PRODUCT SUPPLY AGREEMENTSupply Agreement |
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Exhibit 10.1
PRODUCT SUPPLY AGREEMENT
THIS PRODUCT SUPPLY AGREEMENT (this “ Agreement ”) is between GE OSMONICS, INC. , a Minnesota corporation (“ Seller ”), and MAR COR PURIFICATION, INC. , a Pennsylvania corporation (“ Buyer ”), with an effective date of March 30, 2007 (the “ Effective Date ”). Seller and Buyer are sometimes referred to herein as a “ Party ” or collectively as the “ Parties .”
BACKGROUND
A. Prior to the Effective Date, Seller sold Buyer certain cartridge filters, membrane elements, membrane housings and pumps (the “ Current Mar Cor/Biolab Products ”);
B. On the Effective Date, Seller is selling substantially all of the assets relating to its product line of reverse osmosis systems, consumables and related products for medical dialysis applications (the “ Product Line ”) to Buyer pursuant to an Asset Purchase Agreement of even date herewith (the “ Asset Purchase Agreement ”);
C. On and after the Effective Date, Seller will continue to sell Buyer the Current Mar Cor/Biolab Products and will begin to sell Buyer certain cartridge filters, membrane elements, membrane housings and pumps relating to the Product Line (the “ Acquired Dialysis Business Products ”); and
D. The Current Mar Cor/Biolab Products and the Acquired Dialysis Business Products are sometimes referred to herein collectively as the “ Products .”
NOW THEREFORE, in consideration of the above recitals and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Sale and Purchase of Products .
a. Seller agrees to sell, and Buyer agrees to purchase, the Products, pursuant to the terms and conditions set forth in Exhibit A attached hereto (the “ Terms and Conditions ”). Buyer intends to use its reasonable commercial efforts, subject to price, quality, availability, service and other factors, to purchase all of the products which constitute the Products from Seller, but in no event is Buyer obligated to purchase any of the Products from Seller unless a purchase order has been issued by Buyer and accepted by Seller. During the term of this Agreement, Seller shall be obligated to fill all of Buyer’s purchase orders that are ordered in the ordinary course of Buyer’s business for the Acquired Dialysis Business Products or any subsequent equivalent products, it being understood and agreed that Seller’s agreement to meet Buyer’s requirements in the ordinary course for such Products was a material inducement to Buyer to enter into the Asset Purchase Agreement. In the event that Seller discontinues selling a particular Product, Seller shall provide Buyer with at least 6 months’ prior notice of such discontinuation and with sufficient specifications and documentation that would enable Buyer or a third party to manufacture such discontinued product.
b. Unless otherwise agreed in writing by Seller, the purchase and sale of all Products to Buyer shall be subject to the Terms and Conditions and the provisions of Section 2
below. Any additional or different terms proposed by Buyer, whether in its purchase order, order acknowledgment, acceptance or any other manner in the purchase and sale of the Products shall be deemed null and void and shall not be binding upon the Parties, unless specifically and expressly agreed to by Seller in writing. Seller warrants the Products pursuant to the Terms and Conditions.
c. Buyer agrees that it shall submit to Seller separate purchase orders for: (i) the Current Mar Cor/Biolab Products; and (ii) the Acquired Dialysis Business Products.
d. Notwithstanding anything to the contrary contained herein, Seller and Buyer acknowledge and agree that each of their respective rights and obligations to sell and purchase products hereunder are non-exclusive, that Buyer is not obligated to purchase any minimum quantities of Products, and that Buyer may purchase any or all of its requirements for one or more of the Products from vendors other than Seller.
e. Notwithstanding anything to the contrary contained herein and for a period of two years from the Closing Date, the limitations of liability set forth in Section 12 of the Terms and Conditions shall not apply to any breach of SellerR






