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Exhibit 10.23
ORDER FULFILLMENT AND SHIPPING SERVICES AGREEMENT
This Order Fulfillment and Shipping Services
Agreement (“Agreement”) is entered into as of
October ____, 2007 (the “Effective Date”), by and
between Bioserv Corporation, a California corporation and
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 order fulfillment and shipping services for
Client’s products.
Client desires to engage the services of
Bioserv, on a non-exclusive basis, for order fulfillment and
shipping 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 and warehoused by Bioserv for Client
under separate agreements, and fulfilled/shipped 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 Regulation” ( e.g ., 21
C.F.R. 820 et seq. ).
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2.0
ORDER FULFILLENT AND SHIPPING
2.1
Bioserv order fulfillment and shipping:
2.1.1
Bioserv will fulfill and ship all orders
transmitted by Client per Client’s procedures as specified
in Addendum I.
2.1.2
Bioserv will charge the cost for shipping all
orders to Client’s shipping account with no markup.
2.1.3
Client will provide Bioserv all required shipping
materials and supplies. If Client requests Bioserv to procure
shipping materials and supplies on behalf of Client, Client will
pay Bioserv the actual costs plus 30%.
2.2
Service Fees
During the term of this agreement, the fees for
the services are as follows:
2.2.1
The order fulfillment and shipping services will
be provided based on the fee schedule found in the Addendum II,
to be invoiced quarterly commencing October 12, 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) and Other
Obligations
3.1.1
Bioserv and the Client have executed a Quality
Agreement that addresses roles and responsibilities for cGXP
compliance. This agreement should be referenced for details.
3.1.2
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.
3.1.3
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.
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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.
3.1.5
Bioserv does not warrant the function or fitness
of products shipped by Bioserv for Client.
3.1.6
Bioserv understands that the Client’s web
based sales order and inventory fulfillment systems are hosted
by a third party. Notwithstanding a connection issue
preventing Bioserv from fulfilling and/or shipping an order for
Client, Bioserv shall fulfill all orders within 48 hours from
the posting of new orders by Client in the referenced systems,
or within 24 hours if specified by Client on an individual order
basis.
3.1.7
Bioserv shall strive at all times to keep the
Client provided user name and password for Client’s web
based sales order and inventory management systems restricted to
Bioserv’s employees that have a business need for the
information, and solely to enable Bioserv to perform its duties
under this agreement.
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 personnel shall follow Bioserv GMP
procedures and conduct their business in such a way as to meet
GMP requirements.
4.3
Client retains sole responsibility for final
Product release.
4.4
The 24-hour Client contact telephone number is
425-402-1400.
4.5
Client retains sole responsibility for all
costs, insurance and risks relating to the shipping of the
Product to and from the Bioserv facility.
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 one (1) year.
5.1.2
Client may terminate this Agreement, without
cause, by notifying Bioserv in writing with 60 days advance
notice.
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 the effective date of
cancellation of the long term storage agreement between the
parties.
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
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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, 4.3, 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.
7.0
PRODUCT OWNERSHIP and TRADEMARKS
7.1
Client shall provide Product to Bioserv solely
for order fulfillment and shipping 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 transfer of, the Product to
any third party for any purpose or use without the prior
authorization of Client. Title to the Product shall remain
at all times in Client’ name, except that Title to the
Product shall transfer to Client’s end customer upon
acceptance by Client’s designated shipping carrier at the
time of pick up from Bioserv. Upon the expiration or
earlier termination of this Agreement, all Product provided to
Bioserv shall be returned to Client unless other arrangements
are otherwise authorized in writing by Client.
7.2
Neither party shall have the right to use the
name of the other party, or the o
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