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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
