Mr. Robert C. Kovar Director Of Marketing
9999 Veterans Memorial Drive
Houston, TX 77038.
RE: Distribution of DiaSys Corporation ("Supplier") Products
This letter is to confirm our discussions concerning certain of Supplier's products,
and the terms of our agreement concerning Fisher HealthCare, a division of Fisher
Scientific Company L.L.C. ("Fisher's") supply distribution of these items.
1.Product Line. This Product Line shall be as set forth in Exhibit A and
shall additionally include upgraded Products available from Supplier during the
term of this Agreement ("Products"). All Products shall conform to Supplier's
standard specifications. All outer shipping cartons and inner shelf packs shall
conform to applicable laws and Supplier published specifications.
Rights. Supplier grants to Fisher the nonexclusive right to distribute the
Products in the United States and such other geographic areas as the parties may
from time to time mutually determine ("Territory").
Price. The Product prices shall be set forth on Exhibit A. No minimum orders
shall be required with respect to volume of cost. These prices shall be firm through
December 31, 2001. Thereafter, prices may be increased once annually to be effective
January 1 of the upcoming calendar year by Supplier giving no less than ninety
(90) days prior written notice to Fisher. Such price increases shall be negotiated
by the parties but not to exceed the Consumer Price Index.
Each shipment shall be billed at the price in effect at the time of order placement.
Notice of price changes shall be sent to:
Marketing Services Department
Fisher Scientific Company L.L.C.
2000 Park Lane
Pittsburgh, PA 15275
a copy to:
9999 Veterans Memorial Drive
Houston, TX 77038
Attn: Clinical Marketing
Terms. Supplier shall invoice Fisher or Fisher's designate at time of Delivery.
Fisher shall pay each such invoice within forty-five (45) days following receipt.
6. Information Exchange. All price changes and additions of new products shall
be sent to Fisher in an electronic format as provided to Supplier. In addition,
Supplier shall use its commercially reasonable efforts to promptly implement full
electronic data interchange (EDI) for receipt of purchase orders and transmission
The term of this Agreement shall be two (2) years from date of execution by Supplier
and it shall automatically renew for an additional two (2) years unless sixty
(60) days written notice is given by either party.
In the event of breach, the non-breaching party shall give the breaching party
thirty (30) days written notice of breach. If the breach is not cured within the
thirty (30) day notice period, the non-breaching party may, in its sole discretion,
terminate the Agreement. Such termination shall not waive, dilute or otherwise
prejudice the rights, claims or defenses of either party as of the effective date
Guaranty. Supplier shall execute and abide by the terms of Fisher's Continuing
Guaranty, a copy of which is attached hereto to Exhibit B and incorporated herein
by reference. The terms and provisions of the Continuing Guaranty shall survive
the termination of this Agreement.
10. Forms. Any terms or conditions of the standard forms of either party or
otherwise introduced by either party shall not be binding unless agreed to in
writing and signed by the legal representative of both parties.
11. Publicity. 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 both parties
jointly agree, in writing.
12. Trademarks. The trademarks, brands, and goodwill of each party will remain
the sole property of such party. No license, assignment, or other proprietary
rights in such trademarks, brands or goodwill shall pass or inure to the benefit
from or of one party to the other by virtue of this Agreement. Notwithstanding
anything to the contrary, in order to perform requirements under
this Agreement, each party, for the Term hereof, hereby grants the other a fully
paid license to use the trade name, trademark, logo, and other such indices of
such party in advertising, promotional and distribution activities subject to
the requirements of paragraph 11. above.
13. Promotion. Supplier shall use its best efforts to position, price and differentiate
the Products and its technology. Fisher shall use its commercially reasonable
efforts to market/sell the Products in the Territory.
14. 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 from
the date of expiration or termination of the Agent. The transmittal of such information
is and shall be upon the express condition that the information 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 Fisher's customer
names, address and key contacts are and shall be the Confidential information
of Fisher. 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.
15. Entire Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the matters set forth herein. Any and all understandings
and expectations for and from either party are of no effect unless expressly set
forth herein. Should any part or provision of this Agreement be found to be invalid,
then such part or provision shall be severed from this Agreement without effecting
the validity or the enforceability of the remaining terms and conditions between
the parties. No modification of any term or condition of this Agreement shall
be binding on either party unless expressly stated in a single writing, signed
by the legal representative of both parties. The mutual obligations to protect
Confidential Information and Fisher's obligation to pay Supplier's invoices shall
survive any termination or expiration of this Agreement.
Law. This Agreement shall be governed by and construed in laws of the State
of Texas without regard to the conflicts of laws provisions.
Please signify your acceptance of this Agreement by signing below one original
to us. We look forward to working with you and your and returning sales team on
this very exciting project.