EXHIBIT 6.01
MATERIAL CONTRACTS
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LICENSING AGREEMENT
BETWEEN
NOVAMEX DIAGNOSTIC LTEE., a Wuebec corporation, of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ represented by ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ declare to this effect to be the authorized officer of the
corporation;
(hereinafter referred to as the "Manufacturer")
AND
Biovet, Inc., and its affiliates, a Quebec corporation, of ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ represented by ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, declare to this effect to be the authorized officer of the
corporation;
(hereinafter referred to as the :Distributor")
(the Manufacturer and the Distributor hereinafter collectively referred to
as the "Parties")
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PREAMBLE
WHEREAS the Manufacturer operates a business involved in the manufacturing
of various products and wishes to have them distributed by a distributor;
WHEREAS the Distributor wishes to distribute the products described
hereinafter, for good and valuable consideration;
WHEREAS the Parties wish to confirm their agreement in writing;
WHEREAS the Parties are duly authorized and have the capacity to enter into
and execute this Agreement;
WHEREAS it is understood that this Licensing Agreement is a translation of
"Entente de Licence" signed in St-Hyacinthe, Quebec, July 23, 1998 and this
"Entente de Licence" is the only official Agreement recognized by both
parties.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1.00 PREAMBLE
The preamble is an integral part of this Agreement.
2.00 SCOPE
2.01 Distribution
The Manufacturer grants the Distributor the right to distribute
exclusively for resale purposes the product as described below
(hereinafter referred to as the "Product").
The reagent kit uses deep stick "lateral flow: to detect ROTAVIRUS in
feces in bovines and porcines.
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2.02 Territory
The intended geographical territory for the distribution of Product
is:
Canada
United States
Mexico
South America
Asia
Europe and Middle East
(Hereinafter referred to as the "Territory").
3.00 CONSIDERATION
3.01 Price List and Discounts
The Distributor has no discount on the purchase price of the Product
as per the actual priced list as stated in annex "A" of this
Agreement. Prices may be revised twice a year by the Manufacturer.
Therefore, any price list revision shall be forwarded to the
Distributor, at least ninety (90) days before it becomes effective.
3.02 Terms and Conditions of Payment
The Distributor shall pay the Manufacturer the price of the purchased
Product within the next thirty (30) days following the date of the
invoice of the Product.
3.03 Applicable Taxes
The purchase price payable by the Distributor is subject to the
various applicable taxes, (PST and GST) and any other tax which may
become applicable in the future.
3.04 Condition
The purchase price is FOB manufacturer.
4.00 SPECIAL PROVISIONS
4.01 Exclusivity, brand-name and first right of refusal
The Manufacturer grants the Distributor the exclusive rights on the
distribution of Product within the Territory and binds himself not to
make any direct sale to anyone in the Territory for the whole term of
this Agreement. Moreover, the Manufacturer undertakes not to directly
or indirectly manufacture any identical or similar product to the
Product, which could be commercialized under another trade ▇▇▇▇ and
intended for distribution in the Territory, unless the distribution of
such identical or similar product is agreed in writing by the Parties.
The Distributor agrees not to manufacture, distribute or sell,
directly or indirectly, any product use to detect ROTAVIRUS in feces
in bovines and procines using lateral flow technology.
The Distributor will be able to sell this Product under his own brand
name. However, the Distributor will clearly identify on the reagent
kit the Manufacturer of the Product as describe in annex C.
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The Distributor has the first right to refuse from the Manufacturer
any new diagnostic kits with veterinary applications. The Distributor
will have a period of ninety (90) days to accept or reject the new
product under the conditions proposed by the Manufacturer. In the
case where the Distributor refuses the distribution of the new
product, the Manufacturer would look for a third party and offer this
new Product under the same conditions previously offered to the
Distributor.
4.02 Obligations of the Manufacturer
The Manufacturer undertakes and binds himself towards the Distributor
to:
1. manufacture the Product in sufficient quantity;
2. pack the Product securely;
3. provide the Distributor with all necessary facilities for taking
delivery of the Product at the Manufacturer's warehouse;
4. provide all specifications and instructions with regard to the
Product and their use;
5. provide, on a regular basis, the suggested retail price list of
the Product;
6. provide a full warranty (parts and labor) on the Product for
similar terms and conditions as those offered by his competitors;
7. fulfill his warranty obligations by carrying out, in a reasonable
delay and at his choice, the repair or replacement of any
defective Product, provided that the said Product have been used
in accordance with the Manufacturer's instructions;
8. keep in stock and provide spare parts for the Product;
9. supply the Distributor, in reasonable quantity, with the
necessary materials for the marketing, promotion and advertising
of the Product;
10. supply the Distributor, in reasonable quantity, with samples of
the Product for promotional purposes;
11. provide the Distributor with reasonable help and support for the
marketing, promotion and advertising Product;
12. ship to the Distributor Product with a dating exceeding eight (8)
months;
13. fill all pre requisite and pay all expenses in order to obtain
the regulatory approval of the Product in each country as a
Manufacturer of the diagnostic kit;
14. share at 50/50 with the Distributor the registering cost of the
Product in each country;
15. offer, at his own expenses, the technical support to the
Distributor necessary to market the Product.
4.03 Obligations of the Distributor
The Distributor undertakes and binds himself towards the Manufacturer
to:
a) supply all necessary human and material resources to ensure
efficient and complete distribution of the Product across the
Territory;
b) supply all necessary human and material resources to ensure
reaching the sales objectives for each territory as per annex B
of this contract. The yearly sales objectives for each territory
start from the date the Product has been registered and approved
for sale in that country;
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c) verify the quantity and the packaging of Product before accepting
the delivery, and immediately report to the Manufacturer any
discrepancy in quantity of Product received or any defects in the
packaging;
d) take delivery of the Product at the Manufacturer's warehouse and
deliver them at his expense;
e) pay any amount due to the Manufacturer in accordance with the
terms and conditions of payment stated herein;
f) share the registering cost of the goods at 50/50 with the
Manufacturer in each country;
g) pay for the promotion and publicity of the Product in each
country; (free reagent kit)
h) provide and efficient, professional and prompt after-sale
service;
i) report on returned Product, in accordance with the Manufacturer's
prescribed delays and instructions
j) return to the Manufacturer defective Product under warranty, in
their original packaging or safely packed;
k) pick up and deliver Manufacturer's repaired or replaced Product
by virtue of his warranty obligation;
l) keep confidential any document, information, list, process,
recipe, practice, handling method, contract, agreement, software,
data base, and plan owned or provided by the Manufacturer in
connection with the Product, except whatever is expressly allowed
by the Manufacturer;
m) inform the Manufacturer of an actual or expected infringement or
any patent, trade ▇▇▇▇, industrial drawing or copyright belonging
to the Manufacturer, which the Distributor may be aware of.
4.04 Reserve of the Right of Ownership
Under this Agreement, the Manufacturer is and shall remain the owner
of the Products purchased by the Distributor, the Parties having
agreed that the transfer of the right of ownership will not take
effect on entering into this Agreement or when taking possession of
the Product. But only when the sums due with respect to each and
every invoice issued by the Manufacturer will be paid in full by the
Distributor.
4.05 Intellectual Property/know how
The Manufacturer declares to be the sole owner by good and valuable
title of the intellectual property of all patents, trade marks, and
copyrights with respect to the Products, and that his rights in same
are not disputed, in whole or in part, by any person at this time of
signing this Agreement. As to the Distributor, he acknowledges that
the patents, trade marks, industrial drawings and copyrights with
respect to the Product are the exclusive property of the Manufacturer.
The Distributor undertakes to never question or infringe, directly or
indirectly, any patent, trade ▇▇▇▇, industrial drawing and copyright
of the Manufacturer.
4.06 Assuming the Defense
Except in the case of the Distributor's default, the Manufacturer
undertakes to assume the defense of the Distributor in any legal
proceedings taken by a third party against the Distributor, based on a
safety failure or a latent defect of all or part of the Products or
based on actual or apprehended infringement of a patent, trade ▇▇▇▇,
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industrial drawing, or copyright in connection with the Products.
Moreover, the Manufacturer holds the Distributor harmless and free
from any judicail condemnation by final judgement against him with
regard to the aforesaid, and undertakes to pay the capital, interest,
legal costs and attorney's fees, the whole being under the
Manufacturer's personal guarantee.
4.07 Interest
All amounts due, by virtue of the various invoices to be issued from
time to time by the Manufacturer, shall bear interest at the rate of
twelve per cent (12%) annually, starting from the expiration date of
the terms and conditions of payment granted to the Distributor.
4.08 Collection Fees
Should it become necessary, following the Distributor's default to pay
the Manufacturer, to transfer an invoice to a collection officer or to
an attorney, the Distributor shall pay the Manufacturer collection
fees of twenty per cent (20%) of the amount due in capital and
interest, in addition to the actual balance owed.
5.00 GENERAL PROVISIONS
Unless otherwise stated in this Agreement, the following provisions
apply.
5.01 "Force Majeure"
Neither party shall be considered in default fo this Agreement if the
fulfillment of all or part of its obligations are delayed or prevented
due to "force majeure". "Force majeure" is an external enforceable
and irresistible event, making it absolutely impossible to fulfill an
obligation.
5.02 Severability
If any section, paragraph or provision (in all or in part) in this
Agreement is held invalid or unenforceable, it shall not, in any way,
have any effect on any other section, paragraph or provision unless
otherwise clearly provided for under this Agreement.
5.03 Notices
Any notice intended for either party is deemed to be validly given if
it is done in writing and sent by registered or certified mail, by
bailiff or by courier service to such party's address as stated int
his Agreement, or to any other address that the concerned party may
have notified in writing to the other party. A copy of any notice
sent by email shall also be sent according to one of the above
mentioned delivery modes.
5.04 Headings
The headings in this Agreement are used only for reference and
convenience purposes; they do not modify in any manner the
significance or the object of the provisions they designate.
5.05 Schedules
Whenever the Schedules of this Agreement are duly initialed by all
Parties, they are considered as an integral part of this Agreement.
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5.06 Non-Waiver
The apathy, negligence or tardiness of a party to use a right or a
recourse provided for under this Agreement shall not, in any case, be
considered as a renunciation to such right or recourse.
5.07 Cumulative Rights
All rights mentioned in this Agreement are cumulative and non-
alternative. The waiving of a right shall not be interpreted as
waiving any other right.
5.08 Entire Agreement
This agreement constitutes the entire agreement entered into between
the Parties. Declarations, representations, promises or conditions
other than those stated in this Agreement cannot be construed in any
way as to contradict, modify or affect the provisions of this
Agreement.
5.09 Amendment
This Agreement cannot be amended or modified except by another written
document duly signed by all Parties.
5.10 Gender and Number
Where appropriate the singular number set forth in this Agreement
shall be interpreted as plural and the gender as masculine, feminine
or neuter, as the context dictates.
5.11 Non-Transfer
Neither of the Parties shall assign, transfer nor convey, in any way,
his rights in this Agreement to any third party without first
obtaining the written consent of the other.
5.12 Computation of Time
In all computations of time periods under this Agreement:
a) the first day of the period shall not be taken into account, but
the last one shall be;
b) the non-juridical days i.e. Saturdays, Sundays and public
holidays shall be taken into account.
5.13 Currency
The currency used for purposes of this Agreement shall be Canadian
currency.
5.14 Governing Law
This Agreement shall be construed and enforced in accordance with the
laws in force in the Province of Quebec.
5.15 Election of Domicile
The Parties agree to elect domicile in the judicial district of Quebec
and St-Hyacinthe, Province of Quebec and choose Quebec for the hearing
of any claim arising from the interpretation, application, completion,
term, validity and effects of this Agreement.
5.16 Numerous Copies
Each copy of this Agreement is considered as an original whenever duly
initialed and signed by all Parties, it being understood however that
all of these Copies refer to the one and same Agreement.
5.17 Agreement
This Agreement binds the Parties hereto as well as their respective
successors, heirs and assigns.
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5.18 Joint and Several Liability
Whenever one of the Parties is constituted of two or more persons,
these persons are jointly and severally obligated and liable towards
the other party.
5.19 Elapsed Time
Whenever one of the Parties fails to fulfil an obligation under this
Agreement within a limited period of time, the mere lapse of time
passing shall constitute a formal notice of default to the said party.
6.00 COMING INTO FORCE
This Agreement comes into force.........
7.00 TERM
This Agreement shall be in force for a period of five (5) years and
thereafter renewable for period of 5 years in between the 2 parties.
8.00 TERMINATION
This Agreement shall terminate in any of the following circumstances:
a) on its expiry date (if for a fixed term);
b) upon a written agreement by the parties;
c) in case of insolvency, bankruptcy or any proposal from one of the
Parties;
d) in case of serious offence by one of the Parties.
This Agreement shall terminate within a delay of thirty (30) days
following the services of a formal notice to the defaulting party to
remedy its default and if there is still no action taken within the
above-mentioned delay, in the following events:
a) if the distributor fails to pay the manufacturer any amount owed
on the due date;
b) if one of the parties fails to fulfill any of his obligations
under this Agreement;
c) if the Distributor does not reach his territory sales objectives
of annex B, the Distributor will have a period of 6 months to
correct the situation. If after this period the Distributor has
not reached his sales objective, the Manufacturer and the
Distributor will search for a third party. This new third party
distributor must sell the Product under the same brand of the
Distributor.
d) the Manufacturer may terminate this Licensing Agreement with a 6
month notice to the Distributor. If so, a penalty will be paid
to the Distributor if the Distributor has met his sales
objectives. The penalty will be the total sales made by the
Distributor during the last 12 months of operation. The penalty
will be payable at the termination of the agreement.
Upon termination of this Agreement, the Distributor shall immediately
return to the Manufacturer all samples, advertising material and
documents in relation to the Product. Moreover, the Manufacturer
shall buy back from the Distributor all Product still in possession of
the Distributor at the previously invoiced price, subject to deduction
of any amount which could be owed by the Distributor to the
Manufacturer at the time of repossession.
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9.00 ACKNOWLEDGMENT BY THE PARTIES
THE PARTIES HEREBY ACKNOWLEDGE THAT:
A) PRIOR TO THE DRAFTING OF THIS AGREEMENT, DUE NEGOTIATIONS HAVE
TAKEN PLACE BETWEEN THEM;
B) THIS AGREEMENT TRULY AND COMPLETELY DEFINES THE AGREEMENT REACHED
BETWEEN THEM;
C) ALL AND EACH ONE OF THE SECTIONS IN THIS AGREEMENT ARE LEGIBLE
D) THE UNDERSTANDING OF THE AFORESAID SECTIONS CAUSES NO DIFFICULTY
WHATSOEVER.
E) BEFORE SIGNING THIS AGREEMENT, EACH PARTY HAD THE OPPORTUNITY TO
CONSULT A LEGAL ADVISER.
EACH PARTY HAS RETAINED A COPY OF THIS AGREEMENT, IMMEDIATELY AFTER
THE SIGNING OF IT BY ALL PARTIES.
SIGNED IN Quebec ( 2 ) COPIES,
AT ................. PROVINCE (OR: STATE, DEPARTMENT, ETC.)
OF..................
ON THE 22 DAY OF 07-98
THE MANUFACTURER
Ineligible /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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WITNESS THE DISTRIBUTOR
Ineligible /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
WITNESS --------------------------
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