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E EXHIBIT 99.3
EXCLUSIVE PRODUCT DISTRIBUTION AGREEMENT
THIS EXCLUSIVE PRODUCT DISTRIBUTION AGREEMENT ("Agreement") is made effective as
of the date set forth on the signature page hereof (the "Effective Date") by and
between Optigene-X, LLC ("Supplier"), a limited liability company with its
principal place of business located at 20 Avenue of the Common, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and Garra Sciences, Inc. ("Distributor"), whose
principal place of business is located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇.
RECITALS
A. Supplier has created certain products known as the "Optigene Product
Line" (as hereinafter defined) which are proprietary to Supplier.
B. Distributor desires that Supplier appoint Distributor as Supplier's
exclusive distributor throughout the world with respect to the
distribution and sale of the Optigene Product Line to any and all
potential purchasers.
C. Supplier desires to so appoint Distributor as Supplier's exclusive
distributor, all in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of their mutual promises set forth below and
other valuable consideration, the parties agree as follows:
SECTION 1. SCOPE OF AGREEMENT
1.1 DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
(a) OPTIGENE PRODUCT LINE or PRODUCTS refer to any and all nutritional
supplement products manufactured or purchased by or for Supplier
and/or any subsidiaries or affiliates thereof, including (but not
limited to) those which incorporate multiple vitamin, mineral, and
herbal supplements, digestive enzymes, electrolytes, antioxidants,
cellular energy compounds, fatty acids, nucleic acids, amino acids,
and any form of the C-Med 100 nutritional supplement.
(b) CONTRACT YEAR means any given twelve month period ending on an
anniversary of the Effective Date.
(c) LICENSE refers to the exclusive distribution license granted to
Distributor by Supplier pursuant to Section 1.2.
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(d) UNIT shall mean one (1) standard unit of shipment of a particular
Product. "Unit" shall not refer to the individual Product dose, but
to a single package of multiple doses.
(e) DEFAULT refers to a reasonable determination on the part of either
party hereto that the other party is not meeting a specific
obligation of such party as set forth in this Agreement or the Joint
Venture Agreement.
(f) SPECIFICATIONS refers to the specific formulary listing the
ingredients (active and inert) of any Product.
(g) JOINT VENTURE AGREEMENT refers to that certain Joint Venture
Agreement for the formation of Distributor to which Supplier is a
party.
1.2 EXCLUSIVE LICENSE. Supplier hereby grants Distributor an exclusive right
and license to be Supplier's exclusive distributor throughout the World
with respect to the distribution and sale of the Products through any and
all distribution channels established by Distributor. The License granted
hereby shall continue indefinitely unless assigned or terminated pursuant
to the provisions hereof. Upon termination of this License for any reason,
all rights granted herein shall immediately revert to Supplier.
(a) SCOPE: The License confers upon Distributor the exclusive right to
purchase the Products directly from Supplier, and to distribute
those Products through Distributor's distribution channels
throughout the world, and extends to all Products and/or proprietary
technologies of Supplier. Supplier further grants Distributor the
right to sublicense distribution rights within specific geographic
areas throughout the world (for which commission payments shall be
due pursuant to Section 1.2(d)); provided, however, that Distributor
shall not grant any rights to third party distributors that are not
contemplated by the License. No license is granted to prepare, make,
or have made derivative products based on the licensed Optigene
Product Line. This License does not extend to any other business
established by Optigene that does not manufacture or distribute
consumer nutraceutical products.
(i) ASSIGNMENT OF EXISTING SALES AGREEMENTS: Supplier shall assign
any and all existing and/or contemplated sales contracts for
the sale of the Optigene Product Line to Distributor for
fulfillment irrespective of the date of execution of such
contract, in accordance with the intent and purpose of the
exclusive License granted herein.
(b) LICENSE TO ENHANCEMENTS AND FUTURE PRODUCTS: The License granted
herein shall automatically extend to include any enhancements of the
existing Optigene Product Line, and the right of first refusal to
purchase new Products on an
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exclusive basis that are added to the Optigene Product Line
following the execution of this Agreement, for so long as the
License is in effect.
(c) LICENSE TERMINATION: The License granted hereby shall automatically
terminate upon the voluntary or involuntary dissolution of
Distributor. Upon such termination, the License and all rights
granted to Distributor in connection therewith shall revert to
Supplier, including any Intellectual Property rights developed in
connection with such License.
(d) COMMISSION FOR SUBLICENSES: The License granted to Distributor
contemplates the right to grant sublicenses for distribution of the
Optigene Product Line within specific geographic areas throughout
the world. Upon the receipt of the negotiated fee associated with
any such sublicense, Distributor shall pay Supplier a cash
commission equivalent to 42% of the sublicense fee received by
Distributor. The commission shall be limited to sublicense fees, and
not on products sold pursuant to the sublicense.
1.3 INDEPENDENT CONTRACTORS. Neither party shall, for any purpose, be deemed
to be an agent of the other party and the relationship between the parties
shall only be that of independent contractors.
1.4 NO OTHER TERMS AND CONDITIONS. The parties acknowledge and agree that any
terms and conditions of any purchase order, sales acknowledgement or other
document submitted to the other by either party which conflict with the
terms and conditions of this Agreement shall be of no force or effect, and
the terms and conditions hereof control and supersede such conflicting
documents and any course of conduct or usage of the trade inconsistent
with any of the terms and conditions hereof.
SECTION 2. PURCHASE AND SALE OF PRODUCT
2.1 PURCHASE AND SALE. Subject to the terms and conditions set forth herein,
Supplier agrees to sell and Distributor agrees to purchase Products in
accordance with Distributor's purchase orders and this Agreement. In this
regard:
(a) Distributor agrees to purchase and direct delivery of a minimum of
$4.44 million worth of Products for each of the first two Contract
Years (the "Minimum Purchase Requirement"). The Minimum Purchase
Requirement is calculated based upon a sales price equal to
Supplier's actual cost of Product (including packaging), plus thirty
percent (30%).
(b) Distributor and Supplier shall agree in writing to minimum purchase
requirements for the third, fourth, and fifth Contract Years ninety
(90) days prior to the commencement of each Contract Year. Should
the parties fail to come to
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an agreement as to the minimum purchase requirement for any given
year following the first two Contract Years, the minimum purchase
requirement for that year shall reflect an increase of no less than
ten percent (10%) over the minimum purchase requirement in effect
for the previous contract year.
(c) The foregoing Minimum Purchase Requirement will be satisfied for any
given Contract Year if Distributor's aggregate purchase of Product
units equals or exceeds the Minimum Purchase Requirement for that
Contract Year. Notwithstanding the foregoing, it is understood and
agreed that Distributor shall purchase not less than fifty percent
(50%) of the Minimum Purchase Requirement during the first six (6)
months of each Contract Year. If Distributor fails to meet or exceed
the foregoing minimum purchase requirement in any given Contract
Year, then, as Supplier's sole remedy, Supplier may elect, by
written notice to Distributor (i) to terminate this Agreement or
(ii) to make non-exclusive for all purposes the sales and
distribution rights granted Distributor by Section 1.2.
(d) Unless otherwise agreed, the minimum order quantity is set forth in
Exhibit "A" attached hereto and by this reference incorporated
herein.
(e) All Products will be sold under Supplier's trademarks and tradenames
only, using Supplier's trade dress, and Supplier will retain all
proprietary rights in and to the same.
2.2 PURCHASE ORDERS AND FORECASTS. Upon execution of this Agreement,
Distributor shall provide Supplier with an initial three (3) months firm
purchase order for the purchase of Products and a forecast of its Product
requirements for the fourth (4th) through ninth (9th) months thereafter
divided on a monthly basis. Commencing with the fourth (4th) month of the
first Contract Year and continuing thereafter, Distributor will provide
Supplier, on or before the last day of each calendar month during the term
of this Agreement, an additional firm purchase for Products for the third
full calendar month thereafter and a revised or supplemental forecast of
Product requirements for the fourth (4th) through ninth (9th) months
thereafter (unless the term hereof is shorter), it being the intent that
in general Distributor will provide three (3) months purchase orders and
six (6) months forecasts on a rolling monthly basis during the term of
this Agreement. Distributor's purchase orders for a given month, in order
to be conforming, must specify only delivery dates during that month.
Distributor's forecasts are non-binding, but shall be Distributor's
reasonable best estimate of its future Product requirements.
2.3 ACCEPTANCE OF PURCHASE ORDERS. Within ten (10) days of receipt of a
purchase order from Distributor, Supplier may request in writing a
modification of the Product designations, quantities, delivery dates, and
special shipment instructions specified thereon. Supplier's failure to
request a modification or to reject a purchase order within the ten (10)
day period shall be deemed an acceptance thereof. Upon actual or
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deemed acceptance of a purchase order by Supplier, a binding contract for
the sale and purchase of Product shall exist between Supplier and
Distributor in accordance with this Agreement and Distributor's purchase
order. If Supplier requests modification of any of the aforementioned
terms of Distributor's purchase order, then Distributor shall have ten
(10) days following receipt of the request to accept or reject Supplier's
modifications. If Distributor does not respond or object to Supplier's
request within ten (10) days of receipt, the modifications specified
thereon shall be deemed accepted by Distributor. Upon Distributor's actual
or deemed acceptance of purchase order modifications by Supplier, a
binding contract for the sale and purchase of Products shall exist between
Supplier and Distributor in accordance with this Agreement and
Distributor's purchase order as so modified. The foregoing modification
procedure shall apply only with the regard to Product designations,
quantities, delivery dates, and special shipment instructions. With
respect to all other terms, Supplier and Distributor agree that the terms
and conditions of this Agreement shall apply to the sale of Product
hereunder and cannot be modified or amended except as provided in Section
12.8.
2.4 NON-CONFORMING ORDERS. Supplier will use reasonable commercial efforts to
fill non-conforming purchase orders for Products in accordance with
Distributor's requests.
2.5 SHIPMENT. Supplier will ship Product to Distributor to the delivery
destination(s) specified in Distributor's purchase orders. Supplier shall
arrange prepaid insured common carrier transportation of the Products in
accordance with Distributor's instructions, at Distributor's expense.
Supplier may not undership or overship by more than ten percent (10%)
without Distributor's prior written consent.
2.6 DELIVERY, TITLE AND RISK OF LOSS. For purposes of this Agreement, delivery
to or on behalf of Distributor will occur when the Products are placed in
the possession of the common carrier by Supplier. Title and risk of loss
or damage with respect to the Products shall pass to Distributor upon
delivery by Supplier to one common carrier.
2.7 PACKAGING FOR SHIPMENT. Unless otherwise agreed in advance, all Products
shall be packed by Supplier as Supplier reasonably deems appropriate to
minimize risk of loss or damage in transit.
SECTION 3. PRICES AND PAYMENT
3.1 PRICE. The prices for the Products (including volume discounts) for the
first twelve (12) months of this Agreement (the first "contract year") are
as set forth on Exhibit A and by this reference incorporated herein.
Prices do not include applicable sales or use taxes and shipping &
handling costs (freight and insurance), which shall be separately stated
on Supplier's invoices and born by Distributor.
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3.2 PRICE CHANGES. The prices set forth on Exhibit A shall be revised
annually, on or before the start of each Contract Year, to reflect any
increase or decrease in manufacturing costs for the Products reasonably
projected by Supplier for the next Contract Year (in each case, determined
in accordance with generally accepted accounting principles, consistently
applied), with the first pricing review occurring ten (10) months after
the Effective Date of this Agreement. Price changes are not effective
unless mutually agreed to in writing (agreement not to be unreasonably
withheld if consistent with this Section 3.2). Prices may also be subject
to change immediately following the imposition of any material cost
increase associated with the manufacture of the Products, with the change
being effective immediately following Supplier's demonstration of any
material cost increase to the reasonable satisfaction of Distributor. All
such material cost increases shall be factored into an increased Product
price to maintain the cost plus thirty percent price structure established
by this Agreement.
(a) AUDITS: In the event Supplier indicates an intent to increase
the price of any Product, upon the written request of
Distributor, Supplier shall provide Distributor with an audited
financial statement of Supplier's finances for the preceding
year. Such audited financial statement shall be prepared at
Distributor's expense. In addition, to validate the necessity of
the requested price increase, Distributor's representatives shall
have the right, during ordinary business hours and with
reasonable prior notice, to inspect Supplier's books and records
as they pertain to this Agreement.
3.3 TAXES. Distributor shall be responsible for all VAT, sales, use and other
similar taxes applicable to Product supplied under this Agreement, unless
Distributor provides written proof of exemption.
3.4 PAYMENT. Supplier shall issue invoices for Product on or after the date of
shipment. Payment shall be due within thirty (30) days from the date of
invoice. A late charge at the rate of one and one-half percent (1 -1/2%)
per month or the highest rate allowed by law, whichever is lower, shall be
applied to the total invoice price for payments not received within thirty
(30) days after the date of invoice. Supplier reserves the right to refuse
shipment on any new invoice when payment is more than thirty (30) days
past due for a previous invoice, until such previous invoice is paid in
full.
SECTION 4. SPECIFICATIONS, QUALITY CONTROL, ACCEPTANCE
4.1 SPECIFICATIONS. Subject to Section 4.3, Supplier shall produce
copies of the Products in all material respects in accordance with their
Specifications and all applicable federal, state and local laws and
regulations.
4.2 SPECIFICATION CHANGES. Supplier reserves the right to change the
Specifications by written notice to Distributor. If Distributor objects to
any Specification change
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proposed by Supplier, then the parties will consult in good faith to
resolve their differences and Supplier will not implement the change
without Distributor's consent (not to be unreasonably withheld).
4.3 QUALITY ASSURANCE. Supplier shall be responsible for ensuring that the
Products meet Supplier's internal quality assurance tests and procedures
prior to shipment hereunder. Upon request, Supplier will provide
Distributor with written certification by a responsible supervisory
employee of Supplier that the requirements of this Section 4.3 have been
met.
4.4 ACCEPTANCE. Products shipped hereunder shall be subject to acceptance by
Distributor within fifteen (15) days of receipt. Distributor shall
promptly inform Supplier of any Product rejected as non-conforming and at
Supplier's request shall return non-conforming Products to Supplier, at
Supplier's risk of loss and expense. Products as to which no rejection has
occurred within fifteen (15) days shall be deemed accepted.
SECTION 5. WARRANTY, DISCLAIMER, LIMITATION
5.1 PRODUCT WARRANTY. Supplier warrants to Distributor that the
Products purchased hereunder shall be free from all defects in materials,
workmanship, and packaging and shall conform in all material respect to
the Specifications, provided the Product in question has been stored and
used in accordance with ordinary industry practices and conditions.
5.2 REMEDIES. In the event that a Product does not comply with the product
warranty set out in Section 5.1 and such non-conforming Product is
returned to Supplier within the warranty period by Distributor freight
prepaid, Supplier will replace such non-conforming Product at no
additional charge to Distributor; the replaced Product will be returned to
Distributor, freight prepaid.
5.3 DISCLAIMER OF WARRANTIES. The foregoing express warranties are limited to
Supplier and are not transferable and are in lieu of any other warranty by
Supplier with respect to Products furnished hereunder. SUPPLIER GRANTS NO
OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.4 LIMITATION OF LIABILITY. EXCEPT AS PROVIDED FOR IN SECTION 6, SUPPLIER
SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SALE OR USE OF ITS
PRODUCTS, WHETHER OR NOT SUPPLIER HAS ADVANCE NOTICE OF THE POSSIBILITY OF
SUCH DAMAGES. IF SUPPLIER BREACHES ANY PROVISION OF THIS AGREEMENT,
SUPPLIER'S SOLE AND EXCLUSIVE MAXIMUM LIABILITY,
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WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT
EXCEED THE CONTRACT PRICE FOR THE PARTICULAR PRODUCTS.
SECTION 6. INDEMNIFICATION
6.1 SUPPLIER INDEMNIFICATION: Supplier hereby agrees to indemnify and hold
harmless Distributor, including its affiliates, subsidiaries, successors,
assigns, officers, directors, agents, and employees, from and against any
and all liabilities, damages, losses, expenses, claims, demands, suits,
fines, or judgments (including, but not limited to, attorneys' fees,
expert witness costs, court costs, and expenses) that may at any time be
threatened against, suffered by, accrued against, charged to, or
recoverable against Distributor in any forum by reason of any alleged
defect in the Optigene Product Line, including (but not limited to) a
failure to design, manufacture, and label the Products accordance with
applicable federal, state, and local regulations; Supplier's failure to
obtain or maintain all permits and licenses required under law in relation
to the manufacture of the Products or this Agreement, and any financial
loss, injuries or death of persons or loss of, damage to, or destruction
of property (including loss of use thereof) arising directly out of the
distribution of Supplier's products by or through Distributor (including
any punitive and/or exemplary damages associated with such claims). With
the exception of any liability to Distributor for personal injury or death
caused by Supplier's negligence, Supplier's liability under this Agreement
shall not exceed the total dollar amount received by Supplier in
connection with the sale of Products to Distributor determined as of the
time of claim for indemnification.
SECTION 7. PROPRIETARY INFORMATION
7.1 PROTECTION OF PROPRIETARY INFORMATION. Supplier and
Distributor agree to keep in confidence and not disclose to others all
knowledge, information and data furnished to either by the other party and
claimed by the other party to be proprietary, provided such information is
given in writing or, if oral, is reduced to writing within thirty (30)
days and such writing is marked to indicate the claims of ownership and/or
secrecy. Supplier and Distributor agree that neither shall use, nor
reproduce for use in any way, any proprietary information of the other
except in furtherance of the relationship set forth herein. Supplier and
Distributor agree to protect the proprietary information of the other with
the same standard of care and procedures used by each to protect its own
proprietary information of similar importance but at all times using at
least a reasonable degree of care.
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7.2 LIMITATIONS. Section 7.1 shall not be applicable and shall impose no
obligation on a party with respect to any portion of proprietary
information which:
(a) Was at the time received or which thereafter becomes, through no act
or failure on the part of such party, generally known or available
to the public;
(b) Is known to such party at the time of receiving such information as
evidenced by documentation then rightfully in the possession of
either party;
(c) Is furnished to others by the other party without restriction of
disclosure;
(d) Is thereafter rightfully furnished to such party by a third party
without restriction by that third party on disclosure; or
(e) Has been disclosed pursuant to the requirements of law or court
order without restrictions or other protection against public
disclosure; provided, however, that the other party shall have been
given a reasonable opportunity to resist disclosure and/or to obtain
a suitable protective order.
7.3 SURVIVAL. The covenants of confidentiality set forth herein shall survive
and continue and be maintained from the Effective Date hereof until three
(3) years after termination of this Agreement.
SECTION 8. TERM AND TERMINATION
8.1 TERM. The initial term of this Agreement shall commence upon the Effective
Date and shall continue for a period of five (5) Contract Years (the
"Initial Term"). Thereafter, this Agreement shall be automatically renewed
for successive one (1) year terms unless terminated by either party by
ninety (90) days written notice given on or before the commencement of any
renewal term.
8.2 TERMINATION. Notwithstanding the effective period of this Agreement as set
forth in this Section 8, this Agreement shall terminate immediately upon
the termination of the Joint Venture Agreement. In addition, the parties
may mutually agree in writing to the early termination of this Agreement
at any time during the effective period hereof.
8.3 DEFAULT: The occurrence of any one or more of the following events shall
constitute an event of default (the "Event of Default") pursuant to the
terms of this Agreement:
(a) Any party fails to timely, fully, and properly perform any material
covenant, agreement, obligation, term, or condition contained herein
or within the Joint Venture Agreement, and such failure continues
for a period of thirty (30) days after receipt by the defaulting
party of written notice thereof from the other party.
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(b) Any party: (i) ceases to do business; (ii) takes any action or
otherwise commences legal proceedings to declare bankruptcy, or to
wind-up, liquidate, dissolve, or reorganize (other than a
reorganization while solvent), or (iii) has appointed on its behalf
a receiver, trustee, or similar officer.
8.4 RIGHTS UPON DEFAULT: Upon the occurrence of an Event of Default, the
non-defaulting party shall have the right to: (i) terminate this Agreement
and all rights granted hereunder; (ii) retain a third party to take on the
responsibilities of the defaulting party as set forth herein until the
default is cured; and/or (iii) seek all legal and equitable remedies to
which it is entitled, including without limitation all actual and direct
damages it may have suffered by virtue of the breach.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 NOTICES: Any notice or communication required under this Agreement to be
made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by registered
mail with confirmed receipt (postage prepaid), or delivered by overnight
courier to the address of the party as set forth above. A notice sent by
facsimile transmission shall be deemed to have been delivered on
transmission provided that a copy of such notice was also sent via
registered mail with confirmed receipt.
9.2 TITLES AND CAPTIONS: All article and section titles or captions in this
Agreement are for convenience only. They shall not be deemed a part of
this Agreement, and in no way define, limit, extend, or describe the scope
or intent of any of its provisions.
9.3 BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the Parties and their successors, legal representatives, and
permitted assigns.
9.4 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the parties hereto, and supersedes all prior and contemporaneous
agreements, arrangements, negotiations, and understandings between the
parties hereto relating to the subject matter hereof. There are no other
understandings, statements, promises or inducements, oral or otherwise,
contrary to the terms of this Agreement. No representations, warranties,
covenants, or conditions, express or implied, whether by statute or
otherwise, other than as set forth herein have been made by any party
hereto.
9.5 NO WAIVER: No waiver of any term, provision, or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or shall constitute, a waiver of any other
provision hereof, whether or not similar,
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nor shall any such waiver constitute a continuing waiver, and no waiver
shall be binding unless executed by the party making such waiver.
9.6 PARTIES IN INTEREST: Nothing in this Agreement (whether express or
implied) is intended to confer upon any person other than the parties
hereto and their respective successors and permitted assigns, any rights
or remedies under or by reason of this Agreement, nor is anything in this
Agreement intended to relieve or discharge the liability of any other
party hereto, nor shall any provision hereof give any entity any right to
subrogation against any party.
9.7 RELATIONSHIP: The relationship between the parties shall be limited to the
performance of the terms and conditions of this Agreement. Nothing herein
shall be construed to create a general partnership, joint venture, or
other arrangement between the parties, or to authorize any party to act as
a general agent for another, or to permit any party to bind another other
than as set forth in this Agreement, or to borrow money on behalf of
another party, or to use the credit of any party for any purpose.
9.8 BRANDING: Either party may use the other's logos, trademarks, tradenames,
and trade dress for advertising purposes with prior written approval,
which shall not be unreasonably withheld. No ▇▇▇▇ of supplier may be
placed upon products not manufactured or otherwise supplied by Supplier.
No party may make any unauthorized claims with regard to the other party's
products; any such unauthorized claims shall absolve the other party of
any liability in connection therewith.
9.9 COUNTERPARTS: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9.10 INVALIDITY OF PROVISIONS: If any provisions of this Agreement is or
becomes wholly or partly invalid, illegal, or unenforceable:
(a) The validity, legality, and enforceability of the remaining
provisions shall continue in force unaffected, and
(b) The parties shall meet as soon as possible and negotiate in good
faith upon a replacement provision that is legally valid and that as
nearly as possible achieves the objectives of the Agreement and
produces an equivalent economic effect. A replacement provision
shall apply as of the date that the replaced provision had become
invalid, illegal, or unenforceable.
9.11 TRANSACTION EXPENSES: Each party shall pay its own fees and expenses
(including legal and accounting fees) incident to the preparation and
execution of this Agreement.
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9.12 FORCE MAJEURE: Neither party shall be liable to the other in the event and
to the extent that performance is delayed or prevented by any cause
reasonably beyond such party's control, including, but not limited to,
acts of God, public enemies, war, civil disorder, fire, flood, explosion,
labor disputes, or any acts or orders of any governmental authority,
inability to obtain supplies or materials (including, without limitation,
computer hardware) or any delay or deficiency caused by the electrical or
telephone line suppliers or other common carriers (herein referred to as
"Force Majeure"). A party's failure to perform due to the existence of a
Force Majeure event shall be excused only for so long as the Force Majeure
event continues.
9.13 GOVERNING LAW/ARBITRATION: This Agreement shall be construed and governed
in accordance with the laws of the United States and the State of New
York. Any controversy or claim arising out of or relating to this
agreement shall be determined by arbitration in accordance with the
International Arbitration Rules of the International Arbitration
Association. The number of arbitrators shall be three (3) and the place of
arbitration shall be New York City, New York, and the language of the
arbitration shall be in English. Arbitration proceedings shall take no
more than three (3) days, and no party shall be entitled to conduct
discovery in connection with any such arbitration.
9.14 FURTHER DOCUMENTS: The parties agree to execute such other documents as
may be necessary to effectuate the purposes of this Agreement as set forth
above.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
(THE FOLLOWING PAGE IS THE SIGNATURE PAGE)
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IN WITNESS WHEREOF, the parties have executed the Agreement as of the date
last written below.
OPTIGENE-X, LLC GARRA SCIENCES, INC.
BY: BY:
------------------------------- ---------------------------------
NAME: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NAME: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
---------------------------- -------------------------------
TITLE: PRESIDENT TITLE: CHAIRMAN
---------------------------- ------------------------------
DATE: JUNE 12, 2001 DATE: JUNE 12, 2001
----------------------------- ---------------
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EXHIBIT A
PRODUCT PRICES AND MINIMUM QUANTITIES
MINIMUM QUANTITY PRICE PER UNIT
OPTIGENE PROFESSIONAL:
OPTIGENE GOLD:
C-MED STANDALONE:
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