Exhibit 10.27
SUPPLY AGREEMENT FOR HTC(TM) GRIDS
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This Supply Agreement (this "Agreement") dated as of this 23rd day of
August, 2000, is made by and between Tecomet Inc., a Massachusetts corporation
with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
("Tecomet" or "Seller") and Trex Medical Systems Corporation, a Delaware
corporation with offices located at 00 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx
00000 ("Trex Medical" or "Buyer"). Tecomet and Trex Medical are sometimes
hereinafter referred to individually as a "Party" and collectively as the
"Parties".
WHEREAS, Tecomet currently manufactures and supplies to Trex Medical all of
Trex Medical's requirements for Air Cross Grids for use in x-ray mammography
products ("HTC(TM) Grids"); and
WHEREAS, Tecomet desires to continue to supply HTCTM Grids to Trex Medical,
and Trex Medical desires to continue to purchase HTC(TM) Grids from Tecomet; and
WHEREAS, on the effective date of this Agreement the Parties are also
entering into an Agreement for Use of HTC(TM) Grid Technology, setting forth
their rights and obligations relative to use of that Technology (as defined in
the Agreement for Use of of HTC(TM) Grid Technology) and related Patents (as
defined in the Agreement for Use of of HTC(TM) Grid Technology);
NOW THEREFORE, in consideration of the mutual covenants and agreements made
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the Parties agree as follows:
1. Exclusive Purchase and Sale. Subject to the terms and conditions of
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this Agreement, Tecomet agrees to sell exclusively to Trex Medical, and Trex
Medical agrees to purchase exclusively from Tecomet, all of Trex Medical's
requirements of HTC(TM) Grids, and Tecomet shall have exclusive, royalty-free
rights under the Technology and the Patents to manufacture HTC(TM) Grids. Except
as otherwise provided in this Agreement or in the Agreement for Use of HTC(TM)
Grid Technology, Tecomet shall not sell HTC(TM) Grids to any third party and
Trex Medical shall not purchase HTC(TM) Grids from any third party, so long as
Tecomet is capable of supplying all of such Trex Medical needs on a delivery
schedule satisfactory to Trex Medical. Tecomet shall monitor material supply
lead times, and shall use all commercially reasonable efforts to assure
continuous supply of HTC(TM) Grids, and the HTC(TM) Grids shall continue as in
the past to be delivered under "acceptance criteria" methodology.
2. Purchase Orders for HTCTM Grids
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2.1 Submittal and Acceptance. Purchase orders placed by Trex Medical
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for HTC(TM) Grids shall be submitted to Tecomet in writing specifying the
quantities and types of HTC(TM) Grids and their desired delivery dates. All
orders are subject to written acceptance by
Tecomet.
2.2 Prices. Prices for HTC(TM) Grids purchased and sold under this
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Agreement shall be as specified on Schedule A of this Agreement or as otherwise
mutually agreed to by the Parties. All prices are EXW Tecomet's place of
business in Woburn, Massachusetts. For HTC(TM) Grids purchased and sold under
this Agreement Trex Medical shall pay sales or use taxes, if any are due, and
Tecomet shall pay any other federal, state, local or foreign taxes or other
governmental charges upon its manufacture or sale of the HTC(TM) Grids.
2.3 Acceptance, Packaging and Marking. Unless otherwise agreed in
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writing by the Parties, all HTC(TM) Grids supplied pursuant to this Agreement
shall be subject to the acceptance and packaging and marking practices utilized
by the Parties for the supply of HTC(TM) Grids immediately prior to the
effective date of this Agreement.
2.4 Cancellation of Orders. In the event Trex Medical cancels all or
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part of an order for HTC(TM) Grids which has been previously agreed to by the
Parties, Trex Medical shall pay to Tecomet one hundred and ten percent (110%) of
the non-recoverable costs reasonably incurred by Tecomet in connection with work
performed or to be performed on the cancelled HTC(TM) Grids.
3. Tooling. Trex Medical shall fund the purchase (as per P.O. x467446)
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of new glass tooling previously discussed with Tecomet, and Trex Medical shall
be the owner of all such tooling paid for by Trex Medical. Trex Medical's
obligation to fund the purchase of such tooling shall be limited to $200,000. If
such new glass tooling reduces Tecomet's costs of manufacturing HTC(TM) Grids,
after the first six months of implementation, Tecomet and Trex Medical shall
share equally all such cost reductions. Tecomet shall retain custody and control
of the tooling used for manufacture of HTC(TM) Grids (the tooling embodies
Tecomet proprietary information) and shall at its expense take all reasonable
actions to maintain the tooling in good condition.
4. Forecasts. To assist Tecomet in managing its inventory of raw
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materials for HTC(TM) Grids and its manufacture of HTC(TM) Grids, on or prior to
the last day of each calendar quarter Trex Medical shall provide to Tecomet a
written forecast of the quantities of HTC(TM) Grids (for each part number of
Schedule A) which Trex Medical expects to purchase during each month of the
following twelve-month period. Such forecasts shall represent Trex Medical's
best estimate of its requirements for HTC(TM) Grids, but shall not be binding on
the Parties or obligate either Party to purchase or supply a specific quantity
of HTC(TM) Grids.
5. Warranties. Tecomet warrants that the HTC(TM) Grids it manufactures
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and sells to Trex Medical shall (i) be of good quality and workmanship, (ii) be
free from defects in material or workmanship, and (iii) conform to all
specifications applicable to the orders for HTC(TM) Grids. In the event of a
claim for breach of warranty made in writing by Trex Medical to Tecomet within
six (6) months following the delivery of an HTC(TM) Grid to Trex Medical,
Tecomet shall at its expense, repair or replace (at its option) any defective
HTC(TM) Grids.
THE PROVISIONS OF THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER
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WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
No remedy available to Buyer for any breach of any warranties hereunder shall be
limited except to the extent and in the manner expressly agreed upon by Buyer in
an executed document which specifies such limitation. Buyer's approval of any
sample or acceptance of any HTC(TM) Grid shall not relieve Seller from
responsibility to deliver goods and to perform services conforming, in all
respects, to the sample. These warranties shall not be deemed waived either by
reason of Buyer's acceptance of HTC(TM) Grids or by payment for them and shall
survive delivery.
6. Term/Termination.
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(a) Provided the Parties execute the Agreement for Use of HTC(TM) Grid
Technology referred to in the fourth paragraph of this Agreement on the same
date as the execution of this Agreement, this Agreement shall be effective as of
the date first set forth above. Except as otherwise provided herein, the term
of this Agreement shall be for a period of three (3) years from the date hereof
and shall automatically renew for additional one (1) year periods unless either
Party gives written notice of termination to the other Party at least six months
prior to the expiration of the current term.
(b) Upon the occurrence of a breach or default as to any obligation
hereunder by either Party and the failure of the breaching Party to cure such
breach or default within thirty (30) days after receiving written notice thereof
from the non-breaching Party, this Agreement may be terminated by the non-
breaching Party by giving written notice of termination to the breaching Party,
such termination being immediately effective upon the giving of such notice of
termination.
(c) The Parties acknowledge that as of the effective date of this
Agreement, the lead time for Tecomet to obtain the material it uses in
manufacturing the HTC(TM) Grids is substantial - up to sixty (60) weeks, and the
Parties agree that as long as Tecomet exercises all commercially reasonable
efforts to obtain the necessary materials to fill Trex Medical's orders for
HTC(TM) Grids, Tecomet's failure to deliver HTC(TM) Grids based solely on
inability to obtain such material shall not constitute a breach of this
Agreement.
(d) Upon the filing of a petition in bankruptcy, insolvency or
reorganization against or by either Party, or either Party becoming subject to a
composition for creditors, whether by law or agreement, or either Party going
into receivership or otherwise becoming insolvent (such Party hereinafter
referred to as the "insolvent party"), this Agreement may be terminated by the
other Party by giving written notice of termination to the insolvent Party, such
termination being immediately effective upon the giving of such notice of
termination.
(e) In the event of termination for Tecomet's breach, or by Trex Medical
for reasons specified in Section 6(d) above, Tecomet will cooperate in the
transfer, to Trex Medical or a third-party supplier specified by Trex Medical,
of the Trex Medical-owned tooling for HTC(TM) Grids which is in Tecomet's
possession and shall make the Technology available to Trex Medical or such
supplier, as the case may be, to the extent necessary for, and for the limited
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purpose of, manufacturing HTC(TM) Grids; provided, however, that following such
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transfer, Trex Medical shall pay Tecomet a royalty of five percent (5%) of the
purchase price of each HTC(TM) Grid that Trex Medical manufactures or purchases
from the third-party supplier.
(f) Sections 3, 5, 6(e), 6(f), 7, 8, 9, and 10 shall survive termination
of this Agreement. Following termination Tecomet shall have no further right to
manufacture HTC(TM) Grids without the prior written consent of Trex Medical.
7. Indemnification / Liability.
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(a) Each Party (the "Indemnitor") shall indemnify, defend, and hold
harmless the other Party and its officers, directors, employees, and agents
(collectively, "the Indemnitee") from and against any claim, demand, suit, or
action (including without limitation attorneys' fees and disbursements and court
costs) which are asserted against the Indemnitee for any damage to property or
injury to persons arising out the negligent acts or omissions of the Indemnitor
in performance of this Agreement; provided, however, that the Indemnitee shall
be obligated to furnish prompt notice of the claim, demand, suit, or action, and
to allow the Indemnitor to assume the defense thereof, and at the request and
cost of the Indemnitee to furnish reasonable cooperation and assistance in such
defense.
(b) In no event shall either Party be liable to the other for special,
incidental, indirect, punitive, or consequential damages (including, but not
limited to, loss of profits, loss of goodwill, or damages for loss of data or
loss of use) arising out of the manufacture, sale, purchase, use, or disposition
of the HTC(TM) Grids, even if such Party has been advised of the possibility of
such damages or is negligent.
8. Confidentiality. Each Party agrees not to disclose confidential
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aspects of the Technology to others except as required in connection with the
manufacture, purchase, sale, and use of the HTC(TM) Grids as permitted by this
Agreement. Each such disclosure shall be subject to a confidential disclosure
agreement obligating the recipient to maintain the disclosed information in
confidence.
9. Notices. All notices given under this Agreement shall be in writing
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and shall be addressed to a Party at its address set forth in the first
paragraph of this Agreement, or to such other address or addresses as shall from
time to time be designated by written notice by either Party to the other as
herein provided. All notices shall be sent by registered or recorded delivery,
postage pre-paid and return receipt requested, or by overnight courier providing
proof of delivery, and shall be deemed duly given and received (i) if mailed, on
the third business day following the mailing thereof, or (ii) if sent by
courier, the day of its receipt (or, if such day is not a business day, the next
succeeding business day).
10. Miscellaneous.
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10.1 Governing Law. This Agreement and any controversies arising
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out of it shall be governed by the internal laws of the Commonwealth of
Massachusetts without reference to its choice of law provisions.
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10.2 Entire Agreement. Except for the Agreement for Use of HTC(TM)
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Grid Technology referred to in the fourth paragraph of this Agreement, which
shall remain in effect according to its terms and conditions, this Agreement
constitutes the entire understanding of the Parties with respect to the purchase
and sale of HTC(TM) Grids and supersedes and terminates all prior discussions,
agreements and understandings relative thereto.
10.3 Independent Parties. Each Party shall be an independent
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contractor, and the relationship between the Parties shall not be construed to
be that of an employer and employee, or to constitute a partnership, joint
venture, or agency of any kind.
10.4 Amendments / Conflicts. This Agreement may only be amended in a
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writing signed by both Parties. In the event of a conflict between any provision
of this Agreement and that of a quotation, order, acknowledgment, or other
document relative to the purchase or sale of HTC(TM) Grids, this Agreement shall
prevail unless such other document is signed by both Parties and includes
specific reference to the provision(s) of this Agreement to be amended or
altered.
10.5 Succession and Assignment. This Agreement shall be binding upon
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and inure to the benefit of the Parties and their successors and permitted
transferees. Except as otherwise provided herein, neither this Agreement nor
any rights or obligations may be assigned or transferred by either Party without
the prior written consent of the other Party; provided, however, that no consent
shall be needed for assignment or other transfer to a person or entity who owns
a majority interest in, or a majority interest of which is owned by, the
transferring Party, or for a transfer to any person or entity to whom is being
sold substantially all of the assets of such Party relating (for Tecomet) to its
manufacture of HTC(TM) Grids or relating (for Trex Medical) to its products
which use HTC(TM) Grids.
10.6 Force Majeure. Neither Party shall be liable in damages nor
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subject to termination of this Agreement by the other Party for any delay or
default in performing any obligation hereunder if that delay or default is due
to any cause beyond the Party's reasonable control, including but not limited to
an act of any governmental authority, industrial dispute, fire, explosion,
accident, power failure, flood, riot, or war; provided that, in order to excuse
its delay or default hereunder, a Party shall notify the other of the occurrence
or the cause, specifying the nature and particulars thereof and the expected
duration thereof, and shall use its best efforts to mitigate the duration and
effect of such occurrence or cause; and provided, further, that within fifteen
(15) calendar days after the termination of such occurrence or cause, such Party
shall give notice to the other Party specifying the date of termination thereof.
All obligations of both Parties shall again apply upon the termination of such
occurrence or cause.
10.7 Severability. If any provision of this Agreement is declared
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invalid or unenforceable by a court having competent jurisdiction, it is
mutually agreed that this Agreement shall endure except for the part declared
invalid or unenforceable by order of such court.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in duplicate counterparts by their duly authorized representatives.
TECOMET INC. TREX MEDICAL SYSTEMS
CORPORATION
By: /s/ Xxxxxx Xxxxxxxx By: /s/ XX Xxxx
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Name: Xxxxxx Xxxxxxxx Name: XX Xxxx
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Title President Title: President and CEO
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Date 8/23/00 Date 8/18/00
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