EXCLUSIVE PRIVATE LABELING AND DISTRIBUTION AGREEMENT

 

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                                                                    EXHIBIT 10.1

 

              EXCLUSIVE PRIVATE LABELING AND DISTRIBUTION AGREEMENT

 

         THIS EXCLUSIVE PRIVATE LABELING AND DISTRIBUTION AGREEMENT (this

"AGREEMENT") is entered into as of this 5th day of May, 2005 by and between

BIOLIFE SOLUTIONS, INC., a Delaware corporation with its principal offices

located at 171 Front Street, Owego, New York 13827 ("SUPPLIER"), and VWR

INTERNATIONAL, INC., a Delaware corporation with its principal offices located

at 1310 Goshen Parkway, West Chester, Pennsylvania 19380 ("VWR").

 

1.        PRODUCTS

 

                  The products covered by this Agreement are those set forth in

                  the attached Addendum A, and all modifications, improvements

                  and developments pertaining thereto (collectively, the

                  "PRODUCTS"). Addendum A shall be amended only in an written

                  amendment signed by both parties hereto. Products may also be

                   added to this Agreement upon mutual agreement.

 

2.        GRANT OF EXCLUSIVE DISTRIBUTORSHIP

 

         (a)       Except as set forth in Section 2(b) below, SUPPLIER hereby

                  grants to VWR, and VWR hereby accepts, on the terms and

                   conditions stated in this Agreement, the sole and exclusive

                  right during the term of this Agreement to promote, market,

                  sell and distribute the Products for non-clinical use

                  throughout the world (the "Territory").

 

         (b)       (i) The right granted pursuant to Section 2(a) above, shall

                  not include the right to combine any Product with another

                  manufactured product which, when combined with the Product,

                  changes or enhances the function of the manufactured product

                  or the manner in which it is used ("Combined Product"), and

                  promote, market, sell and distribute the same as one product

                  or as a kit. VWR reserves the right to bundle any Product with

                  another manufactured product for marketing and sales purposes.

 

                  (ii) Notwithstanding anything to the contrary contained in

                  Section 2(a) above, SUPPLIER shall retain the right to

                  directly, but not through non-affiliated third parties,

                  promote, market, sell and distribute the Products for

                  non-clinical throughout the Territory under its own label.

 

         (c)       SUPPLIER specifically reserves all rights to market, sell and

                  distribute, directly and indirectly, (i) the Products for

                  clinical use, and (ii) for non-clinical use when the Product

                   is to be used as part of a Combined Product; provided,

                  however, that should SUPPLIER wish to grant to any

                  non-affiliated third party the right to market, sell and

                  distribute the Products for clinical use, SUPPLIER shall give

                  VWR written notice thereof and for a period of sixty (60) days

                  from the date of such notice VWR shall have a right of first

                  negotiation with SUPPLIER with respect thereto.

 

 

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         (d)       The exclusive right granted to VWR pursuant to Section 2(a)

                  hereof, may become non-exclusive, at the option of SUPPLIER,

                  in the event sales of the Products to VWR by SUPPLIER do not

                  equal at least the following dollar amounts during the term of

                  this Agreement:

 

                           First Year                          $375,000

                           Second Year                         $1,000,000

                           Third Year                          $1,500,000

                           Fourth Year                         $2,000,000

                           Fifth Year and thereafter           $2,500,000

 

                  In the event VWR's right hereunder becomes non-exclusive

                  pursuant to this Section 2(d), then, in addition to the rights

                  reserved to SUPPLIER under Section 2(b)(ii) above, SUPPLIER

                  may promote, market, sell and distribute the Products for

                  non-clinical use, under any brand name, throughout the

                  Territory, through non-affiliated third parties.

 

3.        GRANT OF LIMITED LICENSE, LABELING AND PACKAGING OF THE PRODUCTS

 

         (a)       Subject to the terms and conditions set forth in this

                  Agreement, VWR grants to SUPPLIER, and SUPPLIER hereby

                  accepts, a non-assignable license, without the right to

                  sublicense, to use VWR's manuals, logos, copyrighted

                  information, brand names, trademarks and trade names (the "VWR

                  Marks") solely for the purpose of providing the packaging,

                  labeling and branding of the Products, as provided in Section

                  3(b).

 

         (b)       SUPPLIER shall provide the Products to VWR with certain

                  packaging, labels and branding containing the VWR Marks

                  (hereinafter, the "VWR Labels"). VWR will provide to SUPPLIER

                  VWR Mark artwork for printing on VWR Labels. SUPPLIER shall

                  determine all other aspects of the VWR Labels and their

                  contents including without limitation the format and size, the

                  instructions and warnings and all necessary legal and

                  regulatory requirements (the "Label Specifications"). If VWR

                  revises the VWR Marks, SUPPLIER shall revise the VWR Labels

                  for such new VWR Marks within ninety (90) days of receipt of

                  such changes from the VWR. Supplier shall advise VWR, in

                  advance, of any increase in cost as a result of any such

                  changes to the VWR Marks directed by VWR.

 

         (c)       All VWR labels shall disclose that the Product is proprietary

                  to SUPPLIER and manufactured by SUPPLIER for VWR.

 

         (d)       The final VWR Mark format, but not the content, of the VWR

                   Labels shall be subject to VWR's prior written approval. For

                  this purpose, SUPPLIER shall provide VWR with layout, design,

                  black line sketches, finished art and sample of color proofs

                  in advance of printing and shall supply from the first print

                  run and each subsequent print run samples for VWR's written

                  approval. VWR shall indicate approval or lack thereof within

                  fifteen (15) days of its receipt of such materials. VWR shall

                  indicate the reasons for disapprovals and the changes needed

                  to obtain approval. SUPPLIER shall ensure that each copy

                  thereafter printed shall conform in all respects to what has

                  been approved by VWR and shall not ship or deliver copies of

                  the Labels which do not so conform. SUPPLIER will not proceed

                  with label implementation of any change without written final

                   approval of each label.

 

 

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4.        TERM AND RENEWAL

 

         The initial term of this Agreement shall begin on the date set forth on

         the signature page of this Agreement and shall continue for a period of

         five (5) years and, unless earlier terminated as set forth in Section

         13 or by either party at the expiration of the then current term upon

         not less than ninety (90) days' prior notice, shall thereafter renew

          automatically for additional and successive terms of one (1) year each.

 

5.        PRICE

 

         (a)       SUPPLIER represents that the prices, discounts, rebates,

                  payment terms and other terms and conditions (collectively,

                   the "Commercial Terms") contained in this Agreement are the

                  optimum offered by SUPPLIER to any customer with a comparable

                  purchase pattern and annual dollar volume. In the event any

                  other similarly situated non-clinical customer is given better

                  Commercial Terms, SUPPLIER agrees to and shall automatically

                  extend the same Commercial Terms to VWR retroactive to the

                  date on which such more favorable Commercial Terms were first

                  offered.

 

         (b)       SUPPLIER shall maintain accurate records of all information

                  necessary for VWR to verify SUPPLIER's compliance with this

                  provision. Such records shall be maintained for at least two

                  (2) years after termination of this Agreement and SUPPLIER

                  shall make such records reasonably available to VWR or its

                  representative, under appropriate confidentiality provisions,

                  solely to enable VWR to verify SUPPLIER's compliance with this

                  provision.

 

         (c)       The price to VWR for the Products purchased pursuant to this

                  Agreement shall be the applicable price for such Products as

                  set forth in Addendum B. SUPPLIER shall be entitled to

                  reasonable price increases from time to time based upon

                  increases in the price paid by SUPPLIER for raw materials used

                  in the manufacture of the Products, such price increases to be

                  negotiated in good faith by SUPPLIER and VWR; provided,

                  however, that SUPPLIER will not propose a price increase for

                  the Products more than once in any calendar year commencing

                  January 1, 2006. In the event that VWR and SUPPLIER mutually

                  agree to a price increase, SUPPLIER shall provide to VWR an

                  updated Master Data File not later than October 1st of the

                  year in which the price increase is agreed upon (three (3)

                  months before the effective date of any such price increase).

                  All pricing information regarding the Products shall be

                  treated as "confidential" in accordance with Section 12

                  hereof.

 

6.        VWR'S DUTIES

 

         VWR SHALL:

 

         (a)       Within thirty (30) days after the execution and delivery of

                  this Agreement, VWR shall inform SUPPLIER of VWR's expected

                  volume requirements for Products for the forthcoming calendar

                  quarter. Thereafter, VWR shall use its commercially reasonable

                  best efforts to inform SUPPLIER, not less than sixty (60) days

                  prior to the forthcoming calendar quarter, of VWR's expected

                  volume requirements for Products for that quarter. In no event

                  shall any forecast provided by VWR be construed to be a

                  requirement that VWR purchase the amount of Products set forth

                  in that forecast.

 

 

 

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         (b)       Submit its order for Products on VWR's standard purchase order

                  form, via electronic data interchange or other method of

                  electronic commerce. All purchase orders shall be governed

                  only by the terms and conditions of this Agreement,

                   notwithstanding any inconsistent preprinted terms or

                  conditions appearing elsewhere on any other VWR or SUPPLIER

                  document.

 

         (c)       Pay all invoiced amounts within forty five (45) days of the

                   receipt of the Products; provided, that VWR shall be given a

                  two percent (2%) discount thereon if all invoiced amounts are

                  paid within thirty (30) days of receipt.

 

         (d)       Communicate to SUPPLIER any modifications, design changes or

                  improvements respecting the Products suggested by any

                  customer.

 

         (e)       Use its best efforts to advertise, promote, market, sell and

                  distribute the Products by methods which in VWR's judgment are

                  best suited for the sale of the products.

 

         (f)       Provide instruction to VWR's customers in the use and routine

                  maintenance of the Products in accordance with advice

                   furnished to VWR by SUPPLIER.

 

         (g)       Properly and courteously resolve billing disputes with

                  SUPPLIER.

 

         (h)       Confer with SUPPLIER to maximize promotion activities and

                  sales of the Products.

 

7.        SUPPLIER'S DUTIES

 

         SUPPLIER SHALL:

 

         (a)       Ship all Products FOB origin; via VWR's specified carriers in

                  accordance with VWR's most recently published routing guides

                  and shipping instructions. UPS or similar parcel-like

                  shipments shall be shipped by SUPPLIER to VWR via UPS. VWR

                  acknowledges that once Products are shipped they are

                  non-returnable, except as set forth in Sections 6(a), 7(m)(2),

                  9(a) and 10(c) hereof.

 

         (b)       Transfer good and marketable title to the Products, free and

                  clear of any liens or encumbrances.

 

         (c)       Pack, package, mark and otherwise prepare all Products for

                  shipment in a manner which is in accordance with the standards

                  of the International Safe Transit Association and good

                  commercial practice, acceptable to common carriers for

                  shipment, and adequate to insure their safe arrival at the

                  named destination. SUPPLIER shall comply with VWR's Global

                  Logistics / Delivery requirements, a copy of which has been

                  delivered to SUPPLIER.

 

 

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         (d)       Promptly furnish to VWR, when reasonably requested from time

                  to time and at no cost, reasonable quantities of original

                  factory outer cartons and packaging materials.

 

         (e)       Submit invoices to VWR with each shipment of Products which

                  shall include: purchase order numbers, Product numbers,

                  descriptions of Products, quantities, unit price and complete

                   bill to address for the Products so delivered.

 

         (f)       Properly and courteously resolve billing disputes with VWR,

                  and provide VWR with such information or assistance as VWR may

                  reasonably require to resolve billing disputes with its

                  customers or freight claims with carriers.

 

         (g)       Except as otherwise agreed, deliver Products as instructed by

                  VWR having at least six (6) months of shelf-life remaining

                   from the date of delivery to their expiration dates.

 

         (h)       Provide the warranties as set forth in Section 10.

 

         (i)       Promptly refer to VWR any inquiries or orders SUPPLIER may

                  receive from VWR customers respecting the Products.

 

         (j)       During the term of this Agreement and for a period of three

                  (3) years following its termination or expiration, procure and

                  maintain, at its sole cost and expense, with insurers

                  reasonably acceptable to VWR, general comprehensive liability

                  insurance covering each occurrence of bodily injury and

                  property damage in an amount of not less than $2,000,000

                  combined single limit with endorsements for product and

                  completed operations, blanket contractual liability, and broad

                  form vendor's liability. Such policy of insurance shall name

                  VWR as an additional insured thereunder. SUPPLIER shall

                  furnish to VWR before shipment of any Products a certificate

                  of insurance evidencing the foregoing endorsements, coverages

                  and limits, and providing that such insurance shall not be

                  cancelable or materially changed without at least thirty (30)

                  days' prior written notice to VWR.

 

         (k)       Timely furnish VWR, at no cost, with material safety data

                  sheets in a format acceptable to VWR's MSDS retrieval systems,

                  and any other documentation reasonably necessary to enable VWR

                  to comply with any then prevailing applicable federal or

                  country, state, municipal or local law, rule or regulation

                  (collectively, "Laws") relating to the Products, reasonable

                  quantities of SUPPLIER's sales literature in compliance with

                  VWR's Marketing Guidelines, product insert sheets and customer

                  instruction manuals for each Product, cooperate with VWR for

                  VWR created SUPPLIER literature and catalog modules by

                  completing VWR artwork approval forms upon request in a timely

                  manner and, upon request, suitable copy and photographs for

                  use by VWR in advertising and cataloging. SUPPLIER will

                  maintain accurate and current MSDS documentation and will

                  provide to VWR any revised MSDS documents as necessary.

 

 

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         (l)       For each Product sold to VWR, provide VWR with a current and

                  accurate Certificate of Origin pursuant to Article 504 of the

                   North American Free Trade Agreement ("NAFTA"). SUPPLIER agrees

                  to indemnify VWR and its customers from and against any

                  increased duties, penalties or other costs relating to

                  SUPPLIER's failure to provide a current and accurate

                  Certificate of Origin. In addition, VWR may refuse to export

                  Products within the NAFTA region and/or may withhold payment

                  for Products until SUPPLIER complies with all its obligations

                  hereunder.

 

         (m)       Comply (or cause compliance) in all material respects with any

                  Laws, including, but not limited to, the Federal Food, Drug

                  and Cosmetic Act, as amended from time to time, and the

                  regulations issued thereunder and similar laws within the

                  Territory, applicable to the conduct of SUPPLIER's business or

                  the manufacture, packaging, labeling and sale to VWR of

                   Products pursuant to this Agreement including, but not limited

                  to, the following:

 

                  (1)       Immediately notifying VWR upon becoming aware of any

                           defect or condition (actual or alleged) which in any

                           way may alter the specifications or quality of any

                           Products, render any Products in violation of any

                           Laws, cause revocation of any regulatory approval

                            with respect to any Products or their sale, give rise

                           to a claim against VWR by any third party, or

                           otherwise negatively affect the salability of any

                           Products.

 

                  (2)       Promptly notifying VWR of any Products affected by

                           holds or recalls, and reimburse VWR for the full

                           price paid by VWR for any Products returned to VWR by

                            a customer, or to SUPPLIER by VWR, due to a recall or

                           other manufacturing defect, plus all taxes,

                           transportation and other costs and expenses incurred

                           by VWR in the return thereof.

 

         (n)       Assist VWR's promotion activities including, without

                  limitation, having SUPPLIER's personnel accompany VWR's sales

                  personnel on sales presentations at such times, at such places

                   and with expenses allocated as may be agreed upon from time to

                  time by VWR and SUPPLIER. SUPPLIER's assistance shall focus

                  particularly in promoting the technical features, capabilities

                  and benefits of