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|  发帖时间 - 2006/7/11 10:52:35
| OEM AGREEMENT
THIS OEM AGREEMENT (the "Agreement") is made as of the Effective Date (defined below), by Brightstar Neurotherapies, Inc. ("BrightstarNeuro"), a Maryland corporation, with a place of business located at 18915 Highstream Drive, Germantown, Maryland 20874, USA, and between XXXXXX ("XX"), a Chinese corporation, with a place of business located at ___________________and the OEM identified below (the "OEM"):
本OEM协议(协议),是由Brightstar Neurotherapieswc,Inc.(简称BrightstarNeuro), 马里兰公司(位于美国马里兰州德国城)和深圳博纳药品包装材料有限公司(位于中国深圳南山区西丽湖大磡工业村博纳工业大厦)共同签订,自签订之日起生效(下面被定义).
OEM Name:
OEM Address:
Country/Jurisdiction of Incorporation:
OEM Contact Party:
Contact Telephone Number:
Contact Fax Number:
Contact E-Mail:
Term of this Agreement: The term of this Agreement shall commence on the effective date set forth below ("Effective Date") and, unless terminated earlier in accordance with the terms of this Agreement, shall continue for the initial term set forth below (the "Initial Term"). Following expiration of the Initial Term, this Agreement shall automatically be renewed for successive two year periods (each, a "Renewal Term") unless terminated earlier in accordance with this Agreement. (The Initial Term and the Renewal Terms shall collectively be referred to as the "Term.")
Effective Date:
Initial Term:
OEM HAS READ AND AGREES TO BE LEGALLY BOUND BY ALL OF THE FOLLOWING TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT.
TERMS AND CONDITIONS
1. Definitions.
(a) "BrightstarNeuro Products" means, collectively, all versions of the BrightstarNeuro product(s) identified for production by OEM in Schedule A to this Agreement, which may be updated from time to time by mutual written agreement of the parties to add, delete or modify the products to be manufactured by OEM under this Agreement.
(b) "End User" means any third-party business, governmental customer, or other customer that licenses the BrightstarNeuro Products.
(c) "Intellectual Property Rights" means, collectively, rights under patent, trademark (including those related to BrightstarNeuro Trademarks), copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.
(d) "Private Label" means the name set forth in Schedule A under which the Bundled Product shall be marketed and distributed.
(e) "Trademarks" means, collectively, the trademarks, service marks, trade names, logos or other commercial or product designation(s) of a party.
2. License and RESTRICTIONS.
(a) Grant of Licenses. Subject to the terms and conditions of this Agreement, BrightstarNeuro hereby grants OEM, during the Term:
许可授权。根据本协议的条款和条件，在合作期间，BN公司授权OEM公司
(i) a nonexclusive, nontransferable license to solely to produce the BrightstarNeuro Products in China for distribution to End Users;
(ii) a nonexclusive, nontransferable, royalty-bearing license to produce the BrightstarNeuro Products in China under the BrightstarNeuro Private Label to End Users;
(b) Restrictions. In addition to any other restrictions set forth in this Agreement, the following restrictions shall apply:
(i) This Agreement does not grant to OEM any exclusive rights with respect to any BrightstarNeuro Products and shall not prevent BrightstarNeuro from using other original equipment manufacturers in other countries except China.
(ii) OEM has no rights to promote, market or distribute the BrightstarNeuro Products through any resellers, distributors, systems integrators, original equipment manufacturers or other third parties without the express written permission of BrightstarNeuro.
(iii) Nothing in this Agreement shall be deemed to grant to OEM any rights to market, promote, sell, use or distribute any BrightstarNeuro products except those expressly authorized by BrightstarNeuro.
(iv) OEM shall not cause or permit any of the following: (A) the reverse engineering, reformatting, recasting, disassembly or decompilation of the BrightstarNeuro Products;
(v) the modification or merging of the BrightstarNeuro Products, or the creation of any derivative works therefrom, except as expressly authorized hereunder.
(vi) BrightstarNeuro reserves to itself all rights not expressly granted to OEM under this Agreement.
3. OEM's Responsibilities and Duties.
(a) OEM Conduct. At all times, OEM shall:
(i) conduct business in a manner that reflects favorably at all times on the BrightstarNeuro Products and protects the good name, goodwill, and reputation of BrightstarNeuro;
(ii) avoid deceptive, misleading, or unethical practices that are or might be detrimental to BrightstarNeuro or its products, including but not limited to disparagement of BrightstarNeuro or its products;
(iii) make no false or misleading representations with respect to the BrightstarNeuro Products;
(iv) not publish or use any misleading or deceptive advertising material;
(v) make no representations with respect to the BrightstarNeuro Products that are inconsistent with those made by BrightstarNeuro, including any warranties or disclaimers of BrightstarNeuro; and
(vi) conduct its business in accordance with all laws, ordinances, regulations and rules of applicable governmental and other authorities.
(b) Product quality. OEM is responsible for manufacturing the qualified products for BrightstarNeuro under this Agreement. OEM shall strictly control the product quality and guarantee that the BrightstarNeuro is 100% satisfied with the products manufactured by OEM. OEM must reimburse BrightstarNeuro an amount of 500% of the order prepayment that has been paid to OEM if any product manufactured by OEM does not meet the quality and hygienic standards of BrightstarNeuro.
(c) Customer Complaints: OEM shall promptly report to BrightstarNeuro all customer complaints and legal actions concerning the BrightstarNeuro Products of which it is aware or notified, and will cooperate with BrightstarNeuro (including its employees and attorneys) and furnish such reasonable assistance to BrightstarNeuro as BrightstarNeuro may request with respect to such complaints and actions. In addition, OEM will report promptly to BrightstarNeuro all claimed or suspected failures of any BrightstarNeuro Product to conform to applicable specifications of which it is aware or notified.
(d) BrightstarNeuro Discontinuances; Reservation of Rights. BrightstarNeuro reserves the right, in its sole discretion and at any time, to modify any of the BrightstarNeuro Products and to cease making any or all of the BrightstarNeuro Products available. Upon written notice of discontinuance of any of the BrightstarNeuro Products from BrightstarNeuro, OEM may stop to manufacture, without charge, the BrightstarNeuro Products that are discontinued.
4. Payments.
(a) BrightstarNeuro agrees to pay to OEM, in accordance with the production schedule, fees and costs incurred with respect to each accepted Order. BrightstarNeuro will pay US$0.40 to OEM for each BN patented dental flosser.
(b) Payment method. BrightstarNeuro will pay to OEM by L/C for each Order.
(c) Freight term: CIF (Western Coast of USA or any international port assigned by BrightstarNeuro)
(d) Taxes: OEM agrees to pay all taxes and duties, whether national or international, however designated, including value added taxes and similar taxes, which are levied or imposed because of the manufacture and freight of the BrightstarNeuro products; excluding, however, taxes on or measured by BrightstarNeuro's income.
5. Books and Records, Audit Rights.
(a) Books and Records. OEM agrees to maintain complete records of manufacture of the BrightstarNeuro Products including, without limitation, manufacturing quantity of the products, quality control of the products, ultimate destinations, dates of manufactures and dates of delivery, packaging information, product serial numbers and identifying codes, and to make such records available to BrightstarNeuro upon BrightstarNeuro's reasonable request. In any event, OEM will, within thirty (30) calendar days following the end of a calendar quarter or at such frequency as is mutually agreed-upon by the parties, forward to BrightstarNeuro a report detailing all of the above information for the manufacture of the BrightstarNeuro Products for that quarter.
(b) Audit Rights. During the Term and for a period of ten (10) years thereafter (or as otherwise required by law), OEM agrees to maintain clear and accurate books and records relating to the manufacture of the BrightstarNeuro Products under this Agreement. Such books and records shall be available at their place of keeping for inspection by BrightstarNeuro or its representative for the sole purposes of verifying amounts paid or owing to BrightstarNeuro and for determining whether OEM has complied with the terms of this Agreement. BrightstarNeuro shall have the right to conduct such an audit upon ten (10) days advance written notice twice each year. Such audit shall be conducted during OEM's normal business hours and in accordance with applicable safety and security procedures of OEM that are disclosed to BrightstarNeuro. OEM agrees that it shall fully cooperate with BrightstarNeuro with respect to any audit hereunder. In the event any such audit reveals an underpayment of five percent (5%) or more, OEM shall be responsible for all of BrightstarNeuro's costs in conducting such audit.
6. INTELLECTUAL PROPERTY RIGHTS.
(a) Intellectual Property Rights. The BrightstarNeuro Products are and at all times shall remain the sole and exclusive property of BrightstarNeuro. OEM acknowledges and agrees that, as between BrightstarNeuro and OEM, the BrightstarNeuro Products and all worldwide Intellectual Property Rights that are embodied in, related to, or represented by, the BrightstarNeuro Products (and all portions thereof) are, and at all times will be, the sole and exclusive property of BrightstarNeuro.
(b) Trademarks. Subject to the terms and conditions of this Agreement, title to and ownership of the Trademark ("BN") shall remain with the respective owner (BrightstarNeuro) and use of the Trademarks shall inure to the benefit of the respective owner (BrightstarNeuro). Use of a party's Trademarks shall be subject to the BrightstarNeuro's prior review and approval. OEM shall not take or authorize any action that is inconsistent with the owner's ownership of the Trademarks and any benefits accruing from use of such Trademarks shall automatically vest in the owner.
(c) Proprietary Rights Notices. All OEM materials relating to the BrightstarNeuro Products or to BrightstarNeuro, including but not limited to marketing and advertising materials, shall include appropriate copyright, trademark and other proprietary rights notices of BrightstarNeuro.
7. WARRANTIES.
(a) By BrightstarNeuro. BrightstarNeuro warrants that it has the right to enter into this Agreement and to grant OEM the rights granted to OEM under this Agreement.
(b) By OEM. OEM warrants that (i) it has the right to enter into this Agreement, (ii) there is no action, suit, claim, investigation or proceeding pending, or to the best of OEM's knowledge, threatened against, by or affecting OEM, which, if adversely decided, might adversely affect OEM's ability to enter into this Agreement and/or OEM's performance of its obligations under this Agreement, and (iii) OEM is not a party to any agreement that would limit, restrict or adversely affect OEM's ability to enter into this Agreement and/or OEM's performance of its obligations under this Agreement.
(c) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION 8 ABOVE, AND THE EXPRESS WARRANTIES, IF ANY, MADE TO THE END USER OF THE BRIGHTSTARNEURO PRODUCTS AS SET FORTH IN THE APPLICABLE END USER LICENSE AGREEMENT PROVIDED BY BRIGHTSTARNEURO, BRIGHTSTARNEURO EXCLUDES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NONINFRINGEMENT. BRIGHTSTARNEURO DOES NOT WARRANT THAT THE BRIGHTSTARNEURO PRODUCTS WILL MEET THE REQUIREMENTS OF OEM OR ANY END-USERS, OR THAT THE OPERATION OF THE BRIGHTSTARNEURO PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
8. Limitation of Liability.
IN NO EVENT SHALL BRIGHTSTARNEURO OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY EVENT, OEM'S TOTAL LIABILITY FOR DAMAGES HEREUNDER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY BRIGHTSTARNEURO FOR THE ORDER UNDER WHICH THE CAUSE OF ACTION ACCRUED, OR IF NO SUCH ORDER IS APPLICABLE, THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS. IN NO EVENT WILL OEM BE LIABLE FOR LOSS OF PROFITS, DATA, OR BUSINESS OPPORTUNITY, ARISING FROM OR RELATED TO THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION 9 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN BRIGHTSTARNEURO AND OEM FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE AND OTHER APPLICABLE LAWS. BRIGHTSTARNEURO UNDERSTANDS THAT OEM'S PRICING IS BASED UPON AND REFLECTS THE ALLOCATIONS OF RISK AND LIMITATIONS OF LIABILITY SPECIFIED HEREIN.
9. Termination.
(a) In addition to the other termination rights of a party under this Agreement, a non-breaching party to this Agreement may terminate this Agreement if the other party fails to comply with any material term or condition of this Agreement and fails to remedy such breach within thirty (30) days after the non-breaching party gives the breaching party written notice of the breach. In addition to the foregoing, BrightstarNeuro may immediately terminate this Agreement, in whole or in part, without further notice if OEM fails to manufacture the well-qualified products required by this Agreement within thirty (30) days after BrightstarNeuro sends written notice.
(b) In addition to the foregoing, either party may terminate this Agreement if the other becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise, and same has not been discharged or terminated within forty-five (45) days.
(c) The termination or expiration and non-renewal of this Agreement shall not relieve OEM of its obligations under this Agreement, including without limitation, OEM's obligation to make payments for all unpaid and outstanding amounts due to BrightstarNeuro that have been accrued as of the date of termination or expiration and non-renewal of this Agreement. Immediately upon any termination or expiration of this Agreement, OEM shall: (i) pay all amounts owed to BrightstarNeuro; (ii) cease all manufacture and use of the BrightstarNeu
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