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EXHIBIT 10.29
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 31 st day of December, 1994, by and
between Calypte Biomedical Corporation ("Calypte"), a California corporation,
and Travenol Laboratories (Israel), Ltd., ("DISTRIBUTOR"), incorporated under
the laws of the the State of Israel.
WHEREAS, Calypte is a developer and manufacturer of in vitro diagnostic kits and
kit components, and whereas DISTRIBUTOR wishes to commercially distribute said
kits and kit components in its Territory;
WHEREAS, in consideration of the mutual covenants and promises set forth below,
and with intent to be legally bound, the parties agree as follows:
ARTICLE I - DEFINITIONS
(A) "Product" shall mean the products listed in Schedule 1 hereof.
(B) "FDA" shall mean the Food and Drug Administration of the
United States Department of Health and Human Services
(C) "NIH" shall mean the National Institute of Health, or any
other government agency which regulates the commercial sale
of the Products within the Territory.
(D) "Territory" shall mean the State of Israel.
(E) "Exclusive Distributor" shall mean that no other distributor,
regardless of location of principal offices shall have any
rights to commercially distribute the Products for sale in the
Territory.
(F) "Approved" shall mean local regulatory approval for HIV test
kits, which permits commercial sale of same.
ARTICLE 2 - APPOINTMENT OF DISTRIBUTOR
2.0 APPOINTMENT Calypte hereby designates and appoints DISTRIBUTOR as its
Exclusive Distributor in the Territory for the sale,
promotion, support, and distribution of the Products in
the Territory, subject to the terms and conditions of
this Agreement.
2.1 INDEPENDENT Except for the limited purpose set forth herein,
CONTRACTOR nothing in this Agreement shall be deemed to constitute a
partnership between the parties hereto or be deemed to
constitute DISTRIBUTOR as agent or employee for Calypte
for any purpose, including the right to contract in the
name of or for the account of Calypte nor to assume or
create any liability or obligation of any kind, express
or implied, on behalf of Calypte in any way or for any
purpose. This Agreement does not constitute a Trademark
license or grant. The relationship between the parties is
that of independent contractors in which Calypte is the
vendor and DISTRIBUTOR is the vendee.
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ARTICLE 3 TERM
3.0 DATE This Agreement shall become effective as of the date
first shown in this Agreement.
3.1 TERM The Agreement shall be in effect in perpetuity unless
sooner terminated as provided herein.
ARTICLE 4 DISTRIBUTOR'S UNDERTAKINGS
DISTRIBUTOR agrees, at its sole expense (unless otherwise expressly
provided herein), during the term of this Agreement:
4.1.1 BEST EFFORTS At all times to use its best efforts to vigorously and
actively market, advertise, promote, and extend the sale
of the Products throughout the Territory. To this end,
DISTRIBUTOR agrees to maintain an adequate and competent
staff of sales and technical support personnel which can
function in all official languages of the Territory.
DISTRIBUTOR agrees to take all commercially reasonable
efforts to ensure that all advertisements, brochures, and
other materials distributed in connection with the sale
of the Products shall portray the Products according to
the claims dictated by Calypte.
4.1.2 MINIMA To purchase in each twelve month period following the
Approved Status or legal marketing rights in the
Territory of the Products, the minimum quantities of
Product described in Schedule 3, as amended annually. The
minimum purchase quantity for a given contract year shall
be agreed upon by the two parties not less than three
months prior to the start of that contract year.
4.2 EXCLUSIVE Neither directly nor through any third party to solicit
TERRITORY customers for any of the Products outside the Territory
without Calypte's prior written approval.
4.3 REGISTRATION At no overhead charge to Calypte, and in accordance with
AND PERMITS Section 5.8 of this Agreement, DISTRIBUTOR undertakes to
assist Calypte in the registration of the Products with
the regulatory authorities in the Territory, and to
assist in securing such licenses and registrations which
may be required in connection with the importation and
sale of the Products in the Territory. Said registration
shall be in the name of Calypte.
4.4 SALES Every six months the DISTRIBUTOR will provide to Calypte
FORECAST a forecast of its anticipated needs for each of the
subsequent six months.
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4.5 SALES REPORTS To provide to Calypte upon Calypte's occasional and
reasonable request a summary of prevailing market
conditions, customer attitudes, and competitive
activities, and to generate such reports on a case by
case basis as DISTRIBUTOR deems appropriate.
4.6.1 HANDLING OF To ensure that the Products are handled, stored, and
PRODUCTS shipped in accordance with Calypte's instructions, or in
the absence of specific instructions, in keeping with
standards generally accepted within the industry.
4.6.2 To order, and to maintain a representative selection of
Calypte's up-to-date sales literature or other
promotional material in good condition.
4.6.3 To maintain such stock of the Products as is reasonably
necessary to enable DISTRIBUTOR to comply with its
obligations hereunder.
4.7 SALES LEADS To actively follow up every sales lead supplied by
Calypte.
4.8 CONFIDENTIALITY Not at any time to divulge to any third party any
Confidential Information (as defined in Article 5.3
hereof) relating to the Products or to Calypte's affairs
or business or method of carrying on business, except so
far as is necessary, to those authorized to have access
to such information within DISTRIBUTOR's organization.
4.9 SUB- Not to appoint or subcontract, without the prior written
DISTRIBUTORS approval of Calypte, any subdistributors or sales
representatives in the Territory in connection with the
performance of this Agreement. In the event that Calypte
grants such approval, such appointment shall be made
only in the name and for the account of DISTRIBUTOR,
shall be for a term no longer than the term of this
Agreement, and shall not confer upon such
subdistributors, and/or independent sales any rights
greater than those which are granted by Calypte to
DISTRIBUTOR under this Agreement. DISTRIBUTOR shall also
impose on any such subdistributors and/or independent
sales representatives the same obligations that Calypte
has imposed on DISTRIBUTOR under this Agreement for the
purpose of protecting the goodwill of Calypte and the
Products. DISTRIBUTOR shall defend, indemnify, and hold
Calypte harmless against any claim, loss, liability, or
expense (including attorney's fees and court costs)
arising out of or based upon any claim made by any of
DISTRIBUTOR's subdistributors and/or sales
representatives against Calypte.
4.10 LEGAL To advise Calypte in writing of any changes in legal
STANDARDS pertaining to the Products during the term of
this Agreement, including but not limited to packaging,
labeling and ingredient standards, sufficiently in
advance of the
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imposition of such legal standards as to permit
Calypte's orderly scheduling and delivery of Product
within DISTRIBUTOR's requested time of shipment. Any
losses or damages resulting from a breach of this
provision shall be for DISTRIBUTOR's account.
4.11.1 LABELING To ensure that the Products are sold and promoted in the
form and with the labeling or markings designated by
Calypte, and not to alter, remove, or interfere
therewith without the prior written consent of Calypte.
4.11.2 Notwithstanding the generality of the foregoing, Calypte
hereby authorizes DISTRIBUTOR to affix a small label
which denotes DISTRIBUTOR as the authorized distributor
in the Territory, such label to be applied in a manner
which does not obscure Calypte's tradenames or other
marks.
4.12.1 TRADEMARKS To respect Calypte's rights in connection with the
Products (including but not limited to Calypte's
patents, trademarks, and copyrights), to comply with all
local laws and regulations with respect thereof, and to
assist Calypte in taking any steps necessary to defend
such rights. Any reasonable expenses incurred under this
paragraph by DISTRIBUTOR, and which are preapproved by
Calypte, shall be reimbursed by Calypte.
4.12.2 To acknowledge at all times Calypte's exclusive right,
title, and interest in and to the trademarks associated
with the Products listed in Schedule 1 and registered by
Calypte in the United States of America or the
Terrritory; and not at any time to do or cause to be
done any act or any thing contesting or in any way
impairing or tending to impair any part of such
right, title and interest. In connection with any
reference to the trademarks, DISTRIBUTOR shall not in
any manner represent that it has ownership interest in
the trademarks or registration thereof, but shall
clearly indicate Calypte's ownership of the trademarks.
4.12.3 To use no trademarks, trade names, corporate names, or
trade styles employing the trademarks, whether in
advertising or otherwise, without the prior written
consent of Calypte. Except as provided in Article 9.2,
any and all use by DISTRIBUTOR of said trademarks, trade
names, corporate names or trade styles within the
Territory shall cease upon the expiration or termination
of this Agreement.
4.12.4 To make no statements to the press concerning Calypte or
its Products without the prior written consent of
Calypte.
4.13 MANAGEMENT To provide to Calypte prompt notice, in writing, of any
CHANGE change of key management or ownership and any change in
the mode of operation of DISTRIBUTOR which would
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have direct impact on the relationship between
DISTRIBUTOR and Calypte.
4.14 PROOF OF To use commercially reasonable efforts to ensure that
SALE any Products purchased are for the purpose of sale in
the Territory. DISTRIBUTOR further represents that it
will undertake all commercially reasonable steps to
ensure that the Products are sold exclusively to
customers which are permitted under the laws of the
Territory to purchase and use the Products.
4.15 AUDIT To permit Calypte staff or a Calypte designee, upon
reasonable advance notice, to visit and tour
DISTRIBUTOR's premises.
4.16 COMPETING During the term of this Agreement, neither directly nor
PRODUCTS through any third party to manufacture, sell, promote,
market, or advertise any in vitro 111HIV antibody test
which is to be used on samples other than blood, serum,
or plasma.
4.17 NEW PRODUCTS To accept distribution rights and obligations for new in
vitro laboratory diagnostic Products as they may become
available from time to time, and under such terms and
conditions as the parties may negotiate in good faith.
ARTICLE 5 CALYPTE's UNDERTAKINGS
Calypte agrees, during the term of this Agreement:
5.1.1 EXCLUSIVE To limit the authorized sale of the Products in the
DISTRIBUTOR Territory to DISTRIBUTOR, and to take such action as may
be necessary to ensure compliance of third parties in
this regard.
5.2 FILLING ORDERS To use its best efforts to fill all orders of
DISTRIBUTOR for delivery of the Products hereunder.
Orders shall be placed in writing and mailed or
transmitted by facsimile. No order from DISTRIBUTOR
shall be binding upon Calypte until such order is
accepted by Calypte in writing by mail or facsimile,
such acceptance not to be unreasonably withheldand to be
communicated within two working days of Calypte's
receipt of order.
5.3 CONFIDENTIAL DISTRIBUTOR may receive information from Calypte, its
INFORMATION personnel,or through DISTRIBUTOR!s activities under this
Agreement, either by direct or indirect communication or
observation; more specifically, Calypte will make
available to DISTRIBUTOR, after execution of this
Agreement, such marketing and quality control data, and
other proprietary, secret, and confidential information
owned by Calypte which, in the opinion of Calypte, are
necessary for DISTRIBUTOR to sell the Products (herein
collectively referred to as "Confidential Information").
DISTRIBUTOR shall not make use of the Confidential
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Information other than in connection with the marketing
and sale of the Products under this Agreement and shall
under no circumstances disclose the Confidential
Information to any third party. Except for such of the
Confidential Information that becomes publicly available
through Calypte or independent third parties,
DISTRIBUTOR shall not use, employ or exploit the
Confidential Information, except for the direct benefit
of Calypte, without Calypte's written consent for the
term of this Agreement and seven (7) years thereafter.
5.4 SALES MATERIAL To furnish to DISTRIBUTOR, without charge, a reasonable
supply of sales literature and promotional materials.
The promotional materials may be furnished in the
English language. DISTRIBUTOR may translate the
materials at its own expense, and with prior approval
from Calypte, such approval not to be unreasonably
withheld. Calypte may make reasonable charges if more
than a nominal quantity of these promotional materials
is supplied to DISTRIBUTOR, which will be agreed upon
between Calypte and DISTRIBUTOR in advance.
5.5 WARRANTY To warrant the Products as set out in Article 8 of this
Agreement.
5.6 SALES LEADS To forward to DISTRIBUTOR sales leads and inquiries from
customers located within the Territory, and to promote
the use of the Products by Territory affiliates of
Calypte's customers.
5.7 TRAINING To provide to DISTRIBUTOR such sales, marketing, and
technical training as may be reasonably required, at the
DISTRIBUTOR's principal facility, but not to exceed one
week per year of this Agreement. Costs incurred in such
training including travel, accommodation, and a
reasonable amount of Product shall be borne by Calypte.
Telephone technical support shall be made available to
DISTRIBUTOR during Calypte's normal business hours.
5.8 REGISTRATION To supply at no charge such Product as may be necessary
for testing by the competent authorities within the
Territory in order to permit the Product's legal sale
within the Territory, and to pay such fees as may be
levied by such authorities as part of the approval
process. In addition, to compensate the DISTRIBUTOR or
the regulatory authority for any products used as
reference methods.
ARTICLE 6 PRICE AND PAYMENT
6.1 PRICE AND All prices are F.O.B. destination unless Product must be
PAYMENT shipped from a location outside the Territory, in which
case shipments are F.O.B. Calypte's manufacturing sites
in California and Ontario. Any and all import permits,
licenses, or any other authorizations required to be
obtained
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from any ministry, agency, bank or institute within the
Territory to effect the importation of the Products,
including but not limited to their clearance through the
corresponding customs and health authorities, will be
secured and done or caused to be secured and done by
DISTRIBUTOR if Calypte so requests. Any and all
additional expenses including, but not limited to taxes
and customs duties which may be incurred in acting under
this Agreement are to be similarly borne and paid by
DISTRIBUTOR.
6.2 TERMS OF Terms of payment for the Products sold by Calypte to
PAYMENT DISTRIBUTOR hereunder shall be due within sixty (60)
days from the date of Product receipt by DISTRIBUTOR.
The terms of payment specified shall remain in effect
for so long as DISTRIBUTOR is not delinquent in its
compliance with the specified terms. In the event
DISTRIBUTOR becomes habitually delinquent in such
compliance,in Calypte's opinion, Calypte reserves the
right without prior approval from DISTRIBUTOR to require
alternative terms of payment upon ten (10) days prior
written notice to DISTRIBUTOR.
ARTICLE 7 SHIPPING-TITLE AND RISK-CANCELLATION
7.1 SHIPPING TERMS Products are to be shipped to DISTRIBUTOR from
facilities in Toronto, Canada or from the State of
California, at Calypte's discretion, and the shipping
terms hereafter shall apply: unless otherwise agreed in
writing between the parties, all Products shall be sold
on Calypte's standard shipping terms as communicated to
DISTRIBUTOR and which are in force at the time of
acceptance of the written order, subject only to the
provisions of this Agreement which shall prevail in the
event of any inconsistency between this Agreement and
those terms and conditions.
7.2 RISK OF LOSS Calypte's obligationto effect shipment of the Products
shall be fully discharged upon delivery of Products to
the carrier, and title to, and all risk of damage or
loss to the Products shall pass to DISTRIBUTOR at this
time. Shipments shall be insured at the expense of
DISTRIBUTOR.
7.3 DELIVERY Calypte shall use its best efforts to ship the Products
to DISTRIBUTOR in accordance with DISTRIBUTOR's
instructions. The completion of the formalities
pertaining to the entry of the Products into the
Territory, as well as the payment of any taxes, duties,
or charges relating to same, shall be the sole
responsibility of DISTRIBUTOR.
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ARTICLE 8 WARRANTY - NO CONSEQUENTIAL DAMAGES - INDEMNITY
8.1 WARRANTY Calypte warrants the Products to be of sufficient
quality of materials and manufacture as to meet the
claims and specifications set forth in the Product's
packaging and labelling when used according to the
directions provided therein. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, CALYPTE MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, OR
ANY OTHER MATTER, WITH RESPECT TO THE PRODUCTS.
DISTRIBUTOR's exclusive remedy will be for direct
damages, and Calypte's total liability for any and all
losses and damages arising out of any cause whatsoever
(whether such cause be based in contract, warranty,
negligence, strict liability, other tort or otherwise)
will in no event exceed DISTRIBUTOR's landed cost of the
Products in respect to which such cause arises or, at
Calypte's option, the replacement of such Products. In
no event will Calypte be liable for incidental,
consequential or punitive damages resulting from any
cause whatsoever. Calypte warrants that at the time that
the Products left Calypte's possession, they were deemed
to be of good quality.
8.2 DEFECTS Without limiting the generality of the foregoing,
CALYPTE SHALL NOT BE BOUND TO MAKE GOOD ANY DEFECT IN
THE PRODUCTS WHERE THE PRODUCTS HAVE BEEN SUBJECTED TO
MISUSE, NEGLECT, OR ACCIDENTAL DAMAGE.
8.3 TRADEMARKS Calypte is the record owner of registrations for its
trademarks in the Territory and believes it has the
right to use these trademarks throughout the Territory.
Notwithstanding, CALYPTE MAKES NO EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY THAT THE PRODUCTS WILL NOT
INFRINGE THE LEGITIMATE AND VALID TRADEMARKS, TRADE
NAMES, OR OTHER INDUSTRIAL PROPERTY RIGHTS OF THIRD
PARTIES IN THE TERRITORY. DISTRIBUTOR shall immediately
notify Calypte of any such claims of others, and Calypte
shall, at its sole option, have the right to assume the
defense of any such claim.
8.4 INSPECTION It shall be the responsibility of DISTRIBUTOR to inspect
the Products after taking title to same. Notwithstanding
Article 8.1 above, Calypte shall not be liable for any
shortage, breakage, or damage to the Products or for any
breach of warranty, implied or otherwise, unless it
receives written notice of any defect or shortcoming
within thirty (30) days after the date on which
DISTRIBUTOR takes title to the Products, and the defect
or shortcoming results from the fault or negligence of
Calypte. Damage to the
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Products which is clearly obvious upon delivery to the
DISTRIBUTOR shall be reported to Calypte promptly.
8.5 INDEMNIFICATION Calypte shall indemnify and hold DISTRIBUTOR harmless
from any claims, demands, liabilities, suits or expenses
of any kind arising out of any misrepresentations which
Calypte makes concerning the Product supplied by
Calypte.
Calypte shall indemnify DISTRIBUTOR for any damages or
loss actually paid by DISTRIBUTOR resulting from a legal
decision on a claim by third parties made against
DISTRIBUTOR and which is caused by Calypte with respect
to the Products made or supplied by Calypte.
DISTRIBUTOR is responsible for, and shall hold Calypte
harmless from any loss, damage, illness or injury to
persons or property which arises out of or pertains to
the sale, use, packaging, advertising, or promotion of
the Products, and which is caused by the DISTRIBUTOR or
DISTRIBUTOR's subdistributors, agents, or employees.
This provision shall survive the expiration or
termination of this Agreement for any reason.
ARTICLE 9 TERM AND TERMINATION
9.1 TERMINATION Calypte, at its sole option, may immediately terminate
FOR CAUSE this Agreement with respect to the Territory, upon
giving notice to this effect, whenever any of the
following events occurs:
(i) if any governmental unit within the Territory
threatens (in the sole judgement of Calypte) to enact or
enacts any law, decree or regulation which would
restrict the right of Calypte to terminate or elect not
to renew this Agreement as herein provided, or would
make Calypte liable to DISTRIBUTOR for compensation or
damages upon termination or failure to renew this
Agreement;
(ii) if DISTRIBUTOR at any time files a petition of
bankruptcy or insolvency or admits in writing its
inability to pay its debts as they become due and
payable, or if DISTRIBUTOR is adjudicated bankrupt or
insolvent, or if there is filed any petition seeking
reorganization of DISTRIBUTOR, or if a receiver is
appointed for all or substantially all of DISTRIBUTOR's
property, or if DISTRIBUTOR makes an assignment for the
benefit of creditors or if any proceedings are
instituted for the liquidation or winding up of
DISTRIBUTOR;
(iii) if DISTRIBUTOR uses Calypte's trademarks or trade
names or styles in any way which might deceive or
mislead the consumer or which might in any way damage or
impair the reputation or value of such trademarks, trade
names, or styles;
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(iv) if DISTRIBUTOR is at any time nationalized or falls
under the control of any governmental unit within the
Territory.
9.1.1 Calypte, at its sole option, may terminate this
Agreement with respect to the Territory, upon giving one
hundred eighty (180) days written notice to this
effect, if DISTRIBUTOR fails to comply with any of the
terms or conditions herein contained and, after notice
by Calypte requiring DISTRIBUTOR to make good such
default, DISTRIBUTOR fails to cure such default within
ninety (90) days after receipt of such notice.
9.2 Upon termination or expiration of this Agreement for any
reason with respect to the Territory:
i) at Calypte's option, DISTRIBUTOR may sell its
remaining inventory of Product within the Territory, or
shall make available to Calypte or Calypte's designee,
all current stocks of Product held by DISTRIBUTOR with a
minimum of four (4) months' expiration remaining, at
DISTRIBUTOR's landed cost, FOB DISTRIBUTOR's warehouse,
which shall include any duty, freight, insurance
documentation and inland freight to warehouse
distribution.
ii) DISTRIBUTOR shall at its own expense return to
Calypte or its designee all Confidential Information
furnished by Calypte in accordance with Article 5.2
hereof, as well as all sales literature, catalogues,
samples, and other promotional materials supplied by
Calypte;
iii) Calypte will not be liable to pay to DISTRIBUTOR
any termination compensation, benefits or damages of any
kind whatsoever, whether for DISTRIBUTOR's loss of
present or prospective profits, anticipated sales,
expenditures, investments or commitments made in
connection with this Agreement, or due to the
termination of any of DISTRIBUTOR's employees, agents,
or subdistributors, or due to any other matter or cause
whatsoever, and whether provided by any current or
future law, regulation or interpretation thereof by any
authority exercising jurisdiction over this Agreement,
and;
iv) all obligations of Calypte shall be cancelled, but
such expiration or termination will not affect any of
Calypte's rights hereunder, and Calypte will further
have the right, immediately upon such expiration or
termination, to appoint a new distributor or sales
representative. Such expiration or termination will not
affect DISTRIBUTOR's obligation to make payment for any
orders of the Products which remain unpaid at such time.
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9.3 TERMINATION At any time, and for any reason or no reason, Calypte,
FOR at Calypte's sole option, may terminate this Agreement.
CONVENIENCE Such termination shall be effective not less than one
hundred eighty (180) days after receipt by DISTRIBUTOR
of Calypte's written notice of termination.
ARTICLE 10 ASSIGNMENT
DISTRIBUTOR shall not be entitled to assign its rights
and obligations under this Agreement without the written
consent of Calypte.
ARTICLE 11 WAIVER The failure of either party to assert a right under, or
to enforce at any time or for any period of time, the
provisions hereof or the failure of either party to
exercise an option herein shall not be construed as a
waiver of such provision or option and shall in no way
affect that party's right to enforce such provisions or
exercise such options.
ARTICLE 12 ENTIRE AGREEMENT
With the exception of previously signed Confidentiality
Agreements, this Agreement cancels and supersedes any
previous understandings or agreements, oral or written,
between the parties relating to the subject matter
hereof, including any previously existing
distributorship arrangement. This Agreement expresses
the complete and final understanding of the parties with
respect to the subject matter hereof, and may not be
changed in any way except upon the explicit intention of
both parties expressed by a signed written agreement.
Any terms or conditions stated in DISTRIBUTOR's purchase
orders inconsistent with this Agreement shall be null
and void.
ARTICLE 13 VALIDITY If any provision of this Agreement shall be found by a
court of competent jurisdiction to be invalid or
unenforceable, the invalidity or unenforceability of
such provision shall not affect the other provisions of
this Agreement and all provisions not affected by such
invalidity shall remain in full force and effect.
ARTICLE 14 NOTICES
14.1 NOTICE Any notice required or permitted by this Agreement shall
be in writing and in the English language, and shall be
delivered personally or by registered air mail, postage
prepaid, or by facsimile, addressed to the parties as
follows:
If to DISTRIBUTOR: Travenol Laboratories (Israel) LTD.
Haorgim Street PO Box 2
Ashdod 77100
Israel
Facsimile: 972-8-532207
Attention: Director of Marketing
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If to Calypte: Calypte Biomedical Corporation
1440 Fourth Street
Berkeley, California 94710
United States of America
Facsimile: 510-526-5381
Attention: Director of Sales and Marketing
14.2 RECEIPT Any notice sent by registered prepaid air mail properly
addressed and posted shall be deemed to have been
received ten (10) days after it is delivered to the
postal authorities in the country of the party by whom
it is sent. If sent by facsimile, a copy of the
facsimile shall be sent promptly by registered prepaid
air mail to the addressee.
14.3 VERBAL Nothing contained herein shall justify or excuse failure
NOTICE to give verbal notice for the purpose of informing the
other party thereof when prompt notification is
appropriate, but such verbal notice shall not satisfy
the requirement of written notice.
ARTICLE 15 APPLICABLE LAWS
15.1 EXPORT LAWS Calypte is subject to U.S. laws and regulations
governing the export of U.S. products. DISTRIBUTOR
agrees that it will not directly or indirectly engage in
any acts which would cause Calypte to be found in
violation of such laws or regulations.
15.2 PAYMENTS DISTRIBUTOR acknowledges that certain laws of the United
States may result in the imposition of sanctions on
Calypte and its employees in the event that offers,
promises, or payments are directly or indirectly made to
government officials or others for the purpose of
influencing decisions favorable to Calypte, and,
therefore DISTRIBUTOR agrees that neither it nor its
employees will commit such acts or engage in such
activities and that DISTRIBUTOR shall defend, indemnify,
and hold Calypte harmless for any damages, claims,
liabilities and expenses which arise or allegedly arise
from DISTRIBUTOR's violation of the obligations of
articles 15.1 or 15.2.
15.3 ASSURANCES DISTRIBUTOR agrees to furnish to Calypte, by affadavit
or other reasonable means from time to time at Calypte's
request, and to the reasonable satisfaction of Calypte,
assurances that the appointment of DISTRIBUTOR
hereunder, its activities under this Agreement, and the
payment to DISTRIBUTOR of any monies or consideration
contemplated hereunder are proper and lawful under the
laws in force in the Territory. DISTRIBUTOR further
represents that no person employed by it is an official
of any government agency or a corporation owned by a
government unit within the Territory and that no part of
any monies or consideration paid hereunder shall accrue
for the benefit of any such official.
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15.4 TERRITORY If Calypte determines that the appointment or use of
LAWS DISTRIBUTOR is not permitted under the laws and
regulations in force in the Territory, or part of the
Territory. Calypte has the right, at its sole
discretion and upon notice to DISTRIBUTOR, to terminate
this Agreement as Calypte sees fit for the affected
Territory or part of Territory. Upon notice of this
decision, DISTRIBUTOR will cease its activities under
this Agreement within the affected Territory or part of
the Territory and shall not seek damages or compensation
in any form, according to Article 9 of this Agreement.
ARTICLE 16 GOVERNING LAW
This Agreement and the obligations of the parties
hereunder shall be governed and construed in accordance
with the laws of the State of California, U.S.A.
ARTICLE 17 FORCE MAJEURE
Calypte and DISTRIBUTOR will be excused from failure to
perform under this Agreement and will not be liable in
any way for any loss if such failure is due to causes
beyond the reasonable control of either party, including
but not limited to, natural disasters such as
earthquakes or floods, fires, riots, strikes and other
labor disputes, war conditions, shortage of raw
materials or government action for the period any such
conditions exist.
ARTICLE 18 HEADINGS The headings used herein are for convenience only and in
no way affect the liabilities, obligations, or
responsibilities of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CALYPTE BIOMEDICAL CORPORATION
By:
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Title:
President and CEO
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Date: December 18, 1994
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DISTRIBUTOR
By:
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Title:
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Date: December 29, 1994
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SCHEDULE 1 - PRODUCTS
Sentinel(TM) HIV-1 An enzyme immunoassay in microwell format for the
detection of antibodies to HIV-1 in urine, labelled
under the name and trademarks of Calypte Biomedical.
Cat. No. 600000 480 tests
Cat. No. 600001 192 tests
SCHEDULE 2 - PRICE
PRODUCT PRICE, $US
Sentinel(TM) IRV-1 480 tests
192 tests
SCHEDULE 3 - MINIMA, TESTS
Minimum purchases of Sentinel(TM) HIV-1 per twelve month period following legal
opportunity to market the Products within the Territory:
12-month period: first Subsequent
No minimum To be negotiated in
accordance with 4.1.2 of this
Agreement
SCHEDULE 4 - TRADEMARKS
Calypte
Calypte hummingbird logo
Sentinel tradename
Confidential portion has been omitted and filed separately with the Commission
14