Exhibit 10.71
CALYPTE BIOMEDICAL CORPORATION
1265 HARBOR BAY PARKWAY
ALAMEDA, CA 94502
May 16, 2000
Beijing Hua Ai Science and Technology
Development Co. Ltd.
National Center For AIDS Prevention and Control
27 NanWei Road
Beijing, People's Republic of China
100050
Re: AUTHORIZED INTERNATIONAL EXCLUSIVE DISTRIBUTOR AGREEMENT FOR PEOPLE'S
REPUBLIC OF CHINA
Gentlemen:
This letter sets forth our Agreement with Beijing Hua Ai Science and
Technology Development Co. Ltd. (the "Distributor"), under The National
Center For AIDS Prevention And Control ("NCAIDS, CHINA") and the Chinese
Academy of Preventive Medicine, with respect to the distribution by the
Distributor, in the People's Republic of China, Hong Kong and Macau (the
"Territory"), of Calypte's Human Immunodeficiency Virus ("HIV") diagnostic
products (the "Products"). Subject to Section 21(g), this Agreement will
become effective as of the date hereof (the "Effective Date").
1. APPOINTMENT AS CALYPTE'S EXCLUSIVE DISTRIBUTOR IN THE
TERRITORY. [*]
2. DISTRIBUTOR GENERAL OBLIGATIONS. In addition to other
Distributor obligations specifically described in other parts of this
Agreement, Distributor will have the following obligations:
(a) DISTRIBUTE CALYPTE PRODUCTS. Distributor will use its best
efforts, with our cooperation, to promote the distribution and sale of Calypte
Products within the Territory in accordance with this Agreement and with all
applicable laws. Distributor also agrees not to distribute any assay for the
detection of HIV or antibodies to HIV based on non-blood methods other than
those manufactured by the Company.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(b) DISTRIBUTOR PERSONNEL. Distributor will train and maintain
a sufficient number of capable technical and sales personnel to have the
knowledge and training necessary to inform Distributor customers as to the
features and capabilities of Calypte Products and, if necessary, competitive
products, and to support Calypte Products in accordance with Distributor
obligations under this Agreement. Distributor and Calypte will cooperate with
respect to training of Distributor's technical and sales personnel concerning
Calypte Products, including subsequent agreement by us in writing, as an
amendment to this Agreement, as necessary, as to the nature of training, the
amount of training time, and which of us will pay for travel and living expenses
for training Distributor personnel.
(c) CUSTOMER SUPPORT. Distributor will provide pre-sales and
post-sales service and support for all Calypte Products located in the
Territory. Distributor will timely respond to Distributor customers' general
questions concerning use of Calypte Products. Distributor also will assist
customers in the diagnosis and correction of problems encountered in using
Calypte Products, and will keep Calypte apprised of the general nature of such
questions and of such problems.
(d) CERTAIN GOVERNMENTAL MATTERS. Distributor agrees it
will use its best efforts to obtain as soon as possible all necessary
governmental approvals needed to distribute the Product. [*] Distributor will
cause the registration rights to be under the name of Calypte. Calypte will
be under no obligation to ship Calypte Products to Distributor until
Distributor have provided us with satisfactory evidence that the approvals,
notifications or registrations referred to in this paragraph either are not
required or that they have been timely and properly obtained.
(e) RECORDS. During the term of this Agreement and for at
least twelve (12) months after termination of this Agreement, Distributor will
maintain records and contracts relating to Distributor's distribution of Calypte
Products, and Distributor will permit examination of those records and contracts
by Calypte's authorized representatives at all reasonable times.
(f) REPORTS. Within thirty (30) days of the end of each
quarter, Distributor will provide Calypte with a written report showing: (a)
Distributor shipments of Calypte Products in the Territory by number of tests;
(b) forecasts of Distributor anticipated orders of Calypte Products; and (c)
Distributor's current inventory levels of Calypte Products.
3. DISTRIBUTOR MINIMUM PURCHASE REQUIREMENTS. [*]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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[*]
4. OUR MUTUAL OBLIGATIONS.
(a) COOPERATION TO DISCUSS MARKET CONDITIONS. Calypte and
Distributor will discuss with each other any market information that comes to
either of our attention concerning Calypte, Calypte Products, Calypte's market
position or the continued competitiveness of Calypte Products in the Territory,
and related to market conditions for HIV diagnostic products, sales forecasting
and product planning relating to Calypte Products.
(b) COSTS AND EXPENSES. Except as expressly provided in this
Agreement or otherwise agreed to in writing by us with Distributor, each of us
will pay our own costs and expenses that each party separately incurs in
performing our separate obligations under this Agreement.
(c) COMPLIANCE WITH LAWS. Each of us will comply with all
international, national, state, regional and local laws and regulations ("Laws")
that are applicable to us. In particular, (i) Calypte will comply with all Laws
applicable to our manufacture and sale to Distributor of Calypte Products,
including without limitation all applicable regulations of the U.S. Food and
Drug Administration (the "FDA), and (ii) Distributor will comply with all Laws
applicable to Distributor importation, storage, sale and support of Calypte
Products in the Territory.
5. OUR REPRESENTATIONS AND WARRANTIES TO DISTRIBUTOR CONCERNING
CALYPTE PRODUCTS.
(a) GENERAL. Calypte represents to Distributor that Calypte
possesses good and marketable title to whatever Calypte Products Calypte shall
sell to Distributor under this Agreement and that such Calypte Products: (a)
have been manufactured by Calypte in accordance with our quality control
processes and standards and with all applicable requirements of the applicable
regulatory body or agency within the Territory, (b) conform to our applicable
specifications for such Calypte Products and are free from defects in design,
materials and workmanship, (c) are of good merchantable quality and fit for
their intended purposes, and (d) will pass the testing standards required by
State Drug Administration in China ("SDA") for the importation of the Calypte
Products into China. [*]
(b) LIMITED WARRANTY. Our only warranty for Calypte Products
is as set out in our written warranty accompanying Calypte Products. Calypte
disclaims and excludes all other warranties for Calypte Products, including, to
the extent permitted by applicable law, all implied
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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warranties, including but not limited to implied warranties of
merchantability, fitness for a particular purpose and noninfringement.
Calypte can change its warranty at any time, but Calypte will give
Distributor as much advance notice in writing of any such change as possible.
To the extent that any published warranty provisions of Calypte as to an
applicable Calypte Product shipped by us to Distributor under this Agreement
are different than the applicable warranty for Calypte Products made by us
under this Agreement, the provisions of our published Calypte warranty will
control.
(c) DISTRIBUTOR WARRANTIES. Distributor will make no warranty,
guarantee or representation, whether written or oral, to anyone else whether on
Distributor's own or on Calypte's behalf, with respect to Calypte or Calypte
Products, unless Calypte has specifically authorized Distributor to do so before
Distributor makes such warranty, guarantee or representation.
6. OUR PRICES TO DISTRIBUTOR; DISTRIBUTOR PAYMENT TO US.
[*]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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[*]
7. ORDER PROCEDURE AND SHIPMENT.
(a) FORECASTS. Distributor will give Calypte written
forecasts, at least three months before the expected shipment date of the order,
of Distributor's expected orders for Calypte Products.
(b) CALYPTE ACCEPTANCE. All orders Distributor places for
Calypte Products will be subject to acceptance in writing by us at our
principal place of business and will not be binding until the earlier of the
date Calypte accepts the order or ships it, and, in the case of acceptance by
shipment, only as to the portion of the order Calypte actually ships.
Distributor shall have the right to reject any Calypte Products not having a
shelf life of a minimum of nine months.
(c) CONTROLLING TERMS. The terms and conditions of this
Agreement and of the applicable Calypte invoice or confirmation will apply to
each order accepted or shipped by us to Distributor under this Agreement. To
prevent confusion, (i) if there is a conflict between this Agreement and our
invoice or confirmation, the terms of this Agreement will control, (ii) the
provisions of Distributor's form of purchase order or other business forms will
not apply to any order even if Calypte has otherwise acknowledged or accepted
such form.
(d) CALYPTE RIGHTS WITH RESPECT TO ORDERS. Calypte can cancel
any orders that Distributor have placed and which Calypte has accepted, or
Calypte can refuse or delay shipment of the order or orders, or parts of the
orders, if Distributor: (i) fails to make any payment to Calypte that
Distributor is required to make under this Agreement or under any Calypte
invoice or acceptance document; or (ii) otherwise fails to comply with what
Calypte, in good faith, believes to be the significant terms and conditions of
this Agreement. No such cancellation, refusal or delay will be a termination of
this Agreement unless Calypte specifically so states to Distributor in writing.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(e) CALYPTE RIGHT TO ALLOCATE AMONG ORDERS. If orders for
Calypte Products exceed our available inventory, Calypte will allocate our
available inventory among our customers, and make deliveries to Distributor
and other customers of ours, on a basis Calypte believe to be fair, in our
sole discretion, and without liability to Distributor because of the method of
allocation chosen or its implementation. In any event relating to this
paragraph, Calypte will not be liable for any damages, direct, consequential,
special or otherwise, to Distributor or to any other person for our failure to
deliver or for any delay of Calypte Products for any reason whatsoever.
8. LABELING AND OTHER MARKETING MATERIALS.
(a) GENERAL OBLIGATIONS. Distributor will distribute Calypte
Products with all packaging, warranties and disclaimers, labeling and other
instructions as shipped from Calypte without any change to them except as
Calypte may approve in advance of Distributor use of them. Distributor will make
no representations, warranties or guarantees to any third party with respect to
the specifications, features or capabilities of Calypte Products that are
inconsistent with the literature distributed by Calypte with respect to such
Calypte Products.
(b) TRANSLATIONS. If Distributor determines it is necessary or
desirable in order for Distributor to distribute Calypte Products in the
Territory, Distributor will send Calypte Chinese translation of the labels of
Calypte Products and Calypte will include such Chinese translations in the
labels on the Calypte Products. Calypte will own all rights to those translated
materials unless this Agreement is terminated because of our breach, in which
case Distributor will own all rights only to the translation which Distributor
made or had someone else make, but not to the underlying materials.
9. USE OF OUR TRADEMARKS, TRADE NAMES, LOGOS, DESIGNATIONS AND
COPYRIGHTS. Calypte authorizes Distributor to use Calypte's trademarks, trade
names, logos and designations that Calypte uses for Calypte Products, only
during the term of this Agreement in connection with Distributor advertisement,
promotion and distribution of Calypte Products in the Territory. Distributor
will use them, as Calypte supplies them to Distributor, in Distributor
advertising and promotional materials and on all containers and storage media
for Calypte Products, and Distributor will not attach any additional trademarks,
trade names, logos or designations to any Calypte Product, nor will Distributor
use any Calypte trademark, trade name, logo or designation in connection with
any non-Calypte Product, without our prior written approval. Distributor has
only the above described right to use our marks and Distributor has no ownership
rights to them, and cannot use them after this Agreement expires or terminates.
10. CHANGES BY CALYPTE TO CALYPTE PRODUCTS. Calypte can make
whatever changes to Calypte Products as Calypte think in good faith are
necessary or appropriate, but Calypte will give Distributor as much advance
written notice as Calypte can before Calypte makes any such change. Calypte
will cooperate with Distributor to obtain whatever new or changed approvals
Distributor may need from any regulatory or other agency within the Territory
to allow Distributor to distribute and sell the modified Calypte Products in
the Territory. To the extent allowed by law, Calypte will continue to make
the unmodified Calypte Products available to Distributor until Distributor
can obtain the necessary regulatory approvals for the modified Calypte
Products. Calypte will have the right to stop production of or to make
changes to any Calypte Product to the extent that Calypte believe in good
faith that Calypte must do so under applicable law.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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11. HANDLING OF PROBLEMS WITH CALYPTE PRODUCTS.
(a) COMPLAINTS AND REJECTIONS. Distributor will promptly
notify Calypte if any Calypte Product is found, upon incoming inspection by
Distributor, to be defective or to fail to meet Calypte's applicable written
specifications or otherwise to be defective. Distributor and Calypte will
discuss in good faith the resolution of any such problem, provided, however,
that final resolution of any such problem will be at Calypte's sole discretion.
If either of us receives any complaint regarding any Calypte Product from a
third party, including without limitation a rejection by any of Distributor's
customers of any Calypte Product or return by any customer of any Calypte
Product to Distributor as a result of an alleged failure of such Calypte
Product's performance, whichever of us receives the complaint will notify the
other in writing as to such event within twenty-four (24) hours after receipt of
such complaint, and will provide all information necessary to enable the other
to comply with applicable regulatory requirements in a timely fashion.
Distributor will be responsible for evaluating in detail all complaints from
Distributor customers as to Calypte Products and will advise Calypte in writing
of Distributor's findings. Calypte will attempt to assist Distributor in
addressing any issues or alleged problems in Product performance which
Distributor cannot remedy through Distributor's own technical support.
Distributor also agrees to provide Calypte on a monthly basis a summary of all
complaints that Distributor has received and if and how they were resolved.
Calypte will provide to Distributor a form for this purpose, the design of which
has been registered with the U.S. FDA. Product is not to be returned to Calypte
unless or until Calypte provides to Distributor a Returned Goods Authorization
number. If any Calypte Products are rejected because of quality problems
associated with production, Calypte shall reimburse Distributor for all direct
costs and expenses incurred by Distributor for such rejected products such as
shipping expenses, product costs, handling, notification, testing or costs of
destruction.
(b) PRODUCT RECALL. If either of us, or any applicable
regulatory body or agency, recalls any Calypte Product, on the basis that those
Calypte Products are believed or alleged to violate any provision of applicable
law, then unless Distributor and Calypte agree otherwise in writing, whichever
of us initiates the recall will bear all costs and expenses of the recall,
including, without limitation, expenses or obligations to third parties, the
cost of notifying customers and costs associated with the shipment from
Distributor customers to Distributor or to Calypte of recalled Calypte Products
sold by Distributor pursuant to Distributor rights under this Agreement. Calypte
and Distributor will cooperate fully with each other in effecting any recall of
the Calypte Products, including communications with customers and other
purchasers or users.
(c) OTHER NOTIFICATION. Distributor will notify us in writing
of any claim or proceeding involving Calypte Products, other than claims
procedures for claims against each other, within ten (10) days after Distributor
learn of the claim or proceeding. Distributor also will notify us in writing not
more than thirty (30) days after any change in Distributor's executive
management or any transfer of all or substantially all of Distributor's assets.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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12. TERM AND TERMINATION OF THIS AGREEMENT.
(a) TERM. This Agreement is for an initial term commencing as
of the Effective Date of this Agreement and will expire automatically on the
date two years and six months after the date of registration of the Calypte
Products (the "Initial Term") unless Distributor renews the Agreement as
discussed below. If Distributor has purchased and paid for all of the Required
Minimum Purchases through the Initial Term as set forth on Exhibit B to this
Agreement, then Distributor may, by giving us written notice at least 180 days
before the last date of the Initial Term, extend the term of this Agreement for
an additional three years (the "Renewal Term").
(b) TERMINATION. This Agreement may be terminated prior to the
expiration of the Initial Term or of the Renewal Term as follows:
(i) TERMINATION FOR FAILURE TO OBTAIN
GOVERNMENT APPROVAL. This Agreement may be terminated by Calypte if the Product
has not been approved for commercial sale in the Territory by the relevant
governmental authorities prior to December 31, 2000.
(ii) TERMINATION FOR FAILURE TO FULFILL
OBLIGATIONS. This Agreement may be terminated by either party if the other fails
to perform one or more of its obligations under this Agreement, and that failure
is not cured within the time period set out in written notice from the
non-failing party, which time period will be at least thirty (30) days for
anything except failure to make payment, and at least ten (10) days for failure
to make payment.
(iii) VOLUNTARY TERMINATION. Either of us
also may terminate this Agreement at will, at any time during the term of this
Agreement, with or without cause, by written notice given to the other not less
than six (6) months prior to the effective date of such termination.
(iv) CALYPTE SEPARATE RIGHTS TO
TERMINATE. Calypte may also terminate this Agreement immediately by written
notice to Distributor if Distributor is merged, consolidated, sells all or
substantially all of its assets, or if there is, in our good faith view, any
substantial change in management or control of Distributor, or if any bill or
regulation is introduced into or passed by the legislature or other governing
body of the Territory that would grant Distributor compensation, outside of this
Agreement, upon any termination or expiration of this Agreement. Calypte also
may terminate this Agreement immediately by written notice to Distributor if
Calypte become legally unable to sell Calypte Products to Distributor because of
some other party's claim that Calypte Products infringe that party's proprietary
rights, and if Calypte cannot then obtain from that third party a right for
Distributor to continue to purchase and sell Calypte Products within the
Territory.
(v) AUTOMATIC TERMINATION. This
Agreement will terminate automatically if a receiver is appointed for either of
us or for our respective property, or if either of us makes an assignment for
the benefit of our respective creditors, or if any proceedings are
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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commenced by, for or against either of us under any bankruptcy, insolvency or
debtor's relief law, or if either of us is liquidated or dissolved.
(e) [SIC] ORDERS AFTER TERMINATION NOTICE. Regardless of
which of us terminates this Agreement, Calypte can reject all or part of any
orders received from Distributor after the notice of termination is sent but
prior to the effective date of termination, if availability of Calypte
Products is insufficient at that time, in our good faith view, to meet the
needs of Calypte and our other customers fully.
(f) [SIC] EFFECT OF TERMINATION OR EXPIRATION. [*]
(iii) For a period of twelve (12) months after the
date of termination or expiration, Distributor will make available to Calypte
for inspection and copying all portions of Distributor records that pertain to
Distributor performance of Distributor obligations and representations under
this Agreement.
(iv) Distributor will stop using any Calypte
trademark, trade name, logo or designation.
(g) [SIC] NO DAMAGES FOR TERMINATION OR EXPIRATION. Neither
of us will be liable to the other for damages of any kind, including
incidental or consequential damages, nor for any reimbursement or damages for
the loss of goodwill, prospective profits or anticipated income, or on
account of any expenditures, investments, leases or commitments made by
either of us, arising from or connected with the termination or expiration of
this Agreement in accordance with its terms. Distributor and Calypte waive
any right either of us may have to receive any compensation or reparations on
termination or expiration of this Agreement under the law of the Territory or
otherwise, other than as expressly provided in this Agreement, and agree that
Distributor has no expectation and has received no assurances that any
investment by Distributor in the promotion of Calypte Products will be
recovered or recouped or that Distributor will obtain any anticipated amount
of profits by virtue of this Agreement. Distributor also agrees that
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Distributor will not have or acquire by virtue of this Agreement or otherwise
any vested, proprietary or other right in the promotion of Calypte Products
or in "goodwill" created by its efforts under this agreement. Distributor
understands that Calypte would not have entered into this Agreement but for
the limitations of liability as set forth herein.
(h) [SIC] SURVIVAL. Calypte's rights and Distributor's
obligations to pay Calypte all amounts due under this Agreement, as well as
Paragraphs 2(c) and (e), 8b, 9, 11, 12 (e) and (f), and 13-20 of this
Agreement will survive any termination or expiration of this Agreement.
13. INDEMNIFICATION.
(a) CALYPTE'S INDEMNIFICATION OF DISTRIBUTOR. Calypte will, at
its expense, defend Distributor against and, subject to the limitations in this
Agreement, pay all costs and damages made in settlement or awarded against
Distributor, resulting from any claim based on an allegation that a Calypte
Product as supplied by us to Distributor under this Agreement infringes a U.S.
patent or copyright of anyone else. Distributor will cooperate with Calypte in
our defense of any such claim, and Calypte will have sole authority to settle
the claim. Calypte will not be liable to Distributor for any claim arising from
or based upon the combination, operation or use of any Calypte Product with
product not supplied by Calypte, or arising from any alteration or modification
by Distributor or Distributor's customers of Calypte Products. The obligations
set out in this Paragraph 13(a) are our only obligations to Distributor with
respect to any claim by a third party that Calypte Products infringe any other
party's proprietary rights.
(b) DISTRIBUTOR INDEMNIFICATION OF CALYPTE. Distributor will
indemnify Calypte (including paying all reasonable attorneys' fees and costs of
litigation) against and hold Calypte harmless from, any claims by any other
party resulting from Distributor acts, omissions or misrepresentations.
14. LIMITATIONS OF LIABILITY. Neither of us will be liable to
the other or to the other's vendors or customers for any lost profits or for
any direct, indirect, incidental, consequential, punitive or other special
damages suffered by either of us, or by such other parties, arising out of or
related to this Agreement or to Calypte Products, for any legal or equitable
action, under whatever theory, even if either or both of us have been advised
of the possibility of such damages.
15. CONFIDENTIALITY. Each party will keep as confidential all
information which each party receives from the other and which is marked as
confidential by the sender of the information. Neither of us will use the
other's confidential information except in performance of this Agreement and
each party will disclose such information to third parties except to the extent
required by law, and then will let the other party know immediately in writing
if such required disclosure is to be made. Neither of us will have any
obligation under this Paragraph 15 with respect to any information of the other
that the other has disclosed to anyone else without this obligation of
confidentiality, or which otherwise is known to the public not due to a breach
by one of us of our obligations under this Paragraph 15.
16. RESOLVING DISAGREEMENTS.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(a) GENERAL. Distributor and Calypte, and the other parties to
this Agreement, will seek to resolve any disagreement Calypte may have under
this Agreement by cordial discussion of our senior managers and executives. If,
within thirty (30) days after one of us has given written notice to the other of
a disagreement, and the parties cannot resolve the matter on their own as
discussed in this Paragraph 16(a), then either of us, by written notice to the
other, can refer the matter to arbitration, which will be binding and which will
be conducted as next described.
(b) BINDING ARBITRATION. All disputes or disagreements
between us arising out this Agreement, or in respect of any defined legal
relationship associated with this Agreement, which have not been resolved by
our mutual discussion as provided above, will, upon the written demand by
either of us mentioned above, be referred to and finally resolved by
arbitration in Beijing under the rules of a bona fide international
commercial arbitration organization (such as the International Chamber of
Commerce and the Foreign Economic and Trade Arbitration Commission of China
Council for the Promotion of International Trade in Beijing) which is
mutually acceptable to both parties. The arbitration will be conducted in the
English language. Relevant documents in other languages will be translated
into English if the arbitrators so direct. A written transcript in English of
the hearing will be made and furnished to the parties. The applicable
substantive law will be the law of the State of California, U.S.A., excluding
the Convention on Contracts for the International Sale of Goods and excluding
that body of law known as conflict of laws unless the arbitrators decide that
the applicable law should be the laws of China with respect to events
occurring in China, in which case the laws of China shall apply. The
arbitrators will decide in accordance with the terms of this Agreement and
will take into account any appropriate international trade usages applicable
to the transaction. The arbitrators will state the reasons upon which the
award is based.
(c) ENFORCEMENT OF ARBITRATION AWARD. The award of the
arbitrators will be final and binding upon both of us, and either of us can
enter judgment upon the award in any court with jurisdiction. Either of us can
make an application to any such court for judicial acceptance of the award and
for an order of enforcement. Each of us consents to the enforcement of any
judgment rendered in the United States or China in any enforcement action. Any
defenses either of us might raise concerning the validity and enforceability of
the arbitration judgment will be deemed waived unless first raised in a court
of competent jurisdiction in the United States.
17. OUR RELATIONSHIP. Distributor's relationship with Calypte
during the term of this Agreement will be that of an independent contractor.
Neither party will have any power, right or authority to bind the other, or
to assume or create any obligation or responsibility, express or implied, on
behalf of the other or in the other's name, except as is specifically set out
in this Agreement.
18. ASSIGNMENT. Neither party can assign this Agreement unless the
other approves in writing before the assignment, except that Calypte can assign
this Agreement to any party which purchases all or substantially all of
Calypte's assets, or to the surviving entity in any merger or reorganization in
which Calypte is not the surviving entity. The provisions of this Agreement
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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will be binding upon and inure to the benefit of the parties, our respective
successors and permitted assigns.
19. GUARANTEE BY NCAIDS, CHINA OF DISTRIBUTOR PERFORMANCE OF
DISTRIBUTOR OBLIGATIONS. NCAIDS, CHINA hereby unconditionally and irrevocably
guarantees in full the performance of all of Distributor's obligations under
this Agreement, and such guarantee as to amounts Distributor may owe Calypte is
a guarantee of payment and not just of collection.
20. JOINT VENTURE. Calypte and Distributor hereby agree to
explore the possibility of establishing a joint venture to manufacture the
Calypte Product in China. The specifics of capitalization, location,
ownership, and registration will be determined in good faith negotiations
between the two parties.
21. GENERAL PROVISIONS.
(a) NOTICES. All notices and demands under this Agreement will
be in writing and will be delivered by personal delivery, including
internationally recognized courier service, or by facsimile, at the address of
the receiving party set out below our signatures, as either of us may change our
address by notice to the other in accordance with this Paragraph 21. Deliveries
by personal delivery will be deemed made when delivered, and deliveries by
facsimile will be deemed made upon confirmed facsimile transmission.
(b) CONTROLLING LAW; SEVERABILITY. This Agreement will be
governed by and construed in accordance with the laws of the State of
California, excluding the Convention on Contracts for the International Sale
of Goods and excluding that body of law known as conflict of laws unless the
arbitrators appointed pursuant to Section 16(b) decide that the laws of China
shall apply with respect to events occurring in China, in which case the laws
of China shall apply.
(c) SEVERABILITY. If any of the provision of this Agreement is
held by a court or other tribunal of competent jurisdiction to be unenforceable,
such provision will be enforced to the maximum extent permissible and the
remaining portions of this Agreement will remain in full force and effect.
(d) FORCE MAJEURE. Neither of us will be responsible for any
failure to perform due to unforeseen circumstances or to causes beyond
Distributor or our reasonable control, including but not limited to acts of God,
war, riot, embargoes, acts of civil or military authorities, fire, floods,
accidents, strikes, failure to obtain export licenses or shortages of
transportation, facilities, fuel, energy, labor or materials. If there is such a
delay, whichever of us is so delayed may defer the date of performance of the
relevant obligations under this Agreement for a period equal to the time of such
delay.
(e) ENTIRE AGREEMENT. This Agreement is our complete agreement
with respect to the specific matters set out in this Agreement, and supersedes
in their entirety any and all written or oral agreements previously existing
between any of us with respect to such specific matters. Any changes to this
Agreement must be in writing and signed by at least Calypte and Distributor.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(f) CHOICE OF LANGUAGE. The original of this Agreement has
been written in English and Chinese, and the English-language and the
Chinese-language versions of this Agreement will have equal force in
interpreting this Agreement.
(g) AUTHORITY. CHINESE TRANSLATIONS. Each party executing this
Agreement represents and warrants to the other parties that it has been duly
authorized under applicable law to execute and deliver this Agreement. This
Agreement will be translated into the Chinese language by us and approved and
signed by Distributor within five days after receipt and this Agreement will
become effective upon the signing of the Chinese translation. For the
avoidance of doubt, the Chinese translation will not change the substantive
meanings of this Agreement.
CALYPTE BIOMEDICAL CORPORATION: BEIJING HUA AI SCIENCE AND TECHNOLGY
DEVELOPMENT CO. LTD:
By: /s/ Nancy E. Katz By: /s/ Zheng Xiwen
--------------------------- --------------------------------
Name: Nancy E. Katz Name: Zheng Xiwen
--------------------------------
Title: President Title: Director
--------------------------------
Date signed: 5/16/00 Date signed: May 16, 2000
PERFORMANCE OF DISTRIBUTOR GUARANTEED:
NATIONAL CENTER FOR AIDS PREVENTION AND CONTROL:
By: /s/ Zheng Xiwen
---------------------------
Name: Zheng Xiwen
-------------------------
Title: Deputy Director (Executive)
------------------------
Date signed: May 16, 2000
------------------
THE CHINESE ACADEMY OF PREVENTIVE MEDICINE
By: /s/ Wang Kean
---------------------------
Name: Wang Kean
-------------------------
Title: President
------------------------
Date signed: May 16, 2000
------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT A
CALYPTE PRODUCTS AND PRICES TO DISTRIBUTOR
[*]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
14
EXHIBIT B
DISTRIBUTOR MINIMUM PURCHASE REQUIREMENTS
[*]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
15