Exhibit 10.6
August 7, 2000
Manufacturing Agreement
Relating to the Production of Auto-Disable Syringes
TERUMO Europe N.V.
Contents
Clause number Page
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1. Definitions and interpretation..........................................................................1
1.1 Definitions.............................................................................................1
1.2 Interpretation..........................................................................................4
2. Appointment of Supplier ................................................................................6
2.1 Appointment ...........................................................................................6
2.2 Relationship ..........................................................................................6
3. Pre-production period and Term .......................................................................7
3.1 Pre-production period ..................................................................................7
3.2 Term ...................................................................................................7
3.3 Extension of Term.......................................................................................7
4. Supplier's obligations..................................................................................7
4.1 Manufacturing of Products...............................................................................7
4.2 Specifications..........................................................................................7
5. Client obligations......................................................................................7
5.1 Development of markets..................................................................................7
5.2 Annual Purchase of Orders...............................................................................8
6.1 Orders..................................................................................................8
6.2 Acceptance and Processing of Orders.....................................................................8
6.3 Specifications .........................................................................................8
6.4 Confirmation of acceptance of Orders....................................................................8
6.5 Terms of Supply.........................................................................................8
7. Prices, Costs and payment...............................................................................8
7.1 Prices & costs .........................................................................................8
7.2 Payment Terms ..........................................................................................9
8. intellectual Property...................................................................................9
8.1 No transfer of Intellectual Property....................................................................9
8.2 Improvements of Intellectual Property...................................................................9
8.3 Protection of Intellectual Property.....................................................................9
8.4 Brand Name and Trade marks.............................................................................10
9. Supplier's Warranties..................................................................................10
10. Clients Warranties.....................................................................................10
11. Indemnities............................................................................................11
12. Termination prior to expiry of Term....................................................................12
12.1 Immediate termination..................................................................................12
12.2 Obligations upon Termination...........................................................................12
12.3 Pending Orders.........................................................................................12
12.4 Effects of Termination.................................................................................13
13. Confidentiality........................................................................................13
13.1 Client Obligations of confidentiality..................................................................13
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13.2 Supplier Obligations of Confidentiality................................................................13
13.3 Disclosure to Employees................................................................................14
13.4 Disclosure to Media....................................................................................14
13.5 Obligations survive termination........................................................................14
13.6 Permitted disclosures of Confidential Information......................................................14
14. Notices................................................................................................14
14.1 Requirements...........................................................................................14
14.2 Receipt................................................................................................15
15. General provisions.....................................................................................15
15.1 Entire agreement.......................................................................................15
15.2 Further assurances.....................................................................................15
15.3 Costs..................................................................................................15
15.4 Product Liability......................................................................................15
15.5 Force Majeure..........................................................................................16
15.6 No merger..............................................................................................16
15.7 Warranties and Indemnities.............................................................................16
15.8 Invalid or unenforceable provisions....................................................................16
15.9 Waiver and exercise of rights..........................................................................16
15.10 Amendment..............................................................................................16
15.11 Counterparts...........................................................................................17
15.12 Rights cumulative......................................................................................17
16. Transitory provision...................................................................................17
17. Disputes...............................................................................................17
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Manufacturing Agreement
Relating to the production of Auto-Disable Syringes.
This Agreement is made on the 16th day of August, 2000.
Between
Terumo Europe N.V., a company having its principal place of business
in Belgium at Researchpark ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇ ("Supplier")
and
Univec Inc., a company having its principal place of business in USA,
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Client").
Recitals
(a) The Supplier manufactures the sterile Products.
(b) The Client wishes to appoint the Supplier as a manufacturer of
the Products under Brand Name and Trade Name of the Client for
the exclusive sale and marketing of those products by the
Client on the terms and conditions set out in this Agreement
Operative provisions
1. Definitions and interpretation
1.1 Definitions
In this Agreement unless the context requires another meaning:
"Annual Purchase Order, means a yearly order of an annual quotum, to be
placed by Client at the start of the calendar year and to be called-off by the
Client during that year.
"Business Day" means a day that is not a Saturday, Sunday or a public
holiday in Belgium (for Supplier) or in New York - U.S.A. (for Client);
"Call-off Order" means the effective order request from the Standing
Order to produce and deliver Products;
"Commencement Date" means the date of the last undersigning of this
Agreement or such other date as the parties agree in writing, whichever is the
later,
"Confidential Information" means all:
(a) know-how, trade secrets, ideas, marketing strategies,
concepts, technical and operational information owned or used by the Supplier or
the Client (as the case may be); proprietary business information, such as
financial condition, bidding practices, costs, distributors, and customer
mailing lists;
(b) information concerning the affairs or Products or any
business, property or transaction in which the Supplier or the Client (as the
case may be) may be or may have been concerned or interested;
(c) information about the terms of this Agreement
(d) information labeled by either party as confidential;
and any information which, by its nature or by the circumstances of its
disclosure, is or could reasonably be expected to be regarded as confidential
to:
(a) the Supplier or the Client (as the case may be); or
(b) any third party with whose consent or approval the Supplier or
Client uses that information;
but does not include any information :
(a) which is or becomes part of the public domain other than by
reason of a breach of the terms of this Agreement or
(b) which at the time of the disclosure is in possession of the
disclosed party; or which after the disclosure is developed independently of
Confidential Infbn-nation disclosed by the other party.
"Confirmation of acceptance of Order", means the document whereby the
Supplier confirms to Client its acceptance of the Call-Off Order under the
conditions as set forth in such document
"Control" means any situation where a person (a "Controlling Person")
has, or is entitled to acquire, the right or power to secure, whether directly
or directly, the affairs of another person (the "Controlled Person") that are
conducted under the wishes of the Controlling Person including, if one or more
Controlling Persons holds :
(a) 50% of the Controlled Person or of the voting rights attaching
to the Controlled Person's shares; or
(b) the power to control the composition directly or indirectly,
the appointment of more than 50% of any board of directors or other governing
body of the Controlled Person;
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In addition to any other rights and powers, there is attributed to any
Controlling Person:
(a) any rights or powers which another person possesses or is or
may be required to exercise on the Controlling Person's direction or behalf, and
(b) all rights and powers of any person over which any Controlling
Person alone or with other Controlling Persons has control;
"Government Agency" means:
(a) a government, whether foreign, federal, state, territorial or
local;
(b) a department office or minister of a government acting in that
capacity; and
(c) a commission, delegate, instrumentality, agency, board, or
other government semi-government, judicial, administrative, monetary or fiscal
authority, whether statutory or not
"Insolvency Event" means in relation to a party the happening of one or
more of the following events:
(a) except for the purpose of a solvent reconstruction or
amalgamation,
(i) process is filed in a court seeking an order that it
be wound up or that a trustee in bankruptcy be appointed to it or any of its
assets, unless the application is withdrawn, struck out or dismissed; or
(ii) an order is made that it be wound up or that a
trustee be appointed to it or any of its assets, unless the order or appointment
is withdrawn, struck out or dismissed; or
(iii) a resolution that it be wound up is passed or
proposed unless the resolution is withdrawn, struck out or dismissed;
(b) a liquidator, provisional liquidator, trustee or any similar
official is appointed to, or takes possession or control of, all or any of its
assets or undertaking;
(c) an administrator is appointed to it a resolution that an
administrator be appointed to it is passed or proposed, or any other steps are
taken to appoint an administrator to it
(d) it enters into, or resolves to enter into, an arrangement
compromise or composition with any of, or any class of its creditors, or an
assignment for the benefit of any of, or any class of, its creditors, or process
is filed in a court seeking approval of any such arrangement compromise or
composition;
(e) a reorganization, moratorium, deed of company arrangement or
other administration involving one or more of it's a-editors is proposed or
effected.
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(f) any action is taken by the National Authorities with a view to
canceling its registration or to dissolving it or an application is made to the
National Authorities that any such action be taken;
(g) it is insolvent within the meaning of applicable company law and
the law of the State of Delaware and USA federal law for the Client) as
disclosed in its Accounts or otherwise, states that it is unable to pay its
debts or it is presumed to be insolvent under any applicable law,
(h) as a result of the operation of applicable company law (and the law
of the State of Delaware and USA federal law for the Client), it is taken to
have failed to comply with a statutory demand;
(i) it stops or suspends or threatens to stop or suspend:
(i) the payment of all or a class of its debts; or
(ii) the conduct of all or a substantial part of its
business or threatens to do so; or
(iii) anything having a substantially similar effect to any
of the events specified in the preceding paragraphs happens to it under the law
of any jurisdiction;
"Intellectual Property Rights" means all rights in all trade marks,
patents, copyrights, designs, trade secrets and other similar legally
enforceable rights anywhere in the world owned, used, or intended to be used, by
the Supplier or Client ( as the case may be) whether or not registered,
registrable or patentable, and include:
(a) the Trade Marks;
(b) the Confidential Information; and
(c) rights in any patent trade ▇▇▇▇ or design applications, rights
in the nature of copyright, product formulations, processes, methods and
inventions;
"Order" means the request by the Client, binding on the Client, to
purchase a given number of Products
"Products" means Auto-Disable Syringes, details of which are set out in
the Technical Agreement a copy of which is annexed hereto.
"Pre-production Period" means the period from the Commencement Date
until the starting date of the Term of the Agreement during which the parties
will prepare for the start-up of the production in accordance with Section 3
"Related Party" means a party which is under the Control of or which
has the Control over the Supplier respectively the Client
"Standing order" means the running Annual Purchase Order for the then
current year
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"Start Date" means the calendar date at which the Pre-production
Period shall be completed and at which the Term of this Agreement shall start
"Term" means the fixed unreductable period of five (5) years starting
at the Start Date plus any extension by mutual agreement of the parties in
accordance with Section 3.2
"Trade Marks" means the signs used, or intended to be used, by the
Supplier, whether as owner or under license, to distinguish the Products from
those of others. These signs:
(a) may be registered or unregistered; and
(b) may be in the form, either separately or in any combination,
of a letter, word, name, signature, numeral, device, brand, heading, label,
ticket aspect of packaging, shape, color, sound or scent.
1.2 Interpretation
In this Agreement unless the context requires another meaning:
(a) a reference:
(i) to the singular includes the plural and vice versa;
(ii) to a gender includes all genders;
(iii) to a document (including this Agreement) is a reference
to that document (including any Schedules and Annexes) as amended, consolidated,
supplemented, novated or replaced;
(iv) to an agreement includes any undertaking,
representation, deed, agreement or legally enforceable arrangement or
understanding whether written or not,
(v) to a party means a party to this Agreement;
(vi) to an item, Recital, clause, Schedule or Annexure is
to an item, Recital, clause, Schedule or Annexure of or to this Agreement
(vii) to a notice means a notice, approval, demand, request
nomination or other communication given by one party to another under or in
connection with this Agreement
(viii) to a person (including a party) includes:
(A) an individual, company, other body
corporate, association, partnership, firm, joint venture, trust or Government
Agency; and
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(B) the person's successors, permitted assigns,
substitutes, executors and administrators;
(ix) to a law.
(A) includes a reference to any legislation,
treaty, judgment, rule of common law or equity or rule of any applicable stock
exchange; and
(B) is a reference to that law as amended,
consolidated, supplemented or replaced; and
(C) includes a reference to any regulation,
rule, statutory instrument by-law or other subordinate legislation made under
that law;
(x) to proceedings includes litigation, arbitration and
investigation;
(xi) to a judgement includes an order, injunction, decree,
determination or award of any court or tribunal;
(xii) to time is to Central European Time;
(xiii) the word including or includes means including, but
not limited to, or includes, without limitation.
(b) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning
(c) A warranty, representation, covenant, or obligation given or
entered into by more than one person binds them jointly and severally.
(d) Headings are for convenience only and do not affect
interpretation.
(e) If a payment or other act must (but for this clause) be made
or done on a day that is not a Business Day, then it must be made or done on the
next Business Day.
(f) If a period occurs from, after or before a day or the day of
an act or event, it excludes that day.
2. Appointment of Supplier
2.1 Appointment.
The Client appoints the Supplier as manufacturer of the
Products, details as set out in the Technical Agreement during the Term on the
terms and conditions set out in this Agreement.
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The Supplier agrees to produce the Products and sell the
Products to the Client on the terms and conditions set out in this Agreement
2.2 Relationship.
The Supplier and the Client acknowledge and agree that
(a) The Supplier has been appointed by the Client for the purpose
of manufacturing the Products to the terms set out in this Agreement
(b) The Supplier shall purchase from Client the Equipment which is
the subject of a separate Equipment Purchase Agreement entered into between the
parties on the same date as the present Agreement
(c) Neither party shall represent or hold itself out to any third
party as being a representative or agent of each other except as authorized by
this Agreement or otherwise in writing by the other party;
(d) Neither party shall conclude or purport to conclude any
contract or agreement or make or purport to make any commitment, representation,
misrepresentation or warranty on behalf of or which binds the other party or
otherwise act in the name of or on behalf of the other party without the prior
written consent of the other
(e) The Supplier and the Client acknowledge and agree that
(a) nothing in this Agreement shall be construed as
creating the relationship of principal and agent or a partnership with the
Supplier, and
(b) this Agreement is personal to each of the Client and
the Supplier and shall not be assigned by or without the prior written consent
of the other party; the Supplier however is entitled to assign approved
subcontractors for a part or the complete process of manufacturing.
(c) If Univec or Univec's current owners intend to sell
or dispose of a controlling interest in Univec's stock, Univec or Univec's owner
shall offer this interest first to the Supplier who will have 30 days to accept
or reject the offer. If the Supplier does not accept the offer, the interest can
be sold during a period of 6 months on the same or better terms (for the seller)
as those contained in the offer.
3. Pre-production period Term
3.1 Pre-production period.
Immediately following the Commencement Date the parties shall start to
prepare the installation of the equipment and the start-up of the production
process. The parties shall in good faith endeavor to complete this process as
early as possible.
3.2 Term.
This Agreement shall continue for the Term unless terminated earlier
under clause 12.
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3.3 Extension of Term.
The parties may agree in writing to extend the Term for each
subsequent 12 month period.
4. Supplier's obligations
4.1 Manufacturing of Products.
The Supplier commits to produce the Products in accordance with the
Technical Agreement
4.2 Specifications.
Products supplied by the Supplier shall be in accordance with Standards
and Specifications as outlined in the Technical Agreement.
[OMITTED CONFIDENTIAL INFORMATION]
5. Client obligations
5.1 Development of markets.
Samples of the Product for evaluation, sales promotion or market
registration, shall be at the Client's costs, except for the CE certification of
the Product under the Medical Devices Regulation which will be obtained by the
Supplier at the Supplier's expense.
5.2 Annual Purchase Orders
[OMITTED CONFIDENTIAL INFORMATION]
6. Supply to Client
6.1 Orders.
Orders and call-offs of Standing Orders for the Products shall be given
by the Client to the Supplier in writing at the address of the Supplier stated
in clause 14.1 or such other address as may be subsequently notified by the
Supplier to the Client in writing.
6.2 Acceptance and Processing of Orders.
Upon an Order or Standing Order inquiry, the Supplier shall inform the
Client within 10 days about the availability of free capacity.
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It is the Clients responsibility to transfer the Orders or Call-Off
Orders to the Supplier in a timely manner in order to allow the Supplier to
comply with the provisions of the Technical Agreement and to take into account
the Supplier's capacity.
Orders and Call-off Orders from Client will be processed based on the
available free capacity of the Supplier at that given time. The Orders and
Call-Off Orders will be processed subject to the Supplier's own requirements.
Notwithstanding the above, Supplier and Client may agree, at the time
of accepting an firm Annual Purchase Order, that the Call-off Orders will be
processed on an equal basis with the Supplier's own requirements for the
Product, provided that the Call-off Orders are given in a timely manner to allow
the Supplier to adjust his production planning in an orderly manner.
6.3 Specifications
The orders for the Products shall specify the Products required by
reference to the name and product code, the quantity of the Products required
and the date on which the Client requires delivery of the order.
6.4 Confirmation of acceptance of Orders
Within the 10 business days following receipt of the Call-Off Order,
the Supplier shall issue a confirmation of acceptance of Call-Off Order to the
Client confirming the terms of the order and specifying the price or prices for
the Products ordered in [OMITTED CONFIDENTIAL INFORMATION]. The order shall be
final and binding upon the parties upon the Supplier sending the Confirmation of
acceptance of Order.
6.5 Terms of Supply
The products are supplied to the Client on Terms and Conditions as set
out in Schedule 1. This Agreement Prevails in the event of any conflict between
this Agreement and the Standard Terms and Conditions of Supplier as accepted in
Schedule 1. The Products will be supplied according to the terms of Schedule 1,
in which is agreed i.e. that the Products are delivered Ex Works Terumo Europe
in a warehouse used by the Supplier, where they can be called off by the Client
during a month. After this month the Supplier charge a cost of [OMITTED
CONFIDENTIAL INFORMATION] Products per month for the use of the warehouse
without detrimental acknowledgment
7. Prices, Costs and payment
7.1 Prices & Costs
The Supplier shall charge the Client the prices and costs for the
Products as set out in Schedule 2. [OMITTED CONFIDENTIAL INFORMATION]
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Date of this Agreement Thereafter the Supplier may increase the prices
and costs for the Products from time to time during the Term but no more than
once per year and shall provide three (3) months prior written notice of any
variation to the Client and any such increase shall be done with evidence of
manufacturing, material and handling cost increases. Any variation of the prices
and costs will apply to all orders received by the Supplier on or after the
effective date of the variation.
Price increases will not apply to orders placed under long term
contracts between the Client and his customer but only for that portion of the
price increase which under such contract could not be passed on by the Client to
the customer. However, if a price increase has been announced, the new price
shall apply to any new long term contract entered into by the Client after the
announcement and a subsequent price increase shall not apply to orders placed
under such contract unless (and to the extent only that) such further increase
could be passed on to the Clients customer.
As an exception to the above, the Supplier agrees not to apply price
increases during the entire Term of this Agreement for Products which the Client
will order for relief agencies or institutional customers. For those customers,
a price increase will apply only if the Client is able to effect a corresponding
price increase in the prices received from such customers and any increase will
apply only to that portion of the increase and only on those Products to be sold
to the customers that accept such price increase.
7.2 Payment Terms
Payment of the Products from the Client to the Supplier shall be in
accordance with Terms and Conditions as set out in Schedule 2.
8. Intellectual Property
8.1 No transfer of Intellectual Property
All Intellectual Property Rights in the Products remain with the
Client. Nothing in this Agreement is intended to transfer any interest in any
Intellectual Property Rights.
8.2 Improvements of Intellectual Property
All rights with regard to patentable improvements in either the
Products or the equipment shall be jointly held by Client and Supplier.
Either party shall be entitled to use the improved technology for its
own production (whether by third parties or otherwise) without the permission of
or the payment of a royalty to the other party. Either party shall have the
right to license the developed technology to any third party, except that
licenses to Related Parties shall need the consent of the other party on the
amount and payment of the royalty.
Any revenues deriving from licensing the developed technologies to
third parties shall be shared equally between the parties.
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8.3 Protection of Intellectual Property Both Parties agree to
immediately notify each other in writing of any infringement or suspected
infringement by any third party of any of the Parties' Intellectual Property
Rights which comes to its attention.
8.4 Brand Name and Trade marks
(a) The Client agrees for the Supplier to use his proprietary
Brand Name and Trade Marks for the Products' packaging and labeling of Products
produced for Client.
(b) The Supplier acknowledges that the usage of Client's Brand
Name and Trade marks are restricted only for application to the Products on the
terms and conditions set out in this Agreement.
9. Supplier's Warranties
The Supplier represents and warrants to the Client that:
(a) it is a corporation duly formed and validly existing under the
laws (b) it does not lack the necessary corporate power and authority to enter
into this Agreement and perform obligations under it and its execution, delivery
and performance of this Agreement have been duly authorized by all necessary
corporate actions;
(c) neither the execution and delivery of this Agreement nor the
performance by it of this Agreement will violate any provision of its
Certificate of Incorporation and by-laws;
(d) the Supplier has not taken any action which would preclude or
adversely affect the Suppliers full performance of this Agreement nor failed to
take any action necessary in order to authorize or enable such performance;
(e) with respect to the technology used for the manufacturing of
the Products such as the use of thermoplastic gaskets, nothing in this Agreement
will infringe any intellectual property and other rights of any third party
including but not limited to any rights which a third party may have to or in
the Products;
(f) it has the capacity, ability and all property, including
intellectual property, necessary to perform its obligations under the Agreement
and
(g) the quality of the Products shall continue to meet the
requirements of the Technical Agreement.
10. Client's Warranties
The Client represents and warrants to the Client that;
(a) the Client is a corporation duly formed and validly existing
under the laws of the State of Delaware, USA;
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(b) the Client has the necessary corporate power and authority to
enter into and perform obligations under this Agreement and the Clients
execution, delivery and performance of this Agreement has been duly authorized
by all necessary corporate action;
(c) neither the execution and delivery of this Agreement nor the
performance by the Client of this Agreement will violate any provision of the
Clients Certificate of Incorporation and bylaws;
(d) the Client has neither taken any action which would preclude
or adversely affect the Client's full performance of this Agreement nor failed
to take any action necessary in order to authorize or enable such performance;
(e) the Clients Intellectual Property Rights and other rights in
and to the Products do not at the date of this Agreement prevent it from
granting the rights to the Supplier under this Agreement and will not affect
those rights during the Term;
(f) nothing in this Agreement will infringe any intellectual
property and other rights of any third party including but not limited to any
rights which a third party may have to or in the Products: and
(g) it has the capacity, ability and all property, including
intellectual property, necessary to perform its obligations under the Agreement
11. Indemnities
11.1 Supplier shall indemnify and hold harmless Client from any
loss or damages incurred by Client because of claims, suits, or demands based on
personal injury or death or property damage or third-party claims, suits or
demands, to the extent such loss or damage is caused by or results from a
defective product manufactured by Supplier, provided: (1) Client promptly
notifies Supplier in writing of any suits, claims or demands against Client for
which Supplier can be held responsible under this indemnity, (ii) Client gives
Supplier full opportunity and authority to defend and settle such suits, and
(iii) Client furnishes to Supplier upon request all information and reasonable
assistance available to Client for defense against any such suit claim, or
demand. Provided that Supplier shall be relieved from its indemnification
obligations by a failure of Client to comply with the foregoing clauses (1)
through (iii) only to the extent it is prejudiced thereby;
11.2 Without prejudice to Section 11. 1 above, Supplier shall
indemnify Client for all proven damages arising directly or indirectly from a
breach by Supplier of its obligations under this Agreement provided that the
Supplier's liability for failing to fill an Order or Call-off Order duly
accepted by the Supplier, will under all circumstances be limited to a fixed
compensatory indemnity of missing units.
11.3 Client shall indemnify Supplier for all proven damages arising
directly or indirectly from a breach by Client of its obligations under this
Agreement.
11.4 Each party shall indemnify and hold the other party harmless
from any proven damages which would result from the unauthorized disclosure or
use of Intellectual Property Rights or Confidential Information entrusted to the
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other party within the framework of this Agreement if such other party (or its
agents or employees) is responsible the disclosure or use of said Intellectual
Property Rights or Confidential Information in breach of the present Agreement.
11.5 Notwithstanding anything contrary contained in this Agreement
neither party shall be liable to the other for any incidental or consequential
damages arising from or as a result from the failure to perform its obligations
under this Agreement, or because of defective products manufactured or delivered
under this Agreement, except if such damages would arise as a result of the
other party's bad faith or gross negligence.
11.6 Except for the indemnities specified herein, Supplier makes no
warranty express or implied, and specifically disclaims the implied warranties
of merchantability and fitness for any particular purpose.'
12. Termination prior to expiry of Term
12.1 Immediate termination
This Agreement may be terminated with immediate effect and Without
prior recourse to the courts upon the provision of written notice to the other
party upon the occurrence of any of the following events in relation to the
other party referred to in this clause;
a. by either of the parties when the other party fails to perform
or fails to observe any of its essential obligations under this Agreement or
otherwise breaches a material term of this Agreement and such default (if it is
curable) is not cured within 30 days after the default has been notified to the
defaulting party. The payment obligations of the Client as set forth in Schedule
2 are, as an example and without limitation, considered to be essential;
b. by the Supplier when the agreed-upon minimum Annual Purchase
Orders are not duty called-off by the Client.
c. by the Client when the Products manufactured by the Supplier
fail to meet the Standards and Specifications stipulated in Section 4.2
d. by either of the parties when the other party becomes the
subject of an Insolvency Event;
e. by the Supplier when, as a result of a change in the Clients
identity, the Products could no longer be manufactured under the conditions
stated in the Technical Agreement and its Annexes and the Supplier would have to
manufacture the Products under a competitor's brand name.
12.2 Obligations upon Termination.
Upon termination of this Agreement for any reason, each party will cease to use
and, at its expense and at the other party's option, either return to the other
party or certify in writing the destruction of all the other party's
Confidential Information and all materials incorporating any of the other
party's Intellectual Property Rights, provided that this provision will not
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affect any of the Suppliers rights under the Patent License Agreement between
the Client as Licensor and the Supplier as Licensee.
12.3 Pending Orders
To the sole discretion of the Supplier, Orders and Standing Orders
placed by the Client prior to termination of the Agreement and which have not
yet been delivered by the Supplier to the nominated Client address shall be
classed as valid orders. A valid Order shall remain effective and survive
termination of this Agreement
12.4 Effects of Termination
When the present Agreement is terminated for breach by one party, the
other party shall be entitled to damages at the charge of the defaulting party.
13. Confidentiality
During the term of this Agreement both parties shall exchange
Confidential Information and statistics relating to the Products and neither
party shall, during the term of this Agreement and thereafter, divulge any
Confidential Information relating to the other party's operations, products or
any information obtained pursuant to this Agreement.
Both parties acknowledge that they have entered into Confidentiality
Agreements with each other, separate from this Agreement.
13.1 Client Obligations of confidentiality The Client must
(a) keep confidential all Confidential Information disclosed to it
by the Supplier,
(b) keep all materials containing Confidential Information
disclosed to it by the Supplier secure and protect them from theft damage, loss
or unauthorized access;
(c) not use Confidential Information disclosed to it by the
Supplier for any purpose other than as contemplated by this Agreement and
(d) ensure that obligations no less strict than those imposed upon
the Client are observed by any of its employees or officers involved in the
sale, promotion and distribution of the Products.
(e) Acknowledge that the Supplier has the right to forward any or
all Confidential Information to either its parent company, namely Terumo
Corporation, a company incorporated in Japan, and/or Terumo affiliates, provided
that Supplier guarantees that the confidentiality undertakings will be passed on
and be observed by its parent and affiliates.
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13.2 Supplier Obligations of Confidentiality
The Supplier
(a) must keep confidential all Confidential Information disclosed
to it by the Client,
(b) must keep all materials containing Confidential Information
disclosed to it by the Client secure and protect them from theft damage, loss or
unauthorized access;
(c) must not use Confidential Information disclosed to it by the
Client for any purpose other than as contemplated in this Agreement,
(d) must ensure that obligations no less strict than those imposed
upon the Supplier are observed by any of its employees or officers involved in
the performance of its obligations under this Agreement and
(e) acknowledge that the Client has the right to forward any or
all Confidential Information to its affiliates in which it has a controlling
interest provided that Client guarantees that the confidentiality undertakings
will be passed on and be observed by such affiliates.
13.3 Disclosure to Employees
Each party may only disclose Confidential Information owned by the
other party to its employees, officers and agents (or the employees, officers or
agents of the group to which such party belongs) if such disclosure is necessary
to fulfil its obligations under this Agreement.
13.4 Disclosure to Media
Each party shall refrain from issuing or conducting any interview,
report or press release regarding the existence or terms of this agreement
unless the statement is provided in advance for review by the other party and
the comments of the other party incorporated in the reasonable discretion of the
disclosing party. Further, unless the disclosing party reasonably believes it to
be required by law or rule of any stock exchange on which such party's stock is
listed or quoted, neither party shall issue any press release regarding the
existence or terms of this agreement to which the odd party shall reasonably
object
13.5 Obligations survive termination
The obligations of confidentiality set out in this clause 13 survive
termination of this Agreement for a period of no more than five years after
termination.
13.6 Permitted disclosures of Confidential Information
Nothing in this Section 13 prevents any party from disclosing any
Confidential Information if compelled by any law or by order of any court of
competent jurisdiction.
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14. Notices
14.1 Requirements
All notices must be:
(a) in legible writing and in English;
(b) addressed to the recipient at the address or facsimile number
set out below or to any other address or facsimile number that a party may
notify to the other party:
to the Supplier.
Terumo Europe N.V.
Researchpark 2 Haasrode,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
to the Client
Univec Inc
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
(c) signed by the party or, where the sender is a company, by an
authorized officer or under the common seal of the sender, and
(d) sent to the recipient by hand, prepaid post airmail or
facsimile or e-mail.
14.2 Receipt
Without limiting any other means by which a party may be able to prove
that a notice has been received by the other party, a notice will be considered
to have been received
(a) if sent by hand, when left at the address of the recipient,
(b) if sent by facsimile, on receipt by the sender of an
acknowledgment or transmission report generated by the senders machine
indicating that the whole facsimile was sent to the recipients facsimile number,
(c) E-mails are only accepted as valid notification after
confirmation of receipt has been sent by the party to whom the e-mail was sent
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but if a notice is served by hand, or is received by the recipient's
facsimile, on a day that is not a Business Day, or after 5:00 p.m. (recipients
local time) on a Business Day, the notice will be considered to have been
received by the recipient at 9.00 am on the next Business Day.
15. General provisions
15.1 Entire agreement
This Agreement, including the Schedules is the entire agreement of the
parties about the subject matter of this Agreement and supersedes all prior
representations, negotiations, arrangements, understandings or agreements and
all other communications between the parties relating thereto. No party has
entered into this Agreement relying on any representations made by or on behalf
of the other, other than those expressly made in this Agreement.
The parties acknowledge that they also concluded a separate License
Agreement.
15.2 Further assurances
Each party must at its own expense, whenever reasonably requested by
the other party, promptly do or arrange for others to do, everything reasonably
necessary or desirable to give full effect to this Agreement.
15.3 Costs;
Each party must pay its own costs in respect of this Agreement and the
documents and transactions contemplated by this Agreement.
15.4 Product Liability
Subject to the conditions stipulated in Section I I above, the Supplier
shall indemnify and hold harmless the Client according to the Belgian law on
product liability of February 25, 1991 implementing the European Directive on
Product Liability.
15.5 Force Majeure
Neither party hereto shall be liable for failure to perform, or for any
delay in performing, any of its obligations when such failure or delay is caused
by fire, food, riot earthquake, accident explosion, war, shortages of fuel,
power raw materials, delays in transportation, seizure under legal process,
orders or acts of any government acts of God or any cause beyond the reasonable
control of the party affected.
15.6 No merger
The warranties, other representations and promises by the parties are
continuing and will not merge or be extinguished on termination of this
Agreement.
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15.7 Warranties and Indemnities
The warranties and indemnities in this Agreement are:
(a) continuing, separate and independent obligations of the
parties from their other obligations and survive the termination of this
Agreement and
(b) absolute and unconditional and unaffected by anything that
might have the effect of prejudicing, releasing, discharging or affecting in any
other way the liability of the party giving the indemnity.
15.8 Invalid or Unenforceable Provisions
If a provision of this Agreement is invalid or unenforceable in a
jurisdiction
(a) it is to be read down or severed in that jurisdiction to the
extent of the invalidity or unenforceability; and
(b) that fact does not affect the validity or enforceability of:
(i) that provision in another jurisdiction; or
(ii) the remaining provisions.
15.9 Waiver and exercise of rights
A waiver by a party of a provision of or of a right under this
Agreement is binding on the party granting the waiver only if it is given in
writing and is signed by the party or an authorized officer of the party
granting the waiver. Any waiver not put in writing by an authorized officer of
either party of any breach of any of the provisions of this Agreement shall not
prevent the subsequent enforcement of that provision and shall not be deemed to
be a waiver of any subsequent breach.
15.10 Amendment
This Agreement may be amended only by a document signed by all parties.
15.11 Counterparts
This Agreement may be signed in counterparts and all counterparts taken
together constitute one document.
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15.12 Rights cumulative
The rights, remedies and powers of the parties under this Agreement are
cumulative and do not exclude any other rights, remedies or powers.
16. Transitory provision
It is stated by the Client and acknowledged by the Supplier that the
client for the time being is not in a position to place a minimum Annual
Purchase Order. It is therefore agreed that Section 5.2 above and all other
provisions in this Agreement which could affect the rights and obligations of
the parties with respect to such minimum Annual Purchase orders will not become
operative until such time that both parties agree, by common consent to make
those provisions applicable.
17. Disputes
In the event of any dispute, controversy or difference arising in
connection with this Agreement the parties shall endeavor to settle the issue in
an amicable manner.
If no amicable solution can be reached, the matter shall be finally
settled by the Rules of Arbitration of the International Chamber of Commerce by
one or more arbitrators appointed in accordance with the said Rules under the
authority of the I.C.C. Secretariat in Paris, France.
Executed as an agreement.
Signed for and on behalf of Signed for and on behalf of
Univec Inc. Terumo Europe N.V.
By its duly authorized representative By its duty authorized representative
Name: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name:/s/ Y. Nakajima
Title: Chairman Title: Vice President
Date: August 11, 2000 Date: August 16, 2000
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Schedule I
Terms of Supply
Payment terms
Invoices payment, Prices and costs according to schedule 2.
Delivery Conditions
Goods shall be delivered according to Clause 6.4 of the agreement Ex Works
TERUMO Europe Warehouse
Goods shall be delivered on Euro-palet (I2OOx8OO mm), maximum height 1700 ▇▇
▇▇▇▇▇ included.
Indications of product code, Item, lot number and expiry date visible on the
outside of the palet.
All documents to mention:
o Client order No
o product code & description
o lot number (except on invoices)
General Terms and Conditions of TERUMO Europe as mentioned on the invoice, copy
attached to Schedule 2 as integral part of it unless otherwise stipulated in
this Agreement
This Agreement prevails in the event of any conflict between this Agreement and
the Standard Terms and Conditions of the Supplier.
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Schedule 2
Prices, Costs and Payment Terms.
Product prices
[OMITTED CONFIDENTIAL INFORMATION]
Payable in [OMITTED CONFIDENTIAL INFORMATION]
Warehousing costs.
Products are delivered EXW (Ex Works) TERUMO Europe in a warehouse used by the
Supplier, where they can be called off by the Client during a month. After this
month the Supplier charge a cost of [OMITTED CONFIDENTIAL INFORMATION] Products
per month for the use of the warehouse without detrimental acknowledgment.
Payment Terms.
Invoices will be paid 30 days from invoice date, covered by stand-by L/C (Letter
of Credit). Invoices shall be paid in accordance with the General Terms and
Conditions of TERUMO Europe as mentioned on the Invoice, copy attached to
Schedule 2 as integral part of it, unless otherwise stipulated in this Agreement
This Agreement prevails in the event of any conflict between this agreement and
the Standard Terms and Conditions of the Supplier.
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