1
Exhibit 10.2
O.E.M. SUPPLY AGREEMENT
BETWEEN
LEICA MIKROSKOPIE UND SYSTEME GMBH
AND
ACCUMED INTERNATIONAL, INC.
MAY 26, 1997
2
O.E.M. SUPPLY AGREEMENT
THIS O.E.M. SUPPLY AGREEMENT is made as of the 26th day of May
1997, by and between ACCUMED INTERNATIONAL, INC., a company organized and
existing under the laws of Delaware and having its principal office at 000 X.
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, U.S.A. ("VENDOR"), and
LEICA MIKROSKOPIE und SYSTEME GmbH, a company organized and existing under the
laws of Germany and having its principal office at Xxxxx-Xxxxx Xxxxxxx, X-
00000, Xxxxxxx, Xxxxxxx ("LEICA").
ARTICLE 1
DEFINITIONS
1.1 "Accessories" shall mean the accessories to the Systems, a
list and description of which is contained in Schedule 1.19 attached hereto
(which Schedule may be amended from time to time and at any time upon mutual
written agreement).
1.2 "Affiliate" shall mean a corporation or other entity that
controls, is controlled by, or is under common control with, the designated
party. "Control" shall mean the ownership, directly or indirectly, through one
or more intermediaries, of at least 49% of the shares of stock entitled to vote
for the election of directors in the case of a corporation (or comparable
officers or representatives of the particular entity), or at least 49% of the
interest in profits in the case of a business entity other than a corporation.
Notwithstanding the foregoing, if laws of the country of incorporation,
registration, or organization of the designated entity limit one or both of the
percentages set forth in the foregoing sentence to a percentage less than 49%,
such lower maximum permitted percentage shall be substituted for the applicable
49% in the foregoing sentence.
1.3 "Agreement" shall mean this O.E.M. Supply Agreement, including
the Schedules and Exhibits hereto, as it may be amended or supplemented from
time to time in accordance with its terms.
1.4 "Agreement Term" shall have the meaning set forth in
Section 7.1.
1.5 "Annual Sales Target" shall mean a specified number of Systems
targeted to be sold in the Territory by LEICA and VENDOR collectively, during a
specified 12-month period during the Agreement Term: (i) there shall be no
Annual Sales Target initial for the initial 12-month period of the Agreement
Term, and (ii) with respect to each subsequent 12-month period of the Agreement
Term, the Annual Sales Target shall be such number of Systems to be mutually
agreed upon by the parties at least 90 days prior to the beginning of the
immediately following 12-month period.
- 1 -
3
1.6 "Authorized Trademarks" shall have the meaning set forth in
Section 3.2.1.
1.7 "Breaching Party" shall have the meaning set forth in
Section 7.2.1.
1.8 "Business Day" shall mean any day that is not a Saturday,
Sunday, or bank holiday in the State of Illinois.
1.9 "Confidential Information" shall have the meaning set forth
in Section 9.1.
1.10 "Consequential Damages" shall have the meaning set forth in
Section 10.13.
1.11 "Consumables" shall mean the consumables of the Systems, a
list and description of which are contained in Schedule 1.19 attached hereto
(which Schedule may be amended from time to time and at any time upon mutual
written agreement).
1.12 "Effective Date" shall mean the date first above written.
1.13 "Effective Date PO" shall have the meaning set forth in
Section 2.3.2.
1.14 "Intellectual Property" shall have the meaning set forth in
Section 5.1.5.
1.15 "Maintenance Fee" shall have the meaning set forth in
Section 3.11.
1.16 "Products" shall mean, collectively, the Systems, the
Accessories, and the Consumables; the user and calibration instruction manuals,
user and field service guides and the like; and any Product Changes.
1.17 "Product Changes" shall mean any material changes,
improvements, alterations, modifications, upgrades, new generations, and
substitutions to or of the Products or the Products' labeling relating to the
form, fit, function, or appearance of the Products. Product Changes shall be
deemed to (a) include Product software fixes, updates, and upgrades which, when
incorporated, result in variations from the original operational specifications
and designs; and (b) exclude Product software fixes, updates, and minor
upgrades (as set forth in Section 3.9) that merely affect the speed or
efficiency of the Products or constitute minor error or "bug" fixes.
1.18 "Product Enhancements" shall have the meaning set forth in
Section 3.4.
1.19 "Quarterly Minimums" shall have the meaning set forth in
Section 4.1.1.
1.20 "Systems" shall mean the AcCell(TM) systems, a list and
description of which is contained in Schedule 1.19 attached hereto (which
Schedule may be amended from time to time and at any time upon mutual written
agreement).
- 2 -
4
1.21 "TAB" shall have the meaning set forth in Section 3.13.
1.22 "Terminating Party" shall have the meaning set forth in
Section 7.2.1.
1.23 "Territory" shall mean world-wide except the United States of
America, Canada, Mexico, the Caribbean, the Commonwealth of Puerto Rico, the
countries in Central America and the countries in South America.
1.24 "Test Period" shall have the meaning set forth in Section 2.4.
1.25 The term "sale" or "resale" (in any tense or form), in
reference to software that is a Product shall not be construed to transfer or
convey ownership of such software but merely a license to use such software.
ARTICLE 2
PURCHASE AND SALE
2.1 Exclusivity. During the Agreement Term, VENDOR shall sell the
Products exclusively to LEICA, and LEICA may purchase the Products from VENDOR
in accordance with and subject to the terms and conditions of this Agreement by
submitting to VENDOR a purchase order therefor, for LEICA's use, marketing,
sales, rental, leasing, or other disposal or distribution in the Territory,
provided that VENDOR reserves the right to (a) use, market, sell, rent, lease,
or otherwise dispose of or distribute the Products on its own directly to
customers within the Territory, and/or (b) cooperate with LEICA to do the same.
The parties shall cooperate with and notify each other (in accordance with the
reporting procedures set forth in Sections 4.3.4 and 4.5) regarding their
respective direct sales activities in the Territory. LEICA shall not directly
(by itself or with any third party) use, market, sell, rent, lease, or
otherwise dispose of or distribute products in the Territory that are
competitive in functionality with the Products.
2.2 License. VENDOR hereby grants to LEICA and its Affiliates a
nonexclusive license to access and use VENDOR's Intellectual Property as
necessary to enable LEICA to use, market, sell, rent, lease, and/or otherwise
dispose of or distribute (or have others do any of the foregoing on LEICA's
behalf in accordance with the terms of this Agreement) the Products within the
Territory; provided that VENDOR shall not grant to any other distributor or
dealer any similar license to access and use VENDOR's Intellectual Property in
the Territory. LEICA shall determine (in its sole discretion) all terms and
conditions of sale to its end-users, distributors, and dealers, including but
not limited to prices. LEICA and its Affiliates shall not sell the Products
outside of the Territory or authorize any of their respective distributors or
dealers to sell the Products outside of the Territory. Notwithstanding
anything to the contrary contained in this Agreement, if any of LEICA's
distributors or dealers sells the Products outside of the Territory and refuses
to cease such activity, LEICA shall (a) if legally permitted, terminate any and
all agreements as necessary to terminate such distributor's or
- 3 -
5
dealer's right to sell the Products, and (b) defend, indemnify, and hold
harmless VENDOR from and against any claims against VENDOR arising in
connection with any distributor's or dealer's activities outside the Territory.
2.3 Product Delivery.
2.3.1 The parties acknowledge that a completed purchase
order substantially in the form of Exhibit E was submitted by LEICA to VENDOR
and accepted by VENDOR for Systems shipped to LEICA prior to the Effective
Date. LEICA shall pay to VENDOR the amounts due under invoices for such
Products upon execution hereof. Systems purchased by LEICA pursuant to such
completed purchase order shall be credited toward the Annual Sales Target for
the initial 12-month period.
2.3.2 On the Effective Date, LEICA shall submit to VENDOR a
complete purchase order substantially in the form of Exhibit E for 50 Systems
to be shipped to LEICA on or before June 30, 1997 (the "Effective Date PO").
LEICA shall pay to VENDOR the amounts due under the Effective Date PO in
accordance with Section 2.5.2. If an agreement from Cerba Laboratories and
LEICA for the purchase of 20 Systems and one TracCell is not executed and
received by LEICA and VENDOR within 90 days from June 30, 1997, LEICA shall
have the right to require VENDOR to repurchase (at the price paid by LEICA) 20
Systems ordered under the Effective Date PO. LEICA shall use its best efforts
to execute and deliver the agreement with Cerba Laboratories within such 90-day
period. Laboratories.
2.3.3 Except for the initial purchase order described in
Section 2.3.1, at least 60 days prior to issuing a purchase order, LEICA shall
provide written notice to VENDOR of LEICA's intent to issue a purchase order
and shall specify the models and quantities to be set forth in such purchase
order. Within ten Business Days after VENDOR's receipt of any purchase order,
VENDOR shall provide written notice to LEICA of VENDOR's acceptance or
rejection of such purchase order. If VENDOR fails to provide such
notification, the purchase order shall be deemed accepted. Within 45 days
after VENDOR's receipt of an accepted purchase order, VENDOR shall deliver the
Products specified in such purchase order. VENDOR shall ship any Products to
LEICA's facility in Wetzlar, Germany. Title and risk of loss for any Products
shipped to LEICA shall pass to LEICA upon VENDOR's dispatch of such Products
for shipment. Notwithstanding the foregoing, VENDOR shall deliver to a
facility in the Territory (or another mutually agreeable location) complete
Systems (excluding the microscope) in the form of an auto-focus kit and an
AcCell unit, where applicable. At such facility, VENDOR shall incorporate each
auto-focus kit into a LEICA microscope and mount such microscope onto an AcCell
unit. LEICA may cancel a purchase order upon written notice to VENDOR if
delivery of the applicable Products is more than 30 days past due.
2.3.4 Resolution of Technical Problems. Set forth on
Schedule 2.3.4 is a description of technical problems with the Products
identified by LEICA prior to the Effective
- 4 -
6
Date and the actions that were taken to correct such problems. The parties
agree that each such problem has been successfully resolved prior to the
Effective Date.
2.4 Inspection and Testing. Within 30 days after the Effective
Date, VENDOR and LEICA shall agree upon Product inspection and testing
procedures to be performed by LEICA, and such inspection and testing procedures
shall become a part of this Agreement as Exhibit A. For 30 days following
receipt by LEICA of any Products from VENDOR (the "Test Period"), LEICA shall
have the right, solely at LEICA's expense, to count, inspect, and test such
Products in accordance with such agreed-upon inspection and testing procedures.
If any Product fails such inspection and testing, and such failure is not, in
whole or in part, the direct or indirect result of LEICA's negligence or misuse
(including, without limitation, LEICA's failure to properly store the Product
while in LEICA's possession), then LEICA shall immediately notify VENDOR of
such failure, and VENDOR shall, at VENDOR's option after confirming such
failure, either (a) promptly repair or replace any such Product without
additional charge, or (b) refund the purchase price of such Product. In such
event, VENDOR shall accept the return of such Product and pay the shipping
costs for (i) the return to VENDOR of such Product, and (ii) the delivery to
LEICA of the repaired or replacement Product, if any. If LEICA fails to notify
VENDOR during the Test Period for any Product of a failure of such inspection
and testing, such Product shall be deemed accepted by LEICA. Inspection,
testing, acceptance, or use of the Products, or failure to do the same, on any
occasion shall not affect VENDOR's obligation under any warranty contained
herein or any other rights or remedies available to LEICA whether at law or in
equity, and such warranties, rights, and remedies shall survive such
inspection, testing, acceptance, and use.
2.5 Pricing and Payment.
2.5.1 Pricing. LEICA shall pay to VENDOR $8,500 and $9,100
(subject to adjustment as provided in this Section 2.5.1 for each AcCell 2000
and AcCell 2001, respectively, purchased by LEICA during the initial 12-month
period of the Agreement Term. At the end of such initial 12-month period, an
additional purchase price shall be calculated as follows: (i) if LEICA has
purchased 200 or more Systems, no additional purchase price shall be paid, (ii)
if LEICA has purchased between 151 and 199 Systems, $250 per System additional
purchase price shall be paid, (iii) if LEICA has purchased between 101 and 150
Systems, $350 per System additional purchase price shall be paid, (iv) if LEICA
has purchased between 51 and 100 Systems, $400 per System additional purchase
price shall be paid, (v) if LEICA has purchased 50 or fewer Systems, $500 per
System additional purchase price shall be paid. LEICA shall pay to VENDOR the
applicable additional purchase price for each System purchased by LEICA during
such initial 12-month period within 30 days following the last day of such
period. No less frequently than once per 12-month period of the Agreement Term
beginning during the second 12-month period of the Agreement Term, the parties
shall jointly review such purchase prices and mutually agree upon any changes
in such purchase prices not later than 90 days prior to the beginning of the
immediately following 12-month period. Such price changes shall become
effective the first day of the immediately following 12-month
- 5 -
7
period. If the parties are unable to reach agreement with respect to pricing
changes, either party may terminate this Agreement in accordance Section 7.2.4.
During the second and subsequent 12-month periods of the Agreement Term, LEICA
shall pay the lower of the purchase prices for Systems and if at the end of the
respective period, the applicable Annual Sales Target shall not have been met,
LEICA shall pay to VENDOR the price difference for each System purchased during
such 12-month period within 30 days following the last day of such period.
2.5.2 Payment. VENDOR shall xxxx LEICA for all Products
shipped to LEICA and for any additional amounts due hereunder. VENDOR shall
not submit invoices for Products to LEICA until such Products have been
shipped. LEICA's payment shall be due on or before 30 days after the date of
VENDOR's invoice for such Products and additional amounts. If LEICA's payment
is made on or before 30 days after the date of VENDOR's invoice, LEICA shall be
entitled to a 2% discount therefor. LEICA shall pay such invoice via bank wire
funds transfer in United States Dollars (US$) for immediate deposit to AccuMed
International, Inc., Account No. 301-59838, Northern Trust Chicago (ABA No.
07100152), or such other account of VENDOR as specified by VENDOR in a written
notice to LEICA. LEICA shall pay interest on late payments at a rate of 1-1/2%
per month.
2.6 Right of First Negotiation and Refusal. LEICA shall have a
right of first negotiation and refusal to be the exclusive OEM purchaser in the
Territory for all new cytopathology products developed by VENDOR during the
Agreement Term. Upon notice from VENDOR to LEICA of VENDOR's development of
any such products, the parties shall commence negotiating in good faith
regarding the terms and conditions upon which LEICA shall become the exclusive
OEM purchaser in the Territory for such products. If the parties cannot agree
upon the terms and conditions for such a relationship within 45 days after
VENDOR's notice, VENDOR shall have the right to seek a third-party distributor
for such Products in the Territory subject to no less favorable terms and
conditions than those offered to LEICA.
2.7 Separate Agreement for TracCell(TM). Within three weeks after
VENDOR receives from the United States Food and Drug Administration clearance
for marketing of the TracCell system, the parties shall enter into an agreement
for the distribution of TracCell systems in the Territory upon similar terms
and conditions to those provided herein for AcCell, except that the prices and
quotas will be specific to the TracCell system.
ARTICLE 3
OBLIGATIONS OF VENDOR
3.1 Approvals and Clearances. VENDOR shall ensure that no Product
is sold to LEICA or its end-users before all required governmental or private
approvals and clearances have been obtained, including without limitation all
EC (CE) and CB documents (through
- 6 -
8
Underwriters Laboratories - UL). LEICA shall provide reasonable support and
cooperation in connection therewith. LEICA shall cooperate with and assist
VENDOR in determining which approvals and clearances are otherwise required in
the Territory and shall assist in obtaining same.
3.2 Packaging and Labeling.
3.2.1 Within 45 days after the Effective Date, the parties
shall agree upon the packaging and labeling for the Products. Except for
Products shipped during the first 90-day period of the Agreement Term, all
Products shipped to LEICA shall include such agreed-upon packaging and
labeling. In connection therewith, VENDOR shall permanently affix LEICA's
serial number, trade name, trademark, colors, and logo (the "Authorized
Trademarks") on all Product packaging, printed materials, labels, and tags.
Notwithstanding the foregoing, if LEICA requests nonstandard packaging or
labeling, VENDOR shall accommodate such request (in VENDOR's reasonable
discretion), provided that VENDOR may charge LEICA additional fees in
connection with any such nonstandard packaging or labeling.
3.2.2 Upon termination or expiration of this Agreement,
VENDOR shall (a) not sell any Product that is labeled with the Authorized
Trademarks or otherwise packaged in materials containing the Authorized
Trademarks and (b) immediately cease any use of the Authorized Trademarks.
Except as expressly set forth herein, VENDOR shall not have any right to use
nor shall VENDOR acquire any right, title, or license, or other interest in the
Authorized Trademarks. Any use by VENDOR of the Authorized Trademarks shall
inure to the benefit of LEICA.
3.3 Product Changes. VENDOR shall give XXXXX 00 days' prior
written notice of any proposed Product Changes, which LEICA may accept or
reject, but acceptance may not be unreasonably withheld. Examples of issues
that would be a reasonable basis for nonacceptance or rejection shall include,
without limitation, Product marketability, performance, function, and pricing.
If LEICA chooses to reject a Product Change and VENDOR nevertheless proceeds to
implement such Product Change, LEICA may, in addition to all other rights and
remedies at law or in equity or otherwise, with respect to the Product (as
changed, modified, or added) pursuant to Section 7.2.3, terminate this
Agreement with respect to such Product and all pending purchase orders
therefor. If LEICA accepts a Product Change, VENDOR shall, prior to
implementation, promptly (i) obtain all approvals and clearances required to
manufacture the Product and sell the Product (as changed, modified, or added)
in the Territory and (ii) document and validate such accepted Product Changes
to the reasonable satisfaction of LEICA. No Product Change shall be effective
unless and until it is accepted by LEICA pursuant to this Section 3.3. Upon
request by LEICA, VENDOR shall, if possible, incorporate such accepted Product
Change in any Systems in LEICA's inventory, and LEICA shall pay to VENDOR a
reasonable fee for same including a handling and processing fee.
- 7 -
9
3.4 Product Enhancements. VENDOR shall evaluate and use
commercially reasonable efforts to incorporate LEICA's recommended design
changes and/or enhancements to the Products ("Product Enhancements"); provided
that if LEICA develops, by itself or in cooperation with VENDOR, any new
products, subassembly or other separately patentable invention related to the
Products, such product, subassembly or invention shall be subject to a separate
agreement to be negotiated between the parties. Any increase or reduction in
VENDOR's manufacturing costs (direct labor and/or materials) resulting from
Product Enhancements shall be reflected in proportional adjustments to the
affected Products' prices using substantially similar profit margin percentages
to those in effect prior to such adjustment. Any engineering/design costs and
delivery dates for Product Enhancements shall be quoted to LEICA for its
approval and payment. LEICA shall pay such engineering/design costs plus
fully-burdened overhead. Any and all Intellectual Property relating to Product
Enhancements shall be owned by VENDOR.
3.5 Sales Support.
3.5.1 During the first two years of the Agreement Term,
VENDOR shall engage in cooperative sales efforts with LEICA in the Territory.
Specifically, VENDOR shall provide two people in Europe and one person in Japan
primarily dedicated to the provision to LEICA of sales support and to assist
LEICA in its sales efforts provided that commencing after the end of the second
year of the Agreement Term and continuing through the Agreement Term, VENDOR
shall continue to provide such personnel in the Territory, but such personnel
may engage to a greater extent in efforts for direct sales of the Products on
VENDOR's behalf.
3.5.2 Within ten Business Days following the end of each
month during the Agreement Term, VENDOR shall submit to LEICA a written report
summarizing; (i) VENDOR's direct sales activity in the Territory with respect
to the Products, and (ii) deliveries by VENDOR of Products in the Territory
during the immediately preceding month.
3.6 Audits. LEICA shall have the right to perform a complete
audit of the development, manufacture, and packaging of the Products (including
but not limited to the pertinent facilities and Quality Assurance System(s))
during normal business hours and upon seven days' prior notice to VENDOR. The
parties will cooperate with each other to arrange such visits at mutually
convenient times.
3.7 Complaints. If LEICA receives a complaint asserting that a
Product does not comply with the specifications for such Product set forth on
Schedule 5.1.7 (a) LEICA shall undertake commercially reasonable efforts to
determine the validity of such complaint; (b) if LEICA validates such complaint
and cannot solve it through commercially reasonable efforts, LEICA shall
forward the complaint information to VENDOR; (c) with respect to each validated
complaint received by VENDOR, VENDOR shall promptly take such action as it
determines in its reasonable judgment and as required by applicable
governmental regulations and guidelines, if any. VENDOR shall use commercially
reasonable efforts, at its own
- 8 -
10
expense, to determine the cause of any valid claims of noncompliance
with the specifications, and LEICA shall have the right to participate as
appropriate in any investigation to resolve such noncompliance. VENDOR
reserves the right to remedy any claimed defect in the Products or to
substitute other products therefor. If not replaced by VENDOR, VENDOR's sole
and exclusive liability shall be limited to the price paid by LEICA to VENDOR
for the defective Product. VENDOR shall in no way be liable for LEICA's lost
profits or goodwill or any other special, incidental, or consequential damages.
3.8 Technical Assistance and Support.
3.8.1 Documentation. Without additional charge, beginning
on the Effective Date and for the duration of the Agreement Term and for a
period of three years thereafter (except as otherwise specified), VENDOR shall
furnish to LEICA all technical information, manuals, schematics, parts lists,
flow diagrams, and other documentation and data (in both printed and electronic
media formats in the English language) that are (a) necessary to inventory,
market, sell, and provide field service for the Products within the Territory
and (b) furnished by VENDOR without additional charge to other distributors and
dealers of the Products. Notwithstanding the foregoing, within 45 days after
the Effective Date, VENDOR shall provide to LEICA a spare parts list (and
pricing therefor) and any required service manuals. VENDOR hereby grants to
LEICA a fully-paid license for the Agreement Term to translate, copy, or
otherwise reproduce all or portions of VENDOR's brochures, or to incorporate
portions of VENDOR's copyrighted material in Product brochures or advertising
material composed by LEICA, provided that LEICA shall submit such materials
composed by LEICA which incorporate such VENDOR material to VENDOR for prior
approval in each instance, which approval shall not be unreasonably withheld or
delayed. In addition to the foregoing, VENDOR shall furnish to LEICA master
copies (in both printed and electronic media formats in the English language)
of field service manuals and troubleshooting guides with respect to the
Products which LEICA may print and use, and furnish to VENDOR for VENDOR's use
in accordance with this Agreement. Alternatively, at LEICA's option, VENDOR may
print such Product manuals and guides and sell them to LEICA, at VENDOR's cost,
for LEICA's use.
3.8.2 Telephone Support. Without additional charge,
beginning on or before July 1, 1997, and continuing through the Agreement Term,
VENDOR shall furnish telephone support to LEICA via a toll-free telephone
number on Business Days between 8 a.m. and 6 p.m. (local time in the United
Kingdom). Such telephone support shall respond to all requests for information
or other technical support regarding Product use, maintenance, repair, storage,
handling, and shipping.
3.9 Special Investigations; Inquiries. If any government or other
regulatory authority or private standards board in the Territory requires any
investigations to be performed on or with respect to the Products, the parties
shall cooperate with and assist each other in performing such investigations.
VENDOR shall notify LEICA of any formal or
- 9 -
11
informal inquiries relating to the Products by the Federal Communications
Commission of the United States or any other regulatory agency, or any state,
provincial, regional, district, and/or Federal government.
3.10 Replacements and Repair Parts; Accessories and Consumables.
3.10.1 During the Agreement Term and for a period of three
years thereafter, VENDOR shall offer for sale to LEICA all Accessories and
Consumables and all replacement and repair parts for the Systems in accordance
with the pricing set forth in Exhibit C, subject to the terms of Section 2.5.1.
3.10.2 VENDOR shall perform all repair and warranty services
within two weeks after receipt by VENDOR of the applicable Product (excluding
any transit time). Any nonwarranty services shall be billed to LEICA at a fee
of US$85 per hour. If any Product has been out of production for more than two
years, at VENDOR's option, VENDOR may either repair the Product or provide to
LEICA discounted pricing for upgrading to a current model.
3.11 Software Updates and Minor Upgrades. During the Agreement
Term and thereafter (for System units then subject to the warranty obligations
of VENDOR set forth in Section 5.2), VENDOR shall provide LEICA with Product
software fixes, updates, and minor upgrades at no additional charge to LEICA.
During the Agreement Term and for a period of five years thereafter, upon the
expiration of the applicable warranty period for each System unit, LEICA shall
pay to VENDOR a mutually agreed-upon annual software maintenance fee (the
"Maintenance Fee") for each System unit for which the end-user elects to
purchase software maintenance. The Maintenance Fee shall entitle the end-user
to receive Product software fixes, updates, and minor upgrades. All updates
and upgrades shall be validated to LEICA's reasonable satisfaction.
3.12 Training and Consulting.
3.12.1 During the first six months of the Agreement Term,
VENDOR shall, upon reasonable prior request, provide LEICA and LEICA's
distributors and dealers with training in the areas of sales, technical
support, customer support, and implementation with respect to the Products.
3.12.2 In addition, twice per year for the remainder of the
Agreement Term, VENDOR shall provide training to LEICA and LEICA's distributors
and dealers in connection with Product Changes, Product software updates and
upgrades, and new techniques related to the Products.
3.12.3 During the first six months of the Agreement Term,
VENDOR shall, upon reasonable prior request, provide LEICA with implementation
assistance in connection with the Products, and LEICA may participate in and/or
observe VENDOR's activities. Such
- 10 -
12
assistance shall be provided by VENDOR at no additional charge during the
first 120 days after the Effective Date. For the remainder of the six-month
period, LEICA shall pay VENDOR's out-of-pocket expenses if such services
are required at any location that is not an end-user site.
3.12.4 LEICA shall have the right to request additional
consulting services from VENDOR in accordance with prices and terms to be
agreed upon at the time of the request.
3.13 Technical Advisory Board. VENDOR shall establish a technical
advisory board (the "TAB") to assess the technology being developed, acquired,
or licensed by VENDOR and the applications thereof to the markets in the
Territory. LEICA shall designate either one or two representatives to be
members of the TAB. The TAB shall meet at least once per year during the
Agreement Term.
ARTICLE 4
OBLIGATIONS OF LEICA
4.1 Forecasts.
4.1.1 It is LEICA's intention to purchase 200 Systems
during the initial 12-month period of the Agreement Term. Prior to the
establishment of Quarterly Minimums, LEICA shall submit to VENDOR within 30
days prior to the first day of a quarter, a forecast of the quantity of
Products LEICA shall purchase from VENDOR during such quarter. LEICA shall
purchase at least the quantity of Products specified in such forecasts.
4.2 Quarterly Minimums
4.2.1 During the 90 days prior to the first day of the
immediately following 12-month period of the Agreement Term, the parties shall
agree upon a minimum quantity ("Quarterly Minimums") of Products to be
purchased by LEICA from VENDOR during each full and partial calendar quarter of
the subsequent 12-month period of the Agreement Term. If the parties are
unable to agree to Quarterly Minimums within the 90-day period prior to the
first day of the immediately following 12-month period, either party may
terminate this Agreement in accordance with Section 7.2.4.
4.2.2 Upon the establishment of Quarterly Minimums, any
rights granted exclusively hereunder to LEICA for a given 12-month period shall
become nonexclusive during the 12-month period immediately following such
12-month if LEICA fails to purchase Products in quantities equal to or
exceeding the applicable aggregate of the Quarterly Minimums in such year.
- 11 -
13
4.2.3 4.2.4 Upon the establishment of Quarterly
Minimums, direct sales of System units by VENDOR in the Territory shall be
included in the calculation of the Quarterly Minimums.
4.3 Sales and Assistance By VENDOR.
4.3.1 On or prior to the 30th day following the Effective
Date, VENDOR and LEICA shall mutually agree to a list of potential target
customers in the Territory. Such list shall be attached to this Agreement as
Schedule 4.3.1 and shall become a part hereof.
4.3.2 During the 120-day period beginning on the Effective
Date, VENDOR shall provide LEICA with training and support in connection with
potential sales of Products, at no cost to LEICA. During such period, VENDOR
shall provide sales support and assistance in a joint sales effort to any
customer specified by LEICA upon LEICA's request. No fees shall be paid by
LEICA to VENDOR or by VENDOR to LEICA with respect to any Products sold during
such period as a result of joint sales activity.
4.3.3 During the 120-day period beginning on the Effective
Date, VENDOR shall be entitled to pursue a customer contact independently if
VENDOR has previously identified such potential customer to LEICA in writing
and LEICA shall not have notified VENDOR of LEICA's desire to pursue such
customer jointly with VENDOR or independently. With respect to any Systems
sold as a result of independent efforts of AccuMed, the first System sold shall
be shipped directly by VENDOR from its inventory and the second System sold
shall be shipped from LEICA's inventory, and so on so that 50% of such sales
shall be from VENDOR's inventory and 50% from LEICA's inventory. Neither party
shall be required to pay the other party a fee in connection with any such
sales.
4.3.4 On and after the 121st day of the Agreement Term, if
VENDOR receives an unsolicited request from a potential customer to demonstrate
a Product, VENDOR shall identify such potential customer to LEICA in writing.
LEICA shall notify VENDOR in writing with four Business Days following the date
on which such notice was made whether LEICA elects to pursue such customer
independently or to allow VENDOR to pursue such customer independently. If
LEICA elects to pursue such customer, LEICA shall make contact with such
customer within 15 days following the date on which VENDOR's initial notice was
given and shall deliver to VENDOR (within such 15-day period) a completed
Laboratory Qualification Survey in the form attached hereto as Schedule 4.3.4.
If LEICA reasonably requires more time to make an initial contact, LEICA may
request an extension from VENDOR and VENDOR shall not unreasonably withhold its
consent. With respect to any sales made directly by VENDOR as a result of its
independent action during such period, VENDOR shall pay LEICA $4,500 with
respect to each AcCell 20001 and $3,000 with respect to each AcCell 2001.
- 12 -
14
4.3.5 LEICA and VENDOR shall use the same list prices for
the Systems in the Territory, but shall each have the right, in its sole
discretion, to provide other discounts, incentives, and services in connection
with its sales.
4.4 Scope of Responsibility.
4.4.1 During the Agreement Term, LEICA shall, at its own
cost and expense, use a high level of commercially reasonable efforts to sell,
install, train on the use of, and provide field service for the Products within
the Territory. Except as otherwise provided herein, LEICA shall be the sole
contact with LEICA's end-users of the Products in the Territory. In connection
therewith, LEICA shall be responsible for all marketing and advertising
materials and activities including, without limitation, provision of brochures
and appropriate advertising; participation as an exhibitor at conferences and
trade shows; and qualification of potential customers and surveys of same
regarding product needs and satisfaction and related market research. Without
limiting the foregoing, LEICA shall be solely responsible for translation of
all documentation provided by VENDOR hereunder and shall promptly undertake to
perform such translation. LEICA shall be solely responsible for the expense
and accuracy of all such translations hereunder. LEICA shall reproduce any
applicable proprietary rights notices in all such materials. LEICA shall also
be solely responsible for providing foreign language translations in hardcopy
format of the software related to the Products; provided that VENDOR shall use
such hardcopy translations to reprogram the software into its translated form.
4.4.2 The parties shall mutually develop and agree upon
the list prices and the sales and marketing plans on a country-by-country
basis. Within 90 days after the Effective Date, LEICA, at a minimum, shall
commence sales and marketing of the Products in the following countries in the
Territory; Germany, France, Italy, the United Kingdom, and Japan. LEICA shall
emphasize its sales and marketing efforts particularly in Europe and Japan.
4.5 Monthly Laboratory Qualification Surveys and Reports. Within
ten Business Days following the end of each month during the Agreement Term,
LEICA shall submit to VENDOR (i) completed Laboratory Qualification Survey
Reports in the form attached hereto as Schedule 4.3.4 with respect to each
potential customer contacted by LEICA (other than potential customers with
respect to whom LEICA has previously submitted a Survey pursuant to Section
4.3.4) during the immediately preceding month, and (ii) a written report of the
number of Systems delivered to end-users by LEICA during the immediately
preceding month.
4.6 LEICA Products.
4.6.1 During the Agreement Term, LEICA shall provide to
VENDOR (at no additional charge to VENDOR) a reasonable amount of technical
support with respect to LEICA's existing microscope products used in the
Products.
- 13 -
15
4.6.2 LEICA shall, within 45 days after the date of this
Agreement and from time to time thereafter, provide to VENDOR a list of all of
LEICA's microscope products by model and engineering specifications and
dimensions. With respect to the use of such models in the Systems, VENDOR
shall have the right to reject any such model for technical reasons.
4.7 AcCell(TM); Copyright and Trademark Notices. Promptly upon
receipt by LEICA of relevant information, LEICA shall notify VENDOR of such
information related to (a) any possible infringement of VENDOR's Intellectual
Property, or (b) VENDOR's alleged infringement of a third party's Intellectual
Property. In addition, LEICA shall incorporate into relevant Product
documentation and materials, the appropriate and reasonable copyright and
trademark notices provided to LEICA by VENDOR.
ARTICLE 5
REPRESENTATIONS, COVENANTS, & WARRANTIES OF VENDOR
5.1 General. VENDOR hereby represents, covenants, and warrants to
LEICA, its successors, and permitted assigns that:
5.1.1 Due Organization. VENDOR is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Delaware and has the full power and authority to perform its obligations
under this Agreement.
5.1.2 Authorization to Execute. The person executing this
Agreement on behalf of VENDOR has been duly authorized to do so by all
requisite corporate and other action of VENDOR, and this Agreement has been
duly executed by such person and delivered to LEICA.
5.1.3 Validity of Agreement. This Agreement is the legal,
valid, and binding obligation of VENDOR and is enforceable against VENDOR in
accordance with its terms.
5.1.4 No Conflict. To VENDOR's knowledge: (a) VENDOR's
execution, delivery and performance of this Agreement does not and will not
conflict with or result in a breach of any agreement or instrument to which
VENDOR is a party as in effect on the Effective Date; and (b) no litigation,
arbitration, or administrative proceeding is pending or threatened seeking to
prohibit the execution and delivery of this Agreement.
5.1.5 Warranty of Noninfringement. To VENDOR's knowledge,
the Products do not incorporate or infringe upon any copyright, patent,
trademark, service xxxx, trade name, trade secret, idea, process, know-how,
development, invention, technology, or other form of intellectual property
(collectively "Intellectual Property") not owned by or licensed to VENDOR. If
VENDOR becomes aware of any alleged or actual infringement by VENDOR of any
Intellectual Property relating to the Products or their manufacture, VENDOR
will promptly notify LEICA thereof.
- 14 -
16
5.1.6 Right to Sell for Resale; Obligation to Deliver.
VENDOR has the right to sell the Products to LEICA for resale by LEICA in the
Territory. VENDOR has and will have the ability to timely deliver all of the
Products ordered by LEICA to meet the Quarterly Minimums and shall use
commercially reasonable efforts to timely deliver all of the Products ordered
by LEICA in excess of same.
5.1.7 Product Quality. The Products to be sold and
delivered to LEICA and end-users hereunder shall (i) be merchantable and fit
for their particular purpose, (ii) be new and free from defects in design,
materials and workmanship, and (iii) meet the specifications attached hereto as
Schedule 5.1.7, subject to Product Changes.
5.2 Product Warranty.
5.2.1 For a period of 12 months following the date that an
end-user receives a Product from LEICA, if such Product does not substantially
conform to the specifications set forth in Schedule 5.1.7, then, within two
weeks after receipt by VENDOR of the applicable Product (excluding any transit
time), VENDOR shall, at VENDOR's option and at no additional charge to LEICA,
either (a) replace or repair such Product unit, or (b) fully refund to LEICA
the purchase price paid to VENDOR by LEICA for such Product. Written notice of
such nonconformance must be received by VENDOR within 12 months from the date
the Product unit is received by LEICA's end-user.
5.2.2 Notwithstanding the foregoing, in the event of
failure by VENDOR to meet its obligations set forth in Section 5.2.1, LEICA
may, at its sole and absolute discretion, make such corrections or replace such
Product units and charge VENDOR for the cost incurred by LEICA in doing so and
VENDOR shall reimburse LEICA for any such costs.
5.2.3 Shipping costs incurred by LEICA and risk of loss
upon return of Product units to VENDOR for in-warranty repair, replacement, or
refund shall be borne by VENDOR. Shipping costs incurred by VENDOR and risk of
loss upon delivery of the in-warranty repaired or replacement Product unit to
LEICA or LEICA's designees shall be borne by VENDOR.
5.2.4 During the Agreement Term and for a period of three
years thereafter, VENDOR shall provide all post-warranty repair service for the
Products at the hourly rates set forth in Schedule 5.2.3.
5.3 Compliance. VENDOR shall use commercially reasonable efforts
to ensure that, in manufacturing and selling the Products, it shall (i) comply
with all applicable laws and regulations, (ii) not knowingly engage in any
deceptive or misleading practices, and (iii) obtain and maintain all required
governmental and private approvals and clearances (including without limitation
compliance with CE marking regulations).
- 15 -
17
ARTICLE 6
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF LEICA
6.1 General. LEICA hereby represents, covenants, and warrants to
VENDOR, its successors and permitted assigns that:
6.1.1 Due Organization. LEICA is a corporation duly
organized and validly existing under the laws of Germany and has the full power
and authority to perform its obligations under this Agreement.
6.1.2 Authorization to Execute. The person executing this
Agreement on behalf of LEICA has been duly authorized to do so by all requisite
corporate and other action of LEICA, and this Agreement has been duly executed
by such person and delivered to VENDOR.
6.1.3 Validity of Agreement. This Agreement is the legal,
valid, and binding obligation of LEICA and is enforceable against LEICA in
accordance with its terms.
6.1.4 No Conflict. To LEICA's knowledge, LEICA's
execution, delivery, and performance of this Agreement does not and will not
conflict with or result in a breach of any agreement or instrument to which
LEICA is a party as in effect on the Effective Date.
6.2 Compliance. In connection with its activities hereunder,
LEICA shall use commercially reasonable efforts to ensure that LEICA complies
with all applicable laws and regulations that are customarily the
responsibility of the importer, distributor, or dealer in the countries in the
Territory.
ARTICLE 7
TERM AND TERMINATION
7.1 Term. Unless earlier terminated pursuant to Section 7.2, this
Agreement shall remain in full force and effect for five years commencing on
the Effective Date and shall automatically renew for additional one-year
periods thereafter (collectively, the "Agreement Term") unless either party
provides at least 60 days' prior written notice to the other party prior to the
expiration of the then current term. Notwithstanding the foregoing, the
Agreement Term may be suspended pursuant to the provisions of Section 10.1 of
this Agreement.
7.2 Events of Termination. This Agreement may be terminated,
without limiting any party's rights to any other remedies:
7.2.1 Immediately upon written notice by either party (the
"Terminating Party") to the other party (the "Breaching Party") if:
- 16 -
18
7.2.1.1 the Breaching Party has not performed or has
otherwise breached a material obligation hereunder and such nonperformance or
breach is incapable of cure;
7.2.1.2 any proceeding in bankruptcy, reorganization,
or arrangement for the appointment of a receiver or a trustee to take
possession of the Breaching Party's assets or any similar proceeding under the
law for relief of creditors shall be instituted by or against the Breaching
Party including an assignment for the benefit of its creditors.
The Breaching Party immediately shall notify the Terminating Party in writing
of the occurrence of any event of the type described in Section 7.2.1.2.
7.2.2 By the Terminating Party upon the expiration of 60
days (or such additional period as the Terminating Party may authorize) after
the Breaching Party's receipt of written notice of its breach or nonperformance
of a material obligation hereunder provided that such breach or nonperformance
is capable of cure and has not been cured during such 60-day period.
7.2.3 By LEICA with respect to the specific Product (as
changed, modified, or added) upon 60 days' prior written notice to VENDOR of
the rejection of a Product Change which VENDOR nevertheless proceeds to
implement.
7.2.4 By either party as of the last day of the current
12-month period if the parties are unable to agree to (i) Quarterly Minimums
pursuant to Section 4.1.1, (ii) pricing changes pursuant to Section 2.5.1, or
(iii) the Annual Sales target pursuant to Section 1.5, within the 90-day period
prior to the beginning of the following 12-month period.
7.3 Purchase Orders. Provided that LEICA is not the Breaching
Party, any purchase order accepted by VENDOR but not shipped by VENDOR prior to
the date that notice of termination is delivered hereunder (or in the case of
expiration, the date that this Agreement expires) shall be filled by VENDOR in
accordance with the terms hereof.
7.4 Rights and Obligations upon Termination or Expiration. Upon
expiration or earlier termination of this Agreement, LEICA shall have the right
to (i) sell all Products ordered or in inventory and (ii) provide ongoing
support and service to its end-users. Notwithstanding anything herein to the
contrary and without limiting LEICA's other remedies, if this Agreement is
terminated within the initial 12-month period, LEICA shall have the right to
require VENDOR to repurchase (at the price paid by LEICA) any or all Products
ordered by LEICA hereunder, provided (i) LEICA furnishes VENDOR with the
relevant open purchase orders (with respect to ordered Products not yet in
LEICA inventory), (ii) the Products are in new condition and have not been
used, and (iii) the Products are in their original packaging with all manuals
and other materials.
- 17 -
19
7.5 Survival. Sections 2.2, 2.3, 2.5, 3.8, 3.9, 4.5, 5.2, 7.3,
7.4, 7.5, and 10.13, and Articles 8 and 9 shall survive the termination or
expiration of this Agreement.
ARTICLE 8
INDEMNIFICATION
8.1 Infringement Indemnity.
8.1.1 If any aspect of any Product becomes the subject of
any claim, action, or proceeding by a third party alleging Intellectual
Property infringement, VENDOR shall, within 90 days, at VENDOR's option and
expense (a) obtain a license permitting LEICA to exercise all rights granted to
it under this Agreement or (b) modify the Product to render it noninfringing.
In addition, LEICA may, without limiting its remedies, and without any
liability to VENDOR whatsoever, and at its sole and absolute discretion,
suspend purchases of the Products from VENDOR immediately. Notwithstanding the
foregoing, should VENDOR fail to accomplish either one of the foregoing
solutions (set forth in clauses (a) and (b) above) within such 90-day period
with respect to any such Intellectual Property infringement claim, action, or
proceeding, LEICA may terminate this Agreement without limiting its remedies,
without any liability whatsoever, and in its sole and absolute discretion. In
addition, LEICA shall have the right to require VENDOR to repurchase (at the
price paid by LEICA) any or all Products ordered by LEICA hereunder, provided
(i) LEICA furnishes VENDOR with the relevant open purchase orders (with respect
to ordered Products not yet in LEICA inventory), (ii) the Products are in new
condition and have not been used, and (iii) the Products are in their original
packaging with all manuals and other materials.
8.1.2 Provided that VENDOR receives prompt written notice
of any Intellectual Property infringement claim, action, or proceeding, VENDOR
shall indemnify and hold harmless LEICA, its successors, and permitted assigns,
and any of its officers, directors, employees, representatives, and/or agents,
and each of them, from and against any and all claims, liabilities, losses,
costs, damages, and expenses including, but not limited to (a) any damages,
losses, costs, and expenses payable to the third party claiming Intellectual
Property infringement, (b) all of LEICA's reasonable attorneys' fees and
disbursements, settlement costs (provided that VENDOR has approved of such
settlement in advance), judgments, court costs, and expenses incurred by LEICA
in any action or proceeding between VENDOR and LEICA and/or between LEICA and
any third party or otherwise, (c) reimbursement for the cost of Products that
can no longer be sold, and (d) any other losses, costs, expenses, and damages
incurred by LEICA arising out of or resulting from any Intellectual Property
infringement claim, action, or proceeding between VENDOR and LEICA and/or
between LEICA and any third party or otherwise. The failure of LEICA to give
prompt notice shall not result in the loss of indemnification unless VENDOR
shall have been materially prejudiced thereby.
8.1.3 LEICA shall not be entitled to the foregoing
Intellectual Property infringement indemnity from VENDOR to the extent that the
Intellectual Property infringement
- 18 -
20
claim, action, or proceeding arises or results in whole or in part from changes
to the Products made by LEICA or any third party without VENDOR's authorization.
8.2 VENDOR Product Liability and Other Damage Indemnity.
8.2.1 VENDOR shall at all times indemnify and hold harmless
LEICA, its successors and permitted assigns, and any of its officers,
directors, employees, representatives, and/or agents, and each of them, from
and against any and all claims, liabilities, losses, costs, damages, and
expenses, including but not limited to all of LEICA's reasonable attorneys'
fees and disbursements court costs and expenses, incurred by LEICA in any
action or proceeding between VENDOR and LEICA (if LEICA is the prevailing
party) and/or between LEICA and any third party (attorneys' fees and
disbursements only if LEICA fails to defend) or otherwise arising out of or
resulting from (a) a defect or alleged defect in a Product, including without
limitation defects relating to manufacturing, improper testing, or design, or
any breach of warranty regarding such Product or any component thereof, (b)
misrepresentations made in connection with the promotion, marketing, sale,
distribution, use, safety, or efficacy of such Product based upon information
supplied to LEICA by VENDOR, (c) the contents of any labeling, inserts,
instruction manuals, or related documentation prepared by VENDOR or based upon
information supplied to LEICA by VENDOR, or (d) Product recalls. VENDOR shall
have the right to control the defense and settlement of any third-party claim,
action, or proceeding. LEICA shall provide VENDOR with, at VENDOR's expense
for all of LEICA's reasonable, documented out-of-pocket costs, reasonable
assistance in connection with a third-party action or proceeding of the kind
described in this Section 8.2.1.
8.2.2 LEICA shall not be entitled to the foregoing
indemnity from VENDOR to the extent that the claim, action, or proceeding
arises or results in whole or in part from (a) unauthorized representations
made by LEICA regarding the Product which are different than or in addition to
the representations made by VENDOR to LEICA, or (b) unauthorized changes to the
Product made by LEICA.
8.3 LEICA Product Liability and Other Damage Indemnity.
8.3.1 LEICA shall at all times indemnify and hold harmless
VENDOR, its successors and permitted assigns and any of its officers,
directors, employees, representatives, and/or agents, and each of them, from
and against any and all claims, liabilities, losses, costs, damages, and
expenses, including but not limited to all of VENDOR's reasonable attorneys'
fees and disbursements, court costs and expenses, incurred by VENDOR in any
action or proceeding between VENDOR and LEICA (if VENDOR is the prevailing
party) and/or between VENDOR and any third party (attorneys' fees and
disbursements only if LEICA fails to defend) arising out of or resulting from
(a) unauthorized representations made by LEICA regarding a Product which are
different than or in addition to the representations made by VENDOR to LEICA or
(b) unauthorized changes to a Product made by LEICA. LEICA shall have the
right to control the defense and settlement of a third party claim, action, or
- 19 -
21
proceeding. VENDOR shall provide LEICA with, at LEICA's expense for all of
VENDOR's reasonable, documented out-of-pocket costs, reasonable assistance
in connection with a third-party action or proceeding of the kind described in
this Section 8.3.1.
8.3.2 VENDOR shall not be entitled to the foregoing
indemnity from LEICA to the extent that the claim, action, or proceeding arises
or results solely from (i) a defect or alleged defect in a Product, including
without limitation defects relating to manufacturing, improper testing, or
design, or any breach of warranty regarding such Product or any component
thereof, (ii) misrepresentations made in connection with the promotion,
marketing, sale, distribution, use, safety, or efficacy of such Product based
upon information supplied to LEICA by VENDOR, or (iii) the contents of any
labeling, inserts, instruction manuals, or related documentation prepared by
VENDOR or based upon information supplied to LEICA by VENDOR.
ARTICLE 9
CONFIDENTIALITY
9.1 Definition. For purposes of this Agreement, the term
"Confidential Information" shall mean all documents, clearly marked as
"PROPRIETARY" or "CONFIDENTIAL," relating to the respective products and/or
business of the parties which (i) is disclosed by one party hereto to the other
and (ii) is claimed by the disclosing party to be secret, confidential, and
proprietary the disclosing party.
9.2 Obligation. During the Agreement Term and thereafter, each
party (except as is explicitly otherwise required hereby) shall keep
confidential, shall not use for the benefit of others, and shall not copy or
allow to be copied, in whole or in part, any Confidential Information disclosed
to such party by the other.
9.3 Exclusions. The obligations of confidentiality imposed upon
the parties by the foregoing paragraph shall not apply with respect to any
alleged Confidential Information that:
9.3.1 is known to the recipient thereof prior to receipt
thereof from the other party hereto;
9.3.2 is disclosed to the recipient by a third party who
has the right to make such disclosure;
9.3.3 is or becomes a part of the public domain or public
knowledge through no breach of this Agreement by the recipient;
9.3.4 is independently developed by the recipient; or
- 20 -
22
9.3.5 is required to be disclosed by applicable law or
regulation including, without limitation, pursuant to a subpoena or request by
a regulatory authority.
ARTICLE 10
MISCELLANEOUS
10.1 Force Majeure. Each party hereto shall be excused from the
performance of its obligations hereunder if such performance is prevented by
force majeure, and such excuse shall continue for so long as the condition
constituting such force majeure and any consequences resulting from such
condition continue. In addition, if the condition constituting the force
majeure causes a substantial inability by either party hereto to manufacture,
deliver, sell, or otherwise distribute, as the case may be, the Products, the
Agreement Term may be suspended for the period of such inability, but such
suspension shall not exceed six months. For the purposes of this Agreement,
"force majeure" shall mean causes beyond either party's control including,
without limitation, acts of God; war, riot or civil commotion; damage to or
destruction of production facilities or materials by fire, earthquake, storm or
other disaster; strikes or other labor disturbances; epidemic; failure or
default of public utilities or common carriers; and other similar acts.
Noncompliance with laws or government regulations shall not constitute a force
majeure event.
10.2 Relationship. The relationship created between VENDOR and
LEICA by this Agreement shall be that of independent contractors. Neither
LEICA nor VENDOR shall be deemed an agent, representative, partner, joint
venturer, or employee of the other party. Neither VENDOR nor LEICA shall have
the right to enter into any contracts or commitments or to make any
representations or warranties, whether express or implied, in the name of or on
behalf of the other party, or to bind the other party in any respect
whatsoever, unless agreed to in writing or expressly permitted in this
Agreement.
10.3 Assignment; Binding Effect. Neither party to this Agreement
may assign all or any part of its rights and obligations under this Agreement,
except to an Affiliate, without the prior written consent of the other party.
LEICA shall not have the right to subcontract any of its obligations hereunder
without VENDOR's prior written consent, not to be unreasonably withheld or
delayed. For purposes of this Agreement, any material change in the control
and/or ownership of LEICA (except for any such change in control occurring
during the first six months after execution of this Agreement) shall be deemed
an assignment by LEICA and shall be subject to all of the provisions of this
Section. Notwithstanding the foregoing, material changes in the control and/or
ownership of VENDOR shall not be deemed an assignment by VENDOR subject to the
provisions of this Section. No permitted assignment by any party pursuant to
this Section 10.3 shall result in any additional expense to the other party.
Any purported assignment in contravention of this Section 10.3 shall, at the
option of the nonassigning party, be null and void and of no effect. This
Agreement will be binding upon and inure to the benefit of any permitted
successors and assigns of the parties.
- 21 -
23
10.4 Notices. Any notice or other communication required or
permitted to be given to either party under this Agreement (including, without
limitation, purchase orders from LEICA to VENDOR hereunder) shall be given in
writing addressed to each party at the following address or such other address
as may be designated by such party by notice pursuant to this Section and shall
be delivered (a) by hand; (b) by registered or certified mail, postage prepaid
and return receipt requested; (c) by confirmed facsimile transmission, or (d)
by overnight courier guaranteeing delivery by the next Business Day.
To VENDOR: AccuMed International, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Confirmation: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx, Chairman & CEO
with a copy to: AccuMed International, Inc.
0000 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Confirmation: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, General Counsel
To LEICA: Leica Mikroskopie und Systeme GmbH
X.X. Xxx 0000
X - 00000 Xxxxxxx
Xxxxxxx
Fax: 011-49-64-41-29-24-64
Confirmation: 011-49-64-41-29-24-40
Attention: Xx. Xxxxx Xxxx
with a copy to:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
Any notice, consent, or other communication given in conformity with this
Section shall be deemed effective (i) when received by the addressee if
delivered by hand or mail, (ii) upon confirmation of receipt if delivered by
facsimile transmission, or (iii) the next Business Day if delivered by
overnight courier.
10.5 Governing Law; Submission to Jurisdiction. This Agreement and
any other documents or instruments related hereto and all transactions
hereunder shall be deemed to have
- 22 -
24
been made within and under the laws of the State of Illinois, including the
Uniform Commercial Code as adopted by the State of Illinois, and for all
purposes shall be governed by and construed in accordance with the laws of the
State of Illinois without regard to choice of law rules or conflicts of law
principles. The parties expressly agree that any controversy, dispute or claim
with respect to any provision of this Agreement shall be adjudicated
exclusively by a court of competent jurisdiction within Xxxx County, the State
of Illinois, or the Federal District Court sitting therein, and VENDOR and
LEICA irrevocably waive any objections either may have and consent to the
personal jurisdiction or the designation of a forum or venue of the courts set
forth herein including, without limitation, waiver of any motion to change or
transfer venue or that the forum is not convenient. As an alternative method
to personal service, LEICA hereby appoints the Ambassador to the United States
of Germany and/or any consul or vice-consul of Germany as LEICA's agent for the
receipt of process hereunder. Notwithstanding the foregoing, either party may,
in any jurisdiction, seek to enforce, collect, or take any other action to
effectuate a judgment, order, or decree obtained from a court in Xxxx County,
State of Illinois or the Federal District Court sitting therein.
10.6 Execution of Additional Documents. Each party hereto agrees to
execute and deliver such documents as may be necessary or desirable to carry
out the provisions of this Agreement.
10.7 Entire Agreement. This Agreement constitutes the entire
agreement between VENDOR and LEICA with respect to the subject matter hereof.
All prior or contemporaneous agreements, proposals, understandings,
representations, and communications with respect to the subject matter hereof,
whether written or oral, between or involving VENDOR and LEICA hereby are
canceled and superseded. This Agreement may be amended or modified only in a
writing executed by both parties, which states that it is an amendment or
modification to this Agreement.
10.8 Severability. If any provision or part thereof of this
Agreement is held to be invalid, void or unenforceable, the remaining
provisions or parts of this Agreement shall continue in full force without
being impaired or invalidated in any way, to the maximum extent possible
consistent with the intent of the parties in entering into this Agreement
unless the result thereof would be unreasonable, in which case the parties
shall negotiate in good faith to enter into appropriate amendments hereto.
10.9 Taxes. Each party shall be responsible for payment of its own
taxes and tariffs.
10.10 Counterparts. This Agreement may be executed in duplicate
counterparts, each of which when so executed shall be deemed to be an original
and both of which when taken together shall constitute one and the same
agreement.
10.11 No Waiver. No waiver of any right under this Agreement shall
be deemed effective unless contained in a writing signed by the party charged
with such waiver and
- 23 -
25
specifically stating that it waives a provision of this Agreement, and no
waiver of any breach or failure to perform shall be deemed to be a waiver of
any future breach or failure to perform or of any other provisions of this
Agreement.
10.12 Headings. The headings contained herein are for reference only
and are not a part of this Agreement and shall not be used in connection with
the interpretation of this Agreement.
10.13 Rights and Remedies Cumulative; Damages. All rights and
remedies hereunder are cumulative and may be enforced separately or
concurrently and from time to time, unless otherwise specifically stated
herein. The enforcement of any particular remedy shall not constitute an
election of remedies, and no remedy is exclusive unless specifically stated
herein. Each party's sole remedies for the breach by the other party of any
obligations contained in this Agreement shall be recovery of direct damages, if
any, and/or termination of this Agreement in accordance with Section 7.2. In no
event shall either party be liable to the other party under this Agreement for
indirect, special, incidental, or consequential damages of any kind, including
but not limited to damages for lost profits, lost investments, or lost business
opportunities (collectively, "Consequential Damages"). LEICA and VENDOR hereby
agree that direct damages shall not include or contain Consequential Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ANY
LIABILITY OF VENDOR TO LEICA HEREUNDER SHALL BE LIMITED TO THE TOTAL PRICE PAID
BY LEICA FOR THE PRODUCTS WHICH ARE THE SUBJECT OF SUCH LIABILITY PLUS ALL
COSTS FOR TRANSPORTATION AND OTHER DIRECT EXPENSES INCURRED BY LEICA WITH
RESPECT TO SUCH PRODUCTS.
10.14 Contract Interpretation. Each party hereto acknowledges that
it has had ample opportunity to review and comment on this Agreement. This
Agreement shall be read and interpreted according to its plain meaning and an
ambiguity shall not be construed against either party. It is expressly agreed
by the parties that the judicial rule of construction that a document should be
more strictly construed against the draftsperson thereof shall not apply to any
provision of this Agreement.
- 24 -
26
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
ACCUMED INTERNATIONAL, INC.
By: \s\ XXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
LEICA MIKROSKOPIE und SYSTEME GmbH
By: \s\ XXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: General Manager
By: \s\ XXXXX XXXX*
-----------------------------------------
Name: Xxxxx Xxxx
Title: Finance and controlling LMG Group
* On behalf of Xxxxx Xxxx by /s/ Xx. Xxxx Xxxxxxxxxxx
------------------------
- 25 -
