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EXHIBIT 10.25
STORAGE SERVICES AGREEMENT
This Storage and Handling Services Agreement
(“Agreement”) is entered into as of October ____,
2007 (the “Effective Date”), by and between Bioserv
Corporation, a California corporation and a subsidiary of
NextPharma Technologies (“Bioserv”) having its
principal place of business at 5340 Eastgate Mall, San Diego, CA
92121 and BioLife Solutions, Inc, a Delaware corporation
(“Client”), having its principal place of business
at 3303 Monte Villa Parkway, Suite 310, Bothell, WA
98021.
Client is in the business of developing
preservation media products and Bioserv is in the business of
providing warehousing and storage services in connection with
Client’s products.
Client desires to engage the services of
Bioserv, on a non-exclusive basis, for the warehousing and
storage of Client’s Product (as defined below), all upon
the terms and conditions set forth in this Agreement.
Bioserv and Client wish to formalize their
contract services relationship pursuant to the terms and
conditions below.
Therefore, in consideration of the respective
covenants and promises contained herein and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1.0
DEFINITIONS
1.1
DEFINED TERMS. As used herein, the terms
below have the following meanings. Any such terms, unless
the context otherwise requires, may be used in the singular or
plural; depending upon the reference.
“FDA” shall mean the United States
Food and Drug Administration.
“Product” shall mean Client’s
products, manufactured by Bioserv for Client under a separate
agreement, and stored/handled by Bioserv under this
Agreement.
“Regulations” shall mean any
applicable United States laws, statutes, ordinances,
regulations, rules, notice requirements, court decisions, agency
guidelines, principles of law and orders of any federal, state
or local government and any other government and any other
governmental department or agency.
“Packaging” shall mean labeling and
bottle, cap and boxes as appropriate.
“cGxP” shall mean those practices
and standards required to comply with all current United States
governmental regulatory requirements, including, without
limitation, “Good Laboratory Practices” ( e.g
., 21 C.F.R. 58 et seq .), “Good Clinical
Practices” ( e.g ., 21 C.F.R. 50 et seq.),
and Quality System Regulations (QSR) (e.g., 21 CFR
820).
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2.0
STORAGE
2.1
Bioserv Storage
2.1.1
Bioserv will store and handle the Product at
facilities located at 5340 Eastgate Mall, San Diego, CA 92121
(the “Facility”). As part of the
services hereunder, Bioserv shall have available for storage of
the Product the required temperature and shelf space as stated
in Addendum I to this Contract in an appropriate storage
location in the Facility. The designated storage area
shall be continuously monitored as a part of the Facility
temperature alarm system.
2.2
Service Fees
During the term of this agreement, the fees for
the services are as follows:
2.2.1
The Storage Areas will be provided based on the
fee schedule found in the Addendum II, to be invoiced quarterly
commencing October 1, 2007.
2.2.2
The addition or cancellation of any items or
services, other than those listed in Addendum I, will result in
a price adjustment to the fees in Addendum II if the parties,
after consulting with each other regarding the additional
services, mutually agree in writing that such a price adjustment
is warranted
2.2.3
The payment terms are Net 30 days from
Client’s receipt of any invoice, invoiced on a quarterly
basis with a 1% finance charge per month on all undisputed
amounts past due after thirty (30) days.
2.2.4
Quotations for additional services shall be
included at agreed upon rates when signed by both parties and
invoiced under the same terms in section 2.2.3.
3.0
BIOSERV OBLIGATIONS
3.1
Good Manufacturing Practices (GMP)
3.1.1
Bioserv is licensed by the State of California
and registered by the Federal FDA for both Device and Drug
manufacture. Bioserv will keep these licenses and
registrations current during the course of this Agreement.
3.1.2
Bioserv shall comply with its own SOPs and
procedures, the only exception will be those procedures supplied
by Client and agreed by Bioserv, which shall supersede Bioserv
procedures and as are described in part in Addendum 1.
3.1.3
Any Client materials found by Bioserv to be in
non-compliance with Client specifications will be clearly
identified and segregated. Client shall be notified in
writing of non-conforming materials.
3.1.4
Bioserv shall use industry standard efforts to
protect Client’s materials and Product from loss, damage,
theft or destruction (collectively “loss”) while
under Bioserv control and/or custody.
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3.1.5
Bioserv does not warrant the function or fitness
of products stored by Bioserv for Client.
3.1.6
Bioserv shall designate an area with the
appropriate storage environment, for all incoming materials
purchased or submitted by Client. These materials shall be
accompanied by proper identifying documentation.
3.1.7
Bioserv recognizes that Client products and
procedures are highly proprietary and the exclusive property of
Client. Bioserv will not have any rights to use, or
disclose to third parties, these procedures except as directed
in writing by Client Neither Bioserv nor its employees
will discuss or divulge these processes with any third parties
except with written consent from Client or as required by law.
All these restrictions will survive the expiration or
earlier termination of this agreement by five (5) years.
3.1.7
Bioserv shall provide Client access to the
Product stored at the Facility at all times during normal
business hours, which for purposes of this Agreement shall be
defined as the hours between 7:00 AM and 5:00 PM P.S.T., Monday
through Friday, unless otherwise agreed by both parties.
If after hours access is required, Client will submit the
request at least forty-eight (48) hours prior to the need.
4.0
CLIENT OBLIGATIONS
4.1
Any services other than those set forth in this
Agreement, shall be subject to the parties’ mutual written
agreement.
4.2
Client understands that the Storage Area will be
under Bioserv control and therefore open to audit by the
FDA.
4.3
Client personnel shall follow Bioserv GMP
procedures and conduct their business in such a way as to meet
GMP requirements.
4.4
Client retains sole responsibility for final
Product release.
4.5
The 24-hour Client contact telephone number is
425-402-1400.
4.6
Client retains sole responsibility for all
costs, insurance and risks relating to the shipping of the
Product to and from the Bioserv facility.
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5.0
TERMS AND TERMINATION
5.1
Term and Termination
5.1.1
This Agreement shall commence on the Effective
Date and continue, unless terminated earlier pursuant to the
terms in this section 5.1 for a period of one (1) year.
5.1.2
Client may terminate this Agreement, without
cause, by notifying Bioserv in writing with 60 days advance
notice, with a cancellation fee of 25% of the next three months
Storage Area fees.
5.1.3
Bioserv may terminate the agreement, without
cause, by notifying Client in writing with sixty (60)
days’ notice in advance, except that the effective date of
cancellation shall not be sooner than 60 days following the
completion date of any future production runs booked or paid for
by Client.
5.1.4
Either party shall have the right to earlier
terminate this Agreement upon the breach by the other party of a
material provision of this Agreement and that other
party’s failure to cure such breach within thirty (30)
days following written notice thereof from the non-breaching
party.
5.1.5
Termination or expiration of this Agreement
shall not relieve either party from any liability or obligation
that accrued prior to such termination or expiration. Upon
termination or expiration of this Agreement, all Product(s)
shall be returned to Client or a designee of Client, at
Client’s sole cost and expense and in accordance with
Client’s instructions.
5.1.6
The following provisions shall survive any
expiration or termination of this Agreement: Sections
2.2.3, 4.4, 4.6, 8.0, 9.0, and 11.0.
6.0
REPRESENTATIONS AND WARRANTIES
6.1
Each party represents and warrants to the other
that:
6.1.1
It has full power and authority to enter into
this Agreement and perform all obligations and conditions to be
performed by it under this Agreement without any restriction by
any other Agreement or otherwise;
6.1.2
The execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate
action of that party; and
6.1.3
This Agreement constitutes the legal, valid and
binding obligation of that party.
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7.0
PRODUCT OWNERSHIP and TRADEMARKS
7.1
Client shall provide Product to Bioserv solely
for storage and handling services under this Agreement.
Bioserv shall use the Product solely and exclusively for
the performance of such services. Bioserv shall not,
directly or indirectly, use or exploit, or permit use or
exploitation of the Product for any other purpose whatsoever, or
otherwise transfer, or permit the tra
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