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Volume Purchase Agreement (purchaser Side)

Requirements Supplier Agreement

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 This Requirements Supplier Agreement involves

Ciphergen Biosystems, Inc.

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Governing Law: New York     Date: 3/22/2005
Industry: Scientific and Technical Instr.    

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Exhibit 10.44




This Volume Purchase Agreement, including the Exhibits A and B (“ Agreement ”), effective as 13 November 2001 (“ Effective Date ”), is hereby made by and between Ciphergen Biosystems, Inc. of Fremont, California (“ Purchase r”) and [*** Redacted] (“ Supplier ”), the Parties.



In consideration of the mutual promises set forth herein, the parties hereby agree as follows:




“Product/s” shall mean “Screen printed hydrophobic coating on Ciphergen supplied substrates.”




1.                                       Products . Subject to the terms and conditions of this Agreement, Supplier agrees to sell Products to Purchaser under the terms and conditions of this Agreement. For purposes of volume pricing or other terms or conditions dependent on volume, all purchases of Products by Purchaser shall be aggregated for the benefit of Purchaser.


New Product Inclusion . Supplier agrees to keep Purchaser informed of any new Products or improvements to existing Products. Purchaser will notify Supplier if it wishes to add a new product(s) or series of products of Supplier’s to this Agreement. Purchaser and Supplier shall then proceed to establish pricing and delivery schedules for each such new Product.  Upon agreement of these items, such product(s) shall be considered Products under this Agreement, and shall be purchased and sold under the terms and conditions of this Agreement. Supplier will make all Products available to Purchaser pursuant to this section. In addition, if Supplier implements any improved technology (e.g., without limitation, improved manufacturing processes or improved or additional cores), Supplier shall promptly so advise Purchaser and, at Purchaser’s request, discuss with Purchaser the possibility and advantages of using such improved technology to redesign any Products. At Purchaser’s request, Supplier will negotiate any redesign in good faith.




2.                                       Prices . The prices to Purchaser of the Products shall be the prices contained in the attached Exhibit B. All prices are F.O.B. origin.


3.                                       Taxes . Prices stated in Exhibit B and addenda are in U.S. dollars and do not include applicable U.S. federal or state sales or use taxes which shall be paid by Purchaser if separately indicated on the invoice for the applicable Product shipment, but do include any duties, export or import charges and the like.


4.                                       Payment Terms . Supplier will invoice Purchaser with each shipment and payment terms will be the full invoiced amount payable within thirty (30) days after Purchaser receives the


***                            Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.  Omitted portions have been filed separately with the Commission.




invoice and shipment (net 30).




5.                                       Purchase Orders . Purchaser’s purchase orders for Products shall be submitted to Supplier in writing or Fax. Each purchase order shall include:


a. Identification of Products ordered;


b. Quantity to be purchased;


c. Price of Products ordered;


d. Requested delivery dates;


e. Shipping instructions.


6.                                       Forecasts . Purchaser will provide Supplier with non-binding thirty (30) day forecasts of its requirements for Products on a monthly basis.


7.                                       Placement by Purchaser . All purchases under this Agreement shall be subject only to the terms and conditions hereof. All references in this Agreement to purchases of, purchase orders for, or shipments of Products by or to Purchaser shall mean by or to Purchaser. In the event the terms of any purchase order, acknowledgment, invoice, confirmation or similar document conflict with or are additional to the terms of this Agreement, the terms of this Agreement alone shall apply and shall govern regardless of execution of such document by one or both parties, except that the parties may agree to negotiate non-preprinted terms which shall be effective if executed by both parties. No other terms and conditions shall apply to this Agreement or the purchase orders.


8.                                       Changes and Cancellations . Purchaser shall have the right to reschedule or cancel any shipment for Products.


9.                                       Shipping . All items shall be shipped in the manner specified by Purchaser or as specified in the separate Purchase Orders issued hereunder. In the event a shipment will not meet the delivery date (except as provided in Section 11), routing may be changed to premium transportation at Purchaser’s request. In that event, Supplier shall bear the expense of any difference in freight costs for the premium transportation.


10.                                Notice . Supplier shall provide Purchaser with as much notice as possible if it anticipates or has reason to believe that Supplier’s output of the Product will not be sufficient to meet all of Purchaser’s requirements for any period. Purchaser shall provide supplier with as much notice as possible if it anticipates or has reason to believe that it will be unable to supply raw material substrate in time for Supplier to meet shipping deadlines. In the event that Purchaser is late in providing substrate, Purchaser and Supplier will agree on revised shipment dates.


11.                                Discontinuance . If production by Supplier or the availability of any Product covered by this Agreement is to be permanently discontinued at any time during the term of this agreement,




Supplier shall 1) give Purchaser at least six (6) months prior written notice of such discontinuance during which time Supplier shall accept orders from Purchaser for a reasonable quantity of such Product at the prices called for herein, 2) will grant a license to Purchaser for preparation and manufacture of Purchaser’s products, such license to include all technical know-how directly related to production of Purchaser’s Product, technical specifications, production methodologies, QC methodologies, formulas, where appropriate. This information will be provided with enough lead-time for Purchaser to arrange production by alternate means, so as not to interrupt the supply of finished product to Purchaser.




12.                                Rejection . In case any Product is not within specifications (Exhibit A attached), Purchaser will have the right, at its sole option, to reject such Product; to accept such Product with a mutually agreed adjustment in price; or to return such Product for credit or refund. If, after being requested by Purchaser, Supplier fails to promptly replace or correct any defective item, then Purchaser shall have the right, without limitation, at its sole option, without further notice, to cancel the applicable purchase order relative to the rejected material without penalty or terminate this Agreement for default in accordance with the Termination Section and require refund of any payments made relative to the rejected Purchase Order material. At Purchaser’s request, Supplier will provide to Purchaser relevant information relating to the failure of any rejected Product.


13.                                Packing . Unless otherwise specified by Purchaser, Supplier will package and pack all goods in a manner that is in accordance with good commercial practice. An itemized packing list must accompany each shipment that shall include the purchase order number and quantity of the Products so shipped




14.                                Specifications . Supplier agrees to supply Products that conform to applicable specifications. Supplier shall not make any changes in the form, fit, function, design, performance or appearance of any Product purchased hereunder, or to any Specifications for any Product irrespective of impact on form, fit, or function, without Purchaser’s prior written approval.


18.                                Engineering Change Approval . Supplier shall not make any significant changes to any manufacturing source, production process, or the controlled process parameters or sources, types or grade classifications of materials used, with respect to any Product without first obtaining from Purchaser an engineering change approval. In addition, within three (3) working days after learning of any bug or other problem in a Product which may or already has resulted in an impact to the installed customer base of such Product, and in any event no later than at the time an engineering request is made, the discovering party will notify the other of such problem, Supplier shall submit a request to make a change containing engineering data in support of the request. Within ten (10) working days of receiving such request, Purchaser shall respond to Supplier’s request and shall either (i) approve the change, (ii) disapprove the change, or (iii) extend the deadline for the approval or disapproval period for an additional twenty (20) working days.




19.                                Costs of Engineering Changes. All engineering changes resulting from defects or nonconformity’s in Products shall be implemented at the sole expense of Supplier, unless the defect or nonconformity is the fault of Purchaser in providing defective functional specifications or raw material substrates for Products.




20.                                Emergency Part Shipment Procedure. In cases of emergency, as reasonably determined by Purchaser, Supplier will ship (at Purchaser’s expense) Product(s) with overnight delivery to Purchaser.


21.                                Product Reports . Supplier will keep accurate records of Product deficiencies and make such reports available to Purchaser in a timely manner.




22.                                Warranty of Title . Supplier warrants and represents to Purchaser that (i) Purchaser shall acquire good and clear title to the Products, free and clear of all liens, claims, and encumbrances, (ii) all materials and services provided hereunder including, without limitation, the Products, are either owned or properly licensed by Supplier or are in the public domain and the use thereof by Purchaser, its representatives, distributors, dealers, end users, and other direct and indirect customers will not infringe any proprietary rights of any third party, (iii) Supplier has the full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted to Purchaser in this Agreement, and (iv) Supplier’s compliance with the terms and conditions of this Agreement will not violate any federal, state or local laws, regulations or ordinances or any third party agreements.


23.                                Product Warranty . Supplier warrants that the Products will be new and unused, will perform in accordance with the applicable Specifications (including related documentation provided by Supplier and will achieve any function described therein) and will be free from defects in materials, workmanship or design until 24 months after acceptance by Purchaser. ( “Warranty Period” ).


24.                                Return and Replace Procedure . During the Warranty Period, Supplier will, at its own expense and risk, replace any defective Products and deliver new Products to the location designated by Purchaser within twenty (20) working days from the date of notice by Purchaser. Unless Supplier reasonably demonstrates a returned item is free from defect, Supplier shall pay the costs of all shipping and insurance of the defective Products. Purchaser will promptly provide evidence of defective Products to Supplier or dispose of the defective Products in accordance with Supplier’s instructions.


25.                                Limited Warranty . This limited warranty does not extend to any defects caused by misuse, abuse, service by anyone other than a Supplier authorized representative, Purchaser or a party authorized by Purchaser, or damage due to accident or act of God. NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.






26.                                Infringement . The Parties a

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