EXHIBIT 10jj
AGREEMENT
BY AND BETWEEN
REAGENTS APPLICATIONS, INC.
d/b/a RAICHEM, DIVISION OF HEMAGEN
DIAGNOSTICS, INC.
AND
pHoenix Diagnostics, Inc.
DATED: March 19, 1997
INDEX
ARTICLE 1: DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2: TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3: EXCLUSIVE SALE AND DISTRIBUTION RIGHTS . . . . . . . . . . . . 2
ARTICLE 4: TERMS AND CONDITIONS OF SALE . . . . . . . . . . . . . . . . . 2
ARTICLE 5: LABELING, PACKAGE INSERTS AND PACKAGING. . . . . . . . . . . . 4
ARTICLE 6: PERFORMANCE STANDARDS . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 7: DUTIES OF RAICHEM. . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 8: DUTIES OF pHoenix. . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 9: TRADEMARKS, PATENTS, INTELLECTUAL PROPERTY . . . . . . . . . . 6
ARTICLE 10: INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 11: LIMITED WARRANTY . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 12: CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 13: TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 14: PRODUCT RECALL AND REGULATORY COMPLIANCE . . . . . . . . . . . 11
ARTICLE 15: ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 16: GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 11
AGREEMENT
---------
This Agreement is entered into this ________ day of ____________, 1997, by and
between Reagents Applications, Inc. d/b/a RAICHEM, Division of Hemagen
Diagnostics, Inc., a corporation organized and existing under the laws of the
State of Delaware, U.S.A. and having its principal place of business at 0000
Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, X.X.X. (hereinafter referred to as
"RAICHEM"), and pHoenix Diagnostics, Inc., a corporation organized and existing
under the laws of ____________ and having its principal place of business at 0
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as
"PHoenix").
RECITALS
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WHEREAS, RAICHEM desires to distribute certain products produced by
pHoenix; and
WHEREAS, pHoenix desires to engage RAICHEM to market and sell said
products in the territory defined below; and
WHEREAS, RAICHEM and pHoenix desire to enter into a business relationship
in which RAICHEM will be the exclusive distributor of certain products
manufactured by pHoenix pursuant to the terms of this Agreement; and
WHEREAS, pHoenix has acquired and perfected the necessary technology to
manufacture certain products; and
WHEREAS, pHoenix has represented to RAICHEM that it has the necessary
facilities, personnel, and technology to commercially realize the manufacture
of certain products.
NOW, THEREFORE, in consideration of the above recitals, and in
consideration of the mutual covenants and agreements hereinafter set forth,
PHoenix and RAICHEM do hereby agree as follows:
AGREEMENT
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Article 1. Definitions
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1.1 "PRODUCT(s)" means and include(s) pHoenix's CONFIDENTIAL TREATMENT
REQUESTED as set forth in Appendix A and as amended from time to time
by mutual written agreement of the parties.
1.2 "AFFILIATE" means any entity directly or indirectly controlling,
controlled by, or under common control with, a party hereto. "Control",
as used in this definition, means the ownership of fifty percent or
more of the party in question.
1.3 "TERRITORY" means the world.
Article 2. Term
----
2.1 The initial term of this Agreement shall be for a period of three (3)
years unless terminated as provided in this Agreement. RAICHEM shall
have the right to terminate this Agreement within thirty (30) days from
the date it is executed if RAICHEM is not satisfied with the results of
RAICHEM's due diligence review of the pHoenix PRODUCTs. This Agreement
shall automatically continue to be in effect after the initial term for
successive twelve-month periods unless it is terminated by either party
as provided in this Agreement, or written notice of non-renewal is
given by either party to the other at least three (3) months prior to
the expiration of the initial term or at least three (3) months prior
to the expiration of any successive twelve-month term.
Article 3. Exclusive Sale and Distribution Rights
--------------------------------------
3.1 Distribution Rights. Subject to the terms and conditions set forth in
this Agreement, RAICHEM shall have the exclusive right to market, sell
and distribute the PRODUCTs under RAICHEM's own label or under the
pHoenix label in the TERRITORY. RAICHEM shall not have the right to
enter into any agreements or contracts which are binding upon pHoenix
unless prior written approval is given by pHoenix. pHoenix shall retain
the right to sell PRODUCTs directly to its customers which presently
purchase the PRODUCTs from pHoenix. pHoenix shall provide a present
customer list to RAICHEM on the date this Agreement is signed by both
parties.
3.2 Exclusivity. During the term of this Agreement and any extensions
thereto, pHoenix will not sell, offer to sell, license, distribute,
offer the distribution rights, market or offer marketing rights to
PRODUCTs to any third party within the TERRITORY.
3.3 Minimum Purchases. In order to retain its exclusive distribution rights
as stated in this Article 3, RAICHEM must purchase the minimum
quantities of PRODUCTs set forth in Appendix B. If RAICHEM shall fail
to purchase the minimum quantity of PRODUCTs, then RAICHEM shall loose
its exclusive distribution rights and pHoenix may market, sell and
distribute the PRODUCTs directly to end users or through third party
distributors.
Article 4. Terms and Conditions of Sale
4.1 pHoenix's terms and conditions of sale (defined in Article 4 and in
other provisions of this Agreement) will apply to all purchases by
RAICHEM, notwithstanding any variation as may appear on any purchase
order submitted by RAICHEM. All purchase orders and amendments thereto
must be in writing, and should contain (i) quantity of PRODUCT, (ii)
date of requested shipment, (iii) date of requested delivery, and (iv)
preferred shipping instructions, if any. Payment terms are in U.S.
dollars net ten (10) days from RAICHEM's receipt of pHoenix's invoice.
4.2 Shipping date. pHoenix shall use its best efforts to ship all such
orders no later than the requested shipping date. pHoenix shall
promptly notify RAICHEM of any anticipated delays in shipping.
4.3 Deliveries. All deliveries shall be made F.O.B. pHoenix's plant in
Natick, Massachusetts. For purposes of this Agreement, F.O.B. shall
also mean E.X.W. when ocean shipping is not utilized. Freight and
insurance charges shall be borne by RAICHEM.
4.4 Purchase Price. A current price list is attached to this Agreement as
Appendix C. The prices are CONFIDENTIAL TREATMENT REQUESTED. Overhead
shall be calculated at 200% of labor unless otherwise determined by
actual cost of such overhead. pHoenix will furnish RAICHEM with changes
to its price list at least ninety (90) days prior to the effective date
of any price changes. RAICHEM shall have the right to audit pHoenix's
books and records to determine compliance with the terms of this
Section. All prices quoted by pHoenix are subject to the addition of
all sales taxes and duties which are now or may be levied or assessed
and shall be paid by RAICHEM. Any taxes which pHoenix is obligated to
collect from its customers shall be paid by RAICHEM upon payment of the
purchase price for the PRODUCT, or in lieu of this, RAICHEM shall
provide to pHoenix a duty or tax exemption certificate acceptable to
the appropriate taxing authorities.
4.5 Gross Profit Transfer. (a) On or before the fifteenth (15th) business
day of each month, CONFIDENTIAL TREATMENT REQUESTED pHoenix shall have
the right to audit RAICHEM's books and records to determine compliance
with the terms of this Section.
(b) In the event that PRODUCTs are sold in the form of
combination products (PRODUCT sold in combination with a second
discrete product sold by RAICHEM), then profits for such combination
products will be calculated by multiplying actual cash payments for
such combination products by the fraction A/(A+B) where A is the
average invoice price (to third parties) during the previous month for
the PRODUCTs when sold separately, and B is the average invoice price
of any other active component or components manufactured or sold by
RIACHEM in the combination when sold separately. If the active
component(s) in the combination that are not PRODUCTs are not sold
separately by RAICHEM, then profits shall be calculated by multiplying
actual cash payments for such combination products by the fraction A/C
where A is the average invoice price (to third parties) of the PRODUCTs
when sold separately and C is the average invoice price (to third
parties) of the combination product.
Article 5. Labeling, Package Inserts and Packaging
---------------------------------------
5.1 Labeling & Packaging. pHoenix shall deliver the PRODUCTs to RAICHEM in
bulk and unlabeled (to the extent allowed by the United States Food and
Drug Administration) and if requested by RAICHEM, then pHoenix shall
deliver the PRODUCTs to RAICHEM labeled and packaged under the pHeonix
name at no additional expense to RAICHEM. RAICHEM shall be free to
design all packages, package inserts and labels for the PRODUCTs
provided, however that such packages, package inserts and labels shall
conform to all United States Food and Drug Administration rules and
regulations as well as all rules and regulations of any governmental
agency in the TERRITORY in which the PRODUCTs are being marketed and
sold. RAICHEM shall not make any claims regarding the PRODUCTs which
are not endorsed in writing by pHoenix. All packages, package inserts
and labels for the PRODUCTs shall be produced and purchased by RAICHEM
at RAICHEM's own expense.
5.2 Assistance by RAICHEM. In order to assist DISTRIBUTOR in designing and
producing PRODUCT packages, package inserts and labels, pHoenix shall
provide RAICHEM with samples of pHoenix's current packages, package
inserts and labels. pHoenix shall notify RAICHEM when any changes to
such packages, package inserts and labels must be made to such
packages, package inserts and labels.
Article 6. Performance Standards
---------------------
6.1 PRODUCT Acceptance. RAICHEM shall have the right (at its own cost) to
take random samples of PRODUCTs delivered by pHoenix for analyzing
purposes. Should the result of an analysis of any such sample deviate
from the specifications or quality control standards, pHoenix shall be
notified and provided with samples of the PRODUCTs tested. If,
following a review of the test results and after conducting its own
tests of the sample, pHoenix agrees that such sample does not conform
to said specifications or quality control standards, pHoenix shall
provide RAICHEM, free of any additional charge, with new deliveries of
the same quantity of the PRODUCTs as the one from which the random
sample were taken. RAICHEM shall return, at pHoenix's expense, the
particular lot or shipment of the PRODUCT which does not comply with
the aforesaid specifications or quality control standards. If, after
investigation, pHoenix disagrees with RAICHEM, then the parties shall
agree upon a mutually acceptable method to determine whether or not the
Products should be accepted by RAICHEM. If the parties fail to agree
upon a method within ten business days, then the parties shall promptly
agree upon an independent quality control laboratory (the "Laboratory")
to conduct an inspection of the PRODUCTs for purposes of determining if
the PRODUCTs should be accepted by RAICHEM or replaced, at no charge,
by pHoenix. The determination of the Laboratory shall be final and
binding upon the parties and the party that was proven incorrect in its
inspection analysis shall bear the entire cost of the Laboratory
inspection.
6.2 PRODUCT Modification. Throughout the term of this Agreement, pHoenix
may desire to make certain changes in the performance or appearance of
the PRODUCTs. pHoenix shall notify RAICHEM of all such changes in
performance or appearance. In any event, best efforts shall be made to
deliver such notification at least ninety (90) days prior to the
desired or expected implementation date.
Article 7. Duties of RAICHEM
-----------------
7.1 Licenses and Permits. RAICHEM, at its own expense shall be responsible
for obtaining all licenses and permits required by any governmental
authority, regulatory or otherwise, other than the US Food and Drug
Administration, in order to import/export the PRODUCTs into the
TERRITORY or sell the PRODUCTs in the TERRITORY. RAICHEM agrees, at its
own expense, to comply with all applicable laws, regulations and orders
governing the sale, disposition, shipment and import/export of the
PRODUCTs and to purchase and maintain in effect all licenses, permits
and authorizations from all government agencies as may be necessary to
perform its obligations hereunder. Unless such information is
proprietary, pHoenix will supply RAICHEM with any required information
(such as FDA 510(k) data) which RAICHEM shall reasonably request for
the sole purpose of obtaining licenses and permits.
7.2 Conditions For Resale. RAICHEM shall be free to determine all terms and
conditions of resale of the PRODUCTs purchased from pHoenix. Any
additional warranty offered by RAICHEM or any modification of pHoenix's
limited warranty without express approval or concurrence by pHoenix
shall be the sole responsibility of RAICHEM.
7.3 Promotional Materials. RAICHEM shall be responsible for the creation
and distribution of all promotional and marketing materials and for the
developmnent and implementation of all marketing strategies.
Article 8. Duties of pHoenix
-----------------
8.1 Technical Assistance and Training. pHoenix shall provide training and
technical assistance to RAICHEM necessary for the marketing of the
PRODUCTs. Technical assistance and training shall be provided by
pHoenix at no charge to RAICHEM except that if the training is
performed at RAICHEM's premises, pHoenix's personnel shall be
reimbursed by RAICHEM for their reasonable expense of travel, meals,
and lodging. All technical assistance and training shall be performed
at times convenient to both parties.
8.2 Instructions. pHoenix shall, at pHoenix's expense, provide RAICHEM with
written instructions (in English) relating to the PRODUCT(s) use, and
with such amendments thereto as subsequently become available. However,
RAICHEM shall be responsible, at RAICHEM's cost, for having such
instructions translated into any language necessary to complete its
obligations hereunder.
8.3 Regulatory Approval. To the extent required by applicable laws and
regulations, pHoenix shall be responsible for obtaining US Food and
Drug Administration pre-market clearance to market and sell the
PRODUCTs in the United States.
8.4 RAICHEM Assistance. pHoenix shall promptly and correctly respond to
RAICHEM's inquiries and provide technical support to RAICHEM regarding
the sale, use or operation of PRODUCTs.
8.5 Promotional Materials. pHoenix shall furnish RAICHEM, free of charge,
with promotional materials, samples of PRODUCTs and technical data, the
selection and quantity of which shall be determined at pHoenix's sole
discretion.
8.6 Good Manufacturing Practices. pHoenix shall, at all times, manufacture
PRODUCTs in accordance with good manufacturing practices and good
laboratory practices which are generally accepted in the medical
diagnostic industry. pHoenix shall maintain a quality control system
and data retention as well as real-time stabilities for the PRODUCTs.
RAICHEM shall have the right to audit and inspect pHoenix in order to
insure compliance with this Section.
Article 9. Trademarks, Patents, Intellectual Property
------------------------------------------
9.1 Right of Use. RAICHEM may use any of RAICHEM's trademarks, trade names,
service marks, copyrights or logos of RAICHEM's choice relating to the
marketing or sale of the PRODUCTs. All such use will be for the benefit
of RAICHEM, and pHoenix will acquire no ownership in such marks, or
trade names, copyrights, logos or labels by virtue of such use.
9.2 Patents and Trademarks. RAICHEM acknowledges and agrees that nothing
herein shall give RAICHEM any right, title or interest in or license to
use any pHoenix patent, trademark, service xxxx, trade name or
copyright (collectively the "Proprietary Rights"), except as expressly
set forth herein. RAICHEM may use pHoenix's trademarks or service marks
only in connection with the sale of PRODUCTs and may use pHoenix's
Proprietary Rights only in connection with all advertising and
promotion of the PRODUCTs. RAICHEM shall be entitled to use pHoenix's
Proprietary Rights only for so long as this Agreement is in effect.
9.3 Infringement. pHoenix shall undertake at pHoenix's own expense the
defense of any suit or action for infringement of pHoenix's patents or
technology brought against RAICHEM, which suit or action results from
the sale of any PRODUCTs, provided that RAICHEM shall have promptly
advised pHoenix in writing of each notice or claim of infringement
received by RAICHEM and of the commencement of the suit or action.
pHoenix shall hold RAICHEM harmless from damages or other sums which
may be assessed or may become payable under any final decree or
judgment in any such suit or action or under any settlement thereof.
pHoenix shall have sole charge and direction of the defense of any such
suit or action and of all negotiations for such settlement, but shall
use commercial reasonableness and shall consult with RAICHEM with
regard to the defense or settlement of any such suit or action. RAICHEM
shall be obligated to render all reasonable assistance which may be
required by pHoenix at pHoenix's expense. RAICHEM may retain counsel of
its own selection and at its own expense to advise and consult with
pHoenix's counsel. pHoenix may not settle any suit or action without
the consent of RAICHEM, if by such settlement RAICHEM is obligated to
make any monetary payment, to part with any property or interest
therein, to assume any obligation or to be subject to any injunction.
The parties agree that if the PRODUCTs supplied by pHoenix are found to
be infringing on a third-party patent, pHoenix will negotiate in good
faith with the third party to obtain a license to use the third party's
technology and, if pHoenix fails to obtain such a license, or if
pHoenix is subject to a permanent injunction, then RAICHEM shall have
the right to either terminate this Agreement by giving written notice
of termination to pHoenix, and return for full credit all inventory on
hand, or negotiate with the infringed party for such a license.
pHoenix's indemnification resulting from any infringement on third
party patent shall exclude RAICHEM's costs involved in negotiation with
any infringed party for such a license.
Article 10. Indemnification
---------------
10.1 Indemnification. RAICHEM agrees to defend, indemnify and hold pHoenix
harmless from and against all loss, liability and expense (including
attorney's fees, settlements, litigation costs, and costs of appeal)
resulting from the acts or omissions of RAICHEM or its agents with
respect to its handling or marketing of the PRODUCTs including, but not
limited to, RAICHEM's fraud or misrepresentation in the use,
distribution, or sale of the PRODUCTs, or RAICHEM's mishandling of the
PRODUCTs or RAICHEM's failure to comply with the PRODUCTs' registration
requirements in any jurisdiction in which RAICHEM sells the PRODUCTs.
Likewise, pHoenix agrees to defend, indemnify and hold RAICHEM harmless
from all and against all loss, liability and expense (including
attorney's fees, settlements, litigation costs, and costs of appeal)
resulting from the acts or omissions of pHoenix or its agents with
respect to its handling or manufacturing of the PRODUCTs including but
not limited to pHoenix's fraud or misrepresentation in the manufacture
or sale of the PRODUCTs, or pHoenix's mishandling of the PRODUCTs.
10.2 Indemnification Notice. Each party shall give prompt notice of any
claim, loss or liability for which such party seeks defense and
indemnification. If either party wishes to enter the defense of a suit
brought pursuant to the indemnification sections of this Agreement
being defended by the other party, such party may do so at its own
cost. The control of such case shall remain with the indemnifying party
unless otherwise agreed to in writing.
10.3 Settlement Notice. If either party wishes to settle a case for which
the other party is liable for indemnification, the party wishing to
settle shall first obtain the written approval of the indemnifying
party.
10.4 Insurance. Each party will keep in force during the term of this
Agreement all customary forms of insurance, including but not limited
to product liability insurance, in such amounts as are prudently
required.
Article 11. Limited Warranty
----------------
11.1 Shelf Life Warranty. The PRODUCT shall have a shelf life, at the time
of shipment by pHoenix, as specified in Appendix A. pHoenix shall not
be liable for any variance from specifications or any failure to
satisfy the shelf life requirement to the extent such variance is
caused by conditions or events occurring after shipment from pHoenix's
plant.
11.2 PRODUCT Specification, Defective PRODUCT Notice and PRODUCT Complaints.
pHoenix warrants that, at the time of delivery to RAICHEM, all PRODUCTs
supplied by pHoenix meet PRODUCT specifications. Either party shall
immediately notify the other party in writing should it become aware of
any defect or condition that may render the PRODUCT(s) supplied by
pHoenix in violation of the U.S. Food, Drug and Cosmetic Act, or of a
similar law of any jurisdiction where the PRODUCT is sold by RAICHEM.
The parties shall share with each other all data on the PRODUCT
complaints including, but not limited to, complaints or information
regarding performance and/or allegations or reports of any negative
effect from the use or misuse of the PRODUCTs as soon as such data is
available. Each party will assist the other in resolving RAICHEM's
customers' complaints. However, RAICHEM shall have sole responsibility
and authority to interact directly with RAICHEM's customers in the
resolution of such complaints, and pHoenix shall be responsible only
for interacting with RAICHEM in such matters.
11.3 Warranties. THE WRITTEN WARRANTIES OF pHoenix IN THIS ARTICLE 11 ARE
THE SOLE EXCLUSIVE WARRANTIES PROVIDED TO RAICHEM AND TO CONSUMERS AND
ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, IMPLIED
OR STATUTORY. pHoenix WARRANTS THE PRODUCT AGAINST DEFECTS IN MATERIAL
AND WORKMANSHIP UNDER THE NORMAL USE AND SERVICE FOR WHICH IT WAS
DESIGNED, FOR THE SHELF LIFE PERIOD DEFINED IN APPENDIX A, pHoenix'S
OBLIGATION UNDER THIS WARRANTY BEING LIMITED TO THE REPLACEMENT OF THE
PRODUCT DETERMINED BY IT TO BE DEFECTIVE, PLUS TRANSPORTATION COSTS FOR
RETURN OF THE PRODUCT. ALL REPLACEMENTS WILL BE SHIPPED F.O.B.
RAICHEM'S RECEIVING FACILITY.
Article 12. Confidentiality
---------------
12.1 Confidentiality. For purposes of this Agreement, the term "Confidential
Information" shall mean all documents, clearly marked as "PROPRIETARY"
or "CONFIDENTIAL" , relating to the respective products and businesses
of the parties which (i) is disclosed, upon request, by one party
hereto to the other and (ii) is claimed by the disclosing party to be
secret, confidential and proprietary to the disclosing party.
During the Agreement Term and for a period of one year thereafter, each
party (except as is explicitly otherwise required hereby) shall keep
confidential, shall not use itself or for the benefit of others and
shall not copy or allow to be copied, in whole or in part , any
Confidential Information disclosed to such party by the other.
The obligations of confidentiality imposed upon the parties by the
foregoing paragraph shall not apply with respect to any alleged
Confidential Information which:
(a) is known to the recipient thereof prior to receipt thereof from
the other party hereto (as evidenced by said recipient's written
or other recorded records);
(b) is disclosed to said recipient by a third party who has the right
to make such disclosure;
(c) is or becomes a part of the public domain or public knowledge
through no fault of the said recipient;
(d) is independently developed by the recipient (as evidenced by said
recipient's written or other recorded records); and
(e) is required to be disclosed under operation of law.
Article 13. Termination
-----------
13.1 Termination For Cause. Either party will have the right to terminate
this Agreement if the other party (a) assigns this Agreement or any of
its rights hereunder in violation of the provisions of this Agreement,
or (b) becomes bankrupt or insolvent, or (c) makes an assignment for
the benefit of creditors, or a receiver, trustee in bankruptcy or
similar officer appointed to take charge of all or part of its
property, and such event has not been cured within thirty (30) days of
written notice thereof by the non-breaching party. If either party
materially breaches this Agreement, including, but not limited to
either party's failure to adhere to the confidentiality provisions and
restrictions on use of information set forth in this Agreement, then
notwithstanding any other provision of this Agreement, no cure period
shall be allowed and the non-breaching party shall be entitled to
terminate this Agreement immediately.
13.2 Termination For Failure to meet Minimum Purchases. pHoenix shall have
the right to terminate this Agreement upon three (3) months written
notice at any time if RAICHEM fails to meet its minumin purchases as
stated in this Agreement.
13.3 Rights and Obligations on Termination. Upon termination of this
Agreement, RAICHEM shall immediately discontinue any previously
authorized use of any of pHoenix's Proprietary Rights and shall
immediately cease all conduct that might cause anyone to believe that
RAICHEM is authorized to market or sell PRODUCTs or otherwise connected
with pHoenix, and pHoenix may itself or through others, commence sale,
distribution and service of PRODUCTs in the TERRITORY. Termination of
this Agreement for any reason whatsoever shall not relieve either of
the parties hereto from making payment of monies due to the other from
fulfilling obligations incurred up to the effective date of termination
or as otherwise expressly provided in this Agreement.
13.4 Termination or Expiration Damages. Neither pHoenix nor RAICHEM shall be
liable to the other, or to any other business entity solely by reason
of the expiration or termination of this Agreement regardless of the
rationale for or propriety of any termination or expiration. The
exculpation from liability shall be for any losses or damages of any
kind whatsoever, including, but not limited to, direct, indirect,
special, consequential or incidental damages sustained by reason of
such termination, including but not limited to, any claim for loss of
compensation or profits or for loss of prospective compensation or
prospective profits in respect of sales of any of the PRODUCTs or on
account of any expenditures, investments, leases, capital improvements
or any other commitments made by either party in connection with their
respective business made in reliance upon or by virtue of this
Agreement or otherwise.
Article 14. PRODUCT Recall and Regulatory Compliance
----------------------------------------
14.1 Data Base. pHoenix and RAICHEM shall maintain a data base to support
all claims made or to be made regarding PRODUCTs' performance.
14.2 Inquiries. Each party shall keep the other informed of any formal or
informal inquiry relating to PRODUCTs sold hereunder by any regulatory
agency of any state or national government.
14.3 PRODUCT Recall. Should PRODUCT performance or any governmental action
require the recall or withholding from market of PRODUCT sold by
pHoenix to RAICHEM, RAICHEM shall bear the costs and expenses of recall
if such recall is the result of any fault or omission attributable to
RAICHEM and pHoenix shall bear the costs and expenses of recall if such
recall is the result of any fault or omission attributable to pHoenix.
Should such recall result from the equal fault of both parties, or
should it prove impossible to assign fault to the satisfaction of both
parties, the parties shall share the said costs and expenses equally.
Article 15. Arbitration
-----------
15.1 Any controversy or claim arising under or in relation to this
Agreement, except as otherwise expressly provided below, shall be
settled exclusively by arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association (AAA). There
shall be three arbitrators: one selected by PHoenix, one selected by
RAICHEM, and one selected by the parties jointly or, failing their
agreement, selected pursuant to the rules of the AAA. The arbitration
shall be conducted in English and shall be held in Massachusetts. The
prevailing party shall be entitled to recover its costs and attorneys'
fees. The decision of the arbitrators shall be final and binding on the
parties, and judgment upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof. The provisions of
this arbitration clause shall not be applied to the determination of
questions affecting the validity or scope of any trademarks or other
intellectual property rights.
Article 16. General Provisions
------------------
16.1 Entire Agreement. This Agreement, including the Appendices, constitutes
the entire agreement between the parties with respect to the subject
matter hereof, and may not be modified (unless expressly provided
otherwise herein) except by a writing duly signed by both parties.
16.2 Assignment, Waiver, Severability. Neither party may assign this
Agreement without the prior written consent of the other party. Failure
by either party to enforce any term hereof shall not be deemed a waiver
of future enforcement of that or any other term. If any provision of
this Agreement is declared void or unenforceable by any judicial,
administrative or arbitration authority, such action will not nullify
the remaining provisions of this Agreement.
16.3 Governing Law. This Agreement shall be governed and construed under and
according to the laws of the Commonwealth of Massacusetts, U.S.A.,
excluding its choice of laws rules.
16.4 Relationship Created. The relationship of the parties is that of
independent contractors. Nothing in this Agreement shall be construed
as establishing an agency, joint venture or partnership between the
parties. Each party is an independent entity, and shall have sole
responsibility for its employees, even while such employees are on the
premises of the other party's facility(ies). Neither RAICHEM nor
pHoenix shall have the right to enter into any contracts or commitments
or to make any representations or warranties, whether express or
implied, in the name of or on behalf of any other party, or to bind any
other party in any respect whatsoever, unless agreed to in writing or
expressly permitted in this Agreement.
16.5 Authority. Each party hereby represents and warrants that it has full
power and authority to enter into and perform this Agreement, without
any governmental approvals, and that its entering into and performance
of this Agreement will not conflict with any other agreement to which
it is a party or by which it is bound.
16.6 Notice. Any written notice, or statement, necessary or appropriate
under this Agreement shall be deemed to be properly given if delivered
personally in writing or sent by registered or certified mail to the
party to be notified at the address set forth above or at such other
address as either party may hereafter designate in writing.
16.7 Captions. The captions or paragraph headings of this Agreement do not
constitute any substantive part of this Agreement and shall not be
considered in the construction or interpretation of this Agreement.
16.8 Force Majeure. Each party hereto shall be excused from the performance
of its obligations hereunder in the event such performance is prevented
by force majeure, and such excuse shall continue for so long as the
condition constituting such force majeure and any consequences
resulting from such condition continues. In addition, in the event the
condition constituting the force majeure causes a substantial inability
by either party hereto to meet its obligations hereunder, the term of
this Agreement may, upon written agreement of both parties, be
suspended for the period of such inability, but not to exceed six (6)
months. For the purposes of this Agreement, force majeure shall mean
causes beyond either party's control including, without limitation,
acts of God; regulations or laws of any government; war, riot or civil
commotion; damage to or destruction of production facilities or
materials by fire, earthquake, storm or other disaster; manufacturing
or transportation delay, strikes or other labor disturbances, epidemic;
and failure or default of public utilities or common carriers.
IN CONSIDERATION OF the foregoing terms and conditions, RAICHEM and pHoenix
have executed this Agreement on the day and year first written above.
REAGENTS APPLICATIONS, INC. pHoenix Diagnostics, Inc.
d/b/a RAICHEM, DIVISION OF
HEMAGEN DIAGNOSTICS, INC.
/s/ Xxxx Xxxxxxxxx /s/ Ram Nunna
---------------------------------- -----------------------------------
Xxxx Xxxxxxxxx, President Ram Nunna, President
REAGENTS APPLICATIONS, INC. pHoenix Diagnostics, Inc.
Appendix A -- PRODUCTs
----------------------
=====================================================================
MINIMUM SHELF-LIFE FROM
PRODUCTS DATE OF SHIPMENT
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PRODUCT Specifications: See attached PRODUCT literature
Appendix B -- Terms
-------------------
1) pHoenix grants to RAICHEM exclusive marketing rights to sell PRODUCTs in
the TERRITORY.
2) Minimum orders for the initial term are listed below:
Minimum Purchases
YEAR (in US dollars)
------------ -----------------
CONFIDENTIAL TREATMENT REQUESTED
Appendix C -- Prices
--------------------
CONFIDENTIAL TREATMENT REQUESTED
