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DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and effective this 18th day
of January, 2001, by and between HTS Biosystems, Inc., a Minnesota Corporation
having its principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, The
United States of America ("HTS") and Mitsubishi Chemical Corporation, a Japanese
corporation having its principal office at ▇-▇, ▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ("Distributor ").
WITNESSETH THAT;
WHEREAS, HTS has developed and is now engaged in the manufacture and
sale of HTS SPR Array System (the "Products") and HTS is desirous to increase
its sales of the Products for Research Applications as defined in the License
and Sublicense Agreement between the parties hereto of even date herewith in
Japan (the "Territory"); and
WHEREAS, Distributor wishes to distribute and resell the Products in
the Territory;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1 APPOINTMENT
Subject to the terms and conditions set forth herein, HTS hereby
appoints Distributor as HTS's exclusive distributor to distribute and resell the
Products for Research Application Field in the Territory (collectively, the
"Customers"), for the term set out below, and Distributor hereby accepts such
appointment.
ARTICLE 2 RELATIONSHIP
The relationship hereby established between the parties hereto shall
be solely that of seller and buyer, and either party hereto shall be in no way
the agent or representative of the other party for any purposes whatsoever.
Either party hereto shall have no right to enter into any agreement, commitment
or understanding, or to incur any obligation or liability in the name of or on
behalf of the other party hereto, except as expressly permitted herein.
ARTICLE 3 SALES AND PURCHASE
3.1 Under the terms and conditions set forth herein, HTS shall sell to
Distributor, and Distributor shall purchase from HTS, the Products
for the purpose of distribution and resale of the Products to the
Customers in the Territory by Distributor hereunder. Unless otherwise
specifically provided for herein, detailed terms and conditions
applicable to each individual transaction of the Products between the
parties, including the prices payable by Distributor to HTS,
commission from HTS to Distributor, minimum yearly purchase
requirements by Distributor and the terms of payment (inclusive of
the provision of letter of credit), shall be separately agreed upon
between the parties hereto.
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3.2 Distributor shall not distribute or sell the Products to anyone
outside the Territory, nor to anyone in the Territory who,
Distributor knows or has reason to know, intends to resell the
Products outside the Territory. Without prior written consent of HTS,
Distributor shall not distribute or sell the Products to anyone other
than Customers in the Territory, nor to anyone in the Territory who,
Distributor knows or has reason to know, intends to use the Products
for any purpose other than Research Application Field in the
Territory.
3.3 Distributor shall not alter or remodel the Products without the prior
written consent of HTS.
3.4 HTS shall have the right, at any time without compensation to
Distributor, to discontinue manufacturing the Products or change the
Specifications as defined in Article 9 hereof, at its sole
discretion, by giving ninety (90) days' prior written notice to
Distributor.
3.5 Distributor shall submit the orders for the purchase of the Products
to HTS in writing in such format as may be required by HTS at least
one (1) month prior to the delivery date requested by the
Distributor.
3.6 Formal acceptance of orders by HTS shall be evidenced by the delivery
to Distributor of written confirmation of receipt of such orders by
HTS.
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ARTICLE 4 SHIPMENT AND DELIVERY
Except as otherwise expressly set forth herein, delivery terms for
the Products shall be FOB Boston ▇▇▇▇▇ International Airport, and shall be
governed and construed in accordance with INCOTERMS 2000 and any amendments
thereto.
ARTICLE 5 SALES PROMOTION AND AFTER-SALES SERVICES
5.1 Distributor shall, at its own cost and expenses, diligently and
adequately advertise and promote the sale of the Products in the
Territory and perform technical services or any other after-sales
services relating to the Products (the "After-Sales Services").
5.2 When Distributor requests After-Sales Services to HTS and HTS agrees
with the necessity of such Distributor's request, HTS shall, at its
own cost and expense, collect data related to such After-Sales
Service and send its employee(s) for such After-Sales Services.
5.3 HTS shall, free of charge, provide Distributor with its reasonable
requirements for translation of HTS's promotional and advertising
material in English for marketing of the Products, such as pamphlets,
leaflets and catalogs.
5.4 Distributor agrees that any of its publication or advertisement with
respect to the Products shall be based on and strictly consistent
with the promotional and advertising material or any other
information or data furnished by HTS and shall be subject to HTS's
approval to be obtained prior to its release thereof.
ARTICLE 6 INVENTORY
Distributor shall maintain adequate inventory of the Products so as
to keep them available for the prompt response to orders from its customers and
for the After-Sales Services.
ARTICLE 7 DISTRIBUTOR'S PERSONNEL
Distributor shall employ a sufficient number of sales staff and
engineers so as to promote the sale of the Products and render the After-Sales
Services. Upon reasonable request of the Distributor, HTS shall furnish training
to one or more of such sales staff and/or engineers acceptable by HTS in order
to have such person(s) master the proper handling, and technical services of the
Products. The expenses incurred for such training except for HTS's specialist's
cost and expense for the operation of HTS's equipment for such training shall be
borne by Distributor.
ARTICLE 8 REPORTS
8.1 Distributor shall provide HTS at least monthly during the term hereof
with written reports indicating information on the performance of its
business activities, including the sales results of the Products,
purchase volume forecast of the Products per each customer and other
matters as may be reasonably requested by HTS.
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8.2 In the event of any change in Distributor's management, organization
or sales staff, distributor shall immediately notify HTS of such
change.
ARTICLE 9 SPECIFICATIONS
The specifications of the Products to be sold by HTS and purchased by
Distributor hereunder shall be those to be agreed to by the parties and
thereafter as specified in EXIHIBIT B attached to be agreed to by the parties
and thereafter hereto and made a part hereof (the "Specifications").
ARTICLE 10 WARRANTY
10.1 HTS warrants to Distributor that the Products sold and delivered to
Distributor hereunder shall conform, at the time of delivery thereof,
to the Specifications.
10.2 HTS's warranty under this Article shall be valid and available on the
condition that Distributor shall send a written notice to HTS of the
alleged defect or non-conformity of the Products in question with the
Specifications within six (6) months from the date of delivery
thereof from HTS to Distributor hereunder and send HTS immediately
such allegedly defective or non-conforming Products at Distributor's
cost for the purpose of HTS's inspection, if requested by HTS. In the
event that such defect or non-conformity should be found attributable
to HTS, HTS shall bear the cost paid by Distributor for sending the
Products back to HTS and provide Distributor with refund of the price
for the defective or non-conforming Products, or, at prior consent
between Distributor and HTS, with replacement of said Products at
HTS's cost without unreasonable delay.
10.3 In the event that Distributor should receive any claim relating to
the Products from its customers (a "Claim"), during the six (6)
months referred to in Article 10.2 above, Distributor and HTS shall
discuss and examine, in good faith, the cause of such Claim and
cooperate with each other to settle it.
10.4 If the cause of a Claim, within the thirty (30) days after the date
of such Distributor's receipt of such Claim, should be proven to have
been attributable to the negligence of HTS, HTS shall be responsible
for losses or damages as suffered or incurred by such Distributor
arising out of or in connection with such Claim.
10.5 THE WARRANTIES AND REMEDIES PROVIDED IN THIS ARTICLE ARE EXCLUSIVE
AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN
NO EVENT SHALL HTS BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
LOSSES OR DAMAGES SUFFERED OR INCURRED BY DISTRIBUTOR AS A RESULT OF
OR IN CONNECTION WITH DEFECT OR NON-CONFORMITY OF THE PRODUCTS.
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ARTICLE 11 INDEMNIFICATION
Distributor shall indemnify and hold HTS harmless from any and all
claims, demands, suits or actions for any kind of damages, losses or costs which
may be sustained by itself, its employees or agents, or any third party, caused
by any reasons occurred after the completion of shipment of the Products
hereunder, unless otherwise specifically provided for in this Agreement.
ARTICLE 12 TRADEMARKS AND TRADE NAME, OTHER INTELLECTUAL PROPERTY RIGHTS
12.1 Distributor may use certain trademarks and/or trade name owned and
designated by HTS (collectively, the "Trademark") in advertising and
selling the Products in the Territory in accordance with HTS's
instructions, and shall neither use the Trademark for any other
purpose nor use any other trademark or trade names for the Products.
Upon request from HTS, Distributor shall supply sample of label,
catalogues, leaflets of the Products to HTS and shall fully cooperate
with HTS for necessary procedure to maintain and renew the Trademark.
12.2 The use of the Trademark by Distributor under Article 12.1 above
shall not be construed as granting a license to Distributor of any
proprietary rights owned by HTS.
12.3 Distributor shall sell the Products in the same condition as they are
received and shall not alter, remove or in any way tamper with any of
HTS's marks or numbers on the Products without prior written consent
of HTS.
12.4 Distributor shall at no time acquire any proprietary interest in the
intellectual property rights in the Products owned by HTS other than
a right to distribute them subject to the terms and conditions
hereof.
12.5 Distributor shall promptly notify HTS of any suspected
infringement or threat of infringement of HTS's intellectual property
rights when Distributor becomes aware of it and cooperate fully with
HTS in all legal actions or proceedings taken by HTS to protect its
said intellectual proprietary rights in the Products.
ARTICLE 13 CONFIDENTIALITY
13.1 Distributor shall keep confidential and shall not disclose, without
prior written consent of HTS, in any manner to any third party nor
use for any purpose other than distribution and sales of the Products
hereunder any technical or business information disclosed by or
acquired from HTS in connection with or in the course of performance
of this Agreement ("Confidential Information"). The following
information shall not be treated as a part of the Confidential
Information;
(i) information owned by the Distributor before receiving the
Confidential Information,
(ii) information known to the public at the time of receipt of
the Confidential Information,
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(iii) information that becomes known to the public after the
receipt of the Confidential Information through no fault
of the Distributor, or
(iv) information lawfully disclosed by third party without a
confidentiality obligation.
13.2 Notwithstanding the foregoing Article 13.1, Distributor may disclose
any part of the Confidential Information only to the potential
customers of the Product in the Research Application Field to the
extent such disclosure is reasonably necessary for the advertisement
and promotion of the Products in the Territory. In such case,
Distributor shall notify HTS of such disclosure in advance and
execute appropriate confidentiality agreement approved by HTS with
such potential customer.
13.3 This Article 13 shall survive expiration or termination of this
Agreement.
ARTICLE 14 TERM AND TERMINATION
14.1 This Agreement shall be valid and in force for a period of five (5)
years commencing on the execution date appearing on the first page of
this Agreement (the "Initial Term"), and thereafter shall be
automatically renewed on a year-to-year basis, unless either party
hereto gives the other party hereto a written notice not to renew
this Agreement at least ninety (90) days prior to the expiration of
the Initial Term or any extended term.
14.2 Notwithstanding the provision of Article 14.1 above, either party
hereto may terminate forthwith this Agreement and/or an individual
contract pursuant to Article 3 by giving a written notice to the
other party hereto in the event that such other party;
(1) initiates dissolution or liquidation proceedings whether
compulsorily or voluntarily or makes an arrangement with its
creditors generally or has a receiver or manager appointed or takes
or suffers any similar action in consequence of debts; or becomes
bankrupt or insolvent;
(2) has all or any substantial portion of its capital stock, assets or
any other property transferred by it to any third party or
expropriated by any government;
(3) becomes unable to make payments or stop making payments to third
parties within thirty (30) days of being notified in writing of
payment; or
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(4) commits any breach or fails to perform any provision of this
Agreement, and such breach or failure shall not have been cured
within thirty (30) days after the date of a written notice of such
breach or failure given by the non-defaulting party.
14.3 No expiration or termination hereof shall release HTS or Distributor
from any liability which at such time already accrued to the other
party, or in any way affect the survival of any right, duty or
obligation of HTS or Distributor which is intended to survive
expiration or termination.
14.4 Immediately after expiration or termination of this Agreement,
Distributor shall return to HTS any unused promotional and
advertising material provided by HTS pursuant to Article 5 hereof.
14.5 Notwithstanding the provisions in Articles 14.1 through 14.4 above,
HTS shall have the right to terminate this Agreement forthwith by a
written notice to Distributor in the following circumstances:
(1) if Distributor purports to assign the burden or benefit of this
Agreement without the written consent of HTS;
(2) if Distributor engages in any conduct prejudicial to the business,
goodwill, reputation, activities or other interests of HTS; or
(3) if Distributor's ownership, constitution or control is
significantly changed, which HTS considers will adversely affect
the business, goodwill, reputation, activities or other interests
of HTS.
14.6 If this Agreement terminates for any reason whatsoever, HTS may
without any liability towards Distributor or any other party
whatsoever cancel all or any orders for the Products which have not
been delivered. Alternatively, at the sole discretion of HTS, they
may supply the Products to the customers or third parties directly.
ARTICLE 15 NOTICE
All notices, statements, reports, requests or other communications to
a party required or permitted hereunder shall be in writing and shall be deemed
effective and properly given when sent by registered or certified mail, or by
confirmed facsimile transmission to the person as indicated below or such other
person as may be designated by MCC or HTS by such notice;
if to MCC, to:
Mitsubishi Chemical Corporation.
▇-▇, ▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
Attention: General Manager, Life Science Business
Initiatives Department
Facsimile number: (▇▇) ▇▇▇▇-▇▇▇▇
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and, if to HTS, to:
HTS Biosystems, Inc.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ U.S.A.
Attention: CEO
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE 16 FORCE MAJEURE
Neither party hereto shall be responsible for failure or delay to
perform its obligation hereunder in case such failure or delay is caused by
fire, flood, earthquake, heavy snowfall, strikes, inevitable accident, war,
riots, civil commotion, governmental laws, order or regulations, embargoes,
blockades or any other causes beyond the control of such party; provided,
however, that the party failing to perform shall inform the other party of such
cause with reasonable evidence, such as newspaper articles and TV reports, and
make its best efforts to remove such cause of non-performance promptly.
ARTICLE 17 ASSIGNMENT
Neither party hereto shall assign or transfer all or part of its
rights and obligations under this Agreement to any third party without the prior
written consent of the other party hereto.
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ARTICLE 18 WAIVER
No waiver by either party hereto of its right to enforce any
provisions of this Agreement shall constitute a waiver of such party's right to
enforce such provisions thereafter or to enforce any other provisions of this
Agreement.
ARTICLE 19 GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
State of New York, excluding its choice of law provisions. The Parties further
agree to submit themselves to the non-exclusive jurisdiction of the state and
federal courts of the State of New York in the event that any dispute arises
under this Agreement.
ARTICLE 20 ARBITRATION
All disputes, controversies or differences which may arise between
the parties hereto, out of or in connection with this Agreement or the breach
thereof, shall be finally settled by arbitration to be held in Tokyo, Japan in
the English language under the rules of Conciliation and Arbitration of
International Chamber of Commerce. The award thereof shall be final and binding
on the parties hereto.
ARTICLE 21 ENTIRE AGREEMENT
This Agreement contains the entire and final agreement of the parties
hereto with respect to the subject matter of this Agreement. Any and all prior
memorandum of understanding, letter of intent, promises, undertakings,
representations, agreements and understandings, written or oral, with respect to
the subject matter of this Agreement are hereby terminated. This Agreement shall
not be altered, amended or modified in any way except by an instrument in
writing executed by the parties hereto.
ARTICLE 22 SEVERABILITY
In the event that any provision of this Agreement is deemed to be
unlawful or invalid, then such provision shall be severed from this Agreement,
but the remaining provisions of this Agreement and this Agreement as a whole
shall remain in effect and be binding on the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives.
MITSUBISHI CHEMICAL CORPORATION
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: General Manager,
Life Science Business
Initiatives Department
HTS BIOSYSTEMS, INC.
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Chief Executive Officer