID 38 $3,000
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