SUPPLY PARTNERSHIP AGREEMENT
OF
CRITICARE SYSTEMS INC.
AND
TRIVIRIX INTERNATIONAL LIMITED,
26 OCTOBER 2000
SUPPLY PARTNERSHIP AGREEMENT
THIS SUPPLY PARTNERSHIP AGREEMENT (hereinafter called Agreement), dated as of 26
October, 2000 (hereinafter called Effective Date), is entered into by and
between:
CRITICARE SYSTEMS INC., a corporation duly organized and existing under the laws
of Wisconsin, USA, having its principal place of business at 00000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxx, XX 00000-0000, XXX (hereinafter referred to as "Criticare"),
and
TRIVIRIX INTERNATIONAL LIMITED, a corporation duly organized and existing under
the laws of Northern Ireland, UK, having its principal place of business at
Advantage Way, Ballygomartin Industrial Park, Belfast, Northern Ireland, BT13
3PN (hereinafter referred to as "TriVirix ").
WHEREAS, Criticare has substantial expertise in the design, development and
market the patient monitoring systems and noninvasive sensors for anesthesia,
critical care, respirator care, emergency transport, outpatient care and home
care;
WHEREAS, TriVirix International has substantial expertise in the design,
development and manufacture of the medical diagnostic systems and the related
accessory and consumables;
WHEREAS, Criticare and TriVirix desire to establish a supply partnership
cooperation for Criticare to appoint TriVirix to manufacture the Products with
cost-effective advantages.
NOW, THEREFORE, in consideration of the mutual conveniences and promises herein
contained, Criticare and TriVirix hereto agree as follows:
1. Definition.
(1) The term "Products" means all designated products manufactured by
TriVirix for Criticare.
(2) The term "Territory" means all countries in the US and Europe.
(3) The term "Specification" means the detailed specifications of the
Products provided by Criticare. This Specification may be updated from
time to time pursuant to the mutual written agreement of Criticare and
TriVirix.
(4) The term "Party" shall mean either Criticare or TriVirix ; the term
"Parties" shall mean Criticare and TriVirix .
(5) "Intellectual Property" shall mean any and all patents, patent
applications, copyrights, mask work rights, trade secrets (including
without limitation of Party's Confidential Information) and other
intellectual property rights in and to the Products, to the extent
that such rights are to be embodied in, or which must be practiced in
order to make, use or sell, the Products.
(6) "Trademarks" shall mean the trademarks, trade names and other
commercial symbols of Criticare or Criticare's Criticare listed on
Exhibit A attached hereto.
(7) "Business Day" shall mean a day on which banks in Waukesha, Wisconsin,
USA and Belfast, Northern Ireland are open for business.
(8) "Initial Term" shall mean the period of three (3) years after the
Effective Date.
(9) "Term" shall mean the Initial Term and any extension terms, as
described in Article 15. (1) below.
(10) "Affiliate" shall mean any corporation or other legal entity that
controls, is controlled by, or is under common control with the Party.
For purposes of this definition, control shall mean the ownership,
directly or indirectly, of fifty percent or more of the voting capital
shares or similar voting securities of an entity.
2. Purpose of Agreement.
(1) The Parties shall cooperate in the manufacturing of Products in
accordance with Section 3 below.
(2) During the Term of this Agreement, Criticare shall appoint TriVirix as
the exclusive contracted supplier in the Territory to manufacture
Criticare's designated Products, TriVirix shall not sell to the
Medical Market any other products that are in competing with the
Criticare's Products without the prior written consent of Criticare.
3. Scope of Cooperation in the Manufacturing of the Products.
(1) The Parties hereto agree to cooperate as provided hereunder during
each of the following stages of the manufacturing of the Products.
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a. Pre-manufacturing phase;
b. Pilot manufacturing phase; and
c. Standard manufacturing phase.
(2) In connection with the Pre-manufacturing phase, the Parties agree to
and not limit to cooperate as follows:
a. Criticare may send TriVirix a written request notice for
quotation for the Products. The purchase quantity of the
Products, the duration of the purchase order, the delivery
schedule and the quantity of each partial shipment should be
indicated in this written notice.
b. TriVirix shall send Criticare the requested quotation and other
related information within forty-five (45) working days after
receiving all technical documents as described in Article 3. (2)
d. below.
c. Criticare shall send TriVirix a formal purchase order or
Criticare's suggestion within forty-five (45) working days after
receiving TriVirix's quotation for the Products, subject to
extension as necessary and agreed by the Parties.
d. Criticare shall provide TriVirix all necessary information for
the manufacturing of the Products including and not limited to
the following documents:
(a) Xxxx of materials of the Products.
(b) Specification, engineering drawing, manufacturer's brand
name and parts number of the materials.
(c) Gerber files of the printed circuit boards.
(d) Samples of one of each of the unpopulated printed circuit
board, the populated printed circuit board and the Products.
(e) User's manual and service manual.
(f) Standard operation procedures and tools for assembling the
Products.
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(g) Quality control procedures and test fixtures for testing the
Products.
(h) Specification of labeling and marking (i.e. S/N) of the
Products.
(i) Specification of package and packaging materials.
(j) Format or content of the QC report that TriVirix may need to
provide to Criticare during each shipment.
(3) In connection with the Pilot manufacturing phase, the Parties agree to
and not limit to cooperate as follows:
a. TriVirix shall manufacture and deliver the prototype or the
validation lot of the Products to Criticare according to the
terms and conditions as set forth in the purchase order agreed by
the Parties.
b. Criticare has the right to cancel the purchase order if the
prototype or the first validation lot is unacceptable to
Criticare and can not be made acceptable by TriVirix within
forty-five (45) days, subject to the exception as described in
Article 3. (5).
c. In the event that Criticare has to cancel the purchase order,
Criticare is financially responsible for the cost of
manufacturing of the prototype or the first validation lot of the
Products, this includes the cost of tooling, setup, prototype or
the first validation lot and the rest of the raw materials that
TriVirix has purchased for the purchase order.
(4) With respect to the Standard manufacturing phase, the Parties agree to
and not limit to cooperate as follows:
a. TriVirix shall manufacture and deliver the Products to Criticare
according to the terms and conditions as set forth in the
purchase order agreed by the Parties.
b. Criticare has the right to cancel the purchase order if the
Products is unacceptable to Criticare and cannot be made
acceptable by TriVirix within forty-five (45) days, subject to
the exception as described in Article 3. (5).
c. In the event that Criticare has to cancel the purchase order,
Criticare is financially responsible for the rest of the raw
materials that TriVirix has purchased for the purchase order.
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(5) Criticare is responsible in providing TriVirix the correct technical
information for the manufacturing and the quality control testing of
the Products. If the Products fail to pass Criticare's incoming
inspection and system level functional test due to incorrect technical
document, then Criticare is financially responsible for the cost of
manufacturing of the Products, this includes the cost of tooling,
setup, Products, and the rest of the raw materials that TriVirix has
purchased for the purchase order.
(6) TriVirix should immediately inform Criticare if the manufacturers of
one or more of the materials, components, parts and modules for the
Products cease to produce. In this case, the Parties will cooperate
together to purchase enough quantities of these phase-out materials
and Criticare will consider re-designing the Products.
(7) TriVirix shall not be responsible for discontinuing the supply of the
Products to Criticare in the case of shortage of the materials as
described in Article 3. (6).
(8) In the event that Criticare has to cancel the purchase order due to
shortage of the materials as described in Article 3. (6), Criticare is
financially responsible for the cost of the rest of the raw materials
that TriVirix has purchased for the purchase order.
(9) In connection with the manufacturing of the Products, Criticare and
TriVirix may each be responsible for:
a. having their respective engineering groups work together to
discuss the technical issues arising from the manufacturing of
the Products; and
b. conducting phased reviews to ensure continued monitoring of the
manufacturing of the Products including without limitation of
detailed design review, quality improvement and cost reduction.
(10) As part of the transfer of manufacturing to TriVirix, materials left
over at Criticare's current manufacturers including printed circuit
board components may be in surplus. TriVirix agree to purchase all
usable materials from Criticare at TriVirix' quoted cost.
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4. Licenses.
(1) Criticare hereby grants TriVirix a non-exclusive, royalty-free,
worldwide license during the Term of this Agreement to practice the
Criticare's Intellectual Property in order to manufacture Products in
accordance with this Agreement.
(2) TriVirix shall not have the rights to grant sublicenses to other third
parties to practice the Criticare's Intellectual Property to other
uses.
(3) Any other use of the Criticare's Intellectual Property by TriVirix
shall be a material breach of this Agreement by TriVirix.
5. Manufacturing.
(1) During the Term of this Agreement, TriVirix shall manufacture the
Products only for sale to Criticare, or at Criticare's request,
Criticare's Criticares. Criticare shall have the right to use and/or
resell such Products on a worldwide basis, as it sees fit.
(2) TriVirix shall manufacture and deliver the Products to Criticare
according to the terms and conditions as set forth in each of the
written purchase order agreed by the Parties.
(3) All Products sold to Criticare by TriVirix shall be marked by
Trademarks of Criticare, or at Criticare's request, Trademarks of
Criticare's Criticares.
(4) TriVirix shall not use Trademarks of Criticare and Criticare's
Criticares for any other purposes.
(5) TriVirix agrees to maintain at all times in their finished products
inventories one full month quantities of all products under current
purchase orders from Criticare. This shall be achieved within four
months after the initial delivery. Should Criticare increase it
orders, such that the one month finished goods inventory is utilized,
TriVirix shall have six months to re-establish the one month of
finished good inventory.
6. Quality Control Procedures.
(1) Quality Control Procedures of the Products may be established by
Criticare and approved by the Parties.
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(2) TriVirix shall provide Criticare on a monthly basis with copies of all
records concerning TriVirix' compliance with the Quality Control
Procedures upon Criticare's request. Criticare shall meet with
TriVirix on an urgent basis to discuss and address any concerns that
Criticare may have from time to time with respect to TriVirix'
compliance with those Quality Control Procedures.
7. Purchase Prices.
(1) The Purchase Prices of the Products manufactured by TriVirix for
Criticare are set forth in each of the written purchase orders agreed
by the Parties. Pricing on Purchase Orders is agreed to by both
parties and shall be fixed for one year.
8. Delivery.
(1) The Products ordered by Criticare and accepted by TriVirix shall be
delivered to Criticare (or the recipient) on the conditions of FOB,
Belfast.
(2) The ultimate shipment of the Products by TriVirix to the recipient
shall be subject to the right and ability of TriVirix, to make such
sales and obtain required licenses and permits, under all decrees,
statutes, rules and regulations of its respective government and
agencies or instrumentalities thereof presently in effect or which may
be in effect hereafter.
The recipient of such shipments hereby agrees:
a. to assist TriVirix in obtaining any such required licenses or
permits by supplying such documentation or information as may be
requested by the other Party;
b. to comply with such decrees, statutes, rules and regulations of
the government of TriVirix and agencies or instrumentality
thereof;
c. to maintain the necessary records to comply with such decrees,
statutes, rules and regulations;
d. not to re-export any Products, except in compliance with such
decrees, statutes, rules and regulations;
e. to obtain all governmental approvals and licenses necessary to
import the Products into its respective country;
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f. not to sell, transfer or otherwise dispose of the Products in
violation of the export laws of TriVirix' country; and
g. to indemnify, defend and hold harmless TriVirix from any and all
fines, damages, losses, costs and expenses including reasonable
attorneys' fees. incurred by TriVirix as a result of any breach
of this Article 8. 2. by the recipient of such shipments.
(3) Unless the recipient of Products requests otherwise, all Products
ordered by such recipient shall be packed for shipment and storage in
accordance with TriVirix' standard commercial practices. It is the
recipient's obligation to notify TriVirix of any special packaging
requirements, which shall be at the recipient's expense.
(4) TriVirix shall deliver the Products into the possession of a common
carrier designated by the recipient no later than the date specified
for such delivery on the relevant purchase order for such Products;
provided, however, that if the recipient does not designate a common
carrier by such date, the TriVirix may do so on the recipient's
behalf.
(5) Risk of loss and damage to the Products shall pass to the recipient
upon the delivery of such Products to the designated common carrier.
All claims for short shipments must be made in writing by the
recipient to TriVirix within ten (10) days of the recipient's receipt
of such Products at its shipping destination. Any claims of short
shipment not made within such period shall be deemed waived and
released.
(6) In the event of any discrepancy between any purchase order accepted by
a Party hereunder and this Agreement, the terms and conditions of this
Agreement shall govern.
9. Payment.
(1) All amounts due and payable with respect to Products delivered by
TriVirix to the recipient in accordance with Article 8. (2) shall be
paid in full amount within thirty (30) days after the recipient's
receipt of an invoice covering such Products. Invoices may not be sent
prior to the delivery date of the Products covered by such invoice.
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(2) All payment and other amounts payable hereunder shall be paid in U.S.
Dollars by wire transfer to TriVirix's designated bank or account in
writing. Whenever any amount hereunder is due on a day which is not a
Business Day, such amount shall be paid on the next such Business Day.
Amounts hereunder shall be considered to be paid as of the day on
which funds are received by TriVirix's designated bank. No part of any
amount payable to TriVirix hereunder may be reduced due to any
counterclaim, set-off, adjustment or other right which the payer might
have against the payee, any other party or otherwise.
(3) All payment and other amounts due and owing from the recipient
hereunder but not paid by the recipient on the due date thereof shall
bear interest (in U.S. Dollars) at the rate of the lesser of:
a. twelve percent (12%) per annum; and
b. the maximum lawful interest rate permitted under applicable law.
Such interest shall accrue on the unpaid balance from time to time
outstanding from the date on such payment and other amount become due
and owing until payment thereof in full.
10. Warranty.
(1) TriVirix warrants that, after successful testing of the prototype or
the validation lot as described in Article 3. (3) and after Criticare
gives its final written approval of the quality of the prototype or
the validation lot:
a. the Products shall conform to the Specifications; and
b. the Products shall be manufactured in accordance with the Quality
Control Procedures.
c. Unless other specified in the written purchase order agreed by
the Parties, the Products are warranted against defects in
materials and workmanship for a period of 12 months from the date
of delivery.
(2) The Parties agree that, upon breach by TriVirix of its respective
warranty under this Article 10. (1), TriVirix's remedies shall be
limited to repair or replacement of the non-conforming Products.
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(3) EXCEPT AS STATED ABOVE, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO
SYSTEM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND TITLE.
11. Ownership of the Intellectual Properties.
(1) Criticare will own all Intellectual Properties rights in and to the
Products, to the extent that such rights are to be embodied in, or
which must be practiced in order to make, use or sell, the Products.
(2) Each Party shall execute any and all documents which the other Party
may reasonably request in order to protect the other Party's rights in
the other Party's Intellectual Property. The other Party shall
reimburse such Party for reasonable out-of-pocket costs which it
incurs in carrying out the foregoing responsibilities.
12. Intellectual Properties Indemnification.
(1) Criticare agrees to indemnify, defend and hold harmless TriVirix and
its officers, directors, employees, and agents from and against any
and all claims, demands, costs and liabilities (including all
reasonable attorneys' fees and court costs) of any kind whatsoever,
arising directly or indirectly out of claims that TriVirix is
infringing on the intellectual property rights of third parties due to
TriVirix' use of the Products as follows:
a. In the event that the Products is held in a suit or proceeding to
infringe any intellectual property rights of a third party and
the use of such Products is enjoined, or Criticare reasonably
believes that it is likely to be found to infringe or likely to
be enjoined, then Criticare shall, at its sole cost and expense,
either
(a) procure for TriVirix the right to continue using such
Products, or
(b) modify such Products so that it becomes non-infringing.
b. Criticare shall have no obligation for any claim of infringement
arising from:
(a) any combination of the Products with products not supplied
or approved in writing by Criticare, where such infringement
would not have occurred but for such combination;
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(b) the adaptation or modification of the Products not performed
by Criticare, where such infringement would not have
occurred but for such adaptation or modification;
(c) the use of the Products in an application for which it was
not designed or intended, where such infringement would not
have occurred but for such use; or
(d) a claim based on intellectual property rights not owned by
Criticare.
c. Article 11. (1) states Criticare's sole and exclusive remedy in
the event that the Products infringes on the intellectual
property right of any third party.
(2) TriVirix hereby agrees that:
a. Criticare shall have sole control and authority with respect to
the defense or settlement of any such claim; and
b. TriVirix shall cooperate fully with Criticare at Criticare's cost
and expense, in the defense of any such claim. Any settlement of
any such claims that imposes any liability or limitation on
TriVirix shall not be entered into without the prior written
consent of TriVirix.
(3) In the event a claim is based on an indemnified claim described in
Article 11. (1) above, any payments and reasonable attorney fees
incurred in connection with such claims are to be apportioned between
the Parties in accordance with the degree of cause attributable to
each Party.
13. Limitations of Liability.
(1) EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 11 ABOVE,
NEITHER PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY OR ANY
THIRD PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, OR FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES
ARISING OUT OF, OR IN CONNECTION WITH, THE USE, MANUFACTURE OR SALE OF
PRODUCTS.
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(2) EXCEPT FOR THIRD PARTY CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGES,
EXCEPT FOR UNAUTHORIZED USE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY
RIGHTS AND EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 11
ABOVE, EACH PARTY'S LIABILITY FOR DAMAGES TO THE OTHER PARTY FOR ANY
CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL
NOT EXCEED THE TOTAL FEES AND OTHER AMOUNTS PAID BY THE OTHER PARTY TO
SUCH PARTY HEREUNDER DURING THE IMMEDIATELY PRECEDING SIX MONTHS
PERIOD.
14. Confidentiality.
(1) Each Party acknowledges and agrees that in the course of its
performance of this Agreement, it may receive confidential information
of the other party (the "disclosing Party"). Accordingly, the Party
receiving such confidential information (the "receiving Party") hereby
represents and agrees that, during and after the Term of this
Agreement, all disclosures of confidential information to the
receiving Party, its agents and employees shall be held in strict
confidence by such receiving Party, which shall disclose the
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 except for the purposes of exercising its rights and
carrying out its duties hereunder. The provisions of this Article 14
shall also apply to any consultants or subcontractors, during and
after the Term of this Agreement, that the receiving Party may engage
in connection with this Agreement. Each Party shall take necessary
steps to ensure that its employees, consultants, agents and
subcontractors respect the provisions of this Article 14.
(2) Notwithstanding anything contained in this Agreement to the contrary,
neither Party shall be liable for a disclosure of the disclosing
Party's confidential information if the information so disclosed:
a. was in the public domain at the time it was disclosed by the
disclosing Party to the receiving Party or thereafter becomes
part of the public domain through no fault of the receiving
Party; or
b. 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
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c. becomes known to the receiving Party from a source other than the
disclosing Party without such source breaching its
confidentiality obligations to the disclosing Party; or
d. was required to be disclosed under court order, legal or
administrative process or as otherwise required by law, 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 Article 14. 2. d.
15. Term and Termination.
(1) Unless sooner terminated in accordance with Article 15. (2) below, the
Term of this Agreement shall begin on the Effective Date and shall
expire at the end of the Initial Term; provided, however, that the
Term of this Agreement shall automatically be extended, subject to
termination in accordance with Article 15. (2), for additional periods
of two (2) years each, unless either Party gives the other Party
written notice to the contrary at least sixty (60) days prior to the
end of the Initial Term or the then-current extension term, as the
case may be, in which case the Term of this Agreement shall expire at
the end of the Initial Term or the then-current extension term, as the
case may be.
(2) Upon the occurrence of any one of the following events with respect to
a party (the "breaching Party"), the other Party shall have the right
to terminate this Agreement, effective immediately upon giving the
breaching Party written notice of such termination as follows:
a. a material breach by the breaching Party in fulfilling any one or
more of its covenants, obligations or responsibilities pursuant
to this Agreement, which failure is not cured within thirty (30)
days after the breaching Party receives written notice of such
breach from the other Party;
b. dissolution, termination of existence, liquidation, insolvency or
business failure of the breaching Party, or the appointment of a
custodian or receiver for the breaching Party or any part of the
property of the breaching Party if such appointment is not
terminated or dismissed within thirty (30) days; except for
transmittance of control from one Party to its Affiliate.
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c. the institution by the breaching Party of any proceeding under
applicable bankruptcy laws or the making by the breaching Party
of a composition or any assignment or trust mortgage for the
benefit of creditors; or
d. the institution against the breaching Party of a proceeding under
applicable bankruptcy, reorganization, receivership, insolvency
or other similar law affecting the rights of creditors generally,
which proceeding is not dismissed within thirty (30) days of
filing.
e. TriVirix fails to maintain its ISO 9002 certification and is
unable to recover its certification within a reasonable period of
time.
(3) In no event shall termination of this Agreement terminate the
obligation of either Party to make royalty, fee or other amount either
due hereunder as of the date of termination or which becomes due
thereafter in accordance with the terms of this Agreement.
(4) Upon termination of this Agreement for any reason:
a. TriVirix shall immediately terminate production of Products.
b. Each Party shall cease using the other Party's Confidential
Information and 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).
(5) Neither Party shall by reason of the termination of this Agreement be
liable to the other Party for compensation or damages on account of
the loss of profits or sales, or expenditures, investments or
commitments in connection therewith.
(6) The provisions of Sections 11, 12, 13, 14, 15(3) through (6) and 16 of
this Agreement shall survive any termination of this Agreement.
(7) If a "Change of Control" occurs on either parties part, this Agreement
will stay in effect for one full year after the "Change of Control"
takes place. Written notification of "Change of Control" must be given
to the other party within 30 days after the "Change of Control" is
instituted.
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16. General Provisions.
(1) Assignability. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by either Party without the
consent of the other Party except in connection the assignment to the
Affiliate of the Part. This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors
and permitted assigns.
(2) Governing Law. This Agreement shall be governed by and construed in
accordance with laws of the Common wealth of Northern Ireland and
Wisconsin, excluding (a) its conflict of laws principles; (b) the
United Nations Convention on Contracts for the International Sale of
Goods; (c) the 1974 Convention on the Limitation Period in the
International Sale of Goods (the "1974 Convention"); and (d) the
Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
(3) Dispute Resolution. Any dispute, controversy or claim arising out of
or relating to this Agreement, or to a breach thereof, including its
interpretation, performance or termination, shall be submitted to and
finally resolved by arbitration. The arbitration shall be conducted in
accordance with the commercial arbitration rules of the American
Arbitration Association ("AAA"). The arbitration, including the
rendering of the reward, shall take place in Waukesha, Wisconsin, USA,
and shall be the exclusive forum for resolving such dispute,
controversy or claim. The decision of the arbitrators shall be final
and binding upon the Parties hereto. The arbitration shall be
conducted in English by three arbitrators to be selected by the AAA in
accordance with its normal procedures. Notwithstanding this,
application may be made to any court for a judicial acceptance of the
award or order of enforcement. Notwithstanding anything contained in
this Section 17 (3) to the contrary, each Party shall have the right
to institute judicial proceedings against the other Party or anyone
acting by, through or under such other Party, in order to enforce the
instituting Party's rights hereunder through reformation of contract,
specific performance, injunction or similar equitable relief.
(4) Waiver. The waiver by either Party of a breach or a default of any
provision of this Agreement by the other Party shall not be construed
as a waiver of any succeeding breach of the same or any other
provision, nor shall any delay or omission on the part of either Party
to exercise or avail itself of any right, power or privilege that it
has, or may have hereunder, operate as a waiver of any right, power or
privilege by such Party.
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(5) No Agency. Nothing contained in this Agreement shall be deemed to
constitute either Party as the agent or representative of the other
Party, or both Parties as joint venturers or partners for any purpose.
Neither Party shall be responsible for the acts or omissions of the
other Party, and neither Party will have authority to speak for,
represent or obligate the other Party in any way without prior written
authority from the other Party.
(6) Severability. In the event that any provision of this Agreement is
held by a court of competent jurisdiction to be unenforceable because
it is invalid or in conflict with any law of any relevant
jurisdiction, the validity of the remaining provisions shall not be
affected and the rights and obligations of the Parties shall be
construed and enforced as if the Agreement did not contain the
particular provisions held to be unenforceable.
(7) Notices. Any and all notices and other communications in connection
with this Agreement shall be in writing and shall be sent (a)
personally delivered, (b) transmitted by registered air mail, postage
prepaid, return receipt requested, (c) by Federal Express or other
recognized courier service, (d) transmitted by telex/facsimile/e-mail
with confirmed answer-back, to the Parties hereto as follows:
To: Criticare Systems, Inc.
00000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000-0000, XXX
Attention: Xxxx Xxxxx, President and CEO
Xxxxxx X. Xxxxxx, Vice President and General Manager
Telex/Facsimile No.: 0-000-000-0000
E-mail: xxx.xxxxxx@xxxxxx.xxx
Answerback: 1-262-798-8282
To: TriVirix International Limited
Advantage Way, Ballygomartin Industrial Park,
Belfast, N.I., BT13 3PN
Attention: Xxx Xxxxxxxxx, Director of Materials and Contracts
Telex/Facsimile No.: 000 000-0000
E-mail: xxxxxxxxxx@xxxxxxxx.xxx
Answerback: 000 000-0000
or to such other address, telex/facsimile number, e-mail address and
individual as either Party may from time to time designate by notice
hereunder.
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(8) Entire Agreement. This Agreement constitutes the entire agreement
between the Parties. No waiver, consent, modification or change of the
terms of this Agreement shall bind either Party unless in writing
signed by both Parties, and then such waiver, consent, modification or
change shall be effective only in the specific instance and for the
specific purpose given.
(9) Force Majeure. Neither Party shall be in default hereunder by reason
of its delay in the performance of or failure to perform any of its
obligations hereunder, if such delay or failure is cause by strikes,
fires, casualties, floods, wars, acts of God or the public enemy,
riots, incendiaries, lockouts, failure of public utilities,
injunctions or any act, exercise, assertion or requirement of
governmental authorities, epidemic, destruction of production
facilities, insurrection, inability to procure materials, labor,
equipment, transportation or energy sufficient to meet manufacturing
needs, interference by civil or military authorities, compliance with
governmental laws, rules, regulations and decisions, including without
limitation, those relating to exchange restrictions or similar events
that beyond its control or without its fault or negligence. However,
each Party hereto shall promptly notify the other Party of the
occurrence of each such force majeure condition.
(10) Performance. TriVirix shall make available by electronic or other
means any information required by Criticare to be obtained or
maintained as it relates to Products, including current data regarding
status and performance on this purchase order.
(11) Government and Agency Requirements. TriVirix makes no warranty that
the Product Specifications meet all applicable government and
independent agency requirements, standards, and approvals.
(12) Product Repair. Criticare, its distributors, Customers, or other
designee may return Products to TriVirix that are determined by
Criticare to be defective or that need repair. Upon determination of
any defective Product, Criticare may request, and TriVirix shall
issue, a "return authorization number" enabling Criticare or the
end-user to ship such Product on a freight-collect basis to TriVirix.
TriVirix shall, at TriVirix' option, either replace or repair Products
found to be defective during the Warranty period with Products which
conform to the Product Specifications which are part of this Purchase
Order and in force at the time the defective Products were originally
delivered. Products returned for defects in workmanship and/or
materials during the Warranty Period will be repaired and shipped back
to the appropriate destination at no charge to Criticare. Repair of
non-warranty and/or post-warranty Products shall be in accordance with
Criticare's
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instruction. Repair and shipping costs for Products returned for
defects that are not the responsibility of TriVirix, including
Products that have been improperly used and/or handled, non-warranty
Products, and post-warranty Products, shall be paid by Criticare. If
the Products are returned to TriVirix, and TriVirix determines that
said Products are not defective in any way, and Criticare agrees with
TriVirix' findings, Criticare agrees to pay TriVirix a fixed amount to
be negotiated between TriVirix and Criticare (no defects found charge)
for each such Product. TriVirix' warranty shall not apply to any
defects caused by improper use, handling, or transportation, unless
improperly packaged by TriVirix for delivery to Criticare or its
designee.
(13) Product Specification Changes. In the event Criticare changes the
Product Specifications, Criticare shall promptly advise TriVirix in
writing of such changes; or in the case of a change to the
specification required due to parts obsolescence or unavailability,
TriVirix shall promptly advise Criticare in writing as to any
scheduling and/or price adjustments which may result from such
changes. Prior to implementation of such changes, the Parties agree to
negotiate in good faith in an attempt to reach agreement on (a) the
new price for any Product manufactured or service provided hereunder
by TriVirix which embodies such changes, and (b) any other amendments
to this Purchase Order which may be necessitated by such changes
(i.e., an adjustment to the lead time for purchase orders). Criticare
agrees to reimburse TriVirix for the reasonable, mutually agreed
expenses incurred by TriVirix as a result of such changes, including,
but not limited to, reimbursing TriVirix for its development costs,
capital expenditure costs, rework costs, and costs for any components
or other materials rendered unusable as a result of such changes.
(14) Price Changes. Certain events, such as the increase or decrease in
cost of a component or material, may increase or decrease TriVirix'
cost per unit. TriVirix may present this cost data at the end of the
Contract Year. The parties agree to negotiate in good faith to arrive
at an upward or downward adjustment to the unit price.
(15) Records. TriVirix shall maintain all engineering, manufacturing, and
inspection records, all records of shipments of the Products from
TriVirix to Criticare or Criticare's designees, and all records
related to Product or facility regulations and certifications for the
time periods required by applicable laws and regulations with respect
to the Products. TriVirix shall make such records and data available
for review and copying by Criticare at TriVirix' facility upon
reasonable prior written notice from Criticare to TriVirix. In
addition, upon termination or expiration of this Purchase Order,
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whichever occurs first, TriVirix will upon Criticare's request, make
copies of such records and data for Criticare.
(16) Employee Solicitation. During the period beginning with the date
hereof and ending twelve months after all Services to be provided
hereunder have been performed, each of TriVirix and Criticare, for
itself and its Affiliates, agree that it will not offer employment to
or otherwise interfere with the employment of any employee of the
except as may be expressly stated in any Proposal, without the
permission of the other Party.
(17) Bankruptcy; Insolvency. Either Party may terminate this Purchase Order
upon the occurrence of either of the following: (a) The entry of a
decree or order for relief by a court having jurisdiction in the
premises in respect of such Party in an involuntary case under any
applicable federal or state insolvency or other similar law in any
applicable jurisdiction and the continuance of any such decree or
order unstayed and in effect for a period of sixty (60) consecutive
days; or (b) The filing by such Party of a petition for relief under
any applicable federal or state insolvency or other similar law.
(18) Expiration; Termination. (a) Upon expiration or termination of this
Purchase Order for any reason, (i) Criticare shall purchase from
TriVirix and TriVirix shall sell at TriVirix' acquisition cost all
usable inventories and materials reasonably acquired by TriVirix
hereunder for the manufacture of or development of Product, (ii)
Criticare shall purchase from TriVirix and TriVirix shall sell all
work-in-progress for the Product at TriVirix' cost and (iii) Criticare
shall purchase and TriVirix shall sell all other finished Product then
in TriVirix' possession. (b) Upon expiration or termination of this
Purchase Order for any reason, TriVirix shall release to the custody
of Criticare or Criticare' designee all Product Specifications (in
whatever form occurring, whether hard copy, magnetic or optical disk,
etc.), all Criticare-owned tooling, dies, molds, testing or
manufacturing or other Criticare equipment, together with either
originals or validated copies of all testing, inspection, or other
data regarding the performance or regulatory compliance of any Product
sold to Criticare hereunder, as well as any other property of
Criticare that is on the premises of TriVirix. In addition, TriVirix
shall sell to Criticare, and Criticare' shall purchase, for a
reasonable and mutually-agreeable price, any property or equipment
owned by TriVirix or its Affiliates specifically and solely for the
production of Criticare' Products.
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(19) Indemnification by Criticare. Except as otherwise provided below,
Criticare shall indemnify, defend and hold TriVirix, its Affiliates
and their respective directors, officers, employees, agents,
successors and assigns harmless from and against any damages,
judgments, claims, suits, actions, liabilities, costs and expenses
(including, but not limited to, reasonable attorneys' fees) arising
out of or connected with (a) the design, manufacture, use, handling,
distribution, marketing or sale of the Products (except to the extent
caused by TriVirix' grossly negligent acts or omissions or willful
misconduct in the procurement of components or in the manufacturing of
the Products) or from any accident resulting from the use of the
Products, (b) negligent acts, omissions, willful misconduct or any
breach or default of any representation of Criticare or any obligation
on the part of Criticare to be performed pursuant to this Purchase
Order or any of its agents, contractors, employees or licensees, or
(c) any proceeding instituted by or on behalf of a Third Party based
upon a claim that the manufacture, use or sale of the Products
infringes a United States patent or any other proprietary rights.
(20) Indemnification by TriVirix. Except as otherwise provided above,
TriVirix shall indemnify, defend and hold Criticare, its Affiliates
and their respective directors, officers, employees, agents,
successors and assigns harmless from and against any damages,
judgments, claims, suits, actions, liabilities, costs and expenses
(including, but not limited to, reasonable attorneys' fees) resulting
from (a) any Third Party claims or suits arising solely out of
TriVirix' grossly negligent acts or omissions or willful misconduct in
the manufacture of the Products; or, (b) grossly negligent acts or
omissions, willful misconduct or any breach or default of any
representation of TriVirix or any obligation on the part of TriVirix
to be performed pursuant to this Purchase Order or any of its agents,
contractors, employees or licensees.
(21) Press Releases. Any press release, publicity or other form of public
written disclosure related to this Purchase Order prepared by one
Party shall be submitted to the other Party prior to release for
approval, which approval shall not be unreasonably withheld by such
other party.
(22) Use of Names. Except as otherwise required by law or by the terms of
this Purchase Order or mutually agreed upon by the Parties, neither
Party shall make any use of the name of the other Party or any trade
name or trademark belonging to the other Party in any advertising or
promotional material without the prior consent of the other Party,
which consent shall not be unreasonably withheld.
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(23) Independent Contractors. The relationship between Criticare and
TriVirix is that of independent contractors and nothing herein shall
be deemed to constitute the relationship of partners, joint venturers,
nor of principal and agent between Criticare and TriVirix. Neither
Party shall have any express or implied right or authority to assume
or create any obligations on behalf of or in the name of the other
Party or to bind the other Party to any contract, agreement or
undertaking with any Third Party.
(24) Assignment. This Purchase Order may not be assigned or otherwise
transferred by either Party without the prior written consent of the
other Party. Any purported assignment in violation of the preceding
sentence shall be void. No assignment shall relieve either Party of
responsibility for the performance of any obligation which accrued
prior to the effective date of such assignment.
(25) Publicity. Neither Party shall originate any publicity, news release
or other public announcement relating to this Agreement or the
existence of an arrangement between the Parties without the prior
written approval of the other Party, except as otherwise required by
law.
(26) Headings. Captions and headings contained in this Agreement have been
included for ease of reference and convenience and shall not be
considered in interpreting or construing this Agreement.
(27) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
(28) Order of Precedence. In the case of any conflict, the following order
of precedence shall apply: (1) Purchase Order; (2) Terms and
Conditions; (3) Proposal; (4) Product Specifications; (5) Other
exhibits, data incorporated herein as attachments.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
signed and executed as of the date first above specified.
CRITICARE SYSTEMS INC. TRIVIRIX INTERNATIONAL
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxxxx
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Xx. Xxxxxx Xxxxxx Xx. Xxx X. Xxxxxxxxx
Vice President and General Manager Director of Materials and Contracts
Date: 11/15/00 Date: 11/15/00
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Exhibit A
Criticare's Trademark
[GRAPHIC OMITTED]
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