EXHIBIT 10.3
AGREEMENT BETWEEN NOVA BIOGENETICS INC. AND XXXXXX XXXXXXX
NOVA BIOGENETICS INC. XXXXXX HOLLAND, INC. :
0000 Xxxxxxxx Xxxxx, Xxxxx 000 00000 Xxxxxxx Xxxx Xxxx ,Xxxxx 000
Xxxxxxx, XX 00000 Xxxxx Xxxxxxx ,Xxxx 00000-0000
Contact: Xxx Xxxxx/ Xxxxx Xxxxxx Contact: Xxxx Xxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
A. APPOINTMENT Nova BioGenetics appoints Xxxxxx Xxxxxxx to be its Master
Distributor and Sales and Marketing Partner of the Products with the right
to resell the Products under Nova BioGenetics' trademarks or sub
registration under Xxxxxx Holland trademark to customers and potential
customers at premises located within the Territory, which customers and
potential customers shall be users of the Products engaged in business in
multiple Markets.
B. PRODUCTS: The Products are set forth in Exhibit A and Exhibit C of this
Agreement and include all product lines of Nova which are currently
marketed by Nova. Nova BioGenetics reserves the right to add or delete
Products and to modify or improve the Products. Any addition or deletion
shall take effect no later than 30 days after Nova BioGenetics sends
Xxxxxx Xxxxxxx written notice of such addition or deletion.
C. TERRITORY: The Territory is set forth in Exhibit A of this Agreement.
(except as set forth in Item # 3 contained herein).
D. MARKET: The Market is inclusive of all areas covered under Novas EPA
registrations and Patents as long as Xxxxxx Holland and Nova Agree on All
customers being contacted.
E. EXCLUDED ACCOUNTS: The following customers and potential customers are
excluded from this Agreement and the Xxxxxx Xxxxxxx established by it;
Xxxxxx Holland shall not directly or indirectly sell or attempt to sell
Products to such accounts:
F. PRICES: Subject to availability, Nova BioGenetics agrees to sell and
Xxxxxx Xxxxxxx agrees to purchase the Products at the prices set forth in
Exhibit A and Exhibit C of this Agreement, or as otherwise agreed in
writing. While Nova BioGenetics reserves the right to change prices
without notice, Nova BioGenetics will ordinarily attempt to notify Xxxxxx
Holland of price increases at least 30 days prior to increases taking
effect.
G. TERM: The initial term of this Agreement shall begin on 6-15-05 and shall
continue for a period of five (5) years. This Agreement will automatically
be renewed unless cancelled by either party with 120 days written notice
for any or no reason.
XXXXXX XXXXXXX SHALL SERVE AS A MASTER DISTRIBUTOR / SALES AND MARKETING PARTNER
FOR NOVA BIOGENETICS IN ACCORDANCE WITH THE CONDITIONS SET FORTH ABOVE AND IN
THE XXXXXX HOLLAND AGREEMENT CONDITIONS AND EXHIBITS A AND B WHICH ARE ATTACHED
TO AND MADE A PART OF THIS AGREEMENT AND AS CONTAINED HEREIN.
NOVA BIOGENETICS: XXXXXX XXXXXXX:
BY: /s/ XXXXXXX X. XXXXX BY: W. XXXX XXXXXX
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NAME: XXXXXXX X. XXXXX NAME: W. XXXX XXXXXX
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TITLE: E.V.P. TITLE: PRESIDENT
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DATE: 7/27/05 DATE: 8/05/05
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1. SALES POLICIES AND PROCEDURES.
(a) Xxxxxx Holland shall submit its orders for Products to Nova
BioGenetics for acceptance. Nova BioGenetics shall not be obligated to fill any
order from Xxxxxx Xxxxxxx unless and until Nova BioGenetics accepts such order.
Provided Nova BioGenetics has Product in stock, Xxxxxx Holland order complies
with the terms of this Agreement, and Xxxxxx Xxxxxxx is not in breach of this
Agreement, Nova BioGenetics will accept order from Xxxxxx Holland. Xxxxxx
Xxxxxxx has no authority to accept any order on behalf of Nova BioGenetics.
(b) All Product sales and returns shall be subject to Nova BioGenetics'
sales and return policies as specified by Nova BioGenetics from time to time.
(c) Nova BioGenetics' weights and quantities shall govern.
2. PAYMENT AND COMPENSATION TERMS.
(a) Unless otherwise agreed by Nova BioGenetics in writing, Xxxxxx
Holland shall pay Nova BioGenetics' invoices within thirty (30) days from date
of shipment by Nova BioGenetics. Xxxxxx Xxxxxxx shall pay Nova BioGenetics'
invoices without deduction or offset. Xxxxxx Holland shall pay interest on past
due invoices at an interest rate equal to the lesser of one and one-half percent
per month or the highest rate permitted by law. Xxxxxx Xxxxxxx shall reimburse
Nova BioGenetics for any currency exchange loss incurred due to Xxxxxx Holland
late payment. Nova BioGenetics shall be entitled to recover from Xxxxxx Xxxxxxx
all costs of collection, including but not limited to attorneys' fees and other
pertinent costs, if Nova BioGenetics must institute legal action in order to
collect any amounts due from Xxxxxx Holland
(b) All expenses and costs incurred by Xxxxxx Xxxxxxx in the
performance of this Agreement shall be for the account of Xxxxxx Holland. Xxxxxx
Xxxxxxx'x sole compensation, when acting as the Distributor re-selling to an end
use customer, hereunder shall consist of the difference between Xxxxxx Holland
purchase price paid to Nova BioGenetics and the selling price received from its
customer.
3. SALES ON COMMISSION AND NATIONAL & INTERNATIONAL ACCOUNTS.
(a) Xxxxxx Xxxxxxx may from time to time ask Nova BioGenetics to sell
directly to one of Xxxxxx Xxxxxxx'x customers outside of the Territory. Nova
BioGenetics, at its option, may do so and will invoice such customer at the
price designated by Xxxxxx Xxxxxxx. In such situations, Nova BioGenetics may
elect, in its sole discretion, to require cash payment in advance or security
for payment in forms and amounts satisfactory to Nova BioGenetics for such
orders. After payment in full has been received by Nova BioGenetics, Nova
BioGenetics shall pay Xxxxxx Holland the difference between the price charged to
Xxxxxx Xxxxxxx and the customer in the form of a commission. Xxxxxx Holland and
Nova BioGenetics hereby agree to negotiate on a customer by customer basis
pricing, depending on the industry, and shall pay Xxxxxx Xxxxxxx a commission of
thirty cents per pound or no less than six percent (6%) (the "Commission") for
all direct contracts of sales from Xxxxxx Holland made outside of the Territory
which resulted from Xxxxxx Xxxxxxx'x solicitation of customers during the term
of this agreement. Payment of Commission shall be made (10) days after receipt
of payment from said customer, unless Xxxxxx Holland orders the product directly
from Nova BioGenetics.
(b) Nova BioGenetics specifically reserves the right to sell Products
directly to customers which prefer to purchase directly from, or negotiate
prices directly with, Nova BioGenetics on an international, national or regional
basis rather than locally through Xxxxxx Xxxxxxx. However in the Event, if
Xxxxxx Holland provides support and assistance to Nova BioGenetics in connection
with any such sale within the Market, customer and the Territory, Nova
BioGenetics will pay Xxxxxx Xxxxxxx a commission on that sale, which commission
shall be agreed upon by Nova BioGenetics and Xxxxxx Holland, or Nova BioGenetics
and Xxxxxx Xxxxxxx, may negotiate separate prices for Products to be sold by
Nova BioGenetics to Xxxxxx Holland for resale to such customers.
(c) Global Accounts Acquired Directly through Xxxxxx Xxxxxxx; Xxxxxx
Xxxxxxx and Nova BioGenetics hereby agree to negotiate on a customer by customer
basis pricing, depending on the industry, and shall pay Xxxxxx Holland a
commission of thirty cents per pound (the "Commission") for all direct contracts
of sales from Xxxxxx Xxxxxxx made outside of the Territory which resulted from
Xxxxxx Xxxxxxx'x solicitation of customers during the term of this agreement.
Payment of Commission shall be made (10) days after receipt of payment from said
customer, unless Xxxxxx Xxxxxxx orders the product directly from Nova
BioGenetics
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4. PARTNERSHIP/DISTRIBUTION RIGHTS AND SUB-DISTRIBUTORS. Nova BioGenetics
shall appoint Xxxxxx Holland as its Master Distributor and Sales and Marketing
Partner, including the over sight of sub-distributors within the confines of the
North America. Nova BioGenetics and Xxxxxx Xxxxxxx will mutually agree upon the
contract terms for each appointed sub-distributor. Nova Biogenetics shall pay
Xxxxxx Holland a 5% commission override on all sales from sub-distributors.
5. FREIGHT, TITLE AND TAXES. Unless otherwise specified in an exhibit to
this Agreement, Products shall be shipped F.O.B. Nova BioGenetics' plant or
warehouse, all freight and other charges are for Xxxxxx Xxxxxxx account, and
title and risk of loss or damage shall pass to Xxxxxx Holland upon Nova
BioGenetics' tender of the Products to the carrier. Shipping and delivery dates
are approximate and subject to confirmation. Prices exclude and Xxxxxx Xxxxxxx
shall pay all sales, use, excise, VAT, GST, export and import taxes, assessments
and similar fees imposed on the sale, transportation, delivery, storage or use
of the Products. Xxxxxx Holland shall make any necessary arrangements for
importation of the Products into a country other than the United States.
6. XXXXXX XXXXXXX OBLIGATIONS. Xxxxxx Holland shall appoint a Product
Sales Manager and maintain a sales force to the satisfaction of Nova
BioGenetics. Xxxxxx Xxxxxxx will use its best efforts to actively promote and
continuously increase demand for and sales of the Products. From time to time,
Nova BioGenetics, in its discretion, may establish sales goals or other
performance criteria to be achieved by Xxxxxx Holland. Xxxxxx Xxxxxxx shall not
directly or indirectly offer, sell or attempt to sell goods or products which
are similar to or direct equivalents for application use to Nova's technology.
(a) Promptly furnish to Nova BioGenetics, upon request, a list of all
customers who have purchased Products from Xxxxxx Holland during the preceding
three months which identifies the specific Products sold and total pounds of the
Products;
(b) Maintain an active and suitably trained sales force, of sufficient
size to accomplish Xxxxxx Xxxxxxx duties under this Agreement;
(c) Ensure that all Xxxxxx Holland employees and other individuals
handling Products on behalf of Xxxxxx Xxxxxxx have proper training (including
safety and hazard communication training) and the personal protective equipment
necessary for them to handle the Products in a safe manner, and document such
training;
(e) Work with Nova BioGenetics to establish a target account program
with specific objectives for the Markets as to be determined by the end of May
30th, 2005;
(f) Arrange and conduct meetings with customers and potential
customers, when necessary to promote sale of the Products and when specifically
requested by BioGenetics;
(g) Solicit Product orders only in the Territory and only for use in
the Market; Xxxxxx Holland shall not, directly or indirectly, market, offer or
sell the Products in any geographic area outside the Territory or any field or
industry outside the Market, and shall not solicit orders from or sell Products
to any person or entity who Xxxxxx Xxxxxxx knows or has reason to believe
intends to use, resell or otherwise make the Products available outside the
Territory or for use outside the Market;
(h) Promptly refer to Nova BioGenetics all inquiries concerning the
Products from customers and prospects outside the Territory, for uses outside
the Market, or from accounts excluded from this Agreement;
(i) Provide customary sales service for customers with respect to the
Products, and provide additional services when requested by Nova BioGenetics or
as set forth on any exhibit to this Agreement; and
(j) Promptly refer to Nova BioGenetics any oral or written complaint or
technical inquiry concerning the Products which is received by Xxxxxx Holland,
and, if requested by Nova BioGenetics, assist in resolving any such complaint or
inquiry.
7. NOVA BIOGENETICS OBLIGATIONS Nova Biogenetics shall reasonably support
Xxxxxx Xxxxxxx'x marketing and sales activities during the term of this
agreement by:
(a) Making available to Xxxxxx Holland, free of charge, reasonable
quantities of technical service bulletins, material safety data sheets and
product literature and promotional material used by Nova Biogenetics. Xxxxxx
Xxxxxxx is not authorized to reproduce such literature and promotional materials
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in its sales catalogues and promotional material, or to make translations
thereof without Nova Biogenetics's prior written approval of all such literature
and promotional materials. Xxxxxx Holland agrees to comply with any restrictions
on the use of such technical or promotional material or literature as Nova
Biogenetics may place upon same. Such literature and materials including all
copies thereof are the property of Nova Biogenetics and any unused material
shall be returned to Nova Biogenetics promptly upon termination of this
Agreement. Nova Biogenetics literature and promotional materials incorporated in
Xxxxxx Xxxxxxx'x catalogues and promotional materials will be promptly deleted
there from upon termination of this Agreement.
(b) Answering promptly queries concerning Products or use of the
Products with Xxxxxx Holland may submit to Nova Biogenetics in connection with
Xxxxxx Xxxxxxx'x activities under this Agreement; and
(c) Endeavoring to meet Xxxxxx Xxxxxxx'x orders and agreeing to
allocate any Product subject to a Force Majeure Event in a fair and equitable
manner.
(d) Providing training to Xxxxxx Xxxxxxx'x personnel regarding sales
and servicing of the Product as Nova Biogenetics, in its discretion, considers
necessary or useful to assist Distributor to sell and service the Products, in
such manner and at such times and locations as Company shall determine.
(e) Making available sales and technical assistance by making
cooperative or joint calls on end-user accounts.
(f) Making available technical service and /or laboratory support as
required for Product approvals at end-user accounts.
8. REPORTS AND RECORDS. So that Nova BioGenetics may be informed fully as
to market conditions and other factors affecting the distribution of the
Products, Xxxxxx Holland must submit to Nova BioGenetics such reports related to
the Customers, Products, market conditions and other issues affecting sale of
the Products, and Xxxxxx Xxxxxxx sales activities as Nova BioGenetics may
reasonably request from time to time. All such reports will be held confidential
by Nova BioGenetics, Inc and will not be disclosed by Nova BioGenetics to any
competitor or customer of Xxxxxx Holland without Xxxxxx Xxxxxxx'x prior written
consent.
9. PRODUCT INTEGRITY AND WARRANTIES.
(a) Xxxxxx Holland shall not dilute, alter or modify the Products in
any way, or repackage or relabel the Products, or sell the Products under any
xxxx other than Nova BioGenetics' trademarks without Nova BioGenetics' filing
proper documentation to the EPA. If any government or other approvals,
clearances or registrations are necessary for the marketing of the Products in
the Territory or for use in the Market, Xxxxxx Holland shall advise Nova
BioGenetics of such requirements and Nova BioGenetics shall use reasonable
efforts to obtain such approvals, clearances or registrations. Xxxxxx Xxxxxxx
shall render reasonable assistance to Nova BioGenetics, but all approvals,
clearances and registrations shall be issued in the name of and shall be the
property of Nova BioGenetics. Seller hereby grants the Purchaser the right to
sub-register the EPA Label Claims for any use of the Products by Purchaser
contemplated by this Agreement. During the Term of this Agreement, Seller shall
not grant the right to sub-register the EPA Label Claims to any other person, or
assist any other person trying to register or sub-register the EPA Label Claims,
in violation of the Purchaser's Exclusive Distributorship Rights. Seller shall,
without additional charge to Purchaser, use commercially reasonable efforts to
assist Purchaser in obtaining EPA approval of label design and language as
expeditiously as possible. Purchaser shall provide all such materials to Seller
at least sixty (60) days prior to the Purchaser's anticipated use of such
materials, and Seller shall review and respond within thirty (30) days of
delivery of all such materials. Purchaser shall be responsible for registering
each EPA sub-registered Product with all Federal and State Regulatory agencies
as required by law.
(b) Nova BioGenetics warrants that each chemical Product supplied
hereunder shall conform to Nova BioGenetics' standard Product specifications in
effect at the time of shipment. Nova BioGenetics' liability under this warranty
is limited to return of nonconforming Product to Nova BioGenetics for, at Nova
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BioGenetics' option, a refund of or invoice credit equal to the Product price,
including freight costs if paid by Xxxxxx Xxxxxxx, or replacement with
conforming Product at no charge to Xxxxxx Holland. No chemical Product warranty
claims may be made more than 90 days after delivery of Product to Xxxxxx
Xxxxxxx.
(c) Nova BioGenetics warrants that equipment Products manufactured by
Nova BioGenetics and supplied hereunder shall be free from material defects in
workmanship and materials (excluding wear and tear) for a period equal to the
lesser of 15 months from the date of shipment or 12 months from the date of
installation. Nova BioGenetics' liability under this warranty is limited to
return of any nonconforming Product to Nova BioGenetics, within the warranty
period and with all freight costs prepaid, at Nova BioGenetics' option, for
repair or replacement of items proven to be defective. Equipment Products which
are not manufactured by Nova BioGenetics are subject to the original
manufacturer's warranty.
(d) Xxxxxx Holland shall obtain Nova BioGenetics' prior approval for
any Product returns and permit Nova BioGenetics to inspect any Product which
Xxxxxx Xxxxxxx claims is nonconforming.
(e) Nova BioGenetics warrants that the Products themselves do not
infringe any patent of the United States. Xxxxxx Holland shall give Nova
BioGenetics prompt written notice of any patent infringement suit or claim, Nova
BioGenetics shall control the defense or settlement of same, and Xxxxxx Xxxxxxx
shall cooperate in such defense. Nova BioGenetics' liability under this warranty
is limited to such defense, and, if sale or use of any Product is enjoined,
refund of the price paid by Xxxxxx Holland for such Product (less a reasonable
charge for use, damage and obsolescence). Nova BioGenetics makes no warranty
against patent infringement arising out of use of the Product in a manner not
recommended or approved by Nova BioGenetics, whether alone or in combination
with other materials; any product resulting from use of the Product; any Product
manufactured for Xxxxxx Xxxxxxx according to Xxxxxx Holland specifications; or
any equipment or chemical (including components and ingredients) manufactured by
other than Nova BioGenetics.
(f) To the fullest extent permitted by applicable law, Nova BioGenetics
shall not be liable for any incidental, consequential, indirect or special
damages, including, but not limited to, lost profits and lost production,
whether arising under breach of representation or warranty (whether express or
implied) or contract, negligence, strict liability or other tort, indemnity,
duty at common law or any other theory of liability arising out of or in
connection with any act or omission of Nova BioGenetics relating to the
manufacture or supply of the Products, their resale by DISTRIBUTOR or their use
by any customer. In any event, Nova Biogenetics' liability for any and all
claims, damages and causes of action arising out of the sale, use, storage,
delivery or non-delivery of any Product or equipment, performance of any
services or any warranty shall be limited to the price (including freight
charges if paid by DISTRIBUTOR) paid to Nova BioGenetics for such Product or
equipment.
(g) EXCEPT FOR THE TITLE WARRANTY, THE FOREGOING WARRANTIES ARE
EXCLUSIVE AND NOVA BIOGENETICS MAKES NO OTHER WRITTEN, ORAL, EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES. NOVA BIOGENETICS SPECIFICALLY DISCLAIMS THE
WARRANTIES OF MERCHANTABILITY OR SUITABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Xxxxxx Xxxxxxx REMEDIES FOR BREACH OF ANY WARRANTY SHALL BE LIMITED TO
THOSE REMEDIES DESCRIBED ABOVE.
10. PROMOTIONAL MATERIALS.
(a) Nova BioGenetics shall provide Xxxxxx Holland, at no additional
cost, promotional, technical and safety bulletins and materials relating to the
Products, in types and quantities determined appropriate by Nova BioGenetics.
Unless Nova BioGenetics agrees otherwise, all such materials shall be in the
English language. Xxxxxx Xxxxxxx shall not use any advertising material or any
other promotional, technical or safety bulletins or materials for the Products
without the prior written approval of Nova BioGenetics.
(b) Nova BioGenetics shall provide supplementary technical and
commercial support, including technical training regarding the Products and
their uses, at levels determined appropriate by Nova BioGenetics, in support of
Xxxxxx Holland promotional and sales efforts
11. RELATIONSHIP OF THE PARTIES. In the performance of this Agreement, Xxxxxx
Xxxxxxx shall be an independent contractor. Xxxxxx Holland, their employees,
agents, and subcontractors of Xxxxxx Xxxxxxx, shall not be considered to be
employees or agents of Nova BioGenetics. Neither party is authorized to assume
or create any obligation or responsibility, express or implied, on behalf of or
in the name of the other or to bind the other in any manner or thing whatsoever.
12. ETHICAL BUSINESS PRACTICES. Xxxxxx Holland shall do nothing which might in
any manner jeopardize the goodwill or reputation of Nova BioGenetics or the
reputation of the Products. Xxxxxx Xxxxxxx further agrees to act at all times in
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accordance with Nova BioGenetics' Ethical Business Practices Policy Statement,
as such statement may be modified by Nova BioGenetics from time to time; the
current version is attached as an exhibit to and made a part of this Agreement.
13. INDEMNITY AND INSURANCE.
(a) To the fullest extent permitted by applicable law, Xxxxxx Holland
shall indemnify, defend and hold Nova BioGenetics and its employees, agents and
affiliated companies harmless from and against all claims, damages, costs,
expenses and liabilities whatsoever (including attorneys' fees and other costs)
caused by or arising out of Xxxxxx Xxxxxxx activities pursuant to this
Agreement, including, but not limited to: (i) Xxxxxx Holland making of any
warranty or representation with respect to the Products which is not permitted
under this Agreement or specifically recommended or approved by Nova BioGenetics
in writing; (ii) Xxxxxx Xxxxxxx breach of any of its obligations under this
Agreement; and (iii) any negligent or willful act or omission of Xxxxxx Holland
or its employees, agents or subcontractors in the performance of this Agreement.
(b) During the term of this Agreement, Xxxxxx Xxxxxxx shall maintain,
at its own expense, the following insurance coverages and minimum limits:
(i) Workers' Compensation Insurance with statutory limits;
(ii) Employer's Liability Insurance with a minimum limit of
$1,000,000 each accident/each employee;
(iii) Comprehensive or Commercial General Liability Insurance
covering claims for bodily injury, sickness, disease, death and
property damage (including Contractual coverage for obligations assumed
by Xxxxxx Holland under this Agreement), with minimum limits of
$1,000,000 per occurrence and $2,000,000 general aggregate; and
(iv) Comprehensive Automobile Liability Insurance, covering
owned, non-owned, hired and other vehicles, with a combined single
limit of $1,000,000 for bodily injury, death and property damage per
occurrence.
14. CONFIDENTIALITY AND INVENTIONS.
(a) From time to time, Nova BioGenetics may disclose to Xxxxxx Xxxxxxx,
and Xxxxxx Xxxxxxx may become privy to, confidential and proprietary information
relating to Nova BioGenetics' business, technology, strategies, Products,
markets, competitors and/or pricing (the "Confidential Information"). Xxxxxx
Holland shall use the Confidential Information only relative to its role as a
Distributor for Nova BioGenetics during the term of this Agreement. Xxxxxx
Xxxxxxx shall not, without Nova BioGenetics' express prior written consent, for
any reason or at any time either during or after the term of this Agreement, use
the Confidential Information (except as specifically permitted herein) or
disclose the Confidential Information to any person or entity (including, but
not limited to, any affiliate, employee, consultant or agent of Xxxxxx Holland
who has not signed a confidentiality agreement substantially similar to this
one).
(b) Xxxxxx Xxxxxxx shall restrict access to the Confidential
Information to those of Xxxxxx Holland employees who have no need to know such
Confidential Information in order to sell the Products, and shall require such
employees to maintain the Confidential Information in confidence and adhere to
all use restrictions in accordance with the terms of this Agreement. Xxxxxx
Xxxxxxx shall guard the Confidential Information with at least the same degree
of care (which shall not be less than a reasonable standard of care) that Xxxxxx
Holland uses in connection with the protection of Xxxxxx Xxxxxxx own
confidential information.
(c) This obligation of non-use and nondisclosure shall not extend to
any Confidential Information which:
(i) Was known by Xxxxxx Holland prior to the date of
disclosure by Nova BioGenetics from a source other than Nova
BioGenetics or its affiliates, employees or agents, as evidenced by
Xxxxxx Xxxxxxx written records;
(ii) Was known to the public or generally available to the
public prior to the date of disclosure by Nova BioGenetics, as
evidenced by documents which were generally published prior to such
disclosure;
(iii) Becomes known to the public or generally available to
the public after disclosure by Nova BioGenetics, through no fault of
Xxxxxx Holland; or
(iv) Is disclosed to Xxxxxx Xxxxxxx by a third party (other
than a Nova BioGenetics affiliate, employee or agent) having legitimate
possession thereof and the unrestricted right to make such disclosure.
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(d) All memoranda, reports, notes or other documents relating to the
Products which are made, compiled by or delivered to Xxxxxx Holland in
connection with its activities under this Agreement shall, at all times, be the
property of Nova BioGenetics. Upon expiration or termination of this Agreement,
and at such other times as Nova BioGenetics may request, Xxxxxx Xxxxxxx shall
return to Nova BioGenetics all such memoranda, reports, notes and other
documents, all documents containing Confidential Information, and any and all
copies (including information on computers or computer software) of such
memoranda, reports, notes and documents.
(e) Nova BioGenetics is the sole owner of the entire right, title, and
interest in and to all trademarks and trade names under which the Products may
from time to time be sold or the business of Nova BioGenetics may be conducted
(the "Trademarks"). All goodwill associated with the Trademarks insures solely
to the benefit of Nova BioGenetics. Xxxxxx Holland acknowledges and agrees not
to contest the validity of and Nova BioGenetics' title to the Trademarks and all
registrations and applications to register the Trademarks. Xxxxxx Xxxxxxx shall
promptly notify Nova BioGenetics of any infringement of the Trademarks which
comes to its notice. Xxxxxx Holland is not granted any license to use the
Trademarks and may use the Trademarks under which the Products are sold solely
in a manner which is incidental to Xxxxxx Xxxxxxx role as Xxxxxx Holland of the
Products. Xxxxxx Xxxxxxx shall not use any Trademark as all or any part of its
corporate, business or trade name. Xxxxxx Holland shall comply fully with all
requirements which Nova BioGenetics imposes in connection with use of the
Trademarks, and Nova BioGenetics' decisions on all matters concerning the
Trademarks will be final and conclusive. Upon expiration or termination of this
Agreement, Xxxxxx Xxxxxxx shall immediately cease to use in any manner the
Trademarks, or any similar trademark or name, or combination thereof with other
marks or names, as well as all package designs and trade dress used for the
Products.
(f) If, during the term of this Agreement, or during the period of one
year following expiration or termination of this Agreement, Xxxxxx Holland shall
conceive or reduce to practice a discovery or invention relating to the
Products, Xxxxxx Xxxxxxx shall promptly make such discovery or invention known
to Nova BioGenetics. Xxxxxx Holland shall assign all rights in all such
inventions or discoveries in all countries of the world to Nova BioGenetics and,
should Nova BioGenetics decide to apply for patent or other protection on any of
these discoveries or inventions, Xxxxxx Xxxxxxx agrees to assist Nova
BioGenetics, at Nova Biogenetics' sole expense, by executing any documents
required to obtain patent or other protection and with respect to preparation
and prosecution of patents or other protection, and to assign the patents or
other rights to Nova BioGenetics. Nova BioGenetics shall have the right to apply
for such patent or other protection and to prosecute applications for patents or
other protection through attorneys and Xxxxxx Holland of its own choosing. Any
costs involved in obtaining said protection will be at the sole expense of Nova
BioGenetics.
15. TERMINATION.
(a) Either party may terminate this Agreement at any time after the
initial term for any or no reason by giving 120days advance written notice to
the other party
(b) In addition, Nova BioGenetics shall have the right to terminate
this Agreement for cause by giving written notice to Xxxxxx Xxxxxxx, effective
on the date specified in such notice, if:
(i) Xxxxxx Holland fails to pay any invoice or other amount
owed to Nova BioGenetics by its due date; or
(ii) Xxxxxx Xxxxxxx fails to comply with any other provision
of this Agreement and fails to remedy or cure such failure within ten
days after notice of such failure; or
(iii) Xxxxxx Holland becomes insolvent or otherwise unable to
pay its debts as they mature or a petition under federal or state
bankruptcy or receivership laws is filed by or against Xxxxxx Xxxxxxx;
or
(iv) There is a change in the ownership, management, control,
personnel or geographic location of Xxxxxx Holland which Nova
BioGenetics, in its sole discretion, deems adverse to its interests.
(c) During the termination notice period, and prior to the effective
date of such termination, all of the terms and conditions of this Agreement
shall continue to apply, except that Nova BioGenetics may authorize a third
party or its own employees to solicit orders for the Products within the
Territory and the Market. No compensation shall be due to Xxxxxx Xxxxxxx for
such orders. Xxxxxx Holland shall provide Nova BioGenetics with all information
and cooperation necessary for an orderly changeover of Xxxxxx Xxxxxxx ship
arrangements in the Territory.
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(d) Upon expiration or termination, Nova BioGenetics at its option and
in its sole discretion shall either: (i) repurchase (or cause a third party to
purchase) Xxxxxx Holland inventory of Products at a price to be mutually agreed
upon by the parties, taking into consideration the age, condition and location
of such Products, but which price shall in no event exceed the price paid by
DISTRIBUTOR to Nova BioGenetics for such Products; or (ii) permit Xxxxxx Xxxxxxx
to sell such inventory, pursuant to the terms of this Agreement, provided that
all such sales shall be completed within three months of the date of expiration
or termination of this Agreement.
(e) Neither party shall have the right to recover damages (i) solely as
the result of expiration or termination of this Agreement according to its
terms, or (ii) as the result of any sales of Products by Nova BioGenetics or a
third party occurring after the date of expiration or termination. Xxxxxx
Holland shall make no claim or request any additional compensation of any kind
against Nova BioGenetics because of any such expiration or termination and
waives any termination payments or other amounts which may be imposed by statute
or otherwise as damages for such expiration or termination. Expiration or
termination will not, however, impair rights or obligations of the parties
accruing prior to the date of expiration or termination, including the
obligation of Xxxxxx Xxxxxxx to pay for all Products that it orders hereunder,
and the parties expressly agree that the provisions of Articles 8, 12 and 13 of
these Xxxxxx Holland Agreement Conditions shall survive any expiration or
termination of this Agreement.
16. ARBITRATION. Except for collection actions brought by Nova BioGenetics
against DISTRIBUTOR and except for actions by or claims of Nova BioGenetics made
pursuant to Sections 12(a) or 13(e) above, any controversy or claim arising out
of or relating to this Agreement or the breach thereof shall be resolved through
arbitration in accordance with the Rules of the American Arbitration Association
for the arbitration of commercial disputes by one arbitrator appointed in
accordance with said Rules. The decision of the arbitrator shall be binding and
conclusive upon each party. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. Each party shall bear
its own costs and expenses, including but not limited to attorneys' fees,
associated with such arbitration, and the fees and costs for the arbitrator
shall be borne as determined by the arbitrator.
17. FORCE MAJEURE. Neither party shall be responsible for damages caused by
any delay or failure to perform which is the result of an event of force
majeure. Events of force majeure refer to events and occurrences which could not
reasonably be avoided by the party failing to perform, including, but not
limited to, accident, natural catastrophe, act of God, riot or civil commotion,
enemy action, epidemic, explosion, fire, flood, insurrection, strike, lockout or
other labor trouble or shortage, unavailability or shortage of material,
equipment or transportation, war, or act, demand or requirement of the laws or
regulations of any governmental authority. If there are Product shortages for
any reason, Nova BioGenetics may allocate the available supply of Product among
itself, its affiliates and its customers, including Xxxxxx Xxxxxxx, on whatever
basis it deems practical.
18. NOTICES. All required notices shall be in writing, in the English
language, and sent by certified mail (return receipt requested), express mail
service or hand delivery with all charges prepaid or by telecopy with receipt
confirmed to the addresses shown on the first page of this Agreement, or to such
other address as either party shall designate by notice given as provided in
this Article 17, and shall be deemed effective on the date sent.
19. GOVERNING LAW.
(a) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware, U.S.A. This
Agreement is entered into in the English language. Should a translation of this
Agreement into any other language be required or desired for any reason, it is
understood that in all matters involving the interpretation of this Agreement
the English text shall govern.
(b) Xxxxxx Holland shall comply with all applicable national, state,
provincial and local laws, rules and regulations, and all amendments thereto.
Xxxxxx Xxxxxxx shall not resell, divert, transship, export or re-export any
Product to any country or to any person or entity, except in accordance with
applicable national, state, provincial and local laws, rules and regulations,
including, but not limited to, the U.S. Export Administration Act and the
regulations implementing such Act.
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20. ASSIGNMENT. Xxxxxx Holland shall not assign or transfer this Agreement or
delegate any of its responsibilities under this Agreement to any person or
entity, whether orally, in writing, by operation of law or otherwise, without
the prior written consent of Nova BioGenetics, which can be given or withheld in
Nova BioGenetics' sole discretion for any or no reason, and any purported
assignment, transfer or delegation without such consent shall be void. Nova
BioGenetics may allow one or more of its affiliated companies to supply
Products, perform other Nova BioGenetics obligations or enforce Nova
BioGenetics' rights under this Agreement. Except as provided in this Article 19,
this Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns.
21. MISCELLANEOUS. If any provision of this Agreement is held by any court or
other competent authority to be invalid, void or unenforceable in whole or in
part, this Agreement shall continue to remain in full force and effect with
respect to the other provisions of this Agreement and the remainder of the
affected provisions. Neither party's waiver of any breach of any term, condition
or provision of this Agreement shall be construed as a waiver of any other term,
condition or provision of this Agreement, nor shall it be deemed a waiver of any
subsequent breach of the same or any other term, condition or provision of this
Agreement. Except as otherwise provided in this Agreement, the rights and
remedies specified in this Agreement shall be cumulative, nonexclusive and
additional to any other rights or remedies available at law, in equity or in
this Agreement.
22. ENTIRE AGREEMENT. This Agreement, including the Xxxxxx Xxxxxxx Agreement
Conditions and all exhibits, sets forth the entire understanding of Nova
BioGenetics and Xxxxxx Holland with respect to the subject matter of this
Agreement and supersedes all prior agreements, communications or negotiations
between the parties with respect to such subject matter. Except as specifically
provided in this Agreement, this Agreement shall not be amended or modified
except by a writing executed by both parties.
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EXHIBIT A
Products
--------
The current and future versions of Nova's BST AM500 Microbiostatic Agent
and BST AM3651P Disinfectant and Antimicrobial Agent, all product derivatives
based on the same chemistry and designed for the similar purposes, and all
products designed or manufactured by Seller for similar purposes and
applications.
Prices
------
AM500 $ 3.75/lb
AM3651P $17.50/lb
The above prices are representative of the concrete industry and is not
indicative of product sales on a global basis or on an industry by Industry
basis. ( see section # 3 contained xxxxx for pricing by industry and in
accordance with Attachment C. Attachment C gives prices per industry and shall
remain in effect unless otherwise negotiated between Xxxxxx Holland and Nova
BioGenetics.
Special Pricing for Degussa Construction has been as established as follows:
AM500 $ 3.00/lb
MARKETS
The Xxxxxx Xxxxxxx territory will be as follows: North America
Nova agrees to protect Xxxxxx Holland and or its clients upon notification of
sales to a customer.
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EXHIBIT B
ETHICAL BUSINESS PRACTICES
POLICY STATEMENT
Every Xxxxxx Xxxxxxx and Sales Agent is responsible for adhering to business
practices that are in accordance with the letter and spirit of the applicable
laws and with ethical principles that reflect the highest standards of corporate
and individual behavior.
Since only such behavior is consistent with the traditions of Nova BioGenetics,
and since such behavior is essential to the success of its business endeavors,
Nova BioGenetics will not accept anything less. Like integrity of the product,
integrity of performance is a standard wherever we do business. Ignorance of
that standard is never an acceptable excuse for improper behavior. Neither must
improper behavior be rationalized as being in Nova BioGenetics' interest. No act
of impropriety advances the interests of Nova BioGenetics.
Failure to adhere with this Policy shall constitute grounds for termination.
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