DISTRIBUTOR AGREEMENT
This agreement (the "Agreement") is made as of this 3rd day of August,
1998 by and between American Biogenetic Sciences, Inc., having a business
address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company") and
Corgenix Medical Corporation having a business address at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Distributor").
IT IS MUTUALLY AGREED THAT:
1. DEFINITIONS.
(A) PRODUCTS. The terms "Product" and "Products", as used in this
Agreement, means TpPJ Kits in a microtiter plate format.
(B) MARKET. The term "Market" as used in this Agreement shall be
defined as North America and other such territories as the Parties shall
mutually agree to add.
2. APPOINTMENT. Subject to the terms and conditions of this Agreement,
Company hereby appoints the Distributor on a non-exclusive basis to promote and
sell the Products in the Market, and Distributor accepts such appointment upon
the terms and conditions herein stated. Such appointment does not carry with it
any right to appoint any sub-distributors.
3. SALES PROMOTION. Sales Promotion shall mean the efforts of Distributor
to promote the sale of the Products in the Market as more specifically set forth
in Exhibit A and Section 7 hereof.
4. PRODUCT PURCHASE.
(A) PRODUCT PRICES. The price of the Products to the Distributor
shall be the Company's current Distributor Price List, as modified by the
Company from time to time. Initially, the distribution price shall be as set
forth in Exhibit B.
(B) POINT OF SHIPMENT. The distribution price for Product sold to
the Distributor is F.O.B. the Company warehouse Boston, MA, U.S.A.
(C) COSTS OF SHIPMENT, ETC. All costs of transport, insurance and
handling, all duties and the risk of loss in transit, after the Products have
been placed on board any appropriate means of transportation at the Company's
warehouse, will be borne by the Distributor. Title to the Products passes to the
Distributor at the time loading of the Products on any appropriate carrier at
Company's warehouse is completed. The Distributor shall be responsible for the
payment of all import arrangements including taxes, duties, import licenses and
appropriate import documents. Standard method of shipment is cold pak via
Federal Express or any overnight service.
(D) PAYMENT. Invoices are due and payable on or before the 30th day
following the date Company invoices the Distributor.
(E) PURCHASE ORDER ACCEPTANCE. Purchase contracts between the
Distributor and Company are binding when Company mails its notice of acceptance
of Distributor's purchase order. Any provision in a purchase order contrary to
the terms of this Agreement is invalid and inoperative unless specifically
accepted in writing in Company's notice of acceptance. Mere notice of acceptance
shall not be deemed to be acceptance of terms contrary to those of the Agreement
or a modification of this Agreement.
(F) ORDER FULFILLMENT. Company agrees that it will endeavor to fill
the accepted orders as promptly as practicable, subject, however, to delays
caused by force majeure such as, transportation conditions, labor or material
shortages, strikes, fires, or any other cause beyond Company's control.
5. MARKETING INFORMATION. Company agrees to provide to Distributor
information necessary to prepare literature, price sheets and any other items
that Company deems necessary to properly sell the Products. Distributor agrees
that upon termination of this Agreement, they will return all remaining
literature, price sheets, etc. still remaining in their possession or under
their control. The Product has been cleared by the U.S. FDA for sale.
Distributor agrees that the promotional material will not be misleading and will
conform to U.S. FDA regulations and regulations or laws of its distribution
Market Specifically, the Distributor agrees to advertise only according to the
clinical / medical use claims provided in the package insert and not to mislabel
or adviterate any label applied to Product by Company.
6. DISTRIBUTOR'S, RELATIONSHIPS AND CONDUCT OF BUSINESS.
(A) It is agreed and understood that the Distributor is an
independent contractor of Company. The Distributor is not and shall not be an
employee, partner or agent of Company for any purpose, and is not granted any
right or authority to assume or create any obligation or responsibility, express
or implied, on behalf of or in the name of Company or to bind Company in any
matter or transaction.
(B) Any expenses or costs which the Distributor personally incurs
under this Agreement, and any other expenses incurred by the Distributor to
operate pursuant to this Agreement shall be paid and borne by Distributor
without reimbursement from Company. Company shall not be responsible for any
costs except as specifically provided in Exhibit A and with respect to materials
described in Section 5.
(C) The Distributor agrees to be fully and exclusively liable to
agents, employees, and servants, that Distributor may employ for any and all
consideration or compensation due to such person, and Distributor shall also be
fully and exclusively liable for any and all acts or commissions of its agents,
employees and servants.
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7. PROMOTION OF PRODUCTS.
(A) Distributor agrees to aggressively promote the Product by
advertising, direct sales and/or other means of promotion suitable to stimulate
sales of Product.
(B) The Distributor shall solicit customers for and sell Product in
the Market and shall not solicit customers for and sell any goods or material of
any kind which are or may be competitive with the Product during the term of
this Agreement. The Company may terminate immediately the Agreement if
Distributor continues to promote or to distribute competing products when
notified by the Company. The Distributor agrees not to sell the Product outside
of the Market or to sell it to any customer which Distributor knows or has
reason to know will resell Product outside the Market.
8. TERM AND TERMINATION.
(A) The term of this Agreement shall be twelve (12) months from the
date hereof, automatically renewable for two additional twelve month periods
provided that for the first renewal period Distributor orders a minimum of
[Confidential Portion Omitted and Filed Separately with the Commission] kits
in year two and for the second renewal period [Confidential Portion Omitted and
Filed Separately with the Commission] kits in year three. Either party has the
right to terminate the Agreement by providing written notice at least 60 days
prior to the term of the agreement.
(B) If either party breaches a term of this Agreement the other
party shall be allowed to terminate this Agreement if an adequate remedy has not
been implemented within thirty (30) days after written notice.
(C) In the event the Distributor becomes insolvent, or seeks
protection, voluntarily or involuntarily, through bankruptcy, or ceases
conducting business, or Company has terminated the trademark license the Company
shall have the immediate right to terminate this Agreement.
(D) Upon termination of this Agreement, the Company (i) shall have
the right to cancel all unfilled orders submitted by the Distributor, and (ii)
shall have the right to repurchase, paying no more than the net price originally
paid by the Distributor, such of its Products in Distributor's inventory as it
shall elect to repurchase, and (iii) shall not be liable for any damages due to
breach of contracts entered into between the Distributor and its customers, and
(iv) Distributor shall provide Company with a current copy of its customers'
list for Product, after Company repurchases all of Distributor's existing
inventory (WITH REMAINING UNEXPIRED SHELF LIFE) no later than the date the
termination becomes effective.
(E) Upon termination of this Agreement, Distributor will offer to
assign to the Company or its appointed successor distributor at no cost to
Distributor without further compensation all then-existing contracts not then
fully performed for the sale of the Products.
(F) Upon termination of this Agreement, payment shall be immediately
due on all amounts owed by Distributor to the Company.
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9. WARRANTY. The Company warrants that the Products it manufactures or
sells are free from defects in material and workmanship for a period coinciding
with the Expiration Date contained on the Product. The Products are only
warranted if stored and handled in accordance with instructions and if used
within the limitations of the Company's specifications, and the Products are
returned in accordance with the Company's return authorization instructions. The
Distributor understands that biological products are perishable, proper shipment
and storage condition are extremely important. The Distributor warrants that it
has proper handling and storage facility for the Product.
The Distributor's and end users (the "Buyer's") exclusive and sole
remedy on account of any defective Products furnished by the Company, and the
Company's liability with respect thereto is limited to replacement thereof or
the invoice cost thereof, as shall be determined by the Company in its sole
discretion. Handling or service charges in question with return of such
Products, if approved by the Company shall be charged as determined by the
Company. The Company shall not be liable in any event for any general, special,
incidental, direct, nondirect, or consequential damages to the Distributor or
Buyer or anyone on account of any Products sold by the Company or Distributor.
This warranty is void if the Product is altered in any fashion by anyone other
than the Company. The foregoing shall constitute the Distributor's and Buyer's
sole right and remedy.
10. PATENTS. The Company agrees to defend and hold harmless Distributor
with respect to any patent infringement suite brought within the Market relating
to the Product, property sold by Distributor provided that Distributor provides
Company with immediate notice of any such suit or threatened suit and give
Company full authority and cooperation in the defense of any such threat or
action.
11. NOTICES. Any notices, demands, or other communications required
hereunder shall be in writing and shall be (i) sent by telecopy (and confirmed
by one of the following three methods), (ii) hand delivered, (iii) sent by
Federal Express, Express Mail or similar overnight delivery service for priority
next business day delivery, or (iv) sent by certified or registered mail, return
receipt requested, in any case addressed as follows (or to such other address as
a party shall have designated by notice given to the other party pursuant
hereto), and shall be deemed given (i) when received at the recipient's telecopy
number if received before 5:00 p.m. or otherwise at 9:00 a.m. on the next
business day, (ii) when delivered if hand delivered, (iii) the next business day
after being sent if given by Federal Express, Express Mail or other overnight
delivery service or (iv) the date received if sent by certified or registered
mail, return receipt requested:
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(A) if to Company: (B) if to Distributor:
American Biogenetic Sciences, Inc. Corgenix Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman of the Board Attn:
fax: ▇▇▇-▇▇▇-▇▇▇▇
12. NO ASSIGNMENT. This Agreement is not assignable by the Distributor
without the written consent of Company. Company shall have the right to assign
this Agreement.
13. AMENDMENT, MODIFICATION, OR WAIVER. No amendment, modification or
waiver of any condition, provision or terms of this Agreement shall be valid or
of any effect unless made in writing and signed by both parties. Any waiver by
any party of any default of another party shall not affect or impair any rights
arising from any subsequent default. Nothing herein shall limit the remedies and
rights of the parties hereto under and pursuant to this Agreement.
14. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties hereto with respect to the transactions contemplated hereby and
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
15. CAPTIONS, HEADINGS, OR TITLES. All captions, headings or titles in the
sections of the Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement or a limitation of scope of the
particular sections to which they apply.
16. COUNTERPARTS. This Agreement may be signed in counterparts and shall
become effective as if executed in a single, complete document as of the date
hereof upon its execution by both Parties. Facsimile signatures of the
undersigned Parties will have the same force and effect as original signatures.
17. GOVERNING LAW. This Agreement and any modifications and additions
thereto shall be governed in accordance with the laws of the State of New York.
Distributor agrees to submit to and accept the jurisdiction of the courts of the
State of New York in connection with enforcement of any judgement arising out of
an arbitration proceeding.
18. DISPUTES AND ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement shall be settled solely by binding arbitration in
Nassau County, New York pursuant to the Commercial Arbitration Rules then in
effect of the American Arbitration Association ("AAA"). There shall be three (3)
arbitrators, one of whom shall be selected by the party seeking to initiate the
arbitration, one by the other party and the third by the selected arbitrator(s).
If a party fails to select an arbiter within 30 days after receiving a notice of
arbitration, it shall forfeit its right to do so. The arbitration award shall be
given in writing and shall be final and binding on the parties with respect to
the subject matter in controversy. The parties shall keep confidential the
arbitration proceedings and terms of any arbitration award, except as may
otherwise be required by law or
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regulation. Each party shall bear its own legal fees and other costs related to
the arbitration, except that the arbitrators shall determine who shall bear the
costs of the AAA and arbitrators. The arbitrators may determine arbitrability
but may not award punitive damages or limit, expand or otherwise modify the
terms of this Agreement.
19. TRADEMARKS.
(A) TRADEMARK OWNERSHIP. The Distributor recognizes the exclusive
ownership and right of Company to all trademarks used by them in connection with
the Products, and the Distributor agrees to sell and advertise these Products
only under the trademarks regularly applied to them by Company.
(B) TRADEMARK USAGE. The Distributor agrees that in selling Products
with such trademarks, Distributor acquires no right in Company's trademarks, and
Distributor will comply with all directives of Company with regard to its
trademarks and trade names.
(C) Company grants Distributor a nonexclusive right to use the TpP
trademark solely in connection with Sales Promotion provided that at all times
Distributor shall use the trademark in accordance with standards set by and
acceptable to the Company. If Distributor should fail to meet such standards and
to remedy such failure within 15 days after receiving notice thereof, Company
shall have the immediate right to terminate the license grant provided in
Section 7(c).
(D) DISCONTINUANCE OF USE OF COMPANY'S TRADEMARKS. Upon termination
of this Agreement, the license grant to Distributor shall terminate and
Distributor will discontinue the use of trademarks and trade names belonging to
the Company and refrain from using words, names, signs, expressions of designs
or combinations of words similar to Company's trademarks and trade names.
IN WITNESS WHEREOF, Company and the Distributor have duly signed and
executed this Agreement effective as of the date first written above.
AMERICAN BIOGENETIC SCIENCES, INC. DISTRIBUTOR
By: By:
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
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EXHIBIT A
SALES PROMOTION
Distributor (Corgenix) and Company (ABS) will cooperatively work together to
co-promote the Product and to create awareness in the research and medical
communities.
Distributor will select key sites to evaluate the Product and collect clinical
data. Distributor will provide Company with the name of a contact person at the
key sites and Distributor shall provide to Company all data generated and
conclusions made regarding same.
Distributor agrees to advertise and distribute promotional material and
technical literature and to use every other effort necessary to promote the
Product. To support the promotional campaign, Company will, for the first 6
months, provide a promotional allowance of [Confidential Portion Omitted and
Filed Separately with the Commission] for every [Confidential Portion Omitted
and Filed Separately with the Commission] Product kits purchased at a minimum
purchase price of [Confidential Portion Omitted and Filed Separately with the
Commission] per kit.
The Company and Distributor will review the effect and performance of such
promotional activities after 6 months and will negotiate in good faith the
amount of future promotional allowances and the nature of such future
activities.
EXHIBIT B
PRODUCT PRICE
The distributor price for the TpP kits in a microtiter plate format is
[Confidential Portion Omitted and Filed Separately with the Commission]