EXHIBIT 10.26
DATED JULY 24, 2000
--------------------------------------------------------------------------------
BIOPROGRESS TECHNOLOGY INTERNATIONAL INC
and
XXXXX XXXXX HEALTHCARE LIMITED
-------------------------------------------
AGREEMENT FOR SUPPLY
OF PROTOTYPE MACHINE
--------------------------------------------
Rustons & Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx
XX0 0XX
DATE: 2000
PARTIES:
1 `The Company': BIOPROGRESS TECHNOLOGY INTERNATIONAL INC, a corporation
organised under the laws of the State of Nevada, United States of America,
of Xxxx 0, Xxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxxxx, XX00 0XX, Xxxxxxx, and
2 `The Purchaser': XXXXX XXXXX HEALTHCARE LIMITED, an English company
registered under number 931141, whose registered office is at Xxxxxxxx,
Xxxx Xxxxxxxxx, XX00 0XX, Xxxxxxx.
RECITAL:
This agreement sets out the terms under which the Company has agreed to sell and
the Purchaser to purchase the machine referred to in Schedule 1 and the Company
has agreed to provide certain services to the Purchaser.
OPERATIVE PROVISIONS:
1 Definitions
-----------
In this agreement unless the context otherwise requires:
(a) `an Affiliate' means in respect of either of the parties any company which
is a holding or subsidiary company or a subsidiary of a holding company,
the terms `holding company' and `subsidiary' having the meanings in section
736 of the Companies Xxx 0000
(b) `Commercial Use' means delivery of the Products manufactured using goods
supplied under the Film Supply Agreement, for profit after the Upgrade
Acceptance Date (which for the avoidance of doubt will exclude the sale or
manufacture of samples of the Products whether or not such samples are sold
for profit)
(c) `the Confidential Items' means those parts of the Machine and Upgrade and
which are listed in Schedule 4
(d) `the Delivery Date' means the actual date of delivery of the Machine to the
Premises
(e) `Documentation' means all instruction manuals, documents and drawings that
the Purchaser may require to safely own, operate and maintain the Machine
and the Upgrade
(f) `Employees' means all of the personnel (including subcontractors or agents
and the personnel of any subcontractor or agent) used by the Company from
time to time in performing its obligations under this Agreement
(g) `Expert' means a person to whom reference is made under clause 23.1
1
(h) `the Film Supply Agreement' means the supply agreement entered into between
the Purchaser and the Company of even date herewith
(i) `the Initial Specification' means the specification of the Machine set out
in Schedule 1
(j) "the Licence" means the Licence Agreement entered into by the parties of
even date herewith
(k) `the Machine' means the machine referred to in Schedule 1
(l) `the Machine Acceptance Criteria' means compliance with the Initial
Specification and the provisions of clause 8.1
(m) `the Machine Acceptance Date' means the date upon which the Machine is
accepted by the Purchaser in accordance with clause 5 below
(n) `the Premises' means the Purchaser's premises at Xxxxxxx Xxxxx Xxx,
Xxxxxxxxxxx, Xxxxx Xxxxxxxxxx XX00 0XX
(o) `the Product' means any product manufactured by the Purchaser pursuant to
the terms of the Licence
(p) `the Purchase Price' means the sum of US $1,000,000
(q) `the Purchaser's Authorised Representative' means the Purchaser's
Divisional Operations Manager from time to time (being Xxxxx Xxxxxx
Xxxxxxxx at the date of this Agreement)
(r) `the Services' means the services referred to in Schedule 2
(s) `the Upgrade' means the version of the Machine which complies with the
Upgrade Specification to be created by the Company as a result of the
provision of the Services
(t) "the Upgrade Acceptance Criteria" means compliance with the Upgrade
Specification and the provisions of clause 8.2
(u) `the Upgrade Acceptance Date' the date upon which the Upgrade is accepted
by the Purchaser in accordance with clause 6
(v) `the Upgrade Specification' means the specification set out or referred to
in Schedule 3
2 Machine and services
--------------------
The Company agrees to sell the Machine and provide the Services to the
Purchaser, and the Purchaser agrees to buy the Machine from the Company all on
the terms and conditions of this agreement.
3 Purchase price
--------------
3.1 The Purchase Price shall include:
3.1.1 the cost of delivery of the Machine to the Premises and installation
of it, and
2
3.1.2 the provision of the Services; and
3.1.3 the licence fee of US$500,000 in respect of the Machine and the
Upgrade payable by the Purchaser to the Company pursuant to clause
5.3.2 of the Licence ("the Licence Fee").
3.2 The Purchase Price shall not include value added tax which shall be payable
by the Purchaser in the manner and at the rate from time to time prescribed
by law.
3.3 The Purchaser shall pay the Purchase Price to the Company in the following
instalments (the instalments referred to at clauses 3.3(c) and 3.3(d)
being, for the avoidance of doubt, the Licence Fee):
(a) US $250,000 - On the signing of this agreement, by telegraphic
transfer to the Company's bank at account number
50122742 at Barclays Bank plc, Barclays Business
Centre, Chesterton Branch, 00 Xxxxxxxxxx Xxxx,
Xxxxxxxxx, XX0 0XX (sort code 20-17-35)
(b) US $250,000 - No later than seven days after the Machine
Acceptance Date
(c) US $250,000 - No later than seven days after the Upgrade
Acceptance Date
(d) US $250,000 - No later than seven days after the date on which
Commercial Use first occurs.
3.4 The Purchaser agrees to keep the Company regularly and promptly informed of
its efforts to exploit the Product, and in particular (but without
limitation) to notify the Company immediately when Commercial Use first
occurs.
3.5 The Company reserves the right to charge the Purchaser interest in respect
of the late payment of any sum due under this agreement (as well after as
before judgment) at the rate of 4 per cent per annum above the base rate
from time to time of Barclays Bank plc from the due date therefor until
payment.
4 Delivery
--------
4.1 The Company shall deliver the Machine to the Premises as soon as reasonably
practicable after the signing of this agreement, but shall not be liable
for any delay in delivery however caused.
4.2 The Company shall give the Purchaser not less than 14 days' notice of the
Delivery Date and details of the labour and equipment which will be
required from the Purchaser pursuant to clause 4.3.
4.3 At delivery the Purchaser shall make available to the Company free of
charge such labour and equipment as the Company shall reasonably require to
perform its duties hereunder.
3
4.4 Upon completion of delivery the Company shall remove all packing cases and
other containers in which the Machine was delivered.
5 Installation and acceptance
---------------------------
5.1 The Company shall commence and thereafter expeditiously continue
installation of the Machine at the Premises as soon as reasonably
practicable after the Delivery Date.
5.2 The Company will carry out the installation of the Machine:
5.2.1 with all due skill and care and to the highest professional
standards;
5.2.2 using suitable and trained employees with appropriate experience and
qualifications; and
5.2.3 in compliance with all relevant standards, codes of practice
statutory requirements and regulations.
5.3 The Company will advise the Purchaser in writing when it considers the
state of the Machine to be such that it meets the Machine Acceptance
Criteria.
5.4 Within 14 days of the service of the notice referred to in clause 5.3 the
parties will inspect and test the Machine in the presence of the
Purchaser's Authorised Representative to establish whether the Machine
meets the Machine Acceptance Criteria.
5.5 Within 14 days of the inspection pursuant to clause 5.4 a joint written
report will be prepared recording the detailed results of the inspection
and testing referred to in clause 5.4 and commenting on whether the Machine
Acceptance Criteria have been achieved.
5.6 If the report is agreed and demonstrates that the Machine Acceptance
Criteria have been met to the satisfaction of the Purchaser's Authorised
Representative he will issue a written notice certifying this fact and the
Machine shall be deemed to be accepted on the date of such notice.
5.7 If the report records that the Machine Acceptance Criteria have not been
met the Company shall as soon as possible prepare (and copy to the
Purchaser) and implement a remedy programme to correct the matters that led
to such failure and the procedure set out in clauses 5.3 to 5.6 above shall
be repeated as soon as possible until successful compliance with the
Machine Acceptance Criteria is achieved.
5.8 If there is any dispute as to whether the inspection, tests and other
procedures carried out demonstrate that the Machine Acceptance Criteria
have been achieved the matter shall be referred for determination to an
Expert.
6 The Services
------------
6.1 The Company shall commence and thereafter expeditiously continue the
provision of the Services as soon as reasonably practicable after the
Machine Acceptance Date.
6.2 The Company will perform the Services:
4
6.1.1 with all due skill and care and to the highest professional
standards;
6.1.2 using suitable and trained employees with appropriate experience and
qualifications; and
6.1.3 in compliance with all relevant standards, codes of practice
statutory requirements and regulations.
6.3 The Company will advise the Purchaser in writing when it considers the
state of the Upgrade to be such that it meets the Upgrade Acceptance
Criteria.
6.4 Within 14 days of the service of the notice referred to in clause 6.3 the
parties will inspect and test the Upgrade in the presence of the
Purchaser's Authorised Representative to establish whether the Upgrade
meets the Upgrade Acceptance Criteria.
6.5 Within 14 days of the inspection pursuant to clause 6.4 a joint written
report will be prepared recording the detailed results of the inspection
and testing referred to in clause 6.4 and commenting on whether the Upgrade
Acceptance Criteria have been satisfied.
6.6 If the report is agreed and demonstrates that the Upgrade Acceptance
Criteria have been met to the satisfaction of the Purchaser's Authorised
Representative he will issue a written notice certifying this fact and the
Upgrade shall be deemed to be accepted on the date of such notice.
6.7 If the report records that the Upgrade Acceptance Criteria have not been
met the Company shall as soon as possible prepare (and copy to the
Purchaser) and implement a remedy programme to correct the matters that led
to such failure and the procedures set out in clauses 6.3 to 6.6 shall be
repeated as soon as possible until successful compliance with the Upgrade
Acceptance Criteria is achieved.
6.8 If there is any dispute as to whether the inspection, tests and other
procedures carried out demonstrate that the Upgrade Acceptance Criteria
have been achieved the matter shall be referred for determination to an
Expert.
7 Title to and risk in the Machine
--------------------------------
7.1 Title to the Machine shall not pass to the Purchaser until the date that
the Purchase Price and value added tax thereon have been paid in full to
the Company (`the Payment Date').
7.2 Until the Payment Date the Purchaser shall not be entitled to sell transfer
lease charge assign by way of security or otherwise deal in or encumber the
Machine and the relationship between the Company and the Purchaser in
respect of the Machine including any proceeds of sale or other
consideration therefor shall be a fiduciary one.
7.3 If either:
7.3.1 the Purchaser fails to effect payment in full of all sums due
hereunder by the due date, or
5
7.3.2 prior to the Payment Date the Purchaser convenes a meeting of its
creditors or a proposal is made for a voluntary arrangement within
Part I of the Insolvency Xxx 0000 or a proposal for any other
composition scheme or arrangement with (or assignment for the benefit
of) the Purchaser's creditors or if the Purchaser is unable to pay
its debts within the meaning of section 123 of the Insolvency Xxx
0000 or if a trustee receiver administrative receiver or similar
officer is appointed in respect of all or any part of the business or
assets of the Purchaser or if a meeting is convened for the purpose
of considering a resolution or other steps are taken for the winding
up of the Purchaser or for the making of an administration order
(otherwise than for the purpose of an amalgamation or reconstruction)
then the Company (without prejudice to any other legal remedies it may
have) shall at any time thereafter be entitled to enter on the Premises
(without notice to the Purchaser) and remove the Machine.
7.4 If in breach of clause 7.2 above the Purchaser sells the Machine prior to
the Payment Date then any proceeds of sale in respect thereof and all
rights arising under or in respect of said sale shall be held (in the case
of the proceeds of sale in a separate account) by the Purchaser as trustee
for the Company.
7.5 Risk in the Machine shall pass to the Purchaser upon the Machine Acceptance
Date. Risk in any parts comprising the Upgrade shall pass to the Purchaser
on the Upgrade Acceptance Date.
7.6 With effect from the Machine Acceptance Date up to and including the
Payment Date the Purchaser shall insure the Machine for its full
replacement value with the Royal and Sun Alliance or such other insurance
company as the Company shall approve (such approval not to be unreasonably
withheld) and shall provide a copy of the insurance certificate to the
Company promptly on request.
8 Warranty in respect of the Machine
---------------------------------------
8.1 Subject to the limitations upon its liability set out in clause 9 below the
Company warrants to the Purchaser that the Machine will for the period from
the Machine Acceptance Date to the Upgrade Acceptance Date:
8.1.1 be free from defects in or arising from design materials workmanship
delivery or installation;
8.1.2 conform in all respects with the Initial Specification;
8.1.3 be of satisfactory quality within the meaning of the Sale of Goods
Xxx 0000 (as amended) and fit for its purpose; and
8.1.4 comply with all statutory and EC requirements and regulations
relating to the Machine.
8.2 Subject to the limitations upon its liability in clause 9 below the Company
warrants to the Purchaser that the Upgrade will for a period of 12 months
from the Upgrade Acceptance Date:
6
8.2.1 be free from defects in or arising from design, materials,
workmanship, delivery or installation;
8.2.2 conform in all respects with the Upgrade Specification;
8.2.3 be of satisfactory quality within the meaning of the Sale of Goods
Xxx 0000 (as amended) and fit for its purpose; and
8.2.4 comply with all statutory and EC requirements and regulations
relating to the Upgrade.
8.3 Subject to the limitations upon its liability in clause 9 below the Company
warrants to the Purchaser that the Company will:
8.3.1 carry out the installation of the Machine and perform the Services
with all due skill, care and diligence;
8.3.2 comply with all applicable legislation, statutory provisions and
regulations in performing its obligations under this Agreement.
8.4 The Purchaser shall give notice to the Company as soon as it is reasonably
able upon becoming aware of a breach of warranty.
8.5 The Company shall as soon as it is reasonably able investigate any alleged
breach of warranty and shall remedy the same free of charge by either:
8.5.1 carrying out such repairs modifications or alterations to the Machine
or Upgrade as it shall in its absolute discretion think fit (or
authorising the Purchaser to carry out such repairs, modifications or
alterations at the Company's cost) or (at its discretion)
8.5.2 replacing the Machine or Upgrade or any part of it.
8.6 Any parts of the Machine or Upgrade replaced by the Company pursuant to
clause 8.5.2 above (`Replaced Parts') shall upon replacement become the
property of the Company and the Purchaser warrants that its title to such
Replaced Parts shall be free and unencumbered or that it shall have all
necessary consents and authorities to part with possession of the Replaced
Parts.
8.7 Any new parts of the Machine or Upgrade used by the Company to replace
Replaced Parts will be guaranteed on the terms set out in clauses 8.1 and
8.2 for the unexpired portion of such warranty.
8.8 Subject to the foregoing and with the exception of the condition and
warranties implied by section 12 of the Sale of Goods Xxx 0000 all
conditions warranties terms and undertakings express or implied statutory
or otherwise in respect of the Machine and the provision of the Services
are hereby excluded.
8.9 During the term of this Agreement and for one (1) year thereafter, the
Company shall maintain product liability insurance on the Machine with
minimum limits of the sterling equivalent of $1,000,000 (ONE MILLION
DOLLARS) per occurrence and $10,000,000 (TEN MILLION DOLLARS) in the
aggregate with an insurance company registered in the United Kingdom and
being a member of the British Insurers Association. The Company shall
provide the Purchaser with a copy of the certificate of such insurance and
evidence of the payment of premiums therefor promptly upon request.
7
8.10 For the avoidance of doubt all deductibles under insurance policies
maintained by the Company will be the sole and exclusive responsibility of
the Company and clause 8.9 will not be deemed to limit in any way the
Company's liability under this Agreement.
9 Limitation of liability
----------------------------
9.1 The following provisions set out the Company's entire liability (including
any liability for the acts and omissions of its employees agents and
sub-contractors) to the Purchaser in respect of:
9.1.1 any breach of its contractual obligations arising under this
agreement, and
9.1.2 any representation statement or tortious act or omission including
negligence arising under or in connection with this agreement
AND THE PURCHASER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF
THIS CLAUSE 9.
9.2 Any act or omission on the part of the Company or its employees agents or
sub-contractors falling within clause 9.1 above shall for the purposes of
this clause 9 be known as an `Event of Default'.
9.3 The Company's liability to the Purchaser for:
9.3.1 death or injury resulting from its own or its employees' agents' or
subcontractors' negligence, and
9.3.2 all damage suffered by the Purchaser as a result of the implied
statutory undertakings as to title quiet possession and freedom from
encumbrances
shall not be limited.
9.4 Subject to the provisions of clause 9.3 above the Company's entire
liability in respect of each Event of Default shall be limited to damages
of an amount equal to (pound)500,000.
9.5 If a number of Events of Default give rise substantially to the same loss
then they shall be regarded as giving rise to only one claim under this
agreement.
9.6 Except in the case of an Event of Default arising under clause 9.3 above
the Company shall have no liability to the Purchaser in respect of any
Event of Default unless the Purchaser shall have served notice of the same
upon the Company within 12 months of the date it became aware of the
circumstances giving rise to the Event of Default.
9.7 Nothing in this clause 9 shall confer any right or remedy upon the
Purchaser to which it would not otherwise be legally entitled.
8
10 Documentation
------------------
10.1 The Company will on or prior to the Machine Acceptance Date provide
complete and accurate Documentation for the Machine to the Purchaser and
will on or prior to the Upgrade Acceptance Date provide complete and
accurate Documentation for the Upgrade to the Purchaser.
10.2 The Documentation is the copyright of the Company and contains confidential
information of the Company.
10.3 The Purchaser shall take all reasonable steps to protect the Company's
copyright and confidential information in such Documentation and without
prejudice to the generality of the foregoing shall not copy or reproduce
the same nor distribute sell or disclose the contents of the same to any
third party without the prior consent of the Company (such consent not to
be unreasonably withheld or delayed). For the avoidance of doubt nothing in
this clause shall prevent the Purchaser from handing over the Documentation
to any third party to whom it may sell the Machine or the Upgrade at any
future date.
10.3 The Purchaser undertakes to the Company to make its employees agents and
sub-contractors aware of the provisions of this clause 10 and to use all
reasonable endeavours to ensure compliance by its said employees agents and
sub-contractors with the obligations set out in clause 10.2 above.
11 Access to the Premises
---------------------------
11.1 The Purchaser shall allow the Company including the Employees such
reasonable access to the Premises at reasonable times as it shall from time
to time require to perform its obligations under this agreement.
11.2 The Company shall procure that all Employees who may have access to the
Premises in connection with this agreement are fully aware of and fully
comply with the Purchaser's health and safety, fire and other rules
applying to the Premises (from time to time).
11.3 Whilst on the Premises the Company shall, and will ensure that the
Employees shall, comply with the Health and Safety at Work Xxx 0000 and all
other applicable health and safety regulations.
11.4 The Company shall take out and maintain at its own expense a policy or
policies of insurance with reputable insurers in respect of employer's
liability to the Employees and damage caused to the Premises by the
Employees' negligence.
11.5 The Company shall be responsible for the behaviour of the Employees whilst
on the Premises, whether or not any act or omission by them falls within
the scope of their employment or authority. In particular the Company shall
comply with the Purchaser's regulations as to the behaviour of persons
whilst on its sites. The Company shall promptly exclude from the Premises
any of the Employees whose behaviour in the Purchaser's reasonable opinion
is unsuitable or inappropriate.
11.6 The Company will carry out its obligations under this agreement in such a
manner so as not to cause any damage to the Premises or, so far as
reasonably practicable, to interfere with the orderly carrying out of the
Purchaser's business at the Premises.
9
12. Spare Parts and Tooling
-----------------------
12.1 The Company undertakes to keep available and to supply to the Purchaser
such spare parts and tooling as the Purchaser shall require for the Machine
and/or the Upgrade until the first anniversary of the Upgrade Acceptance
Date and the Purchaser agrees to purchase its requirements (if any) for
such spare parts and tooling from the Company during such period.
12.2 The prices for any spare parts and/or tooling purchased by the Purchaser
from the Company (at any time during the term of this Agreement) shall be
the Company's standard prices for such parts applicable at the date of
order provided that such spare parts and tooling will be supplied to the
Purchaser at a cost no greater than the Company charges to third parties
for the same spare parts and/or tooling.
12.3 For the avoidance of doubt, after the first anniversary of the Upgrade
Acceptance Date, except in the case of the Confidential Items, the
Purchaser shall be free to obtain spare parts and/or tooling for the
Machine and/or Upgrade from any supplier. The Purchaser shall continue to
obtain the Confidential Items only from the Company, and the Company
undertakes to maintain such stock of Confidential Items as may be necessary
to enable it to supply such items to the Purchaser no later than the second
Business Day after receipt of any order therefor from the Purchaser. For
the purposes of this clause 12.3 Business Day has the same meaning as in
clause 17.3.
13 Termination
----------------
13.1 This agreement may be terminated:
13.1.1 forthwith by either party if the other commits any material breach
of any term of this agreement and which (in the case of a breach
capable of being remedied) shall not have been remedied within 30
days of a written request to remedy the same, and
13.1.2 forthwith by either party if the other shall convene a meeting of
its creditors or if a proposal shall be made for a voluntary
arrangement within Part I of the Insolvency Xxx 0000 or a proposal
for any other composition scheme or arrangement with (or assignment
for the benefit of) its creditors or if the other shall be unable to
pay its debts within the meaning of section 123 of the Insolvency
Xxx 0000 or if a trustee receiver administrative receiver or similar
officer is appointed in respect of all or any part of the business
or assets of the other party or if a petition is presented or a
meeting is convened for the purpose of considering a resolution or
other steps are taken for the winding up of the other party or for
the making of an administration order (otherwise than for the
purpose of an amalgamation or reconstruction).
13.2 Any termination of this agreement pursuant to this clause shall be without
prejudice to any other rights or remedies a party may be entitled to
hereunder or at law and shall not affect any accrued rights or liabilities
of either party nor the coming into or continuance in force of any
provision hereof which is expressly or by implication intended to come into
or continue in force on or after such termination.
10
14 Confidentiality
--------------------
14.1 Subject to clause 14.2 each of the parties hereto undertakes to the other
to keep confidential all information (written or oral) concerning the
business and affairs of the other that it shall have obtained or received
as a result of the discussions leading up to or the entering into of this
agreement and to use the same only for the purposes of this Agreement.
14.2 Either party, may disclose information which would otherwise be
confidential if and to the extent it is:
14.2.1 already in its possession other than as a result of a breach of this
clause;
14.2.3 in the public domain other than as a result of a breach of this
clause;
14.2.4 required by a binding court order or otherwise by law to be
disclosed;
14.2.5 required by any regulatory or governmental body to which either
party is subject or submits wherever situated, including without
limitation The Stock Exchange or The Panel on Takeovers and Mergers,
whether or not the requirement for information has the force of law;
or
14.2.6 disclosed to the professional advisors, auditors and bankers of each
party under terms of confidentiality.
14.3 Each of the parties undertakes to the other to take all reasonable steps to
ensure compliance with the provisions of clause 14.1 above by its employees
agents and sub-contractors.
15 Force majeure
------------------
15.1 Neither party hereto shall be liable for any breach of its obligations
hereunder resulting from causes beyond its reasonable control including but
not limited to fires strikes (of its own or other employees) insurrection
or riots embargoes container shortages wrecks or delays in transportation
inability to obtain supplies and raw materials requirements or regulations
of any civil or military authority (an `Event of Force Majeure').
15.2 Each of the parties hereto agrees to give notice forthwith to the other
upon becoming aware of an Event of Force Majeure such notice to contain
details of the circumstances giving rise to the Event of Force Majeure.
15.3 If a default due to an Event of Force Majeure shall continue for more than
12 weeks then the party not in default shall be entitled to terminate this
agreement. Neither party shall have any liability to the other in respect
of the termination of this agreement as a result of an Event of Force
Majeure.
16 Waiver
-----------
The waiver by either party of a breach or default of any of the provisions of
this agreement by the other party shall not be construed as a waiver of any
succeeding breach of the same or other provisions 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
breach or default by the other party.
11
17 Notices
------------
17.1 Any notice required to be given hereunder by either party to the other
shall be in writing and may be given by hand or sent by first class
pre-paid post or facsimile transmission and shall be deemed to be duly
served:
17.1.1 if delivered by hand, when left at the proper address for service;
17.1.2 is given or made by prepaid first class post, 48 hours after being
posted (excluding Saturdays, Sundays and public holidays);
17.1.3 if given or made by facsimile transmission at the time of
transmission, provided that a confirming copy is sent by first class
prepaid post to the other party within 24 hours after transmission
provided that, where in the case of delivery by hand or transmission by
facsimile, such delivery or transmission occurs either after 4.00 pm on a
Business Day, or on a day other than a Business Day, service shall be
deemed to occur at 9.00 am on the next following Business Day (such times
being local time at the address of the recipient).
17.2 Any demand, notice or communication shall be made in writing or by
facsimile addressed to the recipient at its registered office or its
address stated in this agreement (or such other address or facsimile number
as may be notified in writing from time to time) and shall be marked for
the attention of the Company Secretary in the case of the Purchaser or the
Chief Financial Officer in the case of the Company.
17.3 For the purposes of this clause 17 "Business Day" means any day other than
Saturdays, Sundays and public or statutory holidays.
18 Invalidity and severability
--------------------------------
If any provision of this agreement shall be found by any court or administrative
body of competent jurisdiction to be invalid or unenforceable the invalidity or
unenforceability of such provision shall not affect the other provisions of this
agreement and all provisions not affected by such invalidity or unenforceability
shall remain in full force and effect. The parties hereby agree to attempt to
substitute for any invalid or unenforceable provision a valid or enforceable
provision which achieves to the greatest extent possible the economic legal and
commercial objectives of the invalid or unenforceable provision.
19 Entire agreement
---------------------
The Company shall not be liable to the Purchaser for loss arising from or in
connection with any representations agreements statements or undertakings made
prior to the date of execution of this agreement other than those
representations agreements statements and undertakings confirmed by a duly
authorised representative of the Company in writing or expressly incorporated or
referred to in this agreement provided that this shall not exclude any liability
which the Company would otherwise have to the Purchaser in respect of statements
made fraudulently by the Company prior to the date of this Agreement.
12
20 Successors
---------------
This agreement shall be binding upon and enure for the benefit of the successors
in title of the parties hereto.
21 Assignment
---------------
Neither party shall be entitled to assign this agreement nor all or any of their
rights and obligations hereunder without the prior written consent of the other.
22 VAT
--------
Save in so far as otherwise expressly provided all amounts stated in this
agreement are expressed exclusive of value added tax and any value added tax
arising in respect of any supply made hereunder shall on the issue of a valid
tax invoice in respect of the same be paid to the party making such supply by
the party to whom it is made in addition to any other consideration payable
therefor.
23 Expert determination
-------------------------
23.1 Where under any provision of this Agreement any matter is to be determined
by an Expert, the matter shall be referred at the instance of either party
to such person as may be appointed by agreement between the parties or, in
default of agreement, nominated on the application of either party by the
President for the time being of the Institute of Mechanical Engineers.
23.2 Any person to whom a reference is made under clause 23.1 shall act as an
expert and not as an arbitrator and shall be entitled to appoint such
technical expert or experts as he considers necessary to assist him in
determining the matter referred to him. The decision of the Expert (which
shall be given by him in writing stating his reasons therefor) shall be
final and binding on the parties.
23.3 Each party shall provide any Expert with such information as he may
reasonably require for the purposes of his determination; if either party
claims any such information to be confidential to it then, provided that in
the opinion of the Expert that party has properly claimed the same as
confidential, the Expert shall not disclose the same to the other party or
to any third party.
23.4 The costs of any Expert (including the costs of any technical expert
appointed by him) shall be borne in such proportions as the Expert may
determine to be fair and reasonable in all the circumstances or, if no such
determination is made by the Expert, by the parties in equal proportions.
24 Headings
-------------
Headings to clauses in this agreement are for the purpose of information and
identification only and shall not be construed as forming part of this
agreement.
25 Law
--------
This agreement shall be governed by and construed in accordance with English law
and the parties hereto agree to submit to the exclusive jurisdiction of the
English courts.
13
26 Third Party Contracts
--------------------------
The parties hereby agree that they do not intend that any third party which may
benefit from this Agreement shall have any rights of enforcement under the terms
of the Contract (Rights of Third Parties) Xxx 0000.
14
SCHEDULE 1
----------
The Initial Specification and the Machine (Clauses 1(i) and 1(k)
----------------------------------------------------- -------- -
The Machine is the Company's Swallow form fill and seal encapsulation machine
conforming to the following specification:-
Cavity arrangement - Nested
Cavities per drum - 624
(10 minim oval)
Vacuum Drum Width - 300mm
Film Spec - 300mm/50mtr
Minimum output - 29,193 capsules per hour
Drum Rotation Speed - 0.3cm/sec
Air Pressure - 100psi
Air Volume - min 0.6 cubic metres/minute
Power - 3 phase 60 Amp supply
Footprint - 4.4 mtrs by 1.1 mtrs
Height - 1.95 mtrs
SCHEDULE 2
----------
The Services (Clause 1(r))
--------------------------
The services to be provided by the Company are the carrying out of such work as
may be necessary and the modification of the Machine so that it is upgraded to
meet the Upgrade Specification.
SCHEDULE 3
----------
The Upgrade Specification (Clause 1(v))
---------------------------------------
The upgraded specification which the Machine is to meet following the provision
of the Services is such specification as the parties may agree from time to time
being at least the following:-
15
Cavity arrangement - Nested
Cavities per drum - 850
(10 minim oval)
Vacuum Drum Width - 600mm
Film Spec - 600mm/50mtr
Minimum output - 79,532 capsules per hour
Drum Rotation Speed - 0.3cm/sec
Air Pressure - 100psi
Air Volume - min 0.6 cubic metres/minute
Power - 3 phase 60 Amp supply
Footprint - 4.4 mtrs by 1.1 mtrs
Height - 1.95 mtrs
SCHEDULE 4
----------
The Confidential Items (Clause 1(c))
------------------------------------
Filling Wedge
Sealing and cutting plates
SIGNED
................................................................
on behalf of BioProgress Technology International Inc
.................................................................
on behalf of Xxxxx Xxxxx Healthcare Limited
16
