EXCLUSIVE DISTRIBUTION AND SUPPLY AGREEMENT
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This Exclusive Distribution and Supply Agreement (this "Agreement") is
made and entered into as of May 4, 2005 (the "Effective Date"), by and between
Strategic Diagnostics Inc., a Delaware corporation having its offices at 000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000-0000 (hereinafter referred to as "SDI" or
"Manufacturer") and the DuPont Qualicon division of E.I. du Pont de Nemours and
Company, a Delaware corporation having its offices at Experimental Station,
Building 400, P.O. Box 80400, Route 141 and Xxxxx Xxxx Road, Wilmington,
Delaware 19880-0400 (hereinafter referred to as "DuPont Qualicon"). Each of SDI
and DuPont Qualicon is referred to herein as a "Party" and SDI and DuPont
Qualicon are collectively referred to herein as the "Parties."
WHEREAS, SDI manufactures immunoassay-based microorganism detection
devices for use in food and environmental testing under the trademark
RapidChek(R);
WHEREAS DuPont Qualicon wishes to purchase and sell DuPont
Qualicon-branded immunoassay-based microorganism detection devices developed and
manufactured by SDI for sale in the Territory through its established
distribution channels, and
WHEREAS, SDI wishes to grant, and DuPont Qualicon accepts, the
exclusive distribution right in the Territory for DuPont Qualicon-branded
immunoassay-based microorganism detection devices manufactured by SDI pursuant
to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS
In addition to any other term defined elsewhere in this Agreement, the
following terms shall have the meanings set forth below.
a. "Affiliates" shall mean all Persons controlled by, under common control
with or controlling either Party to this Agreement, with control being
interpreted broadly.
b. "Business Plan" means a document supplied by DuPont Qualicon and agreed
to by SDI concerning the goals, commitments (including forecasts) for
commercialization and roll-out timing of Products in the Territory.
c. "Contract Year" means a calendar year commencing on January 1 and ending
on December 31; provided, however, that the first Contract Year shall
commence on the Effective Date and end on December 31, 2005.
d. "Global Customer" means Person(s) that purchases Product(s) on behalf of
Multinational Companies with substantial operations within the Territory
and the United States. For purposes of this Agreement, a Multinational
Company with more than twenty-five (25%) percent of its Product volume
outside the United States is a "Global Customer." If there is any
disagreement between the parties as to whether a current or prospective
customer is a Global Customer, then the parties will discuss in good
faith.
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e. "Media" means the any microorganism growth media sold by DuPont Qualicon
for use with the Product(s).
f. "Person" shall mean any natural person, corporation, partnership, limited
liability company, proprietorship, association, trust, or other legal
entity.
g. "Product(s)" means: (1) the SDI manufactured immunoassay-based
microorganism lateral flow detection devices or strips (which on the
Effective Date are sold by SDI under the RapidChek(R) screening system);
(2) associated Media for use with a SDI manufactured immunoassay-based
microorganism flow detection device or strips for use in testing food and
environmental testing branded as DuPont Qualicon and (3) each of which is
branded with the DuPont Qualicon brand, trademark and trade dress and as
further identified on Exhibit A, as the Parties may amend from time to
time. For avoidance of doubt, a lateral flow device that is used to
detect material other than microorganisms, as for example, the detection
of toxins or specific proteins, is excluded from this definition.
h. "Product Order" means the order form detailing the Product to be
provided, the applicable Specifications, delivery dates, and all other
relevant details, executed by the Parties whenever DuPont Qualicon wishes
to place an order for a Product. Each Product Order shall be in the form
attached hereto as Exhibit B.
i. "Specifications" shall have the meaning set forth in Section 5.1.
j. "Territory" shall mean the world, excluding the United States of America
(including its territories and protectorates).
2. APPOINTMENT AND SCOPE
2.1 Appointment. Subject to the terms and conditions of this Agreement,
SDI hereby appoints DuPont Qualicon during the Term as (a) its exclusive
(including as to SDI and its Affiliates) distributor of the Products in the
Territory and (b) its nonexclusive distributor of the Products to Global
Customer locations in the United States (including its territories and
protectorates). SDI shall not appoint any other distributor of the Products in
or for the Territory during the Term. DuPont Qualicon is an operational division
of E.I. du Pont de Nemours and Company. The other divisions of E.I. du Pont de
Nemours and Company and any and all Affiliates of E.I. du Pont de Nemours and
Company are not parties to this Agreement, shall have no obligations or duties
under this Agreement and shall be treated as unrelated third parties for all
purposes. The Parties acknowledge that Product distribution in the Territory
will be through the established distribution channels of the DuPont Qualicon
business and that DuPont Qualicon shall not be obligated to utilize other DuPont
Company or its Affiliate's businesses' distribution channel(s); to add
distributors or to change its distribution channel; or to cover all countries in
the Territory. Similarly, DuPont Qualicon will not be obligated to require all
DuPont Qualicon distributors to offer the Product(s) for sale in their
respective regions or countries.
2.2 Solicitation and Sales Outside Territory. Except with the prior
written consent of SDI, DuPont Qualicon shall not (i) solicit orders for sales
of Products to any existing or prospective customer outside the Territory, (ii)
deliver or tender (or cause to be delivered or tendered) any Product outside of
the Territory, or (iii) sell any Products to, nor solicit any sales from, a
customer if DuPont Qualicon knows or has reason to know that such customer
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intends to resell the Products outside of the Territory. Notwithstanding the
foregoing, DuPont Qualicon may solicit orders for sales of Products and deliver
or tender Products to Global Customers for use by them, their subsidiaries and
their Affiliates, whether or not such entities are located in the Territory.
2.3 Existing Customers in Territory. DuPont Qualicon acknowledges that
SDI has existing, non-exclusive agreements with certain other distributors for
the distribution of Products in the Territory. SDI shall use commercially
reasonable efforts to promptly terminate such existing agreements (as such
agreements pertain to the distribution of Products) with such other distributors
and wind down its relationship with such distributors. DuPont Qualicon
acknowledges that such other distributors are entitled to sell their remaining
Product stock in the Territory, regardless of the termination of their
agreements with SDI. To the extent SDI is permitted to do so under its
agreements with such other distributors, SDI shall use commercially reasonable
efforts to promptly transfer any customers of such other distributors to DuPont
Qualicon at the time that DuPont Qualicon assumes distribution responsibility
for such customer's region or country.
2.4 Independent Contractors. With respect to DuPont Qualicon's
activities as a distributor of the Products, DuPont Qualicon is an independent
purchaser and reseller of the Products. Neither Party is, nor will be deemed to
be, an agent, legal representative, joint venturer, partner, or employee of the
other Party for any purpose and shall in all respects act as an independent
contractor. Neither Party will be entitled to (i) enter into any contracts in
the name of or on behalf of the other Party, (ii) pledge the credit of the other
Party in any way or hold itself out as having authority to do so, or (iii)
except for the transfer of Product warranties, make commitments or incur any
charges or expenses for or in the name of the other Party. Each Party shall be
solely responsible for payment of all compensation owed to its personnel (and
all tax withholding with respect thereto), including payment, if any, of
employment-related taxes and worker's compensation insurance premiums.
3. MANAGEMENT OF RELATIONSHIP
3.1 Steering Committee. SDI and DuPont Qualicon shall establish a
steering committee (the "Steering Committee") to act as the primary means of
discussions between the Parties with respect to the discussion and negotiation
of matters arising under this Agreement. The Steering Committee shall meet from
time to time to discuss recent market events, trends, modified or new Products
(whether in planning stage or ready for commercial release), and new or
developing technologies relating to the market for the Products (including such
technologies as may supplant the Products on a prospective basis) in the
Territory. Each Party shall bear its expenses, including travel and living
expenses, in connection with its participation in the Quarterly Meetings.
3.2 Adverse Events. Each Party shall advise the other Party of any
adverse events or occurrences that may affect materially the performance of
either of the Parties under this Agreement, the areas of such Party's
performance affected thereby, and the efforts to be made by such Party to remedy
such effects.
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4. TERMS & CONDITIONS OF SALE
4.1 Obligation to Purchase and Sell.
4.1.0 During the Term, DuPont Qualicon agrees to purchase from
SDI, and SDI agrees to sell to DuPont Qualicon, in accordance with the terms and
conditions set forth herein. DuPont Qualicon shall not purchase or otherwise
obtain any Products from any person or source other than SDI in the Territory.
4.1.1 DuPont Qualicon shall purchase from SDI Products
totaling at least the minimum dollar volumes for each Contract Year set forth on
Exhibit C (the "Minimum Yearly Purchase Amounts"). Purchases made prior to
execution of this Agreement from SDI or any of its Affiliates are included in
the 2005 Minimum Yearly Purchase Amount.
4.1.2 In the event that DuPont Qualicon fails to meet the
Minimum Yearly Purchase Amount requirement for any Contract Year during the
Term, DuPont Qualicon shall have the option (the "Make-Up Option") to make a
payment to SDI in the amount of 50% of the difference between Products ordered
by DuPont Qualicon during such Contract Year and the applicable Minimum Yearly
Purchase Amount. The Make-Up Option shall be exercised by delivery by DuPont
Qualicon to SDI of notice of exercise and by making the required payment within
30 days after the end of such Contract Year. If DuPont Qualicon validly
exercises the Make-Up Option, DuPont Qualicon shall be deemed to have met the
Minimum Yearly Purchase Amount requirement for that Contract Year. If DuPont
Qualicon fails to validly exercise the Make-Up Option, SDI shall have the right,
at its option and as its sole remedy with respect to a failure by DuPont
Qualicon to meet the applicable Minimum Yearly Purchase Amount requirement, to
(a) discontinue the exclusivity of this Agreement with respect to the Territory.
In addition, if DuPont Qualicon has failed to meet the Minimum Yearly Purchase
Amount requirement for any two (2) consecutive Contract Years during the Term,
SDI shall have the right at its option and as its sole remedy with respect to a
failure by DuPont Qualicon to meet the applicable Minimum Yearly Purchase Amount
requirements to terminate this Agreement immediately. The Parties acknowledge
that the Minimum Yearly Purchase Amount requirement set forth in this Section
4.1.3 is an essential element of this Agreement between the Parties and that the
Parties would not have entered into this Agreement without such Minimum Yearly
Purchase Amount requirement.
4.1.3 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
4.1.4 Should SDI, its Affiliate(s) or their distributor(s)
sell or offer to sell to a third party in the Territory a product comparable or
superior to the Product at lower price(s) or at better terms than the price(s)
and terms set forth in this Agreement, SDI shall first offer the Product to
DuPont Qualicon and if the Parties do not agree to add the product as a Product,
SDI shall adjust the Product price to meet the lower price(s) and better terms
for as long a time as the other product is available to the third party (this
will not apply if DuPont has allowed the contract to move to a non-exclusive
status as described in Section 4.1.3).
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4.2 Reports
4.2.0 Forecasts. Within seven business days of the Effective
Date and at the beginning of each quarter of each Contract Year, DuPont Qualicon
shall provide to SDI a non-binding, rolling forecast (each, a "Forecast") of its
expected orders of Products by model during the succeeding 12 months. Each
Forecast shall include (i) a summary of executed Product Orders under which any
activities remain to be completed and (ii) a summary of any Product Orders
DuPont Qualicon expects to submit to SDI during the period covered by the
Forecast. Each Forecast shall be in the form attached hereto as Exhibit E. The
first ninety (90) days of each forecast shall be binding.
4.3 Manufacture of Products. Upon agreement of the Parties on a Product
Order, SDI shall promptly begin the manufacture of the Products covered by the
applicable Product Order. SDI shall manufacture the Products such that they
conform to their applicable Specifications. SDI undertakes to use commercially
reasonable endeavors to meet DuPont Qualicon's delivery schedule for all Product
purchase orders to the extent that the orders do not exceed the forecast by 20%
for each Product type. SDI shall keep DuPont Qualicon apprised of the status of
the manufacturing of ordered Products and shall immediately notify DuPont
Qualicon in writing if for any reason SDI reasonably believes it will be unable
to complete the manufacture of the Products or will be unable to deliver the
Product(s) on the agreed upon date, however such Products shall nevertheless be
counted towards the Yearly Minimum Purchase Amount. A standard lead time of
fifteen (15) days will be assigned to orders form the DuPont Qualicon that are
consistent with forecasted quantities supplied by the DuPont Qualicon.
4.4 Inspection of Finished Products. SDI shall perform the initial
inspection of completed Products before shipment and based on the requirements
set forth in the applicable Product Order. SDI shall not ship any Products
unless it believes that it conforms in all respects with the requirements of the
applicable Product Order (including, without limitation, the applicable
Specifications). Upon delivery of any Product to DuPont Qualicon's Wilmington,
Delaware location, DuPont Qualicon shall promptly and thoroughly inspect such
Products to determine whether the Products conform to their corresponding
Specifications. If DuPont Qualicon believes that any Product does not conform to
its corresponding Specifications, DuPont Qualicon shall provide SDI with prompt
notice thereof. SDI shall, at its sole cost and expense, promptly repair or
replace any non-conforming Product such that it does conform to its applicable
Specifications.
4.5 Shipment of Products.
4.5.1 Ready Date, Expense, Delivery Date. All Products shall
be ready for shipment from SDI's Newark, Delaware location on the "Ready Date"
as set forth in the applicable Product Order. Unless otherwise agreed in the
applicable Product Order or as provided herein, the Products shall be shipped at
DuPont Qualicon's expense so as to be deliverable on the "Delivery Date" as set
forth in the applicable Product Order.
4.5.2 Method of Shipment. Unless otherwise agreed in the
applicable Product Order, DuPont Qualicon shall either arrange for the shipping
or reimburse SDI its actual cost of Product shipping to the DuPont Qualicon's
Wilmington, Delaware location. Shipment from DuPont Qualicon's Wilmington,
Delaware location to DuPont Qualicon's customers' locations shall be the
responsibility of DuPont Qualicon.
4.5.3 Packaging. Unless DuPont Qualicon requests otherwise,
all Products ordered by DuPont Qualicon shall be packed for shipment and storage
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in accordance with reasonable commercial practices to preserve Product
integrity. DuPont Qualicon shall notify SDI of any special packaging
requirements.
4.5.4 Shipping; Risk of Loss; Title. All shipments of Products
by SDI to DuPont Qualicon under this Agreement shall be F.O.B. SDI's facility,
Newark Delaware. Risk of loss, delay or damage shall pass, along with title,
from SDI to DuPont Qualicon at the time of delivery of each shipment of the
Products at the F.O.B. point.
4.5.5 SDI acknowledges that in the future DuPont Qualicon may
prefer that DuPont Qualicon global Affiliates or its distributors order Products
directly from SDI. In such event the Parties agree to review this Agreement and
make modifications reasonably required to enable such sales
4.6 Product Pricing & Payment Terms.
4.6.0 Product Pricing. The pricing for each Product shall be
the pricing set forth in Exhibit A (the "Product Pricing"). The Product Pricing
does not include shipping or other such costs, including duties, incurred to
transport the Products from DuPont Qualicon's Wilmington, Delaware location to
DuPont Qualicon's customers' locations, all of which shall be the responsibility
of DuPont Qualicon. Product price is fixed for the Initial Term. SDI shall pass
through any reductions in its cost of manufacturing (attributable to DuPont
Qualicon improvements, buying power or adopted innovations to reduce the Product
Price. Product price may be increased as a direct pass through of the
proportionate increase in the cost of raw materials price as supported by SDI
documentation. In the event DuPont Qualicon reasonably considers such price
rises to be excessive in the circumstances, DuPont Qualicon shall have the right
at its discretion to discontinue the affected Product or to terminate the
Agreement on 60 days written notice to SDI.
4.6.1 Payment Terms.
All payments are due sixty (60) days after DuPont Qualicon receives an invoice
for the Products.
4.6.1.0 All amounts payable to SDI under this
Agreement shall be paid in U.S. Dollars by wire transfer or by automatic deposit
of immediately available funds to a bank designated by SDI, or by such other
means as the Parties may agree.
5. SPECIFICATIONS & NEW PRODUCTS
5.1 Initial Specifications. The initial set of Specifications for the
Products as available as of the Effective Date shall be provided by SDI and,
subject to approval thereof by DuPont Qualicon such not to be unreasonably
withheld or delayed, attached to this Agreement as Exhibit E no later than 30
days after the Effective Date (the "Specifications," as the same may be modified
or supplemented in accordance with the provisions of this Agreement). SDI may
only modify the Specifications upon 180 days' prior written notice to DuPont
Qualicon; provided, however, that SDI may not modify the Specifications
applicable to any New Product (as defined herein, below) without DuPont
Qualicon's prior written consent, provided that SDI may substitute components of
equal or greater performance at same or lower cost, and that SDI shall make no
changes which affect fit, form, function or end use of Products.
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5.2 New Products. Either Party may from time to time propose that SDI
modify certain Products or create new Products (each, a "New Product"). Upon any
such request, the Steering Committee shall convene to discuss (i) whether such
modification or creation is technically feasible, (ii) whether there is a market
for the New Product sufficient to warrant its development, manufacture, and
distribution, (iii) the time frame for the development, manufacture, and
distribution of the New Product, and (iv) how, if at all, the Parties will share
the costs related to the New Product. If the Parties agree to proceed with the
development, manufacture, and distribution of a new Product, the Parties shall
execute a written addendum to this Agreement setting forth in appropriate detail
their plans with respect to the New Product. It is understood and agreed that
SDI shall have no obligation to proceed with any of development, manufacture or
distribution of a new Product, in its sole discretion. Each New Product
designated in any such addendum shall be deemed a "Product" hereunder.
6. ADDITIONAL OBLIGATIONS OF DUPONT QUALICON
6.1 Sales Promotion.
6.1.0 Within thirty (30) days of the Effective Date, Qualicon
will provide SDI with a Business Plan identifying roll-out dates and other
commercialization strategies for the current Contract Year. Thereafter, prior to
the end of each Contract Year, DuPont Qualicon shall provide SDI with a Business
Plan identifying roll-out dates and other commercialization strategies for the
following Contract Year.
6.1.1 In promoting the Products and soliciting orders for them
from end users, DuPont Qualicon shall not, unless permitted under this
Agreement, make or extend any promise, representation, or warranty on behalf of
SDI to such end users regarding the Products that is different from the
Manufacturer's Product warranty.
6.2 Import Licenses, Exchange Controls and Other Governmental
Approvals; Compliance. (a) Each Party shall assist the other Party in obtaining
import licenses, export licenses, currency exchange approvals, and other
governmental approvals in or outside of the Territory that may be necessary to
permit the transactions contemplated hereunder. DuPont Qualicon shall comply, at
its own expense, with any and all governmental laws, regulations, and orders
which may be applicable to it by reason of its execution and performance of this
Agreement, including any requirement to be registered as SDI's DuPont Qualicon
with any governmental authority, and including, without limitation, any and all
laws, regulations, or orders which govern or affect the ordering, export,
shipment, import, sale (including government procurement), delivery, and
redelivery of Products in the Territory. SDI shall comply, at its own expense,
with any and all governmental laws, regulations, and orders which may be
applicable to it by reason of its execution and performance of this Agreement,
including, without limitation, any and all laws, regulations, or orders which
govern or affect the ordering, export, shipment, import, sale (including
government procurement), delivery, and redelivery of Products in the Territory.
Each Party shall, upon request of the other Party, furnish the other Party with
such documentation as may be necessary to confirm compliance with this Section
6.3.
(b) SDI will at its cost and in a timely manner provide DuPont Qualicon
certificate of origins; basic MSDS information; compositional information (by
chemical name and CAS number) and other information as reasonably requested by
DuPont Qualicon for registration with government authorities or with
certification bodies (as for example only, AOAC) or for Product distribution or
sale in the Territory. Information supplied by SDI shall be the latest
information known to SDI. SDI certifies that Product components (including
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substances which SDI does not make) are correctly listed on the chemical
substances inventories of the countries in the Territory (as for example, the
U.S. Toxic Substances Control Act, 15 USC 2601 et seq and regulations
thereunder), or else comply with an exemption to inventory listing. SDI shall
inform DuPont Qualicon in advance of any regulatory restrictions known to it
governing the use or disposal of the Products. SDI agrees to provide DuPont
Qualicon all existing marketing and confirmatory testing data (for example but
not limited to in-house and third party validation studies and data) in support
of the Product claims, methods for use and any government or third party Product
accreditations and to reimburse DuPont Qualicon for any costs of Product
registration and third party certification or accreditation (as for example
only, AOAC certification) where required by law or where the Steering Committee
agrees, or on a fee for service basis where such agreement is not made.
7. ADDITIONAL OBLIGATIONS OF SDI
7.1 Training. During the first Contract Year, and periodically
thereafter as requested by DuPont Qualicon, SDI shall provide, at its expense,
technical sales support and training to DuPont Qualicon for Products in the form
of "train the trainer" meetings and eight-hour/day help desk functions at such
times and place as the Parties agree. SDI shall provide qualified people to
support DuPont Qualicon on a fee for service basis.
7.2 Documentation. SDI shall provide DuPont Qualicon with each Product
detailed package inserts and directions for use, Product warranties and any end
user terms and conditions in the English language for DuPont Qualicon's use in
distributing the Product in the Territory.
7.3 Noncompetition. During the Term, and for so long as DuPont Qualicon
is an exclusive distributor:
(a) SDI shall not, without the prior written consent of DuPont
Qualicon, sell, offer for sale, deliver, or otherwise
distribute any immunoassay-based microorganism lateral flow
detection devices or associated Media for use with such
lateral flow detection device for use in testing food and
environmental testing, directly or indirectly, in the
Territory except pursuant to this Agreement. If SDI receives
an inquiry regarding the purchase or use of the Products in
the Territory, SDI shall immediately refer such inquiry to
DuPont Qualicon.
(b) DuPont Qualicon shall not, without the prior written consent
of SDI, sell, offer for sale, deliver, or otherwise distribute
any competitive immunoassay-based microorganism lateral flow
detection device for use in testing food and environmental
testing, directly or indirectly, in the Territory except
pursuant to this Agreement.
(c) For avoidance of doubt, a lateral flow device that is used to
detect material other than microorganisms, as for example, the
detection of toxins or specific proteins, is excluded from
this paragraph.
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7.4 Quality of Products. SDI shall maintain a quality system,
consistent with the requirements outlined by the ISO 9001-2000 standard. DuPont
Qualicon shall have the right to audit this system annually as long as this
Agreement is in effect.
8. CONFIDENTIALITY; PACKAGING AND TRADEMARKS
8.1 Confidentiality. The Parties agree to be bound by the terms
and conditions set forth in Exhibit F "Confidentiality
Provisions" regarding the disclosure of Confidential
Information hereunder/
8.2 Packaging and Trademarks.
8.2.1 SDI shall package Products (including directions for
use, package inserts and product warranty) with DuPont Qualicon
trademarks, tradenames, service marks and logos in a manner approved by
DuPont Qualicon. Should DuPont Qualicon require Product packaging that
is different than SDI's standard manner, SDI shall provide DuPont
Qualicon with the estimated cost of moving to the different packaging
and DuPont Qualicon shall reimburse SDI for all costs involved in
effecting such transfer.
8.2.2 SDI acknowledges that DuPont Qualicon has exclusive
right, title and interest in and to the DuPont Qualicon trademarks,
tradenames, service marks and logos, whether or not registered, and SDI
shall not at any time do or cause to be done any act, direct or
indirect, which shall in any way impair or tend to impair any part of
DuPont Qualicon's right, title or interest in such trademarks,
tradenames, service marks or logos.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and
continue until December 31, 2007 (the "Initial Term"). Thereafter, this
Agreement shall renew for five (5) additional periods of one (1) Calendar Year
each (each, a "Renewal Term"; together with the Initial Term, the "Term") unless
DuPont Qualicon shall have provided SDI with written notice that it does not
wish to renew the Agreement at least 180 days prior to the end of the Initial
Term or the then-current Renewal Term.
9.2 Termination. This Agreement may be terminated immediately by
written notice at any time during the Term (subject to any applicable cure
period) as follows:
9.2.0 By either Party, if a court of competent jurisdiction or
governmental authority, regulatory or administrative agency or commission shall
have enacted any law, statute, rule, or regulation or issued any final and
non-appealable order or decree that permanently restrains, enjoins, or otherwise
prohibits either Party from substantially performing under this Agreement;
9.2.1 By either Party if the other Party becomes insolvent, is
unable to pay its debts as they become due, makes an assignment for the benefit
of creditors, permits or procures the appointment of a receiver or trustee for
its assets or becomes the subject or any bankruptcy, insolvency or similar
proceeding;
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9.2.2 By either Party if the other Party shall have breached
or failed to comply with any material term, condition, or covenant required to
be performed or complied with by such other Party, and such breach or failure is
not cured within 60 days after written notice thereof by the terminating Party;
9.2.3 By SDI upon 12 months prior written notice if SDI
intends to no longer make or distribute, or have made or distributed, the
Products in the Territory; or
9.2.4 By either Party if the other Party dissolves, sells,
assigns, transfers, mortgages, encumber, pledges, or otherwise disposes of
either substantially all of its assets used to provide a Product or over twenty
(20%) percent of its ownership or controlling interest (whether in the form of
stock or otherwise); or if an order is made or a resolution is passed for the
winding up of the other Party; or if an order is made for the appointment of an
administrator to manage the affairs, business and property of the other Party or
if a receiver is appointed of any of the other Party's assets or undertaking or
if circumstances arise which entitle the court or a creditor to appoint a
receiver or manager or which entitle the court to make a winding-up order or if
the other Party takes or suffers any similar or analogous action in consequence
of debt;
9.2.5 By either Party if (a) the other Party consolidates with
or merges into another corporation or permits one or more other corporations to
consolidate or merge into it; or (b) there is a direct or indirect change of
control of a Party (including but not limited to a transfer of the Party's
material assets to an Affiliate or to a third party); provided that under such
circumstances this Agreement may only be terminated by the Party that has not
undergone the change in control.
9.3 By DuPont Qualicon if any institutional investor holder and/or any
mutual fund holder of SDI stock or any SDI shareholder owning greater than 5% of
the shares of SDI transfers or sells its SDI shares to the following companies
or their Affiliates: BioMerieux SA; Neogen Corp.; BioControl; Tecra
International Pty Ltd.
9.4 Effect of Termination.
9.4.0 In the event of any termination and in order to
transition the distribution of Products from DuPont Qualicon to another
distributor, DuPont Qualicon may, at its option, continue to distribute Products
on a non-exclusive manner and without any Minimum Yearly Purchase Amount for
such period of time as mutually agreed to by the Parties, such period not to
exceed 12 months from the effective date of such termination.
9.4.1 In the event of any termination, SDI may, at its option,
elect to repurchase from DuPont Qualicon any unsold Product stock in DuPont
Qualicon's or its distributors possession in the Territory. If SDI elects not to
repurchase the unsold Product stock DuPont Qualicon shall be permitted, but not
obligated, to sell any remaining Product stock within the Territory.
9.4.2 In no event shall any termination of this Agreement
excuse DuPont Qualicon from making any payment due under this Agreement or
entitle DuPont Qualicon to a refund of any amounts paid for Products hereunder,
except for amounts paid for Product which will not be delivered by virtue of
order cancellation arising from termination.
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9.5 Statutory Rights. DuPont Qualicon acknowledges that it is cognizant
of certain state statutes that impose on a Manufacturer, wholesaler, assembler
or importer specific duties and obligations with regard to the termination of a
distribution agreement. Notwithstanding the rights conferred under those
statutes to a distributor, to the extent permitted by such applicable law,
DuPont Qualicon hereby waives its rights thereunder with respect to a valid
termination pursuant to a right under this Agreement and in consideration of its
appointment hereunder covenants not to xxx SDI in the event of the valid
termination of this Agreement except for the purpose of enforcing DuPont
Qualicon's rights under this Agreement. This Section 9.4 in no way affects the
enforcement rights of DuPont Qualicon to recover amounts and/or any indemnity
earned pursuant to this Agreement.
9.6 Survival. In no event shall any termination of this Agreement
excuse either Party from any breach or violation of this Agreement and full
legal and equitable remedies shall remain available therefor. Sections 2.4 and
8.1 and Articles 9 through 14 shall survive the expiration or earlier
termination of this Agreement. In addition, the terms and conditions of this
Agreement shall remain in effect with respect to any Product Orders that have
been agreed to by the Parties on or prior to the effective date of any
expiration or termination, unless the Parties shall have agreed in writing to
cancel any such Product Orders.
10. REPRESENTATIONS AND WARRANTIES
10.1 By Both Parties. Each Party represents and warrants to the other
that:
10.1.0 It has the requisite corporate right, power, and
authority to enter into and perform under this Agreement; and
10.1.1 The execution, delivery, and performance of this
Agreement by it will not (a) result in the breach of, constitute a default
under, or interfere with any contract or other instrument or obligation, whether
written or oral, to which it is currently bound, or (b) violate any writ, order,
injunction, decree, or any law, statute, rule, or regulation applicable to it,
and (c) it shall, to its knowledge following reasonable inquiry, comply in all
material respects with all applicable laws, rules, regulations, and other
governmental requirements relating to or affecting its performance under this
Agreement, and shall obtain and maintain all governmental permits, licenses, and
consents required in connection therewith.
10.2 By SDI. SDI additionally represents and warrants to DuPont
Qualicon (and through DuPont Qualicon to any Person that purchases Products from
DuPont Qualicon or its distributors) that: (i) all services performed by or on
behalf of SDI under this Agreement shall be performed in a professional and
workmanlike manner consistent with industry standards by trained and fully
qualified personnel; (ii) it owns or has sufficient rights to manufacture and
sell the Products supplied to DuPont Qualicon hereunder; (iii) the Product and
that the use of the Product and the process by which the Product is made, does
not infringe or misappropriate any patent, copyright, trademark, trade secret or
other third party proprietary right, (iv) title to all Products supplied to
DuPont Qualicon hereunder will be conveyed free and clear of any liens or
encumbrances, (v) the Product meets Specifications as of the date of sale, are
fit for its intended use and complies with all laws and regulations applicable
to their manufacture, sale, packaging and labeling.
11
10.3 Disclaimer of Additional Warranties. EXCEPT FOR THE EXPRESS
WARRANTIES CONTAINED IN THIS ARTICLE 10, NEITHER PARTY MAKES ANY REPRESENTATIONS
OR WARRANTIES TO THE OTHER OR TO ANY OTHER PERSON. ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY DISCLAIMED.
11. LIMITATIONS OF LIABILITY
11.1 Limitation on Certain Damages. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL
DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS, OR
GOODWILL) IN CONNECTION WITH ANY PRODUCTS SUPPLIED OR TO BE SUPPLIED HEREUNDER,
OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, REGARDLESS OF WHETHER SUCH
LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF
WARRANTY, OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE PRECEDING SENTENCE DOES NOT APPLY TO CLAIMS
AGAINST ONE PARTY BY THE OTHER FOR INDEMNITY AGAINST (I) FINES AND CIVIL
PENALTIES; AND (II) COSTS AND LIABILITY ARISING FROM PERSONAL INJURY OR PROPERTY
DAMAGE TO THIRD PERSONS TO THE EXTENT (I) AND (II) ARE CAUSED BY THE FIRST
PARTY'S NEGLIGENCE, WILLFUL MISCONDUCT OR, IN THE CASE OF MANUFACTURER, BREACH
OF THE WARRANTIES
11.2 Limitation on Actions. No action, suit, or proceeding arising out
of this Agreement may be brought more than two (2) years after knowledge of the
first event giving rise thereto.
12. INDEMNIFICATION
12.1 Mutual Indemnity. Subject to the provisions of Section 10.3, each
Party shall defend and/or settle any third party claim or action brought against
the other Party, its Affiliates, and/or their respective officers, directors,
members, licensors, employees, agents, distributors and representatives, to the
extent such claim or action arises solely from any breach, or alleged breach by
either Party of any of (1) its representations or warranties; (2) fines and
civil penalties; (2) costs and liability arising from personal injury or
property damage to third persons to the extent caused by the first party's
negligence, willful misconduct.
12.2 In addition, the indemnifying Party shall indemnify and hold
harmless the indemnified Party from and against any damages, fees, and expenses
(including reasonable attorneys' fees) payable by any of them to third parties
in connection with any such claim or action.
12.3 Additional Indemnity of SDI. SDI shall defend and/or settle, and
indemnify and hold harmless each DuPont Qualicon Indemnified Person (as defined
below) from and against, any third-party claim or action brought against DuPont
Qualicon, its Affiliates or distributors, its customers that purchase Products,
and/or their respective officers, directors, members, licensors, employees,
agents and representatives (each, a "DuPont Qualicon Indemnified Person"), and
12
all damages, losses, liabilities, and expenses (including reasonable attorneys'
fees) suffered, incurred, or awarded or imposed against any DuPont Qualicon
Indemnified Person in connection with any such claim or action:
(1) to the extent such claim or action concerns an allegation that any
of the Products, or any portion thereof, infringe any intellectual
property or other proprietary right of a third party. If such a
claim results in a judgment of infringement, SDI may (i) provide
DuPont Qualicon with non-infringing Products; (ii) obtain for
DuPont Qualicon the rights to distribute such Products, or (iii)
accept a return of such Products and credit DuPont Qualicon with
the price paid less an allowance for use. The foregoing shall be
DuPont Qualicon's sole remedy with respect to such infringement and
(2) to the extent arising from SDI termination of its existing
distributors in the Territory under Article 2.
12.4 Indemnification Procedures. With respect to any claim or action
for which indemnity may be sought from the other Party under this Article 1, the
person seeking indemnification (the "Claimant") shall promptly notify the
indemnifying Party in writing, specifying the nature of the claim or action and
the total monetary amount sought or other such relief as is sought therein. The
Claimant shall cooperate with the indemnifying Party at the indemnifying Party's
expense in all reasonable respects in connection with the defense and/or
settlement of the claim or action. The indemnifying Party shall have the right
to undertake the control and conduct of all proceedings or negotiations in
connection therewith and to assume and control the defense thereof. The Claimant
shall have the right to employ separate counsel to provide input into the
defense, at Claimant's own cost. The indemnifying Party shall keep the Claimant
reasonably informed of the progress of its defense and settlement of the claim
or action. The indemnifying Party shall not settle the claim or action on the
Claimant's behalf without first obtaining the written approval of the Claimant,
which approval will not be unreasonably withheld or unreasonably delayed;
provided, however, that if Claimant unreasonably withholds or unreasonably
delays approval of indemnifying Party's settlement offer, the Claimant shall
defend that claim or action at its own expense and the Claimant hereby waives
any right to indemnity hereunder from the indemnifying Party in excess of the
settlement offer amount. Notwithstanding the foregoing sentence, if a settlement
offer contains conditions other than money payments, the Indemnifying Party may
not settle such claim or action without Claimant's approval of such conditions,
such approval to be given in Claimant's sole discretion, and not subject to a
reasonableness standard. The Claimant may settle any claim or action hereunder,
but the indemnifying Party will not be responsible for any such settlement
unless it shall have approved the settlement, in writing and in advance, which
approval will not be unreasonably withheld or delayed. Each Party agrees not to
publicize any settlement without first obtaining the other Party's written
permission, which permission will not be unreasonably withheld.
13. DISPUTE RESOLUTION; ARBITRATION
13.1 In the event of any dispute or claim between the Parties regarding
or arising from this Agreement that cannot be resolved through normal channels
of discussion (a "Dispute"), such Dispute shall be resolved solely in accordance
with these procedures.
13.2 Either Party to a Dispute may request a meeting of the Steering
Committee who shall meet promptly, but in any event within 15 days of the
request. The Party requesting the meeting may send a Notice of Dispute which
shall state the action or failure to act to which such Party objects, and
13
whether the Party contends that the action or failure to act constitutes a
material breach. At the meeting, these persons will review the circumstances of
the Dispute.
13.3 If the Steering Committee is unable to resolve the Dispute within
15 days, either Party may request in writing that the Dispute be referred to the
applicable Parties' executives who have authority to settle the Dispute and who
are at a higher level of management than the persons with direct responsibility
for administration of this Agreement.
13.4 In the event the executives are unable to reach a mutually
acceptable resolution of the Dispute within 15 days, the Parties will submit the
matter to binding arbitration. The arbitration shall be conducted in English and
in accordance with the Commercial Rules of the American Arbitration Association
which shall administer the arbitration and act as appointing authority. The
arbitration, including the rendering of the award, shall take place in
Wilmington, Delaware, U.S.A., and shall be the exclusive forum for resolving
such dispute, controversy or claim. Discovery will be limited to no more than
ten (10) interrogatories (including subparts or compound requests); no more than
ten (10) requests for production (including subparts or compound requests) and
no more than three (3) depositions each for SDI and DuPont Qualicon, each
deposition shall last no more than two hours. All discovery shall be concluded
within ninety (90) days of service of the notice of arbitration each Party shall
pay for its own costs and the costs of the mediation, including the fee of the
mediator, shall be shared equally by the Parties. The arbitrators are not
empowered to award damages in excess of actual damages, specifically neither
Party shall be entitled to consequential or punitive damages unless such damages
are awarded to a third party as a result of a liability claim for damages
against Distributor and Manufacturer and for which DuPont Qualicon and SDI, as
the case may be, has an obligation to indemnify the other Party as provided for
in this Agreement. The decision of the arbitrators shall be binding upon the
Parties hereto, and the expense of the arbitration (including without limitation
the award of attorneys' fees to the prevailing Party) shall be paid as the
arbitrators determine. The decision of the arbitrators shall be final, and
judgment thereon may be entered by any court of competent jurisdiction. In the
event any such dispute, controversy or claim involves a claim of damages in
excess of one million U.S. Dollars (USD $1,000,000), the arbitration shall be
conducted by three (3) independent arbitrators; otherwise by one (1) independent
arbitrator.
13.5 Notwithstanding anything contained in this Article 13 to the
contrary, each Party shall have the right to institute judicial proceedings
against the other Party or anyone acting by, through or under such other Party
in order to enforce the instituting Party's rights hereunder through specific
performance, injunction or similar equitable relief.
14. GENERAL PROVISIONS
14.1 Press Release. Within 30 days after the Effective Date, both
Parties shall have the right to issue a press release announcing SDI's
appointment of DuPont Qualicon as an exclusive distributor of the Products in
the Territory. Such press release shall be subject to review and approval by the
other Party. Any subsequent press releases regarding the subject matter of this
Agreement or the relationship between the Parties shall be issued only jointly
upon the mutual agreement of the Parties.
14.2 Further Assurances. Upon the request of each Party, the other
Party shall execute and deliver any and all additional instruments and documents
14
and take such other future actions as may be necessary or reasonably requested
by a Party to carry out its performance under this Agreement.
14.3 Headings. The Section and Article headings contained in this
Agreement are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any respect.
14.4 Force Majeure. Neither Party shall be considered in default of its
performance of any obligation hereunder to the extent that performance of such
obligation is prevented or delayed by any act of God or other cause beyond such
Party's reasonable control, including, without limitation, any act, failure to
act, or delay in acting on the part of any governmental authority, governmental
priorities, strikes or other labor difficulties, accidents or disruptions such
as fire, explosion, flood, epidemics, civil disturbance, or act of war or
terrorism (each, a "Force Majeure Event"). If any Force Majeure Event does
arise, occur, or result, the Party subject thereto shall use commercially
reasonable efforts to minimize the consequences of such event and to overcome
such event as soon as reasonably possible. A Party desiring to rely upon any
Force Majeure Event as an excuse for failure, default, or delay in performance
shall provide the other Party with prompt written notice of the facts giving
rise to said event when it arises and of the cessation of said event when it
ceases to exist.
14.5 Assignment. Neither Party may assign this Agreement, or delegate
any of its obligations hereunder, without the prior written consent of the other
Party. Subject to the foregoing, all of the terms and conditions of this
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective permitted successors and assigns.
14.6 Nonsolicitation. During the Term of this Agreement and for twelve
(12) months after the termination of this Agreement, neither Party shall solicit
or hire, directly or indirectly, on its own behalf or on behalf of others, any
employees or contractors of the other Party without the other Party's written
consent.
14.7 Compliance With Laws. Each of DuPont Qualicon and SDI covenants
that all of its activities under or pursuant to this Agreement shall comply with
all applicable laws, rules and regulations. In particular, but without
limitation, DuPont Qualicon shall be responsible for obtaining all licenses,
permits and approvals which are necessary or advisable for sales of the Products
in the Territory and for the performance of its duties hereunder.
14.8 Choice of Law. This Agreement and its subject matter shall be
governed by and interpreted in accordance with the Federal laws of the United
States of America with respect to patent, copyright, and trademark matters, and
by the laws of the State of Delaware in all other respects, in each case without
reference to any principles governing conflicts of law that might cause the laws
of any other jurisdiction to apply. Both Parties consent and submit to the
exclusive personal jurisdiction of the United States and the state courts of the
State of Delaware. The Parties agree that the provisions of the United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this contract.
14.9 Taxes and Expenses. Except as otherwise expressly provided herein,
each Party shall pay all taxes and legal, accounting, and other expenses
incurred by such Party in connection with its negotiation, execution, and
performance of this Agreement.
15
14.10 No Rights by Implication. No rights or licenses with respect to
the Products or the Trademarks are granted or deemed granted hereunder or in
connection herewith, other than those rights expressly granted in this
Agreement.
14.11 No Rights In Third Parties. Except as expressly stated herein,
nothing in this Agreement shall confer any rights upon any person other than the
Parties and their respective permitted successors and assigns.
14.12 Parties to Agreement. The Parties to this Agreement are DuPont
Qualicon and SDI, and no other persons or entities. DuPont Qualicon is a
division of E.I. du Pont de Nemours and Company. The other divisions or
businesses of E.I. du Pont de Nemours and Company and any and all Affiliates of
E.I. du Pont de Nemours and Company are not parties to this Agreement, shall
have no obligations or duties under this Agreement and shall be treated as
unrelated third parties for all purposes.
14.13 Notices. All notices and correspondences provided for or
permitted under this Agreement shall be deemed effective upon receipt, shall be
in writing in the English language, and shall be (i) delivered personally, (ii)
sent by certified or registered mail, postage prepaid and return receipt
requested, (iii) sent by facsimile with concurrent delivery by certified or
registered mail as provided above, or (iv) in the case of any reports or
forecasts required to be submitted by DuPont Qualicon under Article 4, sent
electronically, in each case to the Party to be notified, at the address(es) for
such Party set forth below (or, in the case of reports or forecasts covered by
(iv) above, to an e-mail address or other internet address designated by SDI),
or at such other address(es) of which such Party has provided notice in
accordance with the provisions of this Section 20.14:
To SDI: Strategic Diagnostics Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: President
To DuPont Qualicon: DuPont Qualicon
E.I. du Pont de Nemours and Company
Experimental Station, Building 400
P.O. Box 80400
Route 000& Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: President
With a copy to: E.I. du Pont de Nemours and Company
DuPont Qualicon Legal
Xxxxxx Xxxx Xxxxx, X00-0000
P.O. Box 80025
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
16
14.14 Entire Agreement. This Agreement, together with any Exhibits
hereto, sets forth the entire understanding of the Parties with respect to its
subject matter. All prior and contemporaneous agreements and understandings
between the Parties, whether oral or written, are hereby superseded in their
entirety by this Agreement. This Agreement may be amended, modified, or
supplemented only by a written instrument duly executed by each of the Parties.
14.15 No Waivers. The failure of either Party to assert a right
hereunder or to insist upon compliance with any term or condition herein will
not constitute a waiver of that right or excuse any subsequent nonperformance of
any such term or condition, or of any other term or condition, by the other
Party.
14.16 Severability. If any provision of this Agreement is held invalid,
illegal or unenforceable, such provision shall be modified to reflect the
fullest legal and enforceable expression of the intent of the Parties or, if not
possible, severed, and the remainder of this Agreement will not be affected
thereby. Notwithstanding the foregoing, the Minimum Yearly Purchase Amounts in
Section 4.1.3, the Disclaimers in Section 10.4 and the Limitations of Liability
in Article 11 are considered by the Parties to be integral to this Agreement and
may not be modified or severed from this Agreement.
14.17 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall be for accommodation purposes only and shall not be binding
upon the Parties.
14.18 Currency. Except as expressly set forth herein, all amounts
listed or referred to in this Agreement shall be in United States dollars.
14.19 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be binding as of the Effective Date, and all
of which shall constitute one and the same instrument. Each such copy shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
14.20 [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
17
14.21 Execution and Delivery. This Agreement shall be deemed executed
by the Parties when any one or more counterparts hereof, individually or taken
together, bears the signatures of each of the Parties hereto. This Agreement,
once executed by a Party, may be delivered to the other Party by facsimile
transmission of a copy thereof that bears the signature of the Party so
delivering it.
IN WITNESS WHEREOF, the Parties, by their duly appointed officers, have
entered into this Agreement on the Effective Date.
STRATEGIC DIAGNOSTICS INC. E.I. DU PONT DE NEMOURS AND COMPANY
through its DuPont Qualicon business
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------- -------------------------
Printed Name: Xxxxxxx X. Xxxxxx Printed Name: Xxxxx Xxxxxxx
Title: President Title: Business Manager
18
EXHIBIT A
PRODUCTS AND PRICE
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
1
EXHIBIT B
FORM OF PRODUCT ORDER
TO INCLUDE THE FOLLOWING ELEMENTS
(1) the DuPont Qualicon Purchase Order number;
(2) SDI's complete name and remit to address;
(3) "xxxx to" stating applicable DuPont Qualicon entity set forth on
the Purchase Order;
(4) Product purchased;
(5) price and billing units consistent with Schedule B of this
Agreement;
(6) quantity;
(7) SDI's invoice number;
(8) invoice date;
(9) total monetary amount;
(10) terms of payment, including any applicable discount calculations;
(11) dates of shipment, invoice, and xxxx of lading consistent with the
price and payment terms hereof;
(12) tax amount/rate information; and
(13) xxxx of lading number or packing list number as appropriate.
2
EXHIBIT C
MINIMUM YEARLY PURCHASE AMOUNTS
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
3
EXHIBIT D
FORM OF FORECAST
4
EXHIBIT E
SPECIFICATIONS
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
5
EXHIBIT F
CONFIDENTIALITY PROVISIONS
1) "Confidential Information" means all data and information whether in written,
machine readable or other tangible form, obtained by the receiving Party through
observation or examination of such information and material, or disclosed orally
or visually, that is of value to the disclosing Party, and is not generally
known to competitors of the disclosing Party and which is indicated as
Confidential or Proprietary when communicated to the receiving Party and reduced
to and identified as confidential in writing within 20 days of such oral
disclosure. Each Party represents and warrants that it has the legal right to
disclose its Confidential Information to the receiving Party.
2) The receiving Party will treat and safeguard Confidential Information of the
other Party with the same standard of care (but at least a reasonable standard
of care) that the receiving Party employs for its own Confidential Information
and shall not, without the prior written approval of the disclosing Party, (a)
disclose any Confidential Information to a third party, (b) use Confidential
Information in any way for the benefit of any third parties, and/or (c) use
Confidential Information other than in connection with this Agreement. The
receiving Party will limit access to Confidential Information to those employees
and consultants who have a need to know of such Confidential Information and who
are aware of and have agreed to abide by the relevant provisions of this
Agreement. The receiving Party shall have no liability for inadvertent or
accidental disclosure, provided it has exercised the degree of care required, as
described herein.
3) However, Confidential Information does not include, and no obligation is
imposed on, information which:
i. Is already in or subsequently enters the public domain through no
fault of the receiving Party;
ii. Is supplied by the disclosing Party to another party without a
duty of confidentiality to the disclosing Party;
iii. Is known to the receiving Party or is in its possession (as shown
by tangible evidence) prior to receipt from the disclosing Party;
iv. Is developed independently by the receiving Party (as shown by
tangible evidence) by persons who have not had, either directly or
indirectly, access to or knowledge of Confidential Information of
the disclosing Party;
v. Is lawfully received by the receiving Party from another party
without a duty of confidentiality to the disclosing Party; or
vi. Is disclosed pursuant to the order or requirements of a
governmental administrative agency or other governmental body
provided that such disclosure is pursuant to a protective order
and the disclosing Party has been notified of such a disclosure
request in advance.
4) All Confidential Information, unless otherwise specified in writing, shall
remain the property of the disclosing Party, and shall be promptly returned to
the disclosing Party at its request or destroyed after the receiving Party's
need for it has expired, and in any event, upon termination of this Agreement.
5) This Agreement shall last until and cover information received by a receiving
Party until the termination of the Agreement. Nonetheless, all duties of
confidentiality and non-use shall extend for a period of not less than three
years subsequent to such date.
6) Nothing in these terms and conditions of Exhibit F shall be construed as
granting either Party any license, or obligating either Party to take any
license, under any invention, trade secret, patent, copyright, trademark, mask
work or other intellectual property right of the other Party. The receiving
Party may not reverse-engineer, decompile, or disassemble any product or
software disclosed to the receiving Party hereunder. The terms of this Agreement
shall not be construed to limit in any way a receiving Party's right to
independently develop products without use of the Confidential Information.
6
8) Each Party acknowledges that the disclosing Party makes no express or implied
representation or warranty as to the accuracy or completeness of the
Confidential Information disclosed, except as set forth in the Agreement or as
may be otherwise agreed in writing between the Parties. Except as set forth in
the Agreement or as may be otherwise agreed in writing between the Parties, the
disclosing Party shall have no liability to the receiving Party or any other
person, relating to or arising from the use of the Confidential Information, or
for any errors therein or omissions therefrom, and each Party assumes full
responsibility for all conclusions such Party derives from the Confidential
Information. Except as set forth in the Agreement or as may be otherwise agreed
in writing between the Parties, nothing in this Agreement shall be construed as
obligating a Party to provide, or to continue to provide, any information to any
person.
9) The receiving Party shall be fully responsible for any breach of this
Agreement by its employees, agents or any third parties.
10) Any breach of this Agreement by the receiving Party could cause the
disclosing Party immediate and irreparable injury for which monetary damages may
be inadequate and impossible to ascertain. Accordingly, upon breach or
threatened breach of the provisions of this Exhibit F, the disclosing Party
shall have the right to seek temporary relief in addition to monetary damages.
The receiving Party agrees that no serious harm will result to receiving Party
from such equitable relief, and therefore, receiving Party waives any bond that
might be required.
7
