Exhibit 10.1
DISTRIBUTORSHIP AGREEMENT
This Agreement, made and entered into to be effective as of the 1st day of
January, 2002 by and between:
MILLIPORE CORPORATION
00 Xxxxx Xxxx
Xxxxxxx. XX 00000
a corporation organized under the laws of the state of Massachusetts,
hereinafter referred to as SUPPLIER; and
XXXXXX SCIENTIFIC COMPANY L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
a limited liability company organized under the laws of the state of Delaware,
hereinafter referred to as DISTRIBUTOR.
W I T N E S S E T H
WHEREAS, SUPPLIER and DISTRIBUTOR are parties to a Distribution Agreement, dated
July 1, 1996, as amended, which expires by its terms on December 31, 2001,
pursuant to which DISTRIBUTOR has purchased for resale products of SUPPLIER's
Life Sciences Division and certain products of SUPPLIER's Bioprocess Division;
WHEREAS, SUPPLIER and DISTRIBUTOR wish to continue such business relationship
under amended and restated terms; and
WHEREAS, the parties desire to enter into a distributorship agreement governing
their relationship;
NOW, THEREFORE, in consideration of the mutual. terms and conditions set forth
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PRODUCT
1.1 Products: The Products covered by this Agreement are certain products
of SUPPLIER's Life Science Division and certain products of SUPPLIER's
Bioprocess Division, as set forth on Exhibit A ("Products"), manufactured by or
for SUPPLIER, and any improved or updated versions thereof. together with
accessories, parts and components Supplier deems necessary for their maintenance
and repair. Exhibit A may be amended from time to time by mutual consent of the
parties.
1.2 Similar or Related Products: SUPPLIER shall offer to DISTRIBUTOR in
writing the right to distribute any new products with same or substantially
similar application as the Products. For any period during which the arrangement
between the parties for distribution of Products is semi-exclusive, DISTRIBUTOR
shall accept distribution rights with respect to such new products, if at all,
in writing, within sixty (60) days after SUPPLIER advises DISTRlBUTOR of the
availability of such new products. In the event DISTRIBUTOR elects not to
exercise such right as to all or any of the products so offered by SUPPLIER
within such period, SUPPLIER may distribute any such rejected similar or related
products to any third party. SUPPLIER may also offer to DISTRIBUTOR in writing
the right to distribute any similar or related products of the Bioprocess
Division. If such new product is a direct replacement or modification of a
Product, the discount will be consistent with the discounts by product group of
Exhibit A; otherwise the discount shall be mutually agreed upon by the parties.
1.3 Shelf Life: SUPPLIER represents and warrants that all Products with a
limited shelf life have been so indicated on Exhibit A with the useful life of
each Product stated in months from the date of manufacture.
1.4 MSDS: SUPPLIER shall provide required Material Safety Data Sheets for
each Product, if any, containing hazardous chemicals as required by Federal,
state or local law.
2. GRANT OF RIGHTS
2.1 Distribution Rights: SUPPLIER hereby appoints DISTRIBUTOR and
DISTRIBUTOR accepts the appointment as a distributor of the Products in the
Territory during the term and pursuant to the provisions of this Agreement.
DISTRIBUTOR shall be the sole distributor of the Products of SUPPLIER's Life
Science Division, subject to the exceptions of Exhibit B.
2.2 Territory: The territory in which the DISTRIBUTOR has such right to
sell and distribute the Products shall be Canada, the United States and Puerto
Rico. DISTRIBUTOR `s affiliate in Canada, Xxxxxx Scientific Limited, may
purchase Products for such distribution in Canada either directly from SUPPLIER
or from DISTRIBUTOR. The Territory can be expanded only by mutual written
agreement. Distributor is not authorized to resell Products to customers outside
the Territory.
2.3 SUPPLIER Distribution Rights: SUPPLIER reserves the right to sell the
Products in the Territory directly to end users. Supplier also reserves the
right to sell the Products through other intermediaries as provided in Exhibit
B.
2.4 Conversion of Distributorship to Non-exclusive: Distributor's limited
exclusivity under Section 2.1 may be terminated by written notice from SUPPLIER
to DISTRIBUTOR, given in the first calendar quarter of 2003, if sales by
DISTRIBUTOR of Products in 2002 have not increased by 14% above sales by
DISTRIBUTOR of Product for 2001. Similarly, DISTRIBUTOR' s exclusivity under
Section 2.1 may also be terminated by written notice from SUPPLIER to
DISTRIBUTOR given in the first calendar quarter of 2004, if sales by DISTRIBUTOR
of Products in 2003 have not increased by 14% above sales by DISTRIBUTOR of
Products in 2002. If SUPPLIER terminates DISTRIBUTOR's exclusivity under this
Paragraph 2.4, then DISTRIBUTOR and SUPPLIER shall each be relieved immediately
of the obligations of the following sections of this Agreement:
4.1,4.3,4.4,4.5,4.6, 4.7 and 4.13.
3. ORDERS; FORECASTS; SHIPPING; DELIVERY
3.1 Orders: DISTRIBUTOR shall make purchases by submitting non-cancellable
purchase orders to SUPPLIER. Such orders may, however, be cancelled by
DISTRIBUTOR if overdue, unless for Products which have been specially made by
SUPPLIER to DISTRIBUTOR's order. DISTRIBUTOR sha1l transmit routine order via
Electronic Data Interchange, in conformity with past practices between the
parties, or other electronic method as mutually agreed. The parties shall
maintain, and quarterly update by mutual agreement, lists of Products which are
to be ordered primarily for shipment to a DISTRIBUTOR stocking location
("Stocked Products") and/or lists of the remaining Products which are to be
ordered primarily for shipment directly to DISTRIBUTOR's customer ("Direct Ship
Products"). Each order for Stocked Products shall, unless otherwise agreed,
designate a list of up to ten DISTRIBUTOR stocking locations, which DISTRIBUTOR
shall maintain by periodic notice to SUPPLIER. The current list of such
designated stocking location is attached as Exhibit C.
3.2 Forecasts: DISTRIBUTOR shall provide on a monthly or quarterly basis,
forecasts of DISTRIBUTOR' s customer demand for high moving Products and Xxxxxx
Scientific Limited shall provide periodic forecasts of its direct purchases.
SUPPLIER acknowledges that such forecasts are non-binding estimates only, and
not commitments to purchase particular Products or quantities.
3.3 Shipping: SUPPLIER shall ship all Products F.O.B. origin, freight
collect or otherwise charged to DISTRIBUTOR, in conformity with DISTRIBUTOR's
routing guide, so long as such guide is also consistent with Supplier's
practices; SUPPLIER shall ship Products to DISTRIBUTOR' s designated stocking
location or to
DISTRIBUTOR's customers, as designated on the order in conformity with
Paragraph 3.1, via a carrier selected by DISTRIBUTOR. Supplier will drop ship
items designated as stocked at the Distributor's request for up to 75 times per
quarter. After this quantity, Distributor is subject to a $50.00 fee for drop
ship unless the item was back ordered. SUPPLIER shall not assess this charge
without prior consultation about minimizing drop shipments of Stocked Products.
3.4 Overstocked Inventory: To the extent, but only to the extent,
SUPPL1ER has recommended in writing to DISTRIBUTOR that DISTRIBUTOR carry, for a
specified period of time, a certain level of inventory with respect to one or
more Products, and DISTRIBUTOR (having ordered the recommended or a lesser
amount of inventory) upon review of the level of such inventory at the end of
such period of time shall determine that it has excess inventory of such Product
or Products, then DISTRIBUTOR shall notify the SUPPLIER in writing, describing
such Products. SUPPLIER shall, at DISTRIBUTOR's election, either:
(i) credit DISTRIBUTOR with the full purchase price paid by
DISTRIBUTOR for each such Product upon return of the Product; or
(ii) exchange, at SUPPLIER's expense, all such Products for
Products which are selected by DISTRIBUTOR.
3.5 Obsolete Inventory:
(a) In the event that SUPPLIER determines to make a material
change to the Specification of any Product or to release an
improved or updated version of any Product it shall give
DISTRlBUTOR ninety (90) days notice of any such proposed change or
release; and
(b) In the event SUPPLIER determines to discontinue or eliminate
any Product from Exhibit A it shall give DISTRIBUTOR one hundred
twenty (120) days notice of any such discontinuance or
elimination.
In the event SUPPLIER shall have given DISTRIBUTOR less than such ninety (90) or
one hundred and twenty (120) days of advanced notice respectively, or have given
DISTRIBUTOR no advance notice, and the respective event shall make any Products
owned by DISTRIBUTOR unsalable in DISTRIBUTOR's reasonable opinion then any such
Products shall be repurchased from DISTRIBUTOR by SUPPLIER within thirty (30)
days following DISTRIBUTOR's request therefor at the price paid for such
Product(s) by DISTRIBUTOR. SUPPLIER shall additionally pay for return freight
and related transportation and insurance charges for all such Products. Nothing
contained in this Section 3.5 shall give SUPPLIER, so long as DISTRIBUTOR has
maintained its semi-exclusive rights hereunder, the unilateral right to remove
any Product from Exhibit A which it shall continue to market directly or
otherwise.
3.6 Shelf Life: SUPPLIER shall ship Products so that 85% of the shelf
life described in Exhibit A will be remaining at the time of receipt at
DISTRIBUTOR's warehouse, or at the customer's facility if drop shipped. SUPPLIER
agrees to take back for full invoice credit plus shipping charges any dated
Products shipped contrary to this provision.
3.7 SUPPLIER shall ship Products for which it has received a purchase
order according to the established shipping schedule (within 4 days of receipt
of a stocking order) or next day in the case of a rush order, and shall provide
prompt notice to DISTRIBUTOR in a mutually-agreed format of all order lines for
which delivery in such time frame will not be made. SUPPLIER reserves the right
to ship to DISTRIBUTOR direct from any of its overseas locations should it deem
it advisable and in its best interests, provided that: (a) DISTRIBUTOR will not
incur any more cost than if shipment had been made from Burlington,
Massachusetts and (b) SUPPLIER shall use reasonable efforts to give DISTRIBUTOR
at least ten days notice before converting particular Products to such direct
shipment from overseas either on a temporary or permanent basis SUPPLIER will
not be liable for any failure or delay in delivering Products ordered by
DISTRIBUTOR based upon shortages of supply, whether caused by unanticipated
demand or any other reason. In periods of short supply of any Product, SUPPLIER
will
allocate such Products to DISTRIBUTOR and SUPPLIER's other customers in a manner
which SUPPLIER determines to be equitable under the circumstances.
3.8 The administrative process regarding orders, forecasts, shipping, and
delivery shall be reviewed annually by the parties to determine the most cost
effective methods for both SUPPLIER and DISTRIBUTOR.
4. SALES AND MARKETING COLLABORATION
4.1 Co-marketing Plan: Subject to Paragraph 2.1, SUPPLIER and DISTRIBUTOR
shal1 develop, on an annual basis, a jointly funded marketing and promotion
plan. The funding for this plan will be a minimum of $300,OOO.
4.2 Promotion: DISTRIBUTOR will make reasonable best efforts to market,
sell and distribute the Products during the term.
4.3 Preferred SUPPLIER Designation: SUPPLIER will be a "PLATINUM SUPPLIER"
and shall maintain this designation throughout the tern of this Agreement.
Should DISTRIBUTOR discontinue the PLATINUM SUPPLIER program, then SUPPLIER
shall participate in a replacement to this program so that SUPPLIER `s Products
in the aggregate (but not necessarily every Product) is accorded the treatment
reserved for the products of DISTRIBUTOR's most preferred suppliers not
affiliated with DISTRIBUTOR, Subject to Paragraph 2.1,. No other outside
SUPPLIER will have more favorable designation than the SUPPLIER.
4.4 National Sales Meeting Location: Millipore will have a prominent
location at the Xxxxxx National Sales Meeting and will be included in the Life
Science Specialist pre-meeting.
4.5 Catalog Placement: SUPPLIER will maintain a lead position in
DISTRIBUTOR's biennial catalog relative to other outside suppliers (but not
necessarily with respect to each category of products). ). So long as SUPPLIER
purchases at least one equity ad page for a biennial catalog, DISTRIBUTOR shall
provide one equity ad page for SUPPLIER's use without charge.
4.6 Website: DISTRIBUTOR will maintain prominent, no charge, website
coverage of SUPPLIER's Products. DISTRIBUTOR will maintain Product listings on
the website. If DISTRIBUTOR's website technology is modified to enable
advantageous weighting of particular products in the search results, then
SUPPLIER's products will be weighted advantageously relative to other outside
suppliers in at least the majority of the relevant product categories
4.7 Training: SUPPLIER shall provide to DISTRIBUTOR's sales personnel, at
DISTRIBUTOR's premises or such other location as the parties may agree, such
training in the demonstration and use of the Products as may be reasonably
requested by DISTRIBUTOR, and for such training purposes shall make available,
at SUPPLIER's expense, all necessary instructors, training material and Products
for demonstration. DISTRIBUTOR shall provide transportation and lodging expenses
for DISTRIBUTOR personnel for the training of DISTRIBUTOR representatives by
SUPPLIER. Distributor shall maintain a properly trained sales force and provide
adequate incentives to the sales force to sell the Products.
4.8 Technical Support: SUPPLIER shall provide adequate technical support
to DISTRIBUTOR's sales personnel and customers. SUPPLIER shall provide at its
own expense a toll free long distance telephone service for sales and customer
support.
4.9 Literature: SUPPLIER shall provide, at its expense, reasonable
quantities of such instruction manuals and point of sale literature as may, from
time to time, be requested by DISTRIBUTOR for use in connection with the
marketing, sale and distribution of the Products. Subject to DISTRIBUTOR's prior
written approval, DISTRIBUTOR's name and ordering information may be
incorporated in SUPPLIER's advertising literature intended for distribution by
DISTRIBUTOR's sales representatives. The costs of such literature for SUPPLIER's
Products and containing DISTRIBUTOR' s name and ordering information shall be
shared as part of
the jointly funded marketing and promotion plan of Paragraph 4.1; to the extent
that particular literature is prepared that exceeds the annual plan of Paragraph
4.1, the cost shall be shared 50/50 unless the parties otherwise agree. If
requested to do so by DISTRIBUTOR, SUPPLIER shall furnish DISTRIBUTOR with
suitable copy and photographs for use by DISTRIBUTOR in cataloging the Products.
4.10 Samples: SUPPLIER shall provide DISTRIBUTOR with reasonable
quantities Product samples during the term of this Agreement to assist
DISTRIBUTOR with its marketing and sales efforts relative to the Products.
4.11 Merchandising: SUPPLIER shall promote Products through DISTRIBUTOR's
merchandising publications, including Lab Reporter and BIOTRACK, on a periodic
basis at the rates charged for such publications by DISTRIBUTOR to its focus
suppliers. SUPPLIER shall make incentive programs available to DISTRIBUTOR's
customers for the purchase of certain Products on a periodic basis, with each
promotion to be proposed in advance by SUPPLIER to DISTRIBUTOR and approved by
DISTRIBUTOR before disclosure to customers.
4.12 Sales Programs: SUPPLIER shall participate in DISTRIBUTOR's sales
promotional programs as a focus supplier on terms to be mutually agreed each
year.
4.13 SUPPLIER Field Representation: SUPPLIER's field sales representatives
shall work together with DISTRIBUTOR's sales representatives to promote the sale
of Products through DISTRIBUTOR. SUPPLIER shall compensate its field sales
representatives on sales made by DISTRIBUTOR in a manner that is substantially
equivalent to the compensation those representatives would have made if SUPPLIER
had made the sale to the customer directly. DISTRIBUTOR shall provide to
SUPPLIER, at no charge weekly electronic files of the sales in the current
format of Product sales-at-cost by zip code.
5. PRICE AND PAYMENT TERMS
5.1 Price: SUPPLIER shall supply and ship Product at the prices and
discounts from SUPPLIER's list prices as shown in the electronic file
transmitted by SUPPLIER to DISTRIBUTOR on Exhibit A until December 31, 2002
("Firm Price Period"). DISTRIBUTOR's costs may be reduced by SUPPLIER, but may
be increased only according to the terms hereof. In no event shall SUPPLIER
decrease any discount to DISTRIBUTOR without DISTRIBUTOR's prior written
consent.
5.2 Price Increases: After the expiration of the Firm Price Period,
prices may be increased no more than once in any contract year to be effective
January 1 of the next following calendar year. SUPPLIER shall transmit proposed
new list prices and DISTRIBUTOR cost prices to DISTRIBUTOR in a mutually agreed
electronic format at least one hundred twenty (120) days prior to the effective
date of any DISTRIBUTOR cost increase. In addition, in situations where SUPPLIER
can demonstrate to DISTRIBUTOR's reasonable satisfaction that SUPPLIER's costs
to produce or obtain a Product have increased due to circumstances beyond
SUPPLIER's control by more than five percent (5%), then SUPPLIER may increase
DISTRIBUTOR's cost for the affected Product on sixty (60) day prior written
notice by an amount not to exceed the amount of SUPPLIER's cost increase. The
parties shall promptly confer during the first thirty (30) days of such sixty
(60) day notice period to resolve any disagreements about the amount of the cost
increase. Shipments shall be billed at the price in effect at time of order
placement.
Notice of price changes shall be sent to:
Strategic Merchandising
Xxxxxx Scientific
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
In addition, price changes affecting Canada shall be sent to:
Purchasing Department
Xxxxxx Scientific Ltd.
000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
5.3 Payment Terms: Payment terms shall be 2% - ten days, net 45 days from
the date of receipt of an invoice. DISTRIBUTOR shall not be in breach of this
Agreement unless payment from the DISTRIBUTOR is more than thirty (30) days
overdue.
5.4 Resale: DISTRIBUTOR shall be entitled to resell Products on such
terms as it may, in its sole discretion, determine, including without limitation
price, returns, credit and discounts.
5.5 Special Pricing: If DISTRIBUTOR reasonably determines that it is
entitled to special pricing, it shall request the same from SUPPLIER stating the
reasons therefore, and SUPPLIER shall in its discretion determine whether or not
such special pricing is, in all the circumstances, appropriate.
5.6 Information-Exchange: All price changes and additions of new products
accepted by DISTRIBUTOR shall be transmitted to DISTRIBUTOR in an electronic
format acceptable to DISTRIBUTOR. In addition, SUPPLIER and DISTRIBUTOR shall
continue employing full Electronic Data Interchange (EDI) for purchase orders
and invoices and shall explore the use of full EDI or other electronic formats
for advance ship notices and other relevant transactions.
6. VOLUME GROWTH AND REBATES
6.1 Rebate Amounts: For Sales-at-Cost (SAC) of PRODUCTS by DISTRIBUTOR in
the United States and by affiliate in Canada, SUPPLIER shall pay DISTRIBUTOR, so
long as the growth from the prior year is equal to or greater than the threshold
rebate growth rate ("Threshold Rate"), as described below, (or its Canadian
affiliate) a rebate calculated from the total purchases which is:
0.5% of purchases if achievement was equal to or greater than the
Threshold Rate but less than 2% higher than the Threshold Rate,
.75% of purchases if achievement was at least 2% higher than the
Threshold Rate but less than 4% higher than the Threshold Rate, and
1.0% of purchases if achievement was at least 4% higher than the
Threshold Rate but less than 6% higher than the Threshold Rate, and
2.0% of purchases if achievement was at least 6% higher than the
Threshold Rate but less than 8% higher than the Threshold Rate, and
3.0% of purchases if achievement was at least 8% higher than the
Threshold Rate.
The parties shall meet at the end of each calendar year to determine and
mutually agree upon the Threshold Rate for the following year. The Threshold
Rate shall be based on Supplier's expectations for its Life Science Division,
business conditions, and new product introductions (if any). The Threshold Rate
for each year shall be memorialized in document which shall be executed by both
parties. The Threshold Rate for 2002 shall be 17%.
In addition, the parties shall for each calendar year of the term identify
particular groups of focus Products and establish rebate programs based upon
DISTRIBUTOR achieving a designated Sales-At-Cost target for each such group of
focus Products or achieving a designated percentage growth in Sales-At-Cost for
each such group of focus Products.
7. PACKAGING
7.1 Packaging: SUPPLIER shall supply Products in packaging configurations
corresponding to SUPPLIER's current configurations as it may be amended from
time to time. DISTRIBUTOR agrees to use SUPPLIER's catalog numbers with respect
to all the Products. DISTRIBUTOR shall not repackage the Products unless written
consent is granted from the Supplier.
7.2 Bar Coding: At DISTRIBUTOR's request, and with DISTRIBUTOR's
assistance SUPPLIER agrees to use its reasonable best efforts to bar code the
Products in a manner acceptable to the DISTRIBUTOR.
7.3 Lot Numbers and Expiration Date: DISTRIBUTOR agrees to accept
SUPPLIER's methodology for designating and displaying lot numbers and expiration
dates, if any.
8. TERM AND TERMINATION
8.1 Term: The initial term of this Agreement shall be from January 1,
2002 through December 31, 2004.
8.2 Termination: Notwithstanding the foregoing, this Agreement may be
terminated for cause at any time as follows:
(i) In the event of default or material breach of the terms of this
Agreement by either party, written notice thereof may be given to the
defaulting party. Thereafter, the defaulting party shall have thirty (30)
days to cure said breach. In the event that said breach has not been cured
within said thirty (30) day period, the non-defaulting party may terminate
this Agreement on or within a reasonable period after the expiration of the
cure period.
(ii) In the event of nationalization, expropriation, liquidation or
bankruptcy of, or an assignment for the benefit of creditors or insolvency
of either party.
9. PROCEDURES ON TERMINATION
9.1 Procedures: On the termination of this Agreement, except for cause
pursuant to Section 8.2(ii), SUPPLIER shall continue to honor DISTRIBUTOR's
orders for Products up to the effective date of termination and for a period of
sixty (60) days thereafter, provided such orders are no greater than ten percent
(10%) above the quantities established during the sixty (60) days prior to the
date of the notice of termination, and DISTRIBUTOR shall pay for all such
Products on the terms and conditions (including price) of this Agreement.
9.2 Survival: The rights and duties of each party under this Agreement
and the Exhibits hereto in respect of performance prior to termination shall.
survive and be enforceable in accordance with the terms of this Agreement.
9.3 Existing Inventory: Within fifteen (15) days following termination or
non- renewal of this Agreement, DISTRIBUTOR may and, at SUPPLIER's request
shall, disclose to SUPPLIER in confidence the amounts of inventory that
DISTRIBUTOR and/or its Canadian affiliate hold of each Product. The parties
shall then negotiate in good faith concerning what portion, if any, of that
inventory DISTRIBUTOR and/or its Canadian affiliate shall return to SUPPLIER for
credit, giving due consideration to the salability of the returned inventory by
SUPPLIER relative to its inventory levels and production plans and to the
amounts projected to be needed by DISTRIBUTOR's customers for various Products
in the ninety (90) day period after termination or non-renewal relative to the
amounts of such-Products in DISTRIBUTOR's inventory. Once agreement is reached,
DISTRIBUTOR and/or its Canadian affiliate shall deliver the designated amounts
of product to SUPPLIER, F.O.B. origin, freight collect and shall be reimbursed
by SUPPLIER within ten (10) days at DISTRIBUTOR's current cost for each product.
SUPPLIER shall not be obligated, under the Paragraph, to take back inventory in
excess of ten percent (10%) of the prior year's purchases by DISTRIBUTOR and its
Canadian subsidiary, measured at cost to DISTRIBUTOR.
10. WARRANTIES, INDEMNITY, RECALL. AND INSURANCE
10.1 Warranties: In addition to the warranties of SUPPLIER set forth in the
Continuing Guaranty which is attached hereto as Exhibit C, SUPPLIER warrants
that the Products will conform to the specifications set forth in SUPPLIER's
product literature and Exhibit A; that they will comply and be manufactured,
packaged, sterilized (if
applicable), labeled and shipped by SUPPLIER in compliance with all applicable
federal, state and local laws, orders, regulations and standards. SUPPLIER
warrants the products to DISTRIBUTOR's customers against defects in materials
and workmanship when used in accordance with the applicable instructions for a
period of one (1) year from the date of shipment of the Products. SUPPLIER MAKES
NO OTHER END USER WARRANTY, EXPRESS OR IMPLIED. THERE IS NO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The warranty provided
herein and the data, specifications and descriptions of SUPPLIER Products
appearing in SUPPLIER's published catalogs and product literature may not be
altered except by express written agreement signed by an officer of SUPPLIER.
Representations, oral or written, which are inconsistent with this warranty or
such publications are not authorized. In the event of a breach of the foregoing
warranty, SUPPLIER asserts that its sole obligation to the end user shall be to
repair or replace, at its option, any Product or part thereof that proves
defective in materials or workmanship within the warranty period, provided the
customer notifies SUPPLIER or DISTRIBUTOR promptly of such defect. If after
exercising reasonable efforts, Millipore is unable to repair or replace the
product or part, then Millipore shall refund to the end user all monies paid for
such product or part. SUPPLIER disclaims liability for special, direct,
indirect, incidental or consequential damages resulting from economic loss or
property damages of any nature (including without limitation, loss of property,
goodwill, reverse or disruption of any person's business or operations as
appropriate) sustained by any customer from the use of its Products. SUPPLIER
shall include notice of the foregoing Product Warranty and limitation of
liability, together with notice that oral or written representations
inconsistent with such Warranty are unauthorized and should not be relied upon,
in product literature directed primarily or exclusive to products; DISTRIBUTOR
shall cooperate in such inclusion to the extent that DISTRIBUTOR controls the
preparation of such literature, or contacts with subdistributors or resellers.
10.2 Product Improvement Reports: SUPPLIER shall promptly respond to all
Product Improvement Reports (PIR) submitted by DISTRIBUTOR, and take all
necessary and appropriate corrective action.
10.3 Continuing Guaranty: SUPPLIER sha11 execute and abide by the terms of
DISTRIBUTOR's Continuing Guaranty, a copy of which is attached hereto as Exhibit
D and incorporated herein by reference. The terms and provisions of the
Continuing Guaranty shall survive the termination of this Agreement, but to the
extent any of the terms of the Continuing Guaranty are in conflict, or are
inconsistent with the terms of this Agreement, the terms and conditions hereof
shall prevail.
10.4 Insurance: SUPPLIER has provided DISTRIBUTOR with a Certificate of
Insurance which meets the requirements of paragraph D of the Continuing
Guaranty. SUPPLIER shall provide DISTRIBUTOR with renewal insurance certificates
in the form mandated by paragraph D of The Continuing Guaranty during the term
of this Agreement, upon request therefore by DISTRIBUTOR.
10.5 Recall: In the event of a Product failure confirmed by SUPPLIER, or a
recall required by a government agency or requested by SUPPLIER, SUPPLIER agrees
to pay the costs of any mailing it makes as well as return freight costs.
SUPPLIER will also bear the costs of supplying replacement Products, including
products already delivered to DISTRIBUTOR's customers. All other costs will be
for the account of DISTRIBUTOR. In addition, SUPPLIER shall notify DISTRIBUTOR
immediately in writing should SUPPLIER become aware of any defect or condition
which may render any of the products in violation of any statute or regulation,
or which in any way alters the specifications or quality of the Products.
11. TRADEMARKS
11.1 Trademarks and Trade Names: SUPPLIER recognizes that DISTRIBUTOR is
the owner of the trademarks and trade names connoting DISTRIBUTOR or DISTRIBUTOR
products which it may elect to use in the promotion and sale of the Products.
Nonetheless DISTRIBUTOR acknowledges that SUPPLIER may use such trademarks and
trade names in connection with the advice to SUPPLIER's existing and proposed
customers of the existence of and the limited exclusive distribution status
created by this Agreement.
11.2 Trademark License: SUPPLIER hereby grants to DISTRIBUTOR the
royalty-free right to use SUPPLIER's trademarks on SUPPLIER's Products during
the term of this Agreement, it being expressly
understood that if DISTRIBUTOR uses SUPPLIER's trademarks in connection with
SUPPLIER's Products which are the subject of this Agreement, DISTRIBUTOR must
use them properly (and DISTRIBUTOR shall not delete, alter, deface or conceal
any trademark, trade name, logo, or copyright notice appearing on any Products
or containers or related documents); and DISTRIBUTOR shall discontinue the use
of such trademarks in any new published material following the termination
hereof. Following the termination of this Agreement, SUPPLIER grants DISTRIBUTOR
the right to continue to use for a reasonable period of time not to exceed one
hundred eighty ( 180) days its trademarks in connection with sale or service of
Products purchased by DISTRIBUTOR during the term of this Agreement. DISTRIBUTOR
disclaims any rights to SUPPLIER' s trademarks other than the said license.
DISTRIBUTOR agrees that it will display SUPPLIER's trademark in such a manner so
as it shall appear prominently and be readily read. Any proposed usage of
SUPPLIER's trademarks created by DISTRIBUTOR or its agents shall be subject to
prior review and approval by SUPPLIER for compliance with SUPPLIER' s corporate
identity manual, a copy of which has been provided to DISTRIBUTOR.
12. CONFIDENTIALITY
12.1 Confidentiality: The parties expressly agree to hold as confidential
("Confidential Information") any information which is designated in writing by
the disclosing Party as confidential, provided such information is clearly
marked as confidential, and the disclosing Party obtains a signed receipt or
agreement from the receiving Party acknowledging that such information is
confidential. In the event Confidential Information is exchanged according to
these guidelines, such information will be retained by the other Party in
confidence for a period of two (2) years following the termination of this
Agreement; the transmittal of such information is and shall be upon the express
condition that the inforn1ation is to be used solely to effectuate this
Agreement; and the receiving party shall not use, publish or disclose said
information, in whole or in part, for any purpose other than that stated herein.
SUPPLIER expressly acknowledges and agrees that DISTRIBUTOR's customer names,
address and key contacts are and shall be the Confidential Information of
DISTRIBUTOR. Notwithstanding the foregoing, the above restrictions on disclosure
and use shall not apply to any information which the party can show by written
evidence, was known to it at the time of receipt, or which may be obtained from
third Parties who are not bound by a confidentiality agreement, or which is in
the public domain. Information disclosed previously to DISTRIBUTOR's counsel as
describe in Exhibit B shall be used for purposes of monitoring the specified
exceptions to the exclusivity of Section 2.1; and DISTRIBUTOR shall use
reasonable efforts to limit the dissemination of such information on a
need-to-know basis. Similarly, information on monthly amounts of DISTRIBUTOR's
Product sales-at-cost disclosed pursuant to Section 4.7 or otherwise shall be
disclosed to employees of SUPPLIER on a need-to-know basis.
12.2 Announcements: Neither Party shall issue or cause to be issued any
press release or public announcement or otherwise disclose the existence of this
Agreement or the transactions contemplated hereby except as and to the extent
that the other party agree, in writing.
12.3 Non-Solicitation of Employees: SUPPLIER's Life Science Division and
DISTRIBUTOR shall not, during the term of this Agreement or for a period of
twelve months after its expiration or termination, hire, solicit for employment
or retain as a consultant any person who is, or within the prior six months had
been an employee of or consultant to the other, except with the prior written
consent of the other.
13. MISCELLANEOUS
13.1 Force Majeure: The obligations of either party to perform under this
Agreement shall be excused during each period of delay if such delay arises from
any cause or causes which are reasonably beyond the control of the party
obligated to perform, including, but not limited to, the following: acts of God,
acts or omissions of any government, or any rules, regulations or orders of any
governmental authority or any officer, department, agency or instrumentality
thereof; fire, storm, flood, earthquake, insurrection, riot, invasion or
strikes. The affected party shall use its best efforts to remedy the effects of
such force majeure. Any force majeure shall not excuse performance by the party,
but shall postpone performance, unless such force majeure continues for a period
in excess of ninety (90) days. In such event, the party seeking performance may
cancel its obligations hereunder.
13.2 Dispute Resolution: Any and all disputes arising under, out of or in
connection with this Agreement other than those relating to Section 13.3 hereof
shall be mediated by the alternative dispute resolution procedures specified in
this Section 13.2 ("ADR") only after such dispute has been presented to a panel
composed of two members of senior management from each Party (the "Panel") and
the Panel either (i) determines that such dispute cannot be resolved by the
Parties or (ii) has not taken action for a period of sixty (60) days after such
dispute has been presented to the Panel. Each Party agrees to pursue ADR in good
faith and not to commence any suit or other proceeding or to pursue any other
remedies at law or in equity prior to the conclusion of the ADR. Each Party
agrees to share all costs of conducting ADR. All conduct, statements, promises,
offers, views and opinions, whether oral or written, and in the course of ADR by
either of the Parties, are confidential, shall, in addition and where
appropriate, be deemed to be work product and privileged, and shall not be
discoverable or admissible for any purpose in any lawsuit arising out of this
Agreement. Upon written notice from either Party invoking ADR, each Party shall
designate in writing an individual who shall have authority to settle the
dispute on its behalf. The authorized individuals shall be generally familiar
with the industries in which the Parties operate and shall make such
investigation as they deem appropriate and shall thereafter promptly commence
discussions concerning resolution of the dispute. If the dispute has not been
resolved within thirty (30) days thereafter, it shall be submitted to a neutral
Party in Washington, DC (the "Neutral") designated by CPR Institute for Dispute
Resolution to act as a neutral party to conduct the ADR in accordance with this
Section 13.2. One week prior to the first scheduled session of ADR, each Party
shall deliver to the Neutral and to the other Party a concise written summary of
its views on the matter in dispute. In addition to the authorized
representative, each party may bring such additional persons as reasonably
needed to respond to questions; contribute information and participate in
negotiations. ADR may be conducted by means of both joint meetings and separate
private caucuses of each party with Neutral. The Neutral: (i) shall provide his
or her opinion to both Parties on the probably outcome should the matter ,be
litigated, and (ii) shall make one or more recommendations as to the terms of a
possible settlement. The Neutral shall base his or her opinions and
recommendations on information available to both Parties, excluding such
information as may be disclosed to the Neutral by the parties in confidence.
While the opinions and recommendations of the Neutral shall not be binding on
the Parties, the Parties agree to give good faith consideration to the Neutral's
views. After they have received the Neutral's views, the Parties agree to
negotiate in good faith to resolve the dispute with the Neutral acting as a
mediator. Each Party agrees to participate in ADR to its conclusion, as
designated by the Neutral, and not to initiate legal proceedings seeking a
resolution to the matters in dispute until the earlier of (a) six (6) months
from the commencement of proceedings or (b) ten (10) days after conclusion of
proceedings. In the event that the dispute relates to a matter upon which a
third party has brought a claim against DISTRIBUTOR or SUPPLIER, the foregoing
obligation not to initiate legal proceedings shall not preclude the filing of
third party complaints, cross-claims or similar pleadings by one Party to this
Agreement against the other in a civil action brought by the third party at a
time reasonably determined by the Party filing such a pleading to be required to
preserve its rights under the applicable procedural and substantive law. The
filing Party shall make reasonable effort to notify the other Party in advance
concerning the proposed pleading and the basis for its determination that timely
filing of such proposed pleading is required to preserve rights.
13.3 Indemnification
(a) General: In the event of a claim by an unaffiliated third party
against either Party to this Agreement or its affiliates or past,
present and future officers, directors, shareholders, partners,
employees, lawyers, representative or agents (collectively, the
"indemnified Party"), based upon an actual breach by the other Party
(the "Indemnifying Party") of any of its warranties or obligations
under this Agreement (including Exhibit D) ("Third Party Claim"), the
Indemnifying Party shall indemnify, defend and hold the Indemnified
Party harmless against all losses, costs, damages, and expenses
(including reasonable attorneys fees, expert witness fees and
expenses) incurred as a result of such Third Party Claim.
(b) Notice of Claims: The Indemnified Party shall provide the
Indemnifying Party with prompt notice of the assertion of any Third
Party Claim, including the commencement of any suit, action or
proceeding, for which indemnity hereunder is sought, specifying with
reasonable particularity the basis therefore. The Indemnified Party
shall also provide all information related to such Third Party Claim
as the Indemnifying Party may reasonably request.
(c) Assumption of Defense: Promptly after receipt of a notice of a Third
Party Claim, the Party asserted to be the Indemnifying Party shall
either: (i) deny it is required to provide indemnification under the
terms of this Agreement, or (ii) agree that the Indemnified Party is
entitled to indemnification under the terms of this Agreement and, at
the discretion and expense of the Indemnifying party, assume
responsibility for the defense of the Third party Claim. The
Indemnified Party shall have the right (but not the duty) to
participate in such defense, employing separate counsel retained at
the Indemnified Party's expense. Whether or not it employs separate
counsel, the Indemnified Party agrees that it will cooperate fully
with the Indemnifying Party in the defense of the Third Party Claim.
(d) Settlement or Compromise: If, after receipt of a notice of a Third
party Claim, the Party asserting to be the Indemnifying Party, agrees
that the Indemnified Party is entitled to indemnification under the
terms of this Agreement, the Indemnifying party will have the sole
authority, at its expense, to enter into any compromise or settlement
of the Third Party Claim which shall be binding upon the Indemnified
Party in the same manner as if a final judgment or decree had been
entered by a court of competent jurisdiction; provided, however, that
no settlement or compromise involving any restriction on the
Indemnified Party's future action or continuing obligation by the
Indemnified Party shall be binding upon it without its prior written
consent.
(e) Denial of Indemnification: If, after receipt of a notice of a Third
Party Claim, the Party asserted to be the Indeml1ifyjng party denies that it is
required to provide indemnification under the terms of this Agreement, the Party
providing such notice shall treat the denial as a dispute subject to resolution
under paragraph 13.2 of this Agreement.
13.4 Assignment: This Agreement shall not be transferable by either party
by assignment or by operation of law without the prior written consent of the
other not to be unreasonably withheld or delayed. Any purported transfer in
violation of this provision shall be void and constitute a breach of this
Agreement.
13.5 Notices: Any notice required by this Agreement shall be in writing
and shall be deemed sufficient if given personally or by registered or certified
mail, postage prepaid, or by any nationally recognized ovemight delivery
service, addressed to the party to be notified at the address set forth in the
initial paragraph of this Agreement. Either party may, by notice to the other,
change its address for receiving such notices. DISTRIBUTOR shall also send a
copy addressed to the legal department of SUPPLIER.
13.6 Entire Agreement: This Agreement, including exhibits, constitutes the
entire agreement between the parties relating to the subject matter hereof and
cancels and supersedes all prior agreements and understandings, whether written
or oral, between the parties with respect to such subject matter.
13.7 Existing Ob1igations: SUPPLIER warrants that the terms of this
Agreement do not violate any existing obligations or contracts of SUPPLIER.
SUPPLIER shall protect, defend, indemnify, and hold harmless DISTRIBUTOR from
and against any claims, demands, liabilities or actions which are hereafter made
or brought against DISTRIBUTOR and which allege any such violation.
13.8 Governing Laws: This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts. Neither the 1980
United Nations Convention on Contracts for the International Sale of Goods nor
the United Nations Convention on the Limitation Period in the International Sale
of Goods will apply to this Agreement or any transaction under it.
13.9 Relationship of the Parties: The parties are independent contractors.
This Agreement does not constitute a partnership or either Party as the
franchisee, agent or legal representative of the other for any purpose and
neither party has the authority to act for, bind or make commitment on behalf of
the other.
13.10 Failure to Enforce: Either party's failure to enforce any provision
of this Agreement will not be deemed a waiver of that provision or the Party's
right to enforce the provision in the future.
13.11 Amendments: Except as otherwise specifically provided in this
Agreement, no amendment, modification or waiver of the terms of this Agreement
will be binding on either Party unless reduced to writing and signed by an
authorized officer to the party to be bound. In ordering and delivering
Products, the Parties may employ standard form or other documents, but no
additional terms which may appear on the face or reverse side of any such
document will apply to, or be construed to modify or amend the terms of this
Agreement.
13.12 Headings: The headings in this Agreement have been included solely
for reference and are to have no force and effect in interpreting the provisions
of this Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
MILLIPORE CORPORATION
_______________________________
By: /s/ X. X. Xxxxxxx
Title: President, Life Sciences Division
Date: 3/25/02
XXXXXX SCIENTIFIC COMPANY L.L.C.
By: /s/ J. Xxxxxxx Xxxxxx
Title: Vice President, Strategic Merchandising
Date: 3/15/02
ATTACHMENTS
Exhibit A - Summary of Products
Exhibit B - Exceptions to Exclusivity
Exhibit C - Current List Of Destinations - SUPPLIER' s Shipment Of Stocked
Products
Exhibit D - Continuing Guarantee
