Genzyme Corporation
One Xxxxxxx Squre
Cambridge, Ma 02139-1562
Genzyme 000-000-0000
Diagnostics Fax 000-000-0000
Supply Agreement
This Agreement, effective as of the 10th day of July, 1996 ("the
Effective Date"), by and between:
CISTRON BIOTECHNOLOGY, INC. a corporation organized and
existing under the laws of the State of Delaware, USA and
having its principal place of business at Xxx 0000, 00
Xxxxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxx Xxxxxx, XXX 00000
(hereinafter referred to as "CISTRON"),
and
GENZYME CORPORATION, a corporation organized and existing
under the laws of the Commonwealth of Massachusetts, USA,
and having its principal place of business at Xxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, XXX 00000-0000
(hereinafter referred to as "GENZYME")
WHEREAS, CISTRON has developed and is selling to the research market a
human interleukin -1 beta (IL-1b) research assay product, "HS Kit" (as
defined below);
WHEREAS, GENZYME desires to purchase the HS Kit from Cistron for
resale;
NOW THEREFORE, in consideration of the rights, obligations, and mutual
premises set forth herein, CISTRON and GENZYME, intending to be bound
thereby, agree as follows:
Article 1. Definitions
The following terms as used in this Agreement shall have meanings set
forth in this Article.
1.1 "Territory" shall mean the Research Market for all countries of
the world.
1.2 "HS KIT" shall mean the following finished, but unlabelled,
components of CISTRON's human interleukin-1 beta assay (catalog
03-HS96)
1 Monoclonal antibody coated 96 well strip microtiter plate,
foil sealed
1 Vial of recombinant interleukin-1 beta standard (lyophilized,
50 ng/mL after reconstitution)
1 Vial of interleukin-1 beta polyclonal antibody (lyophilized,
11 mL after reconstitution)
1 Bottle of conjugate (liquid, .2mL
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1.3 "AGREEMENT PERIOD" shall mean the calendar time period commencing
with the date of the execution of this Agreement and extending for
twenty-four (24) months therefrom.
1.4 "CONFIDENTIAL INFORMATION" - shall mean any proprietary
information or materials belonging to the disclosing party
(whether or not patentable) including, but not limited to,
formulations, techniques, methodology, equipment, data, reports,
know-how, sources of supply, patent positioning, consultants and
business plans, including any negative developments, which are
communicated to, learned by, or otherwise acquired by the party
receiving such information or materials during or in the course of
this Agreement, further including information concerning the
existence, scope or activities of any research and development
project of the disclosing party.
Notwithstanding the foregoing, CONFIDENTIAL INFORMATION shall not
include an information which (i) is or becomes part of the public
domain through no act or omission of the part of the receiving
party, (ii) is disclosed to a third party by the disclosing party
without restriction of disclosure by such third party, (iii) is in
the receiving party's possession, without actual or constructive
knowledge of an obligation to the confidentiality with respect
thereto, at or prior to the time of disclosure under this
Agreement, (iv) is disclosed to the receiving party by a third
party having no obligation of confidentiality with respect
thereto, (v) is released from confidential treatment by written
consent of the disclosing party.
Article 2. Supply Agreement
2.1 During the AGREEMENT PERIOD, GENZYME agrees to purchase from
CISTRON and CISTRON agrees to supply to GENZYME HS KITs for resale
in the TERRITORY under GENZYME's name.
2.2 CISTRON agrees to manufacture and supply HS KITs to GENZYME at the
following prices:
Quarterly GENZYME Sale Price/Kit to GENZYME
Purchases
less than 125 kits $255 each plus freight and insurance
125-175 $220 each plus freight and insurance
176-300 $210 each plus freight and insurance
251-300 $190 each plus freight and insurance
301+ $180 each plus freight and insurance
2.3 GENZYME will provide buffers for each HS KIT, label the HS KITs
and components as GENZYME products, and provide product literature
for inclusion in each HS KIT.
2.4 All orders from GENZYME will be subject to acceptance, by CISTRON.
All purchases pursuant to orders by GENZYME shall be, at CISTRON's
option, F.O.B. Pine Brook, New Jersey, U.S.A. or other place of
manufacture. Title to, and risk of loss of and damage to, any
shipments of the HS KITs shall pass to GENZYME when such HS KITs
are delivered
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at any F.O.B. location to a carrier of CISTRON's choice, if a carrier has
not been specified by GENZYME in this written order confirmation.
2.5 CISTRON will ship to GENZYME the quantity of kits ordered in a
quarterly purchase order within forty-five (45) days of receipt of
such purchase order and will invoice GENZYME. GENZYME shall pay
each invoice in accordance with its regular terms of payment net
thirty (30) days. CISTRON will, whenever possible, ship complete
orders, however, should CISTRON not be able to ship a complete
order, CISTRON will so notify GENZYME. GENZYME may accept or
refuse partial shipments at its discretion, but may not refuse
acceptance of shipments that comprise at least 80% of a complete
order.
2.6 CISTRON will perform quality control testing on each lot of HS
KITs and provide such manufacturing an quality control
information, on a confidential basis, to GENZYME as may be
mutually agreed as necessary with each new production lot.
GENZYME will keep such information confidential and will restrict
its use solely to the HS KITs.
2.7 GENZYME shall perform in-house testing, at its own expense, as it
deems appropriate upon receipt of each product shipment from
CISTRON. GENZYME will report any product performance deficiencies
or quality discrepancies GENZYME may discover to CISTRON within
fifteen (15) days of receipt. Failure to report any product
deficiencies or discrepancies with fifteen (15) days of the
receipt of each product shipment shall constitute acceptance of
the shipment. If GENZYME notifies CISTRON within fifteen (15)
days of its receipt of HS KITs that a kit or kits fail to meet
specifications, such non-conforming kits which are due to a defect
of one or more of the components supplied by CISTRON pursuant to
paragraph 1.1 shall be replaced by CISTRON as soon as reasonable
possible thereafter and, if already paid for, at CISTRON's cost.
2.8 CISTRON warrants merchantability of HS KITs only for use as a
research product and only when used in conformance with the
CISTRON HS KIT protocol. Except as provided therein, CISTRON
makes no warranty of merchantability or performance after
acceptance of each shipment by GENZYME. CISTRON specifically
advises against the testing of human serum with the HS KIT, and
GENZYME specifically agrees that CISTRON makes no warranty of
performance of HS KITs run with human serum samples.
2.9 Any term or condition in a invoice or other document used by
CISTRON which is different than the terms of this Agreement shall
be deemed inapplicable.
2.10 CISTRON agrees not to enforce any of its patent rights against
GENZYME and its distributors relating to GENZYME's marketing of HS
KITs pursuant to the terms of this Agreement. However, nothing
contained herein shall be construed as granting or implying any
right to GENZYME under any existing or future letters patent
covering the HS KIT.
Article 3. Warranties
3.1 Each of CISTRON and GENZYME warrants and represents to the other
that it has the full right and authority to enter into this
Agreement.
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3.2 THE WARRANTIES SET FORTH IN THIS ARTICLE 3 AND IN 2.8 ARE THE ONLY
WARRANTIES MADE BY THE PARTIES AND ARE EXPRESSLY IN LIEU OF ANY
AND ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING, WITHOUT
LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING STATED HEREIN
TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY OR TO ANY DISTRIBUTEE OF THE OTHER PARTY OR ANYONE
ELSE IN PRIVITY WITH THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES REGARDLESS OF WHETHER OR NOT THE FIRST PARTY
HAS BEEN APPRISED OF THE POSSIBILITY THEREOF.
Article 4. Termination
4.1 Unless earlier terminated pursuant to paragraphs 4.2, 4.3, or 4.4,
this Agreement will expire two (2) years from the effective date
set forth above.
4.2 Upon material breach of this Agreement by either party and in the
event the breach is not cured within forty-five (45) days after
written notice to the defaulting party by the other party, in
addition to any other remedy it may have, the notifying party at
its sole option may terminate this Agreement.
4.3 This Agreement may be terminated by either party if the other
party becomes insolvent, makes an assignment for the benefit of
its creditors, files a petition for protection under any
bankruptcy law or consents to the appointment of a receiver of
liquidation of its assets, or its ownership substantially changes.
4.4 This Agreement may be terminated by either party upon learning of
the existence of a third party patent, which in the opinion of
competent legal counsel is infringed by the sale of an HS KIT.
4.5 Upon any termination of the Agreement, GENZYME will be entitled to
sell any completed inventory of HS KITs covered by this Agreement
which remain on hand as of the date of the termination, so long as
GENZYME pays to CISTRON the amount applicable to said purchase in
accordance with the same terms and conditions as set forth in this
Agreement.
4.6 Upon termination of this Agreement for any reason, nothing herein
will be construed as releasing either party from any obligation
that matured prior to termination of this Agreement.
Article 5. Publicity and Confidentiality
5.1 Neither party shall use the name of the other in any form of
advertising or promotion without the prior written approval of the
other.
5.2 (a) Except as provided in Section 5.2(b) below, for a period of
five (5) years from the termination date of this Agreement,
GENZYME will maintain any and all of the CONFIDENTIAL INFORMATION
received from CISTRON, in confidence, will not use same for its
own benefit except as expressly provided in this Agreement, and
will not
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release or disclose any tangible or intangible component
thereof to any third party without first receiving the prior
written consent of CISTRON to said release or disclosure.
(b) The provisions of Section 5.2(a) notwithstanding, GENZYME may
disclosed CONFIDENTIAL INFORMATION of CISTRON to GENZYME
Affiliates or in the event of a disclosure compelled by a court of
competent jurisdiction. In addition, GENZYME may disclose
CONFIDENTIAL INFORMATION of CISTRON in confidence to any third
party who has a need to know such CONFIDENTIAL INFORMATION for the
purpose of this Agreement; provided that GENZYME will first notify
CISTRON of the identity of such third party and that such
disclosure will be made under the provisions of a written
confidential disclosure agreement which is binding upon such third
party to the same obligations of confidentiality under which
GENZYME is bound to CISTRON by the terms of this Agreement.
GENZYME need not notify CISTRON before disclosing any CONFIDENTIAL
INFORMATION to any GENZYME Affiliate.
5.3 (a) For a period of five (5) years from the termination date of
this Agreement, CISTRON will maintain any and all of the
CONFIDENTIAL INFORMATION received from GENZYME, in confidence,
will not use same for its own benefit except as expressly provided
in this Agreement, and will not release or disclose any tangible
or intangible component thereof to any third party, except for the
purposes of this Agreement and only after prior notice to GENZYME
and after obtaining a written confidential disclosure agreement
binding such third party to the same obligation of confidentiality
to which CISTRON is bound to GENZYME under this Agreement.
(b) The provisions of Section 5.3(a) notwithstanding, CISTRON may
disclose CONFIDENTIAL INFORMATION of GENZYME to CISTRON Affiliates
or in the event of a disclosure compelled by a court of competent
jurisdiction. In addition, CISTRON may disclose CONFIDENTIAL
INFORMATION of GENZYME in confidence to any third party who has a
need to know such CONFIDENTIAL INFORMATION for the purpose of this
Agreement; provided that CISTRON will first notify GENZYME of the
identity of such third party and that such disclosure will be made
under the provisions of a written confidential disclosure
agreement which is binding upon such third party to the same
obligations of confidentiality under which CISTRON is bound to
GENZYME by the terms of this Agreement. CISTRON need not notify
GENZYME before disclosing any CONFIDENTIAL INFORMATION to any
CISTRON Affiliated.
Article 6. General Provisions
6.1 The relationship between CISTRON and GENZYME is that of
independent contractors. CISTRON and GENZYME are not joint
venturers, partners, principal and agent, master and servant,
employer and employee, and have no relationship other than as
independent contracting partners. CISTRON will have no power to
bind or obligate GENZYME in any manner, other than as is expressly
set forth in this Agreement. Likewise, GENZYME will have no power
to bind or obligate CISTRON in any manner, except as is expressly
set forth in this Agreement.
6.2 Any disagreement between the parties which relates to this
Agreement will be submitted to arbitration by a single, mutually
acceptable arbitrator to resolve such disagreement. The
arbitrator will conduct the arbitration in accordance with the
Rules of the American
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Arbitration Association, unless the parties agree otherwise. If the parties
are unable to agree on the selection of an arbitrator, the arbitrator will
be selected in accordance with the procedures of the American Arbitration
Association. The decision and award rendered by the arbitrator will be final
and binding. Judgment upon the award may be entered in any court having
jurisdiction thereof.
6.3 This Agreement sets forth the entire agreement and understanding
between parties as to the subject matter thereof and supersedes
all prior Agreements to this respect. There will be no amendments
or modifications to this Agreement, except by a written document
which is signed by both parties.
6.4 This Agreement will be construed and enforced in accordance with
the laws of the State of New York without reference to its choice
of law principles.
6.5 The headings in this Agreement have been inserted for convenience
of reference only and are not intended to limit or expand on the
meaning of the language contained in the particular article or
section.
6.6 any delay in enforcing a party's rights under this Agreement or
any waiver as to a particular default or other matter will not
constitute a waiver of a party's right to future enforcement of
its rights under this Agreement, excepting only as to any
expressed written and signed waiver as to a particular matter for
a particular period of time.
6.7 Any notice given pursuant to this Agreement will be in writing and
will be deemed delivered upon the earlier of (i) the date of
facsimile transmission or hand delivery, (ii) when received at the
address set forth below, (iii) five (5) business days after mailed
postage prepaid and properly addressed, with return receipt
requested.
Notice will be delivered to the respective parties as indicated:
To GENZYME: GENZYME Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxx
Copy to: Xxxxx Xxxxxxxxxx
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
To CISTRON: CISTRON Biotechnology, Inc.
Xxx 0000
00 Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxxxx XXX 00000
Attn: President
Copy to: Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx XXX 00000-0000
Attn: Xxxxxx Xxxxxx, Esq.
45
6.8 Each party hereto will be excused from performance for failure or
delay in meeting any obligations hereunder due to Acts of God,
acts of war, fire, flood, embargo, riots or revolution, provided
that such excusal from performance will last only for so long as
that party's performance is reasonably prevented by such force
majeure. The party affected by such force majeure shall use its
reasonable best efforts to mitigate any damage thus occasioned.
6.9 The provisions of this Agreement are severable and in the event
that any provision of this Agreement shall be determined to be
invalid or unenforceable such invalidity or unenforcability shall
not in any way affect the validity or enforcability of the
remaining provisions hereof.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
ACCEPTED AND AGREED TO:
CISTRON GENZYME
By: /s/ XXXXX X. XXXXXX By: /s/XXXXX XXXXXXX
------------------- ----------------
Xxxxx X. Xxxxxx Xxxxx Xxxxxxx
Title: President & COO, Cistron Title: President, Genzyme Diagnostics
President President Diagnostics
Date: 7-15-96 Date: July 11, 1996
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