Exhibit 10.2
MANUFACTURING SERVICES AGREEMENT
BETWEEN
LIFESTREAM TECHNOLOGIES, INC.
AND
GENEXEL-SEIN, INC.
NOTE: PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED UNDER A CONFIDENTIAL TREATMENT
REQUEST FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED PORTIONS,
WHICH ARE SHOWN IN THIS DOCUMENT AS [ * ], HAVE BEEN FILED WITH THE COMMISSION
AS PART OF THE CONFIDENTIAL TREATMENT REQUEST.
TABLE OF CONTENTS
1. TERMS...................................................................1
2. PRICING.................................................................1
2.1 Pricing........................................................1
3. PAYMENT TERMS...........................................................1
4. PURCHASE ORDERS.........................................................1
4.1 Purchase Orders................................................1
5. DELIVERY AND ACCEPTANCE.................................................2
5.1 Delivery.......................................................2
5.2 Acceptance.....................................................2
6. CHANGES.................................................................2
7. WARRANTY................................................................3
7.1 GENEXEL Warranty...............................................3
7.2 ARM Procedure..................................................3
7.3 Exclusions From Warranty.......................................3
7.4 Remedy.........................................................3
8. LIFESTREAM-FURNISHED EQUIPMENT AND COMPONENTS...........................4
8.1 Customer-Furnished Items.......................................4
8.2 Care of Customer-Furnished Items...............................4
8.3 Customer-Furnished Components..................................4
9. INDEMNIFICATION AND LIMITATION OF LIABILITY.............................4
9.1 GENEXEL'S Indemnification......................................4
9.2 LIFESTREAM's Indemnification...................................4
9.3 Procedure......................................................5
9.4 Limitation of Liability........................................5
10. TERMINATION.............................................................5
10.1 Termination for Cause..........................................5
10.2 Termination For Convenience....................................6
10.3 Termination by Operation of Law................................6
10.4 Consequences of Termination....................................6
11. QUALITY.................................................................7
11.1 Specifications.................................................7
11.2 Content of Specifications......................................7
11.3 Quality of Components..........................................7
11.4 Quality Specifications.........................................7
11.5 Inspection of Facility.........................................7
12. FORCE MAJEURE...........................................................7
12.1 Force Majeure Event............................................7
12.2 Notice of Force Majeure Event..................................8
12.3 Termination of Force Majeure Event.............................8
12.4 Limitations....................................................8
12.5 Termination for Convenience....................................8
13. CONFIDENTIALITY.........................................................8
13.1 Definitions....................................................8
13.2 Nondisclosure/Non-Circumvent Covenants.........................9
ii
13.3 Disclosure of this Agreement...................................9
14. INSURANCE..............................................................10
15. INTELLECTUAL PROPERTY..................................................10
16. MISCELLANEOUS..........................................................10
16.1 Integration Clause............................................10
16.2 Regulatory....................................................10
16.3 Order of Precedence...........................................11
16.4 Assignment....................................................11
16.5 Notices.......................................................11
16.6 Disputes/Choice of Law........................................11
16.7 Import/Export.................................................12
16.8 Electronic Data Interchange...................................12
EXHIBITS
EXHIBIT A, PRICING............................................................13
EXHIBIT B, SPECIFICATIONS.....................................................14
EXHIBIT C, CUSTOMER-FURNISHED EQUIPMENT.......................................15
EXHIBIT D, SHIPPING LABELING..................................................16
EXHIBIT E, THE PRODUCT........................................................17
EXHIBIT F, THE QUALITY PLAN...................................................18
iii
MANUFACTURING SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of November ____, 2005 (the
"Commencement Date"), by and between LIFESTREAM TECHNOLOGIES, INC., a Nevada
corporation, having its principal place of business at 570 S. Clearwater Loop,
Bldg. 1000, Ste. D, Post Falls, ID 83854 ("LIFESTREAM" or "Customer") and
GENEXEL-SEIN, INC., a corporation of the Republic of Korea, having its principal
place of business at No. 133-3 Pyungchon-dong, Dongan-gu, Anyang-city,
Kyunggi-do Korea ("GENEXEL"), each referred to herein as a Party or together as
the Parties.
1. TERMS
The initial term of this Agreement shall commence on the Commencement
Date and shall continue through the first anniversary of the Commencement Date
unless sooner terminated by mutual agreement or in accordance with this
Agreement. Upon the expiration of the initial term, this Agreement shall
continue from year to year until one Party terminates the Agreement by giving at
least one hundred eighty (180) days' prior written notice to the other Party.
Notwithstanding the foregoing, the term of this Agreement shall automatically
extend to include the term of any purchase order ("Order") accepted hereunder.
2. PRICING
2.1 PRICING
During the term, LIFESTREAM shall have the right to purchase
from GENEXEL the products specified in Exhibit A (the "Products") as
such Exhibit may be amended from time to time, at the prices set forth
in Exhibit A (the "Prices"). Prices (a) are in U.S. Dollars, (b)
include Lifestream-designed packaging as defined in Exhibit B number 5,
(c) exclude the items set forth in Section 2.2, and (d) are based on
(i) the configuration set forth in the specifications attached hereto
as Exhibit B (the "Specifications") and (ii) the projected volumes,
minimum run rates and other assumptions set forth in GENEXEL'S bid
letter and Exhibit A. The Prices shall remain fixed for the term of
this Agreement.
3. PAYMENT TERMS
Payment terms for invoiced Product are 50% prior to shipping with
balance net 30 days upon receipt of shipped goods. On any invoice not paid by
maturity date, LIFESTREAM shall pay interest from maturity to date of payment at
the rate of 1.5% per month. Payment shall be made in U.S. Dollars. Offsets and
setoffs by either Party are not allowed. In the event LIFESTREAM has an
outstanding invoice for more than forty-five (45) days, GENEXEL shall have the
right to stop shipments of Product to LIFESTREAM until LIFESTREAM makes a
payment.
4. PURCHASE ORDERS
4.1 PURCHASE ORDERS.
(a) LIFESTREAM will issue to GENEXEL specific Orders for
Product covered by this Agreement. Each Order shall be in the form of a
written or electronic communication and shall contain the following
information: (i) a description of the Product by model number; (ii) the
quantity of the Product; (iii) the estimated delivery date or shipping
schedule; (iv) the location to which the Product is to be shipped; and
(v) transportation instructions. Each Order shall provide an order
number for billing purposes, and may include other instructions as may
be appropriate under the circumstances.
Lifestream _____
GenExel _____
1
(b) All Orders shall be confirmed by GENEXEL within five (5)
business days of receipt. If GENEXEL does not accept or reject the
Order within the five-day period, the Order shall be deemed accepted.
In the event GENEXEL is unable to meet the delivery schedule set forth
in a proposed Order, or finds the schedule to be unacceptable for some
other reason, the parties shall negotiate in good faith to resolve the
disputed matter(s).
5. DELIVERY AND ACCEPTANCE
5.1 DELIVERY
All Product shipments will be from GENEXEL'S facility of
manufacture and freight collect. Title to and risk of loss or damage to
the Product shall pass to LIFESTREAM upon GENEXEL'S tender of the
Product to LIFESTREAM's carrier. GENEXEL shall use reasonable means to
mark, pack, package, crate, transport, ship and store Product to ensure
(a) delivery of the Product to its ultimate destination in a safe
condition, (b) compliance with all requirements of the carrier and
destination authorities, and (c) compliance with any reasonable special
instructions of LIFESTREAM. GENEXEL shall use reasonable efforts to
deliver the Products on the agreed-upon delivery dates and shall use
reasonable efforts to notify LIFESTREAM of any anticipated delays;
provided, however, that GENEXEL shall not be liable for any failure to
meet LIFESTREAM delivery dates and/or any failure to give notice of
anticipated delays.
5.2 ACCEPTANCE
Acceptance of the Product shall occur no later than fifteen
(15) days after the arrival of the shipment of Product and shall be
based solely on whether the Product passes a mutually agreeable
Acceptance Test Procedure or Inspection designed to demonstrate
compliance with the Specifications, which may include a mutually agreed
third party audit of the finished goods as part of the quality plan
(Exhibit F). Product cannot be rejected based on criteria that were
unknown to GENEXEL or based on test procedures that GENEXEL does not
conduct. Product shall be deemed accepted if not rejected within this
fifteen-day period. Once a Product is accepted, all Product returns
shall be handled in accordance with Article 7 (Warranty). Prior to
returning any rejected Product, LIFESTREAM shall obtain an Authorized
Return Material ("ARM") number from GENEXEL, and shall return such
Product in accordance with GENEXEL'S instructions; LIFESTREAM shall
specify the reason for such rejection in all ARM's. In the event a
Product is rejected, GENEXEL shall have a reasonable opportunity to
cure any defect that led to such rejection.
6. CHANGES
LIFESTREAM and GENEXEL, upon mutual agreement, may make changes within
the general scope of this Agreement. Such changes may include, but are not
limited to, changes in (1) drawings, plans, designs, procedures, Specifications,
test specifications or BOM, (2) methods of packaging and shipment, (3)
quantities of Product to be furnished, (4) delivery schedule, or (5)
Customer-Furnished Items. All changes other than changes in quantity of Products
to be furnished shall be requested pursuant to an Engineering Change Notice
("ECN") and, if accepted by LIFESTREAM, finalized in an Engineering Change Order
("ECO"). If any such change causes either an increase or decrease in GENEXEL'S
cost or the time required for performance of any part of the work under this
Agreement (whether changed or not changed by any ECO), the Prices and/or
delivery schedules shall be adjusted by mutual agreement in a manner that would
adequately compensate the parties for such change.
Lifestream _____
GenExel _____
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7. WARRANTY
7.1 GENEXEL WARRANTY
[ * ]
7.2 ARM PROCEDURE
GENEXEL shall concur in advance on all Product to be returned
for repair or rework. LIFESTREAM shall obtain an Authorized Returned
Material (ARM) number from GENEXEL prior to return shipment. All
returns shall state the specific reason for such return, and will be
processed in accordance with GENEXEL'S Authorized Returned Material
Procedure, a copy of which is available from GENEXEL upon request.
GENEXEL shall pay all transportation costs for valid returns of Product
to GENEXEL and for the shipment of the repaired or replacement Products
to LIFESTREAM, and shall bear all risk of loss or damage to such
Products until tender to LIFESTREAM's carrier; LIFESTREAM shall pay
these charges, plus a handling charge, for invalid or "no defect found"
returns. Any repaired or replaced Product shall be warranted as set
forth in this Article for a period equal to the greater of (i) the
balance of the applicable warranty period relating to such Product, or
(ii) sixty (60) days after it is received by LIFESTREAM.
7.3 EXCLUSIONS FROM WARRANTY
This warranty does not include Products that have defects or
failures resulting from (a) LIFESTREAM's design of Products, including,
but not limited to, design functionality failures, specification
inadequacies, failures relating to the functioning of Products in the
manner for the intended purpose or in the specific LIFESTREAM
environment; (b) accident, disaster, neglect, abuse, misuse, improper
handling, testing, storage, shipping, or installation, including
improper handling in accordance with static sensitive electronic device
handling requirements; (c) alterations, modifications or repairs by
LIFESTREAM or third parties, or (d) defective Customer-provided test
equipment or test software. LIFESTREAM bears all design responsibility
and related costs for the Product.
7.4 REMEDY
THE SOLE REMEDY UNDER THIS WARRANTY SHALL BE THE REPAIR,
REPLACEMENT OR CREDIT FOR DEFECTIVE PARTS AS STATED ABOVE. THIS
WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES EITHER EXPRESS OR IMPLIED,
INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Lifestream _____
GenExel _____
3
8. LIFESTREAM-FURNISHED EQUIPMENT AND COMPONENTS
8.1 CUSTOMER-FURNISHED ITEMS
LIFESTREAM shall provide GENEXEL with the equipment, tooling,
Components or documentation set forth in Exhibit C (collectively the
"Customer-Furnished Items"). The Customer-Furnished Items shall be fit
for their intended purposes and shall be delivered to GENEXEL in a
timely manner. Documentation (including BOM's, drawings and artwork)
shall be current and complete. LIFESTREAM shall be responsible for
schedule delay, reasonable inventory carrying charges and allocated
equipment down time charges associated with the incompleteness, late
delivery or non-delivery of the Customer-Furnished Items.
8.2 CARE OF CUSTOMER-FURNISHED ITEMS.
All Customer-Furnished Items shall remain the property of
LIFESTREAM. GENEXEL shall clearly identify all Customer-Furnished Items
by an appropriate tag and shall utilize such Customer-Furnished Items
solely in connection with the manufacture of LIFESTREAM's Product.
GENEXEL shall not make or allow modifications to be made to the
Customer-Furnished Items without LIFESTREAM's prior written consent.
GENEXEL shall be responsible for reasonable diligence and care in the
use and protection of any Customer-Furnished Items and routine
maintenance and repairs of any Customer-Furnished Equipment, but shall
not be responsible for major repairs or replacements (including service
warranties and calibration to the equipment) or repair or replacement
of failed Customer-Furnished Item unless such failure was caused by
GENEXEL'S negligence or willful misconduct. All Customer-Furnished
Items shall be returned to LIFESTREAM at LIFESTREAM's expense upon
request and GENEXEL'S production and warranty obligations that require
the utilization of the returned Customer-Furnished Items will cease
upon GENEXEL'S fulfillment of LIFESTREAM's request.
8.3 CUSTOMER-FURNISHED COMPONENTS.
Customer-furnished Components shall be handled in accordance
with GENEXEL'S procedures regarding Customer-Furnished Material and are
incorporated by reference herein, copies of which are available upon
request.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 GENEXEL'S INDEMNIFICATION
GENEXEL shall indemnify, defend, and hold LIFESTREAM and
LIFESTREAM's affiliates, shareholders, directors, officers, employees,
contractors, agents and other representatives (the
"Customer-Indemnified Parties") harmless from all demands, claims,
actions, causes of action, proceedings, suits, assessments, losses,
damages, liabilities, settlements, judgments, fines, penalties,
interest, costs and expenses (including fees and disbursements of
counsel) of every kind (each a "Claim," and, collectively, "Claims")
based upon personal injury or death or injury to property to the extent
any of the foregoing is proximately caused by the negligent or willful
acts or omissions of GENEXEL or its officers, employees, subcontractors
or agents.
9.2 LIFESTREAM'S INDEMNIFICATION
LIFESTREAM is responsible for the final approval and
acceptance of the design of the Product(s). LIFESTREAM shall indemnify,
defend, and hold GENEXEL and GENEXEL'S affiliates, shareholders,
directors, officers, employees, contractors, agents and other
representatives (the "GENEXEL-Indemnified Parties") harmless from all
Claims (i) based upon personal injury or death or injury to property to
the extent any of the foregoing is proximately caused either by a
defective Product, by the negligent or willful acts or omissions of
LIFESTREAM or its officers, employees, subcontractors or agents, and/or
(ii) arising from or relating to any allegation that the Product has a
design defect(s), and/or (iii) arising from any violation of
regulations regarding the manufacture, distribution, marketing, or
labeling of medical devices, and/or (iv) arising from or relating to
any actual or alleged infringement or misappropriation of any patent,
trademark, mask work, copyright, trade secret or any actual or alleged
violation of any other intellectual property rights arising from or in
connection with the Product, except to the extent that such
infringement exists as a result of use by LIFESTREAM of GENEXEL'S
manufacturing processes.
9.3 PROCEDURE
A Party entitled to indemnification pursuant to this Article
(the "Indemnitee") shall promptly notify the other Party (the
"Indemnitor") in writing of any Claims covered by this indemnity.
Promptly after receipt of such notice, the Indemnitor shall assume the
defense of such Claim with counsel reasonably satisfactory to the
Indemnitee. If the Indemnitor fails, within a reasonable time after
receipt of such notice, to assume the defense with counsel reasonably
satisfactory to the Indemnitee or, if in the reasonable judgment of the
Indemnitee, a direct or indirect conflict of interest exists between
the parties with respect to the Claim, the Indemnitee shall have the
Lifestream _____
GenExel _____
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right to undertake the defense, compromise and settlement of such Claim
for the account and at the expense of the Indemnitor. Notwithstanding
the foregoing, if the Indemnitee in its sole judgment so elects, the
Indemnitee may also participate in the defense of such action by
employing counsel at its expense, without waiving the Indemnitor's
obligation to indemnify and defend. The Indemnitor shall not compromise
any Claim or consent to the entry of any judgment without an
unconditional release of all liability of the Indemnitee to each
claimant or plaintiff.
9.4 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTIAL, PUNITIVE OR SPECIAL DAMAGES, OR
ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS,
EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; PROVIDED, HOWEVER, THAT THIS SECTION SHALL NOT PREVENT A PARTY
FROM INCURRING THE LIABILITIES SET FORTH IN SECTION 9 (INDEMNIFICATION)
OR SECTION 10 (TERMINATION). IN NO EVENT, SHALL GENEXEL'S LIABILITY
UNDER THIS AGREEMENT (WHETHER ASSERTED AS A TORT CLAIM OR CONTRACT
CLAIM) EXCEED THE AMOUNTS PAID TO GENEXEL HEREUNDER. IN NO EVENT WILL
GENEXEL BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY
LIFESTREAM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. TERMINATION
10.1 TERMINATION FOR CAUSE
Either Party may terminate this Agreement or an Order
hereunder for default if the other Party materially breaches this
Agreement; provided, however, no right of default shall accrue until
thirty (30) days after the defaulting Party is notified in writing of
the Material Breach and has failed to cure or give adequate assurances
of performance within the thirty (30)-day period after notice of a
Material Breach. For the purposes of this agreement, "Material Breach"
shall be any act or omission by either Party that may materially
threaten or destroy the value of this agreement and/or give a basis for
an action for breach of contract.
Lifestream _____
GenExel _____
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10.2 TERMINATION FOR CONVENIENCE
Either Party may terminate this Agreement hereunder for any
reason upon one hundred eighty (180) days' prior written notice.
10.3 TERMINATION BY OPERATION OF LAW
This Agreement shall immediately terminate should either Party
(a) become insolvent; (b) enter into or file a petition, arraignment or
proceeding seeking on order for relief under the bankruptcy laws of its
respective jurisdiction; (c) enter into a receivership of any of its
assets, or (d) enter into a dissolution or liquidation of its assets or
an assignment for the benefit of its creditors.
10.4 CONSEQUENCES OF TERMINATION
A. TERMINATION FOR REASONS OTHER THAN GENEXEL'S MATERIAL
BREACH
In the event this Agreement or an Order hereunder is
terminated for any reason other than a Material Breach by
GENEXEL (including, but not limited to, a force majeure or
termination for convenience), LIFESTREAM shall pay GENEXEL'S
termination charges equal to (1) the contract price for all
finished Product existing at the time of termination, and (2)
the value of GENEXEL'S Product-related inventory (including
materials, labor, components, and a fifteen percent mark-up).
B. TERMINATION RESULTING FROM GENEXEL'S MATERIAL BREACH
In the event LIFESTREAM terminates this Agreement or
any Order hereunder as a result of a Material Breach by
GENEXEL, LIFESTREAM shall pay GENEXEL, termination charges
equal to (1) the contract price for all finished Product
existing at the time of termination, and (2) GENEXEL'S cost
(including Product-related materials, labor, components) for
all work in process; provided, however, that for the purposes
of this subsection only, LIFESTREAM's component liability
shall be calculated using GENEXEL's actual cost of
manufacturing rather than "Delivered Cost."
C. LICENSES GRANTED UPON TERMINATION
Upon termination of this Agreement due to non-payment
by LIFESTREAM under section 3, LIFESTREAM'S Material Breach
under section 10.1, or LIFESTREAM being subject to any of the
conditions set forth in section 10.3, GENEXEL shall be granted
a temporary non-exclusive, royalty-free, fully-paid, worldwide
license to all of LIFESTREAM's Intellectual Property
(Intellectual Property includes, but is not limited to, any
letters patent, patent applications, trades secrets,
manufacturing processes, product concepts, regulatory
dossiers, designs, software, or know-how) to make, use, or
sell the Product(s) contemplated herein until such
aforementioned condition resolves and remedies said
non-payment to the reasonable satisfaction of both Parties.
Lifestream _____
GenExel _____
6
11. QUALITY
11.1 SPECIFICATIONS
Product shall be manufactured by GENEXEL in accordance with
the Specifications set forth in Exhibit B, as modified via written
ECO's in accordance with this Agreement. Neither Party shall make any
change to the Specifications, to any Components described therein, or
to the Products (including, without limitation, changes in form, fit,
function, design, appearance or place of manufacture of the Products or
changes which would affect the reliability of any of the Products)
unless such change is made in accordance with Section 6.1 and GENEXEL's
ECO procedure. Notwithstanding the foregoing, GENEXEL shall be
permitted to make changes in its manufacturing process at any time, so
long as such changes do not affect the form, fit or function of the
Products.
11.2 CONTENT OF SPECIFICATIONS
The Specifications shall include, but shall not be limited to,
(i) detailed electrical, mechanical, performance and appearance
specifications for each model of Product, (ii) the BOM, (iii) tooling
specifications, along with a detailed description of the operation
thereof, (iv) art work drawings, (v) Component specifications, and (vi)
supplier cross references.
11.3 QUALITY OF COMPONENTS
GENEXEL shall use in its production of Products such
Components of a type, quality, and grade specified by LIFESTREAM to the
extent LIFESTREAM chooses to so specify, and shall purchase Components
only from Vendors appearing on LIFESTREAM's approved vendor list
("AVL"); provided, however, that in the event GENEXEL cannot purchase a
Component from a Vendor on LIFESTREAM'S AVL for any reason, GENEXEL
shall be able to purchase such Component from an alternate Vendor,
subject to LIFESTREAM's prior written approval, which approval shall
not be unreasonably withheld or delayed.
11.4 QUALITY SPECIFICATIONS
GENEXEL shall comply with the quality specifications set forth
in its Quality Manual, which is incorporated by reference herein, a
copy of which is available from GENEXEL upon request.
11.5 INSPECTION OF FACILITY
Upon reasonable advance written notice, LIFESTREAM may inspect
the Products and Components held by GENEXEL for LIFESTREAM at GENEXEL's
facilities during GENEXEL's regular business hours, provided, that,
such inspection does not unduly affect GENEXEL's operations. LIFESTREAM
and its representatives shall observe all security and handling
measures of GENEXEL while on GENEXEL's premises. LIFESTREAM and its
representatives acknowledge that their presence on GENEXEL's property
is at their sole risk.
12. FORCE MAJEURE
12.1 FORCE MAJEURE EVENT
For purposes of this Agreement, a "Force Majeure Event" shall
mean the (i) occurrence of unforeseen circumstances beyond a Party's
control and without such Party's negligence or intentional misconduct,
including, but not limited to, any act by any governmental authority,
act of war, natural disaster, strike, boycott, embargo, shortage, riot,
lockout, labor dispute, civil commotion, and (ii) failure of a Vendor
to timely deliver a Component to GENEXEL.
Lifestream _____
GenExel _____
7
12.2 NOTICE OF FORCE MAJEURE EVENT
Neither Party shall be responsible for any failure to perform
due to a Force Majeure Event, provided, that, such Party gives notice
to the other Party of the Force Majeure Event as soon as reasonably
practicable, but not later than five (5) days after the date on which
such Party knew or should reasonably have known of the commencement of
the Force Majeure Event, specifying the nature and particulars thereof
and the expected duration thereof; provided, however, that the failure
of a Party to give notice of a Force Majeure Event shall not prevent
such Party from relying on this Section except to the extent that the
other Party has been prejudiced thereby.
12.3 TERMINATION OF FORCE MAJEURE EVENT
The Party claiming a Force Majeure Event shall use reasonable
efforts to mitigate the effect of any such Force Majeure Event and to
cooperate to develop and implement a plan of remedial and reasonable
alternative measures to remove the Force Majeure Event; provided,
however, that neither Party shall be required under this provision to
settle any strike or other labor dispute on terms it considers to be
unfavorable to it. Upon the cessation of the Force Majeure Event, the
Party affected thereby shall immediately notify the other Party of such
fact, and use its best efforts to resume normal performance of its
obligations under the Agreement as soon as possible.
12.4 LIMITATIONS
Notwithstanding that a Force Majeure Event otherwise exists,
the provisions of this Article shall not excuse (i) any obligation of
either Party, including the obligation to pay money in a timely manner
for Product actually delivered or other liabilities actually incurred,
that arose before the occurrence of the Force Majeure Event causing the
suspension of performance; or (ii) any late delivery of Product,
equipment, materials, supplies, tools, or other items caused solely by
negligent acts or omissions on the part of such Party.
12.5 TERMINATION FOR CONVENIENCE
In the event a Party fails to perform any of its obligations
for reasons defined above for a cumulative period of ninety (90) days
or more from the date of such Party's notification to the other Party
then the other Party at its option may extend the corresponding
delivery period for the length of the delay, or terminate this
Agreement for Convenience in accordance with Paragraph 10.2.
13. CONFIDENTIALITY
13.1 DEFINITIONS
For the purpose of this Agreement:
(a) "Confidential Information" means information (in any form
or media) regarding a Party's customers, prospective customers
(including lists of customers and prospective customers), methods of
operation, engineering methods and processes (including any information
which may be obtained by a Party by reverse engineering, decompiling or
examining any software or hardware provided by the other Party under
this Agreement), programs and databases, patents and designs, billing
rates, billing procedures, vendors and suppliers, business methods,
finances, management, or any other business information relating to
such Party (whether constituting a trade secret or proprietary or
otherwise), which has value to such Party and is treated by such Party
as being confidential. Confidential Information in documentary or other
tangible form will be clearly and conspicuously marked as
`Confidential' or some similar marking. Verbal disclosures must be
identified as confidential at the time of disclosure and must be
confirmed in writing as confidential within thirty (30) days of the
initial disclosure.
Lifestream _____
GenExel _____
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Confidential Information does not include information that (i)
is known to the other Party prior to receipt from the disclosing Party
hereunder, which knowledge shall be evidenced by written records, (ii)
is independently developed as evidenced by written records, (iii) is or
becomes in the public domain through no breach of this Agreement, or
(iv) is received from a third Party without breach of any obligation of
confidentiality; and, provided further, that Confidential Information
does not include any information provided by LIFESTREAM to GENEXEL
regarding the manufacturing process.
(b) "Person" shall mean and include any individual,
partnership, association, corporation, trust, unincorporated
organization, limited liability company or any other business entity or
enterprise.
(c) "Representative" shall mean a Party's employees, agents,
or representatives, including, without limitation, financial advisors,
lawyers, accountants, experts, and consultants.
13.2 NONDISCLOSURE/NON-CIRCUMVENT COVENANTS
(a) In connection with this Agreement, each Party (the
"Disclosing Party") may furnish to the other Party (the "Receiving
Party") or its Representatives certain Confidential Information. For a
period of three (3) years from the Commencement Date of this Agreement,
the Receiving Party (a) shall maintain as confidential all Confidential
Information heretofore or hereafter disclosed to it by the Disclosing
Party, (b) shall not, directly or indirectly, disclose any such
Confidential Information to any Person other than those Representatives
of the Receiving Party whose duties justify the need to know such
Confidential Information and then only after each Representative has
agreed to be bound by this Confidentiality Agreement and clearly
understands his or her obligation to protect the confidentiality of
such Confidential Information and to restrict the use of such
Confidential Information, and (c) shall treat such Confidential
Information with the same degree of care as it treats its own
Confidential Information (but in no case with less than a reasonable
degree of care).
(b) The disclosure of any Confidential Information is solely
for the purpose of enabling each Party to perform under this Agreement,
and the Receiving Party shall not use any Confidential Information
disclosed by the Disclosing Party for any other purpose.
(c) Except as otherwise set forth in this Agreement, all
Confidential Information supplied by the Disclosing Party shall remain
the property of the Disclosing Party, and will be promptly returned by
the Receiving Party upon receipt of written request therefor.
(d) If the Receiving Party or its Representative is requested
or becomes legally compelled to disclose any of the Confidential
Information, it will provide the Disclosing Party with prompt written
notice. If a protective order or other remedy is not obtained, then
only that part of the Confidential Information that is legally required
to be furnished will be furnished, and best efforts will be made to
obtain reliable assurances of confidentiality.
13.3 DISCLOSURE OF THIS AGREEMENT
Disclosure of the existence and/or nature of this Agreement
shall only be made by mutual consent of the Parties, and such consent
shall not be unreasonably denied.
Lifestream _____
GenExel _____
9
14. INSURANCE
GENEXEL agrees to maintain, during the term of this Agreement, (a)
workers' compensation insurance as prescribed by the law of the country/state in
which GENEXEL'S services are performed; (b) employer's liability insurance with
limits of at least $500,000 per occurrence; (c) comprehensive automobile
liability insurance, if the use of motor vehicles is required, with limits of at
least $1,000,000 for bodily injury and property damage for each occurrence; (d)
comprehensive general liability insurance, including GENEXEL'S contractual
liability and broad form property damage, with limits of at least $1,000,000
combined single limit for personal injury and property damage for each
occurrence; and (e) comprehensive general liability insurance endorsed to
include products liability and completed operations coverage in the amount of
$1,000,000 for each occurrence. GENEXEL shall furnish to LIFESTREAM certificates
or evidence of the foregoing insurance indicating the amount and nature of such
coverage and the expiration date of each policy. Each Party agrees that it, its
insurer(s) and anyone claiming by, through, under or in its behalf shall have no
claim, right of action or right of subrogation against the other Party and the
other Party's affiliates, directors, officers, employees and customers based on
any loss or liability insured against under the insurance required by this
Agreement.
15. INTELLECTUAL PROPERTY
15.1 Nothing herein shall be deemed to grant to LIFESTREAM any
rights to any Intellectual Property (Intellectual Property includes,
but is not limited to, any letters patent, patent applications, trade
secrets, manufacturing processes, product concepts, regulatory
dossiers, designs, software, vendor lists, or know-how, any where in
the world) other than the non-exclusive, limited license to import,
market and sell Product(s) manufactured solely by GENEXEL during the
Term of this Agreement. Nothing herein shall be deemed to grant to
GENEXEL any rights to any LIFESTREAM Intellectual Property other than
the non-exclusive, limited license to design and manufacture Product(s)
contemplated herein during the Term of this Agreement.
15.2 Any Intellectual Property that is invented solely by a
Party hereto shall be the property of that Party. Any Intellectual
Property that arises from or is related to the design, functionality,
manufacture, or testing of Products that is invented jointly, as
defined by the laws of the United States of America, by GENEXEL and
LIFESTREAM shall be jointly owned. The Parties shall cooperate in all
matters relating to the filing and prosecution of any corresponding
patent applications. GENEXEL shall cooperate fully in providing
information, including information relating to its Intellectual
Property, which is required in submissions to regulatory authorities
for Product(s) marketing approval(s).
16. MISCELLANEOUS
16.1 INTEGRATION CLAUSE
This Agreement (including the Exhibits and Schedules to this
Agreement) constitutes the entire agreement of the parties, superseding
all previous Agreements covering the subject matter. This Agreement
shall not be changed or modified except by written Agreement,
specifically amending, modifying and changing this Agreement, signed by
authorized executive officers of GENEXEL and LIFESTREAM.
16.2 REGULATORY
LIFESTREAM will be responsible for all regulatory affairs
related to the sales and distribution of the Product(s) within the
United States and all other markets in which they are involved in the
distribution of the Products, including, but not limited to, clearance
by Food and Drug Administration, compliance with all Federal Trade
Commission regulations, and compliance with Federal, State and Local
tax laws, and GENEXEL will assist and supply all necessary information
in their possession requested by LIFESTREAM to be in compliance related
to the sales and distribution of the LIFESTREAM product(s).
Lifestream _____
GenExel _____
10
16.3 ORDER OF PRECEDENCE
All quotations, Orders, acknowledgments and invoices issued
pursuant to this Agreement are issued for convenience of the Parties
only and shall be subject to the provisions of this Agreement and the
Exhibits hereto. When interpreting this Agreement, precedence shall be
given to the respective parts in the following descending order: (a)
this Agreement; (b) Schedules and Exhibits to this Agreement; and (c)
if Orders are used to release product, those portions of the Order that
are not pre-printed and which are accepted by GENEXEL. The Parties
acknowledge that the preprinted provisions on the reverse side of any
such quotation, Purchase Order, acknowledgment or invoice and all terms
other than the specific terms of LIFESTREAM's Purchase Order set forth
in Section 4.1(a)(i)-(v) shall be deemed deleted and of no effect
whatsoever. No modification to this Agreement, the Exhibits or any
Order shall be valid without the prior written consent of the Purchase
Agreement Coordinators of GENEXEL and LIFESTREAM.
16.4 ASSIGNMENT
Neither this Agreement nor any rights or obligations hereunder
shall be transferred or assigned by either Party without the written
consent of the other Party, which consent shall not be unreasonably
withheld or delayed.
16.5 NOTICES
Wherever one Party is required or permitted or required to
give written notice to the other under this Agreement, such notice will
be given by hand, by certified U.S. mail, return receipt requested, by
overnight courier, or by fax and addressed as follows:
If to LIFESTREAM: with a copy to:
Lifestream Technologies, Inc. Elsaesser Jarzabek Anderson Marks & Elliott
570 S. Clearwater Loop 123 S. Third St., Post Office Box 1049
Building 1000, Suite D Sandpoint, ID 83864
Post Falls, ID 83854 Attention: Ford Elsaesser
Attention: Chief Financial Officer
If to GENEXEL:
GenExel-Sein, Inc.
Attn: Dr. Douglas Stafford
c/o Life Sciences Development Corp.
PO Box 259712
Madison, Wisconsin 53725-9712
All such notices shall be effective upon receipt. Either Party may
designate a different notice address from time to time upon giving ten
(10) days' prior written notice thereof to the other Party.
16.6 DISPUTES/CHOICE OF LAW
The parties shall attempt to resolve any disputes between them
arising out of this Agreement through good faith negotiations. This
Agreement shall be construed in accordance with the substantive laws of
the State of Idaho (excluding its conflicts of laws principles).
Lifestream _____
GenExel _____
11
16.7 IMPORT/EXPORT
Unless otherwise agreed, LIFESTREAM shall be (i) the exporter
of record for any Products and/or Product documentation exported from
the country of manufacture, and shall comply with all applicable
country of manufacture export control statutes and regulations, and
(ii) the importer of record for all Products exported from the country
of manufacture and later imported and returned to LIFESTREAM or to
GENEXEL. GENEXEL will cooperate with LIFESTREAM in obtaining any export
or import licenses for the Products.
LIFESTREAM hereby certifies that it will not knowingly export,
directly or indirectly, any U.S. origin technical data or software
acquired from GENEXEL or any direct product of that technical data or
software, to any country for which the United States Government
requires an export license or other approval, without obtaining such
approval, at its sole cost, from the United States Government.
16.8 ELECTRONIC DATA INTERCHANGE
The parties agree that transmission of data by electronic data
interchange ("EDI") will not occur until a separate agreement governing
such transmissions is executed. Upon execution, such EDI agreement will
become an attachment to this Agreement.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
effective as of the date on page one, by their officers, duly authorized.
GENEXEL-SEIN, INC. LIFESTREAM TECHNOLOGIES, INC.
By: ________________________________ By: ______________________________
Signature Signature
____________________________________ __________________________________
Typed Name Typed Name
____________________________________ __________________________________
Title Title
____________________________________ __________________________________
Date Date
13
EXHIBIT A
PRICING
[ * ]
14
EXHIBIT B
SPECIFICATIONS
The specifications for this product provided by LIFESTREAM are as follows:
1. The PRO-Engineer Solids electronic files will be provided to GENEXEL in
Surface IGES.
2. The sample PCB assembly with electronic components (sent to
HJ/received).
3. The PCB Gerber electronic files for both motherboard and Postage Stamp.
4. The postage stamp prototype with sample optic lens will be provided.
5. The sample point of sale box will be provided, with new art.
6. The specification package delivered to GENEXEL.
7. The photo-optic specification package delivered to GENEXEL.
8. The electronic assembly, schematic and Bill of materials.
9. The current LIFESTREAM AVL.
15
EXHIBIT C
CUSTOMER-FURNISHED EQUIPMENT
LIFESTREAM will consign the following to GENEXEL:
o Colored Calibration Remission Samples, with instructions: 2 sets.
Tools needed for the calibration of monitor at final test.
o Final Test Software (to be modified by GENEXEL under LIFESTREAM
direction). LIFESTREAM to send current final test software for
cholesterol monitor.
The Companies agree that these items may be replaced as may be agreed to by the
parties by developed systems or items.
16
EXHIBIT D
SHIPPING LABELING
Each shipment of finished goods for the SKU LSP-7000 shall have the following
shipper / Bill of Lading information and contents:
SHIPPING ADDRESS:
Lifestream Technologies, Inc
570 S. Clearwater Loop
Building 1000, Suite D
Post Falls, Idaho, USA 83854
FDA device establishment: 3023826
208-457-9409
ON THE SHIPPING CONTAINER AND ON THE BILL OF LADING:
Harmonized Tariff Number Schedule B: 9018.19.95.00
FDA 510K number: _______________
Regulatory Class 1
Product Code: CHH
EACH SHIPMENT TO CONTAIN:
Declaration of Conformity
CD-ROM containing Device History file
17
EXHIBIT E
THE PRODUCT
GENEXEL will provide services to design, qualify, assemble, inspect, test,
record data, package and ship box build Stock-Keeping-Unit (SKU) to LIFESTREAM.
The product is a combination cholesterol checker and blood pressure monitor
existing as one unit. GENEXEL will perform these activities for the product
known as:
o The LIFESTREAM Blood Pressure + Cholesterol Monitor, SKU Number: LSP 7000, Top
assembly Number:
9900-029-01.
o Source tagged version: Check-point: Inside POS box
GENEXEL will independently purchase the following subassemblies under the
conditions defined in the pricing structure in Exhibit A:
o Postage Stamp (optics) assembly No: 8100-008-01.
18
EXHIBIT F
THE QUALITY PLAN
[ * ]
19