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Supply Agreement

Supply Agreement

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 This Supply Agreement involves

IDEXX Operations, Inc | Moss, Inc

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Title: SUPPLY AGREEMENT
Governing Law: Maryland     Date: 7/23/2010
Industry: Medical Equipment and Supplies     Sector: Healthcare

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Confidential Materials omitted and filed separately with the

 

 

 

 

Securities and Exchange Commission. Asterisks denote omissions.

 

 

 

 

 

 

Exhibit 10.1

 

May 7, 2007 

SUPPLY AGREEMENT

 

Moss, Inc.

IDEXX Operations, Inc.

P.O. Box 189

One IDEXX Drive

Pasadena, MD  21123-0189

Westbrook, ME  04092

(“ Moss ”)

(“ IDEXX ”)

 

IDEXX desires to purchase from Moss certain chromogen substrates to be incorporated into various of IDEXX’s veterinary diagnostic products.  Moss hereby agrees to provide IDEXX with such chromogen substrates described below in such quantities as IDEXX may order from time to time on the following terms and conditions:

 

PRODUCTS:

The chromogen substrates described and in conformity with the specifications on Schedule A (the “ Products ”).  This Agreement and Schedule A may only be amended by the parties’ mutual agreement.  The parties acknowledge that the terms and conditions of this Agreement and the quantities of the Products purchased by IDEXX hereunder shall be treated as confidential information pursuant to the confidential disclosure agreements previously entered into by the parties on March 1, 2001.

 

PRICING:

As set forth on Schedule B .  Prices are fixed through 31 December 2008.  Thereafter, Moss shall notify IDEXX in writing at least 120 days before each subsequent calendar year of any changes in the prices of Products; provided, however , that in no event shall Moss increase prices in any given calendar year greater than [**]%.

 

Payment terms shall be net thirty (30) from the date IDEXX receives Moss’ invoice.

 

SHIPPING:

Shipping terms are F.O.B. Moss’ facility in Hanover, Maryland.  Title to and risk of loss for Products shall pass to IDEXX upon delivery to the carrier (specified by IDEXX) at Moss’ facility in Hanover, Maryland.  Moss shall cooperate with IDEXX in the documentation and proof of loss claims presented by IDEXX to the appropriate carrier and/or insurer.

 

Moss shall pack and ship Products in the manner described on Schedule A , and otherwise consistent with Moss’ usual practices, which shall be at least reasonably satisfactory to ensure that the Products are received by IDEXX undamaged.  Costs of packing are included in the Prices set forth on Schedule B .

 

SPECIFICATIONS

AND VALIDATION:

As set forth on Schedule A , as may be amended from time to time by the parties’ mutual agreement.

 

 

Moss shall not change the specifications attached hereto as Schedule A , without Moss providing IDEXX at least 12 months’ prior written notice (any such notice, a " Products Change Notice "), unless a shorter time frame can be mutually agreed, in order to permit IDEXX to evaluate such proposals and to verify that regulatory, performance and quality criteria will be satisfied.  IDEXX shall have the right to approve or disapprove all proposed changes before the incorporation of such changes into the Products.  In the course of IDEXX’s evaluation of such change, IDEXX shall promptly notify Moss of any test result that indicates such change will fail to meet any such criteria.  Upon written approval by IDEXX of changes in the specifications described in a Products Change Notice, the approved changes shall be deemed to be incorporated in Schedule A .

 

 

 


 

 

QUALITY:

In order to ensure quality and resolve any issues that may arise with the Products, Moss shall permit IDEXX access to Moss’ facilities as described in Schedule C .

 

ORDERS:

IDEXX shall order Products from Moss by written purchase orders (" Orders "), stating the number of Products ordered , one or more scheduled delivery dates (which shall be not less than 30 days after order date), and one or more delivery destinations.  Each Order shall be accompanied by the then current version of the agreed specifications.  Moss shall accept and fill all Orders for Products placed under this Agreement that specify delivery dates within the Term and that conform to the preceding sentence and acknowledge such acceptance in writing within 5 days after receipt of the Order.

 

[**].

 

FORECASTS:

IDEXX shall furnish to Moss not less than 30 days before the commencement of each calendar quarter during the term of this Agreement a forecast of the quantity of the Products for which IDEXX expects to submit Orders in such calendar quarter and the three succeeding calendar quarters.  Each such forecast after the first shall update and replace prior forecasts as to the calendar quarters covered by such prior forecasts.  It is understood that such forecasts are merely estimates and are not to be considered Orders.

 

LOT ACCEPTANCE:

 

A.             As soon as such is available, Moss shall ship to IDEXX a sample (the "Sample") of each manufacturing lot from which an order of [**] (Part Nos.: 23-08303-00 and 23-01788-00) is to be filled.  All quantities represented by the Sample shall be included in any invoice that Moss provides to IDEXX relating to such lot of Products.  IDEXX shall use such Sample for the purpose of subjecting it to inspection and performance testing.  IDEXX shall have a maximum of [**] business days from receipt of a Sample to complete such testing and notify Moss in writing of acceptance or rejection of the Sample.  If IDEXX does not deliver such written notice to Moss within such [**] business day period, Moss shall be authorized to ship the Product in accordance with the Orders. If IDEXX notifies Moss that IDEXX has rejected the Sample, Moss shall, within twenty business days, replace the rejected Product and submit a new Sample to IDEXX for testing.

 

B.             Moss shall perform the in-process Product inspection and testing procedures developed pursuant to Schedule C to this Agreement on the [**] Products (Part Nos.: 02-07209-00, 02-07701-00 and 02-07510-00) ordered by IDEXX.  Before shipping any Product, Moss shall supply IDEXX with documentary evidence of such testing and the results thereof in the format agreed upon by the parties pursuant to Schedule C.

 

 

 


 

 

TERM:

The date of this Agreement through termination by either party by providing written notice of termination not less than 24 months’ prior to the effective date of such termination.

 

ESCROW:

Moss hereby agrees to   deposit copies of Moss’ manufacturing information relating to the Products (as such documentation currently exists) with Iron Mountain Intellectual Property Management, Inc. (the “Escrow Agent”) for the Escrow Agent to keep in confidence and to be released to IDEXX solely upon the occurrence of certain triggering events as more particularly described below.  Moss further agrees to update its deposit of such information from time to time as required so that the information on deposit with the Escrow Agent is complete, current and accurate.  Upon Moss depositing its manufacturing information with the Escrow Agent, or upon Moss’ updating of such manufacturing information thereafter, IDEXX’s operations manufacturing manager, technical support manager or quality support manager ([**]) shall have the opportunity to review such manufacturing information to verify that such information is in a form that would allow IDEXX to use such information to manufacture the Products upon the occurrence of one of the triggering events discussed below.  Prior to its review of any manufacturing information (either upon initial deposit or the updating of such information), IDEXX shall provide Moss with the name of the person who shall conduct such review.  Representatives from Moss shall have the right and opportunity to be present for the duration of such review.  Following such review, Moss’ manufacturing documents shall be immediately placed in the possession of the Escrow Agent and shall not be viewed again by anyone at IDEXX unless and until the occurrence of one of the triggering events listed below.

 

IDEXX and Moss agree that the Escrow Agent shall be only be permitted to release Moss’ manufacturing documents to IDEXX upon the occurrence of one of the following triggering events: (i) Moss or a successor in interest to Moss by merger, by operation of law, assignment, purchase or otherwise, ceases to provide the Products to IDEXX, (ii) Moss has a receiver, administrator or liquidator appointed to the whole or any substantial part of its assets or if an order is made or a resolution passed for the winding up of Moss which is not revoked within thirty (30) days, (iii)  Moss fails, for any reason, including on account of an event of force majeure as described below, to deliver on a timely basis all quantities of Products ordered pursuant to one


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