EXHIBIT 10.1
EXCLUSIVE PRIVATE LABELING AND DISTRIBUTION AGREEMENT
THIS EXCLUSIVE PRIVATE LABELING AND DISTRIBUTION AGREEMENT (this
"AGREEMENT") is entered into as of this 5th day of May, 2005 by and between
BIOLIFE SOLUTIONS, INC., a Delaware corporation with its principal offices
located at 000 Xxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 ("SUPPLIER"), and VWR
INTERNATIONAL, INC., a Delaware corporation with its principal offices located
at 0000 Xxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 ("VWR").
1. PRODUCTS
The products covered by this Agreement are those set forth in
the attached Addendum A, and all modifications, improvements
and developments pertaining thereto (collectively, the
"PRODUCTS"). Addendum A shall be amended only in an written
amendment signed by both parties hereto. Products may also be
added to this Agreement upon mutual agreement.
2. GRANT OF EXCLUSIVE DISTRIBUTORSHIP
(a) Except as set forth in Section 2(b) below, SUPPLIER hereby
grants to VWR, and VWR hereby accepts, on the terms and
conditions stated in this Agreement, the sole and exclusive
right during the term of this Agreement to promote, market,
sell and distribute the Products for non-clinical use
throughout the world (the "Territory").
(b) (i) The right granted pursuant to Section 2(a) above, shall
not include the right to combine any Product with another
manufactured product which, when combined with the Product,
changes or enhances the function of the manufactured product
or the manner in which it is used ("Combined Product"), and
promote, market, sell and distribute the same as one product
or as a kit. VWR reserves the right to bundle any Product with
another manufactured product for marketing and sales purposes.
(ii) Notwithstanding anything to the contrary contained in
Section 2(a) above, SUPPLIER shall retain the right to
directly, but not through non-affiliated third parties,
promote, market, sell and distribute the Products for
non-clinical throughout the Territory under its own label.
(c) SUPPLIER specifically reserves all rights to market, sell and
distribute, directly and indirectly, (i) the Products for
clinical use, and (ii) for non-clinical use when the Product
is to be used as part of a Combined Product; provided,
however, that should SUPPLIER wish to grant to any
non-affiliated third party the right to market, sell and
distribute the Products for clinical use, SUPPLIER shall give
VWR written notice thereof and for a period of sixty (60) days
from the date of such notice VWR shall have a right of first
negotiation with SUPPLIER with respect thereto.
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(d) The exclusive right granted to VWR pursuant to Section 2(a)
hereof, may become non-exclusive, at the option of SUPPLIER,
in the event sales of the Products to VWR by SUPPLIER do not
equal at least the following dollar amounts during the term of
this Agreement:
First Year $375,000
Second Year $1,000,000
Third Year $1,500,000
Fourth Year $2,000,000
Fifth Year and thereafter $2,500,000
In the event VWR's right hereunder becomes non-exclusive
pursuant to this Section 2(d), then, in addition to the rights
reserved to SUPPLIER under Section 2(b)(ii) above, SUPPLIER
may promote, market, sell and distribute the Products for
non-clinical use, under any brand name, throughout the
Territory, through non-affiliated third parties.
3. GRANT OF LIMITED LICENSE, LABELING AND PACKAGING OF THE PRODUCTS
(a) Subject to the terms and conditions set forth in this
Agreement, VWR grants to SUPPLIER, and SUPPLIER hereby
accepts, a non-assignable license, without the right to
sublicense, to use VWR's manuals, logos, copyrighted
information, brand names, trademarks and trade names (the "VWR
Marks") solely for the purpose of providing the packaging,
labeling and branding of the Products, as provided in Section
3(b).
(b) SUPPLIER shall provide the Products to VWR with certain
packaging, labels and branding containing the VWR Marks
(hereinafter, the "VWR Labels"). VWR will provide to SUPPLIER
VWR Xxxx artwork for printing on VWR Labels. SUPPLIER shall
determine all other aspects of the VWR Labels and their
contents including without limitation the format and size, the
instructions and warnings and all necessary legal and
regulatory requirements (the "Label Specifications"). If VWR
revises the VWR Marks, SUPPLIER shall revise the VWR Labels
for such new VWR Marks within ninety (90) days of receipt of
such changes from the VWR. Supplier shall advise VWR, in
advance, of any increase in cost as a result of any such
changes to the VWR Marks directed by VWR.
(c) All VWR labels shall disclose that the Product is proprietary
to SUPPLIER and manufactured by SUPPLIER for VWR.
(d) The final VWR Xxxx format, but not the content, of the VWR
Labels shall be subject to VWR's prior written approval. For
this purpose, SUPPLIER shall provide VWR with layout, design,
black line sketches, finished art and sample of color proofs
in advance of printing and shall supply from the first print
run and each subsequent print run samples for VWR's written
approval. VWR shall indicate approval or lack thereof within
fifteen (15) days of its receipt of such materials. VWR shall
indicate the reasons for disapprovals and the changes needed
to obtain approval. SUPPLIER shall ensure that each copy
thereafter printed shall conform in all respects to what has
been approved by VWR and shall not ship or deliver copies of
the Labels which do not so conform. SUPPLIER will not proceed
with label implementation of any change without written final
approval of each label.
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4. TERM AND RENEWAL
The initial term of this Agreement shall begin on the date set forth on
the signature page of this Agreement and shall continue for a period of
five (5) years and, unless earlier terminated as set forth in Section
13 or by either party at the expiration of the then current term upon
not less than ninety (90) days' prior notice, shall thereafter renew
automatically for additional and successive terms of one (1) year each.
5. PRICE
(a) SUPPLIER represents that the prices, discounts, rebates,
payment terms and other terms and conditions (collectively,
the "Commercial Terms") contained in this Agreement are the
optimum offered by SUPPLIER to any customer with a comparable
purchase pattern and annual dollar volume. In the event any
other similarly situated non-clinical customer is given better
Commercial Terms, SUPPLIER agrees to and shall automatically
extend the same Commercial Terms to VWR retroactive to the
date on which such more favorable Commercial Terms were first
offered.
(b) SUPPLIER shall maintain accurate records of all information
necessary for VWR to verify SUPPLIER's compliance with this
provision. Such records shall be maintained for at least two
(2) years after termination of this Agreement and SUPPLIER
shall make such records reasonably available to VWR or its
representative, under appropriate confidentiality provisions,
solely to enable VWR to verify SUPPLIER's compliance with this
provision.
(c) The price to VWR for the Products purchased pursuant to this
Agreement shall be the applicable price for such Products as
set forth in Addendum B. SUPPLIER shall be entitled to
reasonable price increases from time to time based upon
increases in the price paid by SUPPLIER for raw materials used
in the manufacture of the Products, such price increases to be
negotiated in good faith by SUPPLIER and VWR; provided,
however, that SUPPLIER will not propose a price increase for
the Products more than once in any calendar year commencing
January 1, 2006. In the event that VWR and SUPPLIER mutually
agree to a price increase, SUPPLIER shall provide to VWR an
updated Master Data File not later than October 1st of the
year in which the price increase is agreed upon (three (3)
months before the effective date of any such price increase).
All pricing information regarding the Products shall be
treated as "confidential" in accordance with Section 12
hereof.
6. VWR'S DUTIES
VWR SHALL:
(a) Within thirty (30) days after the execution and delivery of
this Agreement, VWR shall inform SUPPLIER of VWR's expected
volume requirements for Products for the forthcoming calendar
quarter. Thereafter, VWR shall use its commercially reasonable
best efforts to inform SUPPLIER, not less than sixty (60) days
prior to the forthcoming calendar quarter, of VWR's expected
volume requirements for Products for that quarter. In no event
shall any forecast provided by VWR be construed to be a
requirement that VWR purchase the amount of Products set forth
in that forecast.
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(b) Submit its order for Products on VWR's standard purchase order
form, via electronic data interchange or other method of
electronic commerce. All purchase orders shall be governed
only by the terms and conditions of this Agreement,
notwithstanding any inconsistent preprinted terms or
conditions appearing elsewhere on any other VWR or SUPPLIER
document.
(c) Pay all invoiced amounts within forty five (45) days of the
receipt of the Products; provided, that VWR shall be given a
two percent (2%) discount thereon if all invoiced amounts are
paid within thirty (30) days of receipt.
(d) Communicate to SUPPLIER any modifications, design changes or
improvements respecting the Products suggested by any
customer.
(e) Use its best efforts to advertise, promote, market, sell and
distribute the Products by methods which in VWR's judgment are
best suited for the sale of the products.
(f) Provide instruction to VWR's customers in the use and routine
maintenance of the Products in accordance with advice
furnished to VWR by SUPPLIER.
(g) Properly and courteously resolve billing disputes with
SUPPLIER.
(h) Confer with SUPPLIER to maximize promotion activities and
sales of the Products.
7. SUPPLIER'S DUTIES
SUPPLIER SHALL:
(a) Ship all Products FOB origin; via VWR's specified carriers in
accordance with VWR's most recently published routing guides
and shipping instructions. UPS or similar parcel-like
shipments shall be shipped by SUPPLIER to VWR via UPS. VWR
acknowledges that once Products are shipped they are
non-returnable, except as set forth in Sections 6(a), 7(m)(2),
9(a) and 10(c) hereof.
(b) Transfer good and marketable title to the Products, free and
clear of any liens or encumbrances.
(c) Pack, package, xxxx and otherwise prepare all Products for
shipment in a manner which is in accordance with the standards
of the International Safe Transit Association and good
commercial practice, acceptable to common carriers for
shipment, and adequate to insure their safe arrival at the
named destination. SUPPLIER shall comply with VWR's Global
Logistics / Delivery requirements, a copy of which has been
delivered to SUPPLIER.
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(d) Promptly furnish to VWR, when reasonably requested from time
to time and at no cost, reasonable quantities of original
factory outer cartons and packaging materials.
(e) Submit invoices to VWR with each shipment of Products which
shall include: purchase order numbers, Product numbers,
descriptions of Products, quantities, unit price and complete
xxxx to address for the Products so delivered.
(f) Properly and courteously resolve billing disputes with VWR,
and provide VWR with such information or assistance as VWR may
reasonably require to resolve billing disputes with its
customers or freight claims with carriers.
(g) Except as otherwise agreed, deliver Products as instructed by
VWR having at least six (6) months of shelf-life remaining
from the date of delivery to their expiration dates.
(h) Provide the warranties as set forth in Section 10.
(i) Promptly refer to VWR any inquiries or orders SUPPLIER may
receive from VWR customers respecting the Products.
(j) During the term of this Agreement and for a period of three
(3) years following its termination or expiration, procure and
maintain, at its sole cost and expense, with insurers
reasonably acceptable to VWR, general comprehensive liability
insurance covering each occurrence of bodily injury and
property damage in an amount of not less than $2,000,000
combined single limit with endorsements for product and
completed operations, blanket contractual liability, and broad
form vendor's liability. Such policy of insurance shall name
VWR as an additional insured thereunder. SUPPLIER shall
furnish to VWR before shipment of any Products a certificate
of insurance evidencing the foregoing endorsements, coverages
and limits, and providing that such insurance shall not be
cancelable or materially changed without at least thirty (30)
days' prior written notice to VWR.
(k) Timely furnish VWR, at no cost, with material safety data
sheets in a format acceptable to VWR's MSDS retrieval systems,
and any other documentation reasonably necessary to enable VWR
to comply with any then prevailing applicable federal or
country, state, municipal or local law, rule or regulation
(collectively, "Laws") relating to the Products, reasonable
quantities of SUPPLIER's sales literature in compliance with
VWR's Marketing Guidelines, product insert sheets and customer
instruction manuals for each Product, cooperate with VWR for
VWR created SUPPLIER literature and catalog modules by
completing VWR artwork approval forms upon request in a timely
manner and, upon request, suitable copy and photographs for
use by VWR in advertising and cataloging. SUPPLIER will
maintain accurate and current MSDS documentation and will
provide to VWR any revised MSDS documents as necessary.
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(l) For each Product sold to VWR, provide VWR with a current and
accurate Certificate of Origin pursuant to Article 504 of the
North American Free Trade Agreement ("NAFTA"). SUPPLIER agrees
to indemnify VWR and its customers from and against any
increased duties, penalties or other costs relating to
SUPPLIER's failure to provide a current and accurate
Certificate of Origin. In addition, VWR may refuse to export
Products within the NAFTA region and/or may withhold payment
for Products until SUPPLIER complies with all its obligations
hereunder.
(m) Comply (or cause compliance) in all material respects with any
Laws, including, but not limited to, the Federal Food, Drug
and Cosmetic Act, as amended from time to time, and the
regulations issued thereunder and similar laws within the
Territory, applicable to the conduct of SUPPLIER's business or
the manufacture, packaging, labeling and sale to VWR of
Products pursuant to this Agreement including, but not limited
to, the following:
(1) Immediately notifying VWR upon becoming aware of any
defect or condition (actual or alleged) which in any
way may alter the specifications or quality of any
Products, render any Products in violation of any
Laws, cause revocation of any regulatory approval
with respect to any Products or their sale, give rise
to a claim against VWR by any third party, or
otherwise negatively affect the salability of any
Products.
(2) Promptly notifying VWR of any Products affected by
holds or recalls, and reimburse VWR for the full
price paid by VWR for any Products returned to VWR by
a customer, or to SUPPLIER by VWR, due to a recall or
other manufacturing defect, plus all taxes,
transportation and other costs and expenses incurred
by VWR in the return thereof.
(n) Assist VWR's promotion activities including, without
limitation, having SUPPLIER's personnel accompany VWR's sales
personnel on sales presentations at such times, at such places
and with expenses allocated as may be agreed upon from time to
time by VWR and SUPPLIER. SUPPLIER's assistance shall focus
particularly in promoting the technical features, capabilities
and benefits of the Products. SUPPLIER shall also provide
VWR's customers from time to time with reasonable quantities
(e.g. 10-15 mmls) of sample Products at no charge, and make
Products available from time to time for demonstrations at the
facilities of VWR's customers.
(o) Develop and conduct training programs for VWR's employees with
respect to the Products at such times and places as may be
agreed upon from time to time by VWR and SUPPLIER, the cost
thereof to be borne by VWR.
(p) Make any claims for unpaid invoices in writing within one year
of the date of SUPPLIER's first invoice for such amount. VWR
shall not be obligated to make payments for, or investigate,
claims which are dated more than one year prior to SUPPLIER's
written claim or request for investigation.
(q) During the term of this Agreement and for a period of three
(3) years following its termination or expiration, keep and
maintain in accordance with GAAP complete and accurate
records, books of account, reports and other data related to
SUPPLIER's sales of Products to VWR during the prior three (3)
year period.
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(r) Label the Products under such brand name(s), trade name(s),
trademark(s) or logo(s) as set forth in Sections 3(b) and 3(c)
hereof, and as may be agreed upon by VWR and SUPPLIER from
time to time.
(s) If Products ordered by VWR during the each year of this
Agreement remain unsold at the end of such year, then, at the
request of VWR delivered to SUPPLIER no later than sixty (60)
days after the end of such year, SUPPLIER shall issue a return
goods authorization, without any restocking charges, for up to
one percent (1%) of the Products ordered by VWR during such
year.
(t) Notify VWR, in writing and no less than six (6) months prior
to discontinuing any Product.
(u) Notify VWR, in writing and no less than thirty (30) days prior
to renewal, whenever SUPPLIER reduces VWR's margin on Special
Price Quotation (SPQ's) renewal.
(v) For chemicals, and other regulated products, maintain
retention samples of all Products for each individual lot
number, until the expiration of the individual lot or as
specified by any regulatory agency with regulatory
jurisdiction over the Product.
(w) Notify VWR in writing no less than ninety (90) days prior to
any change to Product including, but not limited to,
manufacturing process or location, labeling, raw materials,
packaging, characterization, specification, analytical testing
or origin or any other change affecting form, fit or function
of the affected Products. VWR shall have the right to audit
SUPPLIER's facilities to determine compliance with applicable
federal, state, and local laws, regulations and rules and
other requirements applicable to the Products. Such audits
shall be scheduled at mutually agreeable times upon reasonable
advance written notice to SUPPLIER, shall be at VWR'S expense,
and shall not occur more than one (1) time per calendar year
unless required by SUPPLIER's compliance status or VWR's
obligations to its customers. In connection with performing
such audits, VWR shall comply with all reasonable rules and
regulations promulgated by SUPPLIER. All information disclosed
or reviewed in such inspections shall be deemed to be the
property of SUPPLIER and SUPPLIER Confidential Information.
(x) Implement and support a dedicated toll-free technical support
line for end-users and VWR sales representatives to support
the VWR Private Label line.
(y) Make available at SUPPLIER's offices, by email or telephone,
its merchandising manager to aid VWR in the development and
production of a mutually agreed amount of full color flyers,
and/or brochures.
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(z) Provide other merchandising support including regular Market
Reporter articles and competitive cross-references.
8. FORCE MAJEURE
(a) In the event either party is prevented from performing its
obligations under this Agreement solely by circumstances
beyond the reasonable control and without the fault or
negligence of the party obligated to perform (including,
without limitation, strikes or other labor difficulties except
those involving either party, war, shortages of power or raw
material, Laws or acts of God), upon the prompt giving of
notice to the other party detailing such force majeure event
and its anticipated duration, the obligations of the party so
prevented shall be excused during such period of delay, and
such party shall take whatever reasonable steps are necessary
to relieve the effect of such cause as rapidly as possible.
The party invoking a force majeure event shall notify the
other party promptly upon the termination of such event.
(b) During the period that the performance by one of the parties
of its obligations under this Agreement has been suspended by
reason of a force majeure event, the other party may likewise
suspend the performance of all or part of its obligations
hereunder to the extent that such suspension is commercially
reasonable.
9. PROPRIETARY RIGHTS
(a) PATENTS AND INFRINGEMENT
SUPPLIER shall prosecute diligently each application for
patent which is now or hereafter pending covering some one or
more of the Products and on issuance diligently prosecute each
infringer thereof. SUPPLIER shall repurchase from VWR, at a
price equivalent to the full purchase price paid by VWR, any
quantity of Products in VWR's inventory which VWR reasonably
believes it should not or cannot sell, based on the reasonable
opinion of VWR's counsel that future sales by VWR may result
in patent, trade name, trademark, service xxxx, copyright or
trademark infringement, or violation of any other proprietary
right, or because of a decision, whether interlocutory or
final, rendered in an action alleging any such infringement or
violation.
(b) OWNERSHIP OF PROPRIETARY RIGHTS
(1) SUPPLIER recognizes that VWR is the owner of certain
brand names, trademarks, trade names, logos and other
intellectual property, including the VWR Marks,
connoting VWR which is proprietary to VWR, and that
SUPPLIER has no right or interest in or to any of
such intellectual property, other than as provided in
Section 3(a) hereof.
(2) Except as otherwise contemplated by this Agreement,
neither SUPPLIER nor VWR, shall, without the prior
written consent of an authorized officer of the other
party, use any of such other party's brand names,
trademarks, trade names or logos, or adopt, use or
register any words, phrases or symbols so nearly
resembling any of such other party's brand names,
trademarks, trade names or logos as to be likely to
lead to confusion or uncertainty, or to impair or
infringe the same in any manner, or otherwise imply
any endorsement by one party of the other party or
its products or services.
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(3) VWR recognizes that SUPPLIER is the owner of patents,
trademarks and other intellectual property with
respect to the Products, and that VWR has no right or
interest in or to such intellectual property.
10. PRODUCT WARRANTIES
(a) As a condition of this Agreement, SUPPLIER specifically
represents and warrants to VWR that all Products shipped by
SUPPLIER to or on the order of VWR, its subsidiaries,
affiliates, divisions, subdistributors, agents,
representatives or customers, as of the date of such shipment:
(1) Are free from defects in design, operation,
workmanship and materials, conform in all respects
with all labeling and product insert sheets and other
product specifications and claims made by SUPPLIER
for them, are produced consistent with good
manufacturing practices and good quality control
practices.
(2) Do not infringe upon any patent, trade name,
trademark, service xxxx, copyright, or other
proprietary rights of third parties.
(3) Are not products which may not be introduced into
commerce, adulterated or misbranded, or banned
devices, within the meaning of the Act or any other
Laws.
(4) Are manufactured, priced, sold, labeled and packaged
in compliance with all Laws applicable to the
Products including, without limitation, environmental
protection, health and safety, energy, and employment
and labor laws, rules and regulations, and applicable
industry codes and standards and the California Safe
Drinking Water and Toxic Enforcement Act of 1986, as
amended from time to time.
(5) Are not hazardous substances or, if they are
hazardous substances, are not misbranded or banned
hazardous substances within the meaning of the
Federal Hazardous Substances Act, as amended from
time to time (including the former Federal Caustic
Poison Act), and are labeled and packaged in
accordance with all Laws relating to hazardous
substances.
(6) To the extent such Products are subject to the
Flammable Fabrics Act, as amended from time to time,
and regulations thereunder, have reasonably and
representatively been tested as prescribed by the
Consumer Product Safety Commission to ensure
conformity, at the time of shipment, to the
flammability standards in effect under the Flammable
Fabrics Act, as amended from time to time, any
applicable codes of the National Fire Protection
Association, and any other Laws relating to flammable
substances.
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EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
SUPPLIER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCTS. SUPPLIER DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(b) SUPPLIER authorizes VWR to pass through all warranties to
VWR's customers.
(c) SUPPLIER shall promptly replace, at no cost to VWR, any
Product which is defective or non-conforming, with a
non-defective or conforming Product (as applicable) or, at
VWR's option, credit VWR's account for all amounts paid with
respect to the defective or non-conforming Product. SUPPLIER
shall pay all taxes, transportation and other costs and
expenses incurred by VWR in the replacement of any defective
or non-conforming Product.
11. INDEMNIFICATION BY SUPPLIER
(a) INDEMNIFICATION
SUPPLIER shall indemnify, defend, and hold harmless each of
VWR, its subsidiaries, affiliates, divisions, subdistributors,
agents, employees, representatives and customers, and its or
their respective successors and assigns (each, an "INDEMNIFIED
PARTY") from and against, and in respect of, any and all
actions, claims, suits, judgments, damages, liabilities,
losses, penalties, costs and expenses (including, without
limitation, attorneys' fees) of every kind whatsoever
(collectively, "DAMAGES") arising in any manner out of or
from, or in connection with any actual or alleged (i) patent,
copyright or trademark infringement, or violation of any other
proprietary right, arising out of the purchase, sale,
distribution or use of any Product, (ii) breach by SUPPLIER of
any term or provision of this Agreement, (iii) personal
injury, wrongful death or property damage arising out of or
relating to any Product including, but not limited to, the use
of any Product, and (iv) wrongful or negligent act or omission
by SUPPLIER and its officers, directors, shareholders, agents,
servants, employees, representatives or subcontractors;
provided, that this Section 11(a) shall not obligate SUPPLIER
to indemnify any Indemnified Party for any portion of Damages
(except for Damages based on theories of strict liability)
directly attributable to, and directly caused by, the gross
negligence of an Indemnified Party or any unauthorized
warranty relating to the Products by VWR.
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(b) PROCEDURE
Each Indemnified Party shall notify SUPPLIER of any third
party claim for which such Indemnified Party seeks
indemnification under this Agreement; provided, that the
failure to deliver such notice shall not affect SUPPLIER's
obligations to any Indemnified Party under this Section 11
except to the extent that such failure results in (i) the
failure of actual notice to SUPPLIER, and (ii) damage to
SUPPLIER, or an increase in SUPPLIER's indemnification
liability, solely as a result thereof. SUPPLIER may, but is
not obligated to, assume the defense of any claim to which
this Section 11 relates or may relate, and may appoint legal
counsel responsible for such defense; provided, that if
SUPPLIER chooses to assume such defense, any Indemnified Party
may, at its own expense, select its own counsel to represent
it; and provided further, that SUPPLIER may not settle any
such claim against an Indemnified Party without the prior
written consent of such Indemnified Party. If SUPPLIER elects
not to assume such defense, such Indemnified Party may elect
to do so and SUPPLIER shall pay all costs and expenses of
counsel selected by such Indemnified Party in connection with
such defense. Any legal counsel appointed by SUPPLIER to
defend such a claim shall be experienced in the type of
litigation involved and shall be reasonably satisfactory to
VWR. SUPPLIER and each Indemnified Party shall cooperate fully
in connection with all matters related to the defense of any
such claim.
(c) LIMITATION ON LIABILITY
EXCEPT TO THE EXTENT INCLUDED IN DAMAGES FOR AN INDEMNIFIED
THIRD PARTY CLAIM UNDER SECTION 11(a) HEREOF, SUPPLIER SHALL
NOT BE LIABLE TO ANY INDEMNIFIED PARTY (NOR TO ANY PERSON
CLAIMING RIGHTS DERIVED FROM ANY INDEMNIFIED PARTY) FOR
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR
PROFITS OR LOSS OF BUSINESS) IN ANY WAY RELATING TO THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION AS A RESULT OF ANY
BREACH OF WARRANTY OR OTHER TERM OF THIS AGREEMENT OR AS A
RESULT OF NEGLIGENCE OR BREACH OF STATUTORY DUTY), REGARDLESS
OF WHETHER SUPPLIER WAS ADVISED, HAD OTHER REASON TO KNOW, OR
IN FACT KNEW OF THE POSSIBILITY THEREOF.
12. CONFIDENTIALITY
(a) INFORMATION
During the term of this Agreement, each party may have or may
be provided access to the other party's confidential
information and materials (including, without limitation,
marketing, sales and new product development information). All
such information which, if in written or other tangible form,
is clearly designated as "confidential" or, if disclosed
orally, is designated as "confidential" in a written
memorandum delivered by the disclosing party promptly
following such oral disclosure, shall be retained in
confidence in accordance with the terms of this Agreement and
any applicable separate nondisclosure agreement between
SUPPLIER and VWR. Further, neither party shall (except as
expressly authorized herein during the term of this
Agreement), either during the term of this Agreement or after
its termination or expiration, use, publish or disclose or
cause or permit anyone else to use, publish or disclose any
such information, unless the disclosing party can show by
written evidence that such information was known to it at the
time of receipt thereof from the other party, or until such
information becomes publicly available through no fault of the
disclosing party, and except as disclosure may be required by,
or pursuant to, Laws or other act or order of any court,
government or governmental agency, as to which the disclosing
party shall give the party whose information is being
disclosed prompt notice, and with whom the disclosing party
shall confer on the possibility of seeking a protective order
or other means to preserve the confidentiality of the
information required to be disclosed.
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(b) TERMINATION
Upon termination or expiration of this Agreement, each party
shall either return all copies of any confidential information
of the other party described in Section 12(a) in such first
party's possession or control, or certify in writing that all
such tangible information has been destroyed.
(c) REMEDY
Each party recognizes and acknowledges that the other party
would not have any adequate remedy at law for the breach by
the first party of any one or more of its obligations
contained in this Section 12, and agrees that in the event of
any such actual or potential breach, the non-breaching party
may, in addition to the other remedies which may be available
to it, file a suit in equity to enjoin the other party
therefrom.
13. TERMINATION
(a) Either party shall have the right to terminate this Agreement,
effective immediately upon notice and without prejudice to any of its
other rights or remedies, if the other party:
(i) BANKRUPTCY OR INSOLVENCY
Becomes insolvent, bankrupt or shall generally fail to pay its
debts as such debts become due; admits in writing its
inability to pay its debts; has a receiver or trustee
appointed for it or its property; makes an assignment for the
benefit of its creditors; has commenced by, for or against it
any proceedings under any Law related to bankruptcy,
insolvency or the reorganization or the release of debtors; or
becomes liquidated or dissolved.
(ii) FORCE MAJEURE
Is affected by a force majeure event which continues for more
than six (6) consecutive months.
(iii) DEFAULT OR BREACH
Defaults or is in breach of any material term or provision of
this Agreement, and fails (i) within ten (10) days following
delivery by the terminating party of a notice specifying such
default or breach, to notify the terminating party that such
default or breach has been cured or shall be cured within
thirty (30) days following delivery of such notice, or (ii)
within thirty (30) days following delivery by the terminating
party of such notice, to remedy such default or breach to the
terminating party's reasonable satisfaction.
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(b) TERMINATION FOR CONVENIENCE
VWR may terminate this Agreement at any time with or without
cause and without liability for such termination, upon ninety
(90) days written notice to SUPPLIER.
14. PROCEDURES ON TERMINATION OR EXPIRATION
(a) WINDUP
For a period of sixty (60) days following the effective date
of termination of this Agreement by VWR pursuant to Section
13(b), SUPPLIER shall continue to honor VWR's orders for
Products, and VWR shall pay for the Products on the terms and
conditions of this Agreement.
(b) SURVIVAL
The provisions of Sections 6(c), 7(b), 7(f), 7(j), 7(m), 7(p),
7(q), 9, 10, 11, 12 and this 14 shall remain in full force and
effect following the termination or expiration of this
Agreement.
15. MISCELLANEOUS
(a) NOTICES
All notices required by this Agreement shall be in writing,
and shall be effective on receipt if delivered personally, on
the first business day following the date of mailing if sent
by a nationally recognized courier guaranteeing next day
delivery, or on the third business day following the date of
mailing if sent by certified mail, postage prepaid, addressed
as follows (or to such other addresses as may be designated by
similar notice from time to time delivered to the other
party):
If to SUPPLIER, to:
BioLife Solutions, Inc.
000 Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Ph.D.
If to VWR, to:
VWR International, Inc.
0000 Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx X. X'Xxxxxx
e-mail address: xxxx_xxxxxxx@xxx.xxx
(must be followed-up with written copy)
Page 13 of 16
(b) US GOVERNMENT PROCUREMENT REGULATIONS
If the Products to be furnished by SUPPLIER are to be used in
the performance of a U.S. government contract or subcontract,
those clauses of the applicable U.S. Government procurement
regulation which are required by Federal Statute to be
included in U.S. Government subcontracts shall be incorporated
herein by reference including, without limitation, the Fair
Labor Standards Act of 1938, as amended.
(c) MERGER, MODIFICATION AND WAIVER
This Agreement, the attached Addenda and VWR's Global
Logistics and Delivery Requirements and Regulatory Requirements are the entire
agreement between the parties with respect to the subject matter hereof, there
being no prior or contemporaneous written or oral promises or representations
not incorporated herein. No amendment, modification or waiver of the terms of
this Agreement shall be binding on either party unless reduced to writing and
signed by an authorized officer of the party to be bound and, in the case of a
waiver, shall be effective only in the specific instance, and for the specific
purpose for which given, and shall not be construed as a waiver of any
subsequent breach. The failure of either party to enforce at any time or for any
period of time any of the provisions of this Agreement shall not be construed as
a waiver of such provisions or of the right of such party thereafter to enforce
each and every such provision.
(d) CONSTRUCTION AND INTERPRETATION
The captions in this Agreement have been inserted for
convenience of reference only and do not constitute a part of,
and shall not be considered in construing, this Agreement. If
any portion of this Agreement is held by a court of competent
jurisdiction to be invalid for any reason, the remainder of
this Agreement shall not be deemed invalid but shall remain in
full force and effect. No course of dealing, usage of trade or
course of performance shall supplement, explain or amend any
term, condition or instruction of this Agreement, or any
shipment of Products hereunder.
(e) APPLICABLE LAW AND VENUE
This Agreement is made pursuant to, and shall be construed and
enforced exclusively in accordance with, the internal laws of
the State of Delaware (and United States federal law, to the
extent applicable), without giving effect to otherwise
applicable principles of conflicts of law. The United Nations
Convention on Contracts for the International Sales of Goods
expressly does not apply.
(f) AUTHORITY TO ENTER INTO AGREEMENT
SUPPLIER represents and warrants that it is authorized to
enter into this Agreement and that in so doing it is not in
violation of the terms or conditions of any contract or other
agreement to which it may be a party.
Page 14 of 16
(g) ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns and designees; provided, however, that
SUPPLIER shall not have the right to transfer, assign or
delegate its rights or obligations under this Agreement or any
portion thereof without the prior written consent of an
authorized representative of VWR, which consent shall not be
unreasonably withheld (except that SUPPLIER may assign this
Agreement to a parent, subsidiary or successor corporation
without such consent).
(h) NATURE OF RELATIONSHIP
Neither party, its agents or employees shall, under any
circumstances, be considered to be an agent, partner, joint
venturer or representative of the other party, or anything
other than an independent contractor for all purposes of this
Agreement, and except as may be authorized specifically in
writing, neither party has express or implied authority to
bind the other in any manner whatsoever by virtue of this
Agreement.
(i) COUNTERPARTS
For convenience of the parties, this Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original for all purposes.
Page 15 of 16
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have caused this Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
BIOLIFE SOLUTIONS, INC.
By:/s/ Xxxx X. Xxxxx
---------------------------
Authorized Representative
Name: Xxxx X. Xxxxx
Title: President
Date: May 12, 2005
VWR INTERNATIONAL, INC.
By:/s/ Xxxxx Xxxx
---------------------------
Authorized Representative
Name: Xxxxx Xxxx
Title: VP Strategic Sourcing
Date: May 5, 2005
Page 16 of 16
