(1)









Exhibit

10.3




DATED                  28TH July 1998




(1)           SCHLEICHER

& SCHUELL GMBH




(2)           UNIPATH LIMITED




 




 




 




 






















 




SUPPLY OF

GOODS AGREEMENT




 






















 




 




 




 




 




 




 




UNILEVER UK LEGAL DEPARTMENT




Unilever House




Blackfriars




London EC4




Tel: +44 (0)171-822 5252




Fax: +44 (0)171-822 6536




(RH)




 




 




 





























 




TABLE OF CONTENTS




 




 




1.             DEFINITIONS

AND INTERPRETATION




                1.1          Defined

Terms




                1.2          References




 




2.             SUPPLY

AND PURCHASE




                2.1          Agreement

to Supply




                2.2          Variation




 




3.             PRICING




                3.1          Supply

Prices




                3.2          Most

Favoured Customer Status




                3.3          Re-negotiation

of Supply Prices




                3.4          Taxes

and Duties




                3.5          Packaging




                3.6          Change

Control




 




4.             PAYMENTS




 




5.             FORECASTS




                5.1          Annual

Estimated Forecast




                5.2          Monthly

Estimated Indication




                5.3          Safety

Stock




 




6.             ORDERS




                6.1          Delivery

of Orders




                6.2          Supplier’s

Obligation to Meet Orders




                6.3          Shortfall

or Excess in Delivery




                6.4          Allocation

of Available Products




                6.5          Supplier

to Maintain Stocks of Raw Materials




 




7.             SAFEGUARDS

FOR SUPPLY




                7.1          Safety

Stock




                7.2          Supplier

to Invest




 




8.             QUALITY




 




9.             REJECTION




                9.1          Rejection




                9.2          Supplier’s

Cost




                9.3          Right

of Set-Off and Right to Replacement Product




 




10.          TERM




 




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11.          FORCE

MAJEURE




                11.1        Effect

of Force Majeure on Agreement




                11.2        Right

to Terminate




 




12.          TERMINATION




                12.1        Reasons

for Termination by Either Party




                12.2        Supplier’s

Obligations on Termination




                12.3        Effect

of Termination




 




13.          INDEMNITY BY SUPPLIER




                13.1        Indemnity




                13.2        Mitigate

Loss




 




14.          CONFIDENTIALITY




                14.1        Obligations

to Keep Information Confidential




                14.2        Disclosure

to Employees




                14.3        Exceptions




                14.4        Tangible

Forms of Confidential Information




                14.5        Disclosure

to Unilever Group Companies




 




15.          NO

PARTNERSHIP ETC.




 




16.          FURTHER

ASSURANCE




 




17.          AMENDMENTS

AND WAIVERS




                17.1        Amendments

In Writing




                17.2        Delay

not to Operate as Waiver etc.




 




18.          ASSIGNMENT




                18.1        No

Assignment by the Supplier




                18.2        Assignment

by the Customer




                18.3        Treatment

of Permitted Assignees




                18.4        Disclosure

to Permitted Assignees




 




19.          ENTIRE

AGREEMENT




                19.1        Entire

Agreement




                19.2        No

Reliance etc.




 




20.          NOTICES




 




21.          SEVERABILITY




                21.1        Invalidity

of Part




                21.2        RTPA




 




22.          LAW AND

JURISDICTION




 




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23.          COUNTERPARTS




 




Schedule 1             PRODUCTS




Schedule 2             SUPPLY

PRICES




Appendix               SPECIFICATIONS




 




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SUPPLY OF GOODS AGREEMENT




DATE:                    28TH

July 1998




PARTIES:




(1)                                  SCHLEICHER & SCHUELL GmbH, a company

registered in Germany whose registered office is at Hahnestrasse 3, D-37586

Dassel (“Supplier”); and




 




(2)                                  UNIPATH LIMITED, a company registered in

England and Wales with [illegible] 842528, whose registered office is at Priory

Business Park, Bedford MK44 3UP (“Customer”).




 




BACKGROUND:




 




(A)                              The Supplier is skilled and experienced

in the manufacture of polyester backed nitrocellulose suitable for use in the

production of kits for the testing of certain analytes.




 




(B)                                The Customer is skilled and experienced

in the production of such kits.




 




(C)                                The Customer wishes to purchase a

specific quantity of polyester backed nitrocellulose from the Supplier and the

Supplier is wiling to sell the same to the Customer on the terms and conditions

set out below.




 




IT IS NOW AGREED THAT:




 




1.                                      DEFINITIONS AND INTERPRETATION




 




1.1          Defined

Terms




 




In this Agreement:




 




“batch” shall have the meaning described in

the Specifications;




 




“Business Day” means any day (other than a

Saturday or a Sunday) when clearing banks are open for business in the City of

London for the transaction of normal banking business;




 




“Commencement Date” shall be deemed to be 1

January 1998;




 




 





























 




“Contract Year” means any period of 12

months commencing on the Commencement Date or an anniversary thereof;




 




“Force Majeure” means acts of God, war,

hostilities, riot, fire, explosion, accident, flood, sabotage, lack of adequate

fuel, power, raw materials, containers, transportation or labour, strike,

lock-out or injunction (provided that neither party shall be required to settle

a labour dispute against its own best judgement), compliance with governmental

laws, regulations or orders, breakage or failure of machinery or apparatus, or

any other cause whether or not of the class or kind enumerated which affects

performance of this Agreement arising from or attributable to acts, events,

omissions or accidents beyond the reasonable control of the party affected;




 




“Index” means the Lohnkosten je

Produkteinheit Index published by the Statistisches Bundesamt, Wiesbaden in

Germany;




 




“Intellectual Property Rights” means

patents, trade marks, design rights, copyright (including rights in computer

software and databases), know how and moral rights and other intellectual

property rights, in each case whether registered or unregistered and including

applications for, and the right to apply for, the foregoing and all rights or

forms of protection having equivalent or similar effect to any of the foregoing

which may subsist anywhere in the world;




 




“Losses” means costs and expenses reasonably

incurred and losses, liabilities and damages, in each case of any nature

whatsoever but excluding any consequential damages;




 




“Products” means the Products manufactured

by or on behalf of the Supplier as described in Schedule 1 (The Products);




 




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“Quality Control Standards” means the

standards, tests and procedures used by the Customer and/or the Supplier, as

applicable, to ensure the quality of the Products and/or raw materials, as

applicable, as agreed between the Customer and the Supplier from time to time;




 




“Quarter Day” means each of the dates which

fall at the end of the first three months, six months and nine months of, and

the last day of, a Contract Year;




 




“Safety Stock” shall have the meaning given

to it in clause 7.1;




 




“Specifications” means the specifications

for the Products copies of which are attached hereto as the Appendix

(Specifications);




 




“Supply Prices” means the prices for the

Products as specified in Clause 3.1 (Supply Prices);




 




“Unilever Group” means Unilever PLC,

Unilever NV and any company in which either or both together directly or

indirectly owns or controls the voting rights attaching to not less than 50% of

the issued share capital, or controls directly or indirectly the appointment of

a majority of the board of management, and references to a member of the

Unilever Group or a Unilever Group Company will be construed accordingly.




 




1.2          References




 




In this Agreement, unless

the context requires otherwise, any reference to:a party or the parties is to a

party or the parties (as the case may be) to this Agreement;




 




(a)           a Clause or a Schedule is to a clause

of or a schedule to this Agreement (as the case may be) and references made in

the Schedules to Paragraphs are to paragraphs of that Schedule;




 




(b)           “this Agreement” includes the

Schedules and the Appendix, which form part of this Agreement for all purposes.




 




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2.                                      SUPPLY AND PURCHASE




 




2.1          Agreement

to Supply




 




Subject to the terms of

this Agreement, the Supplier shall




 




                a)             supply

the Products in accordance with the Specifications and the Customer shall

purchase them; and




 




                b)            build

up and maintain the Safety Stock in accordance with Clause 7.1.




 




2.2          Variation




 




The Specifications shall

not be varied by the Supplier except by written agreement between the Supplier

and the Customer in accordance with Clause 3.6 (Change Control) and Clause 17.1

(Amendments in Writing).




 




3.                                      PRICING




 




3.1          Supply

Prices




 




The Supply Prices are set

out in Schedule 2 (Supply Prices) and shall apply for the duration of this

Agreement, subject to the provisions of Clause 3.2 and 3.3.




 




3.2          Most

Favoured Customer Status




 




The Supply Prices

including all discounts and volume rebates and all other terms and conditions

shall be no less favourable to the Customer than the terms offered from time to

time to any other customer of the Supplier for products of a materially similar

nature to the Products at a similar time.




 




3.3          Re-negotiation

of Supply Prices




 




The parties shall no

later than two months before the end of each Contract Year meet as necessary to

discuss and negotiate changes (if any) to the Supply Prices on the following

basis:




 




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(a)           no increase in Supply Prices shall be

greater than a rise in accordance with the Index and may be less; and




 




(b)           the Supply Prices may decrease; and




 




(c)           for the avoidance of doubt no

increase in Supply Prices shall be effective before 1 January 1999 for any

reason.




 




3.4          Taxes

and Duties




 




The Supply Prices are

exclusive of value added tax (or any successor tax or equivalent local tax)

which will be added and shall be payable by the Customer in accordance with the

law applicable from time to time against receipt of an appropriate invoice.




 




3.5          Packaging




 




The Supply Prices are CIF

(as described in the Incoterms 1990 Edition) provided that:




 




(a)           delivery shall be procured by the

Supplier to the Customer’s factory premises in Bedford, and for the avoidance

of doubt, but without limitation, include the cost of packaging the Products in

accordance with the Appendix and cost of insurance and delivery of the Products

to the Customer’s factory premises in Bedford; and




 




(b)           risk in the Products shall transfer

from the Supplier to the Customer on delivery to the Customer’s factory

premises in Bedford.




 




The terms of this

Agreement shall prevail over the CIF terms in the event of any inconsistency.




 




3.6          Change

Control




 




The Customer may at any

time suggest changes to the Specification or the Quality Control

Standards.  Within a reasonable time

(not in any event to exceed one month) and prior to the implementation of any

change to the Specification or Quality Control Standards the Supplier 




 




5





























 




shall provide the

Customer with a written appraisal fully setting out the proposed costing of and

any technical or other effect of the proposed changes.  Any increase or decrease in the Supply

Prices as a result of any changes shall be whatever is reasonable taking into

account all the circumstances. 

Following the written appraisal referred to above, the Supplier shall be

obligated to put into effect any changes reasonably requested by the Customer.




 




4.                                      PAYMENTS




 




(a)           The Customer shall pay to the

Supplier the Supply Prices for all Products delivered pursuant to this

Agreement by the end of the month following the month of delivery.  Payment shall be made in Deutschmarks or, if

applicable, Euros.




 




(b)           Safety stock shall be paid for in the

manner provided in clauses 7.1(e) and (f).




 




5.                                      FORECASTS




 




5.1          Annual

Estimated Forecast




 




On signing this Agreement

and subsequently within two months before every anniversary of the Commencement

Date the Customer shall deliver to the Supplier an estimated forecast of its

requirements of the Products for each of the next three Contract Years.  Such forecast may include details of a range

of purchase possibilities by the Customer, for example demand for Product which

is conditional on a launch by the Customer of its end product in a new

territory.




 




5.2          Monthly

Estimated Indication




 




In addition to the annual

estimated forecast given in accordance with Clause 5.1, on signing this

Agreement and on 1st of each month, the Customer will deliver to the

Supplier an estimated indication of its requirements of the Products for each

of the following six months.




 




 




6





























 




5.3          Safety

Stock




 




For the avoidance of all

doubt Safety Stock shall be in addition to that set out in any forecast.




 




6.                                      ORDERS




 




6.1          Delivery

of Orders




 




Notwithstanding the

provisions of Clause 5 (Forecasts), the Customer shall place orders for its

actual requirements of the Products from time to time in accordance with its

usual procedure.




 




6.2          Supplier’s

Obligation to Meet Orders




 




(a)           The Supplier shall deliver Products

to the Customer’s factory premises in Bedford within 8 weeks of receipt of the

relevant order.




 




(b)           Shipments and orders should conform

to mutually agreed production lot quantity. 

It is understood by both parties that production lot quantities

(expressed as the number of sheets) should exceed the current lot size of

20,000 sheets and that each party will as a result of reduced QC work equally

benefit if larger batch sizes are validated. 

Trial and validation runs which are made on the Customer’s demand can

have a lot size of less than 20,000 sheets.




 




6.3          Shortfall or Excess in Delivery




 




(a)           If the quantity of Products delivered

is up to (and including) 15% greater or lower than that ordered, the Customer

shall pay the Supply Prices for the quantity actually delivered.




 




(b)           If the quantity of Products delivered

is lower than that ordered by in excess of 15%, the Supplier shall supply the

shortfall to the Customer within 15 Business Days of the short delivery.




 




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(c)           If the quantity of Products delivered

is greater than that ordered by in excess of 15%, the Customer shall be

entitled, without prejudice to any other right or remedy under this Agreement,

to reject the excess in accordance with Clause 9 (Rejection) or to retain the

excess and pay the Supply Prices for the excess when payment for the next

delivery is made.




 




6.4          Allocation

of Available Products




 




Without prejudice to

Clause 6.2, in the event that the Supplier is unable to meet the Customer’s

orders for reasons of Force Majeure or for any other reason, the Supplier will

give the Customer priority over any other customers when allocating the available

Products.




 




6.5          Supplier

to Maintain Stocks of Raw Materials




 




The supplier shall hold a

stock of the raw materials which make up the Products sufficient to allow the

Supplier to continue to manufacture sufficient quantities of Products to enable

it to meet the monthly estimated indication provided by the Customer under

Clause 5.2 for the following three months. 

Such stock shall consist of raw materials which have satisfactorily met

the Quality Control Standards of the Supplier and which have been approved by

the Customer under Clause 8 (Quality).




 




7.                                      SAFEGUARDS FOR SUPPLY




 




7.1          Safety

Stock




 




The Supplier and the

Customer agree that a safety stock (the “Safety Stock”) should be established

which will provide security of continuation of supply of the Products, for

example in the event of an unprecedented demand for, or an interruption in the

manufacture of, the Products.  The

Safety Stock, which will be manufactured at the Supplier’s plant in Dassel and

stored at the Supplier’s site in a separate facility at Dassel or Einbeck shall

be operated in accordance with the following provisions:




 




8





























 




(a)           The Supplier will start building the

Safety Stock on the Commencement Date and shall as soon as practically possible

(and in any event within three months of the Commencement Date) manufacture and

maintain three month’s Safety Stock equivalent to the customer’s estimated

indication of its requirements of the Products on a rolling basis for the

following three months in accordance with the first 3 months of each estimate

given under clause 5.2 (Monthly Estimated Indication);




 




(b)           All Safety Stock produced and

maintained shall be separate and in addition to any Products ordered for

delivery to the Customer;




 




(c)           the Safety Stock shall consist of

Products which meet the Specifications and which have satisfactorily met the

Quality Control Standards of both the Customer and the Supplier and shall

unless the parties otherwise agree comprise half of a batch the remainder of which

is supplied to the Customer for use by the Customer;




 




(d)           the Safety Stock shall be held at the

risk of the Supplier and the Supplier shall maintain insurance to cover the

full cost of replacement of all the Safety Stock held from time to time;




 




(e)           the Customer shall whilst the Safety

Stock is being built up pay the Supplier the Supply Prices for such Safety

Stock by the end of the month following the month in which the Safety Stock has

passed the Supplier’s and the Customers tests in respect of their respective

Quality Control Standards;




 




(f)            once the Safety Stock has reached

the required level specified in Clause 7.1(a), the Customer shall pay for any

additional Safety Stock required to match any overall increase in the

Customer’s estimated requirements for Products notified under sub-clause 5.2 or

to replenish any use of Safety Stock in the manner provided under Clause

7.1(i);




 




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(g)           the Supplier shall pay for the cost

of storage of the Safety Stock;




 




(h)           the Supplier shall maintain the

storage of the Safety Stock in accordance with all applicable safety standards

and in a climate controlled room that conforms to the Supplier’s recommended

temperature and humidity conditions and shall notify the Customer immediately

of any matter or occurrence which affects the storage of the Safety Stock in

any way;




 




(i)            once the Safety Stock has reached

the required level specified in Clause 7.1(a), the Customer may request the

supply of Products from the Safety Stock. 

The Supplier shall comply with such requests and replenish the Safety

Stock as soon as reasonably practical thereafter.  No additional payment shall be made by the Customer for the

supply of Products from Safety Stock in addition to that specified in Clause

7.1(e) or (f);




 




(j)            the Supplier shall maintain a list

of all lots of Products produced including shelf life dating and any other

information that the Customer may reasonably request from time to time.  The Supplier shall give the Customer full

access at all times to such records and will notify the Customer of any lot

that has less than nine months shelf life. 

Subject to this it shall be the responsibility of the Customer to

request timely shipments of Products from the Safety Stock and any losses of Safety

Stock due to expired shelf life shall be the sole responsibility of the

Customer.




 




7.2          Supplier to Invest




 




The Supplier acknowledges

that the Customer’s requirements of the Products are likely to increase

substantially over the period of this Agreement and thereafter, and will invest

in good time in all manufacturing and other equipment necessary to enable it to

comply with the forecasts for Product given by the Customer.  In the event that the Supplier in its

reasonable 




 




10





























 




opinion requires

to make an investment of two million Deutschmarks (or its equivalent in Euros)

or more than the Customer and the Supplier may agree an extension to the term

of this Agreement in advance of such investment being made (the length of such

extension being related to the investment to be made by the Supplier and the

perceived benefit at that time that such investment would have for the

Customer).




 




8.                                      QUALITY




 




The Supplier warrants and

represents to the Customer that:




 




(a)           it will manufacture the Products in

accordance with the manufacturing practices employed by it or by other members

of the Supplier’s group for Products equivalent or similar to the Products and

with all relevant legal requirements;




 




(b)           it will ensure that all raw materials

and other components used in the manufacture of the Products are of the

requisite standard to comply with the Specifications;




 




(c)           it will ensure that all Products are

manufactured in accordance with and fully comply with the Specifications and

satisfy all Quality Control Standards and quality assurance requirements

contained in the Specifications;




 




(d)           it will notify the Customer of

proposed batch changes in critical raw materials (i.e. nitro-cellulose wool) 6

(six) months in advance of the previous batch finishing going through the

Supplier’s production line and will at such time send samples of Products

manufactured using such materials to the Customer for evaluation.  The Customer shall evaluate and respond to

any proposed batch change within 15 (fifteen) days of receipt of Product

manufactured using such material and shall not reject any batch change without

good cause.




 




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9.                                      REJECTION




 




9.1          Rejection




 




Without prejudice to its

rights under this Agreement, the Customer may, by notice to the Supplier within

15 Business Days of delivery of the relevant Products, reject a delivery of the

Products, or any part thereof, if:




 




(a)           they do not accord in all respects

with the Specifications or do not satisfactorily meet the Quality Control

Standards of the Customer; or




 




(b)           when incorporated by the Customer in

to further products the technical performance is not as would be reasonably

anticipated from the Quality Control results, such that the further products

cannot be sold.




 




Nothing in this Clause

9.1 shall limit or restrict the Customer’s ability to claim under this

Agreement in respect of any defect in the Products or non-fulfillment by the

Products of the Specification or the Quality Control Standards of the Customer

which could not reasonably have been expected to be discovered by an inspection

on delivery by the Customer of the Products.




 




9.2          Supplier’s Cost




 




The Supplier shall

collect from the Customer’s premises at the Supplier’s cost any Products which

are rejected under Clause 9.1 or (if so requested by the Customer) under Clause

6.3 (Shortfall or Excess in Delivery).




 




9.3          Right of Set-Off and Right to Replacement Product




 




The Customer shall be

entitled to set-off against the Supply Prices the full price of any Products

which are rejected under Clause 6.3 (Shortfall or Excess in Delivery).  The Customer shall be entitled to

replacement in full of all Products rejected under Clause 9.1(a) at the Supplier’s

cost (the Supplier in addition paying for all shipping and insurance costs for

such 




 




12





























 




replacement

Products) provided that if any Products are rejected under Clause 9.1(b) the

Customer shall only be entitled to set-off 25 (twenty-five) per cent of the

Supply Prices of those Products against the Supply Prices.




 




10.                               TERM




 




This Agreement shall

(unless terminated at an earlier date pursuant to Clause 12 (Termination))

continue in force for an initial term (“Initial Term”) of 5 years from the Commencement

Date and shall continue in force after the Initial Term until terminated by

either party giving to the other party not less than 12 months’ notice in

writing of termination expiring at the end of the Initial Term or at any time

after the Initial Term.




 




11.                               FORCE MAJEURE




 




11.1        Effect of Force Majeure on Agreement




 




If either party is

prevented or delayed from or in performing any of its obligations under this

Agreement (other than an obligation to make payment) by Force Majeure, then:




 




(a)           that party’s obligations under this

Agreement shall be suspended for so long as the Force Majeure continues and to

the extent that that party is so prevented, hindered or delayed;




 




(b)           as soon as reasonably possible and in

any event within 5 Business Days after commencement of the Force Majeure, that

party shall notify the other party in writing of the occurrence of the Force

Majeure, the date of commencement of the Force Majeure and the effects of the

Force Majeure on its ability to perform its obligations under this Agreement;




 




(c)           that party shall use all reasonable

efforts to mitigate the effects of the Force Majeure upon the performance of

its obligations under this Agreement and in particular, if that party is the

Supplier, the provisions of Clause 12.2(a) shall apply;




 




13





























 




(d)           as soon as reasonably possible and in

any event within 5 Business Days after the cessation of the Force Majeure, that

party shall notify the other party in writing of the cessation of the Force

Majeure and shall resume performance of its obligations under this Agreement.




 




11.2        Right to Terminate




 




If any Force Majeure

prevails for a continuous period in excess of three months, the party who is

not prevented or delayed from or in performing any of its obligations as

described in Clause 11.1 shall be entitled to terminate this Agreement by

giving not less than 10 Business Days notice in writing to the other party.




 




12.                               TERMINATION




 




12.1        Reasons for Termination by Either Party




 




Either party (the

“Terminating Party”) may terminate this Agreement with immediate effect by

notice to the other party (the “Defaulting Party”) on or at any time after the

occurrence of any of the events specified below in relation to the other party:




 




(a)           a breach by the Defaulting Party of

any of its obligations under this Agreement which (if the breach is capable of

remedy) the Defaulting Party has failed to remedy within 30 days after receipt

of notice in writing from the Terminating Party requiring the Defaulting Party

to do so (which notice, if the Customer is the Defaulting Party, shall also be

sent by registered post to, and received by, the Vice President Commercial at

Unipath Limited, Priory Business Park, Bedford, MK44 3UP);




 




(b)           the Defaulting Party goes into liquidation

either compulsorily or (except for the purpose of reconstruction of

amalgamation) voluntarily;




 




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(c)           a receiver is appointed in respect of

the hole or any part of the assets of the Defaulting Party;




 




(d)           a provisional liquidator is appointed

to the Defaulting Party or the Defaulting Party enters into a voluntary

arrangement or any other composition or compromise with the majority by value

of its creditors;




 




(e)           the Defaulting Party threatens to do

any of these things or a judgment or administration order is made against the

Defaulting Party or any similar occurrence under the laws of any jurisdiction

affects the Defaulting Party; or




 




(f)            The other party is prevented or

delayed from or in performing any of its obligations for the period referred to

in Clause 11.2 (Right to Terminate).




 




12.1A     Reasons for Termination by the Customer




 




The Customer may

terminate this Agreement with immediate effect by notice to the Supplier if

four or more successive batches of Product have, when incorporated by the

Customer into further products given a technical performance that is not as

would be reasonably anticipated from the Quality Control results such that the

further products cannot be sold, provided that the Customer has given the

Supplier prompt notice of such failure to function and permitted the Supplier

to do all it can during such one month period to rectify such failure to

function by the supply of replacement Products.




 




12.2        Supplier’s

Obligations on Termination




 




Upon termination of this

Agreement where the Supplier is the Defaulting Party the Supplier shall:




 




(a)           Use its best endeavors to grant a

license to the Customer or to a new manufacturing source of all Intellectual

Property Rights used in the manufacture and supply of 




 




15





























 




the Product pursuant to this Agreement and to effect

the transfer to a new manufacturing source by nominating a third party

acceptable to the Customer to manufacture and supply products meeting the

Specification and satisfying the Customer’s Quality Control Standards or by

accepting a nomination by the Customer of such a third party.  On approval of the third party by the

Customer, the Supplier shall disclose to the third party the know-how and other

information necessary to enable the third party to manufacture the Products and

make available key personnel as may be reasonably requested by the Customer;

and




 




(b)           Release and make available for

collection by or on behalf of the Customer all stock (including, without

limitation, all stocks of nitro-cellulose and all other raw materials) and

work-in-progress relating to this Agreement and all finished Products.  The price to be paid by the Customer for

such stock, work-in-progress and finished Products will, where such items are

in perfect condition, reflect the direct costs incurred by the Supplier in

their purchase and subsequent processing save that the relevant prices shall

not exceed in aggregate the Supply Prices. 

Where such items are not in perfect condition, the Customer shall pay to

the Supplier such an amount as, in the reasonable opinion of the Customer,

equates to their net realisable value.




 




12.3        Effect

of Termination




 




All rights and

obligations of the parties shall cease to have effect immediately upon

termination of this Agreement except that termination shall not affect:




 




(a)           Accrued rights and obligations of the

parties at the date of termination; and




 




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(b)           The continued existence and validity

of the rights and obligations of the parties under those Clauses which are

expressed to survive termination and any provisions of this Agreement necessary

for the interpretation or enforcement of this Agreement.




 




13.                               INDEMNITY BY SUPPLIER




 




13.1        Indemnity




 




Subject to Clause 13.2

the Supplier shall indemnify and keep indemnified the Customer in respect of

all Losses suffered or incurred directly or indirectly as a result of,

(including (without limitation) any Losses suffered or incurred directly or

indirectly as a result of defending or settling any claim alleging any

liability as a result of):




 




(a)           The negligence of the Supplier, its

officers, employees or agents;




 




(b)           The Intellectual Property Rights of

any third party having rendered the use or sale of the Products by the Customer

unlawful; and




 




(c)           Any breach of or on behalf of the

Supplier of any of its obligations under this Agreement save to the extent such

breach arises as a result of the negligence of the Customer or breach by the

Customer of its obligations under this Agreement.




 




The above indemnify shall

be limited to the total payments made by the Customer to the Supplier in the

Contract Year immediately preceding such breach or, in the case of a breach

occurring in the first Contract Year, the total payments made by the Customer

to the Supplier up to the time that the breach occurs plus an amount for the

rest of the first Contract Year calculated pro rata on the same basis, provided

that this limit shall not to any breach giving rise to damages under clause

13.1(b) above or any breach of clause 14 (confidentiality) giving rise to

damages under 13.1(c) above.




 




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13.2        Mitigate

Loss




 




The Customer shall take

all reasonable steps to mitigate any Losses which might result in a claim for

indemnification being made under this Agreement.




 




14.                               CONFIDENTIALITY




 




14.1        Obligations

to Keep Information Confidential




 




Each party (the

“Receiving Party”) shall keep strictly private and confidential all information

and documentation disclosed by the other party before or after the date of this

Agreement (the “Disclosing Party”) to the Receiving Party (the “Confidential

Information”) and will not use any Confidential Information for any purpose other

than the performance of its obligations under this Agreement or copy or

disclose any Confidential Information to any third party whatsoever.  This Clause shall survive termination of

this Agreement for whatever cause.




 




14.2        Disclosure

to Employees




 




During the term of this

Agreement the Receiving Party may disclose the Confidential Information to its

employees (any such person being referred to in this Clause as the “Recipient”)

to the extent that it is reasonably necessary for the purposes of this Agreement.  The Receiving Party shall procure that each

Recipient is made aware of and complies with all the Receiving Party’s

obligations of confidentiality under this Agreement as if the Recipient was a

party to this Agreement.




 




14.3        Exceptions




 




The obligations contained

in Clauses 14.1 and 14.2 shall not apply to any confidential information which:




 




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(a)           is as the date of this Agreement

already in, or at any time after the date of this Agreement comes into, the

public domain other than through breach of this Agreement by the Receiving

Party or any Recipient;




 




(b)           can be shown by the Receiving Party

to the reasonable satisfaction of the Disclosing Party to have been known by

the Receiving Party before disclosure by the Disclosing Party to the Receiving

Party;




 




(c)           subsequently comes lawfully into the

possession of the Receiving Party from a third party; or




 




(d)           can be shown by the Receiving party

to the reasonable satisfaction of the Disclosing Party to have been developed

by the Receiving Party wholly independently of the information received from

the Disclosing Party.




 




14.4        Tangible

Forms of Confidential Information




 




All tangible forms of

Confidential Information, including, without limitation, all summaries, copies,

excerpts of any Confidential Information whether prepared by the Disclosing

Party or not, shall be the sole property of the Disclosing Party, and shall be

immediately delivered by the Receiving Party to the Disclosing Party upon the

Disclosing Party’s request.  The

Receiving Party shall not copy, reproduce, publish or distribute in whole or in

part any Confidential Information without the prior written consent of the

Disclosing Party.




 




14.5        Disclosure

to Unilever Group Companies




 




Notwithstanding the obligations

contained in Clauses 14.1 and 14.2 the information received by the Customer may

be disclosed to other companies in the Unilever Group, other than any company

operating a similar business to that of the Supplier or to its consultants,

provided that such other companies or consultants accept the same obligations

of confidentiality.




 




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15.                               NO PARTNERSHIP ETC.




 




Nothing in this Agreement

or any document referred to in it or any arrangement contemplated by it shall

be construed as creating a partnership between the parties for any purpose

whatsoever and neither party shall have the power or authority to bind the

other party or impose any obligations on it to the benefit of any third party.




 




16.                               FURTHER ASSURANCE




 




Each party shall do and

execute or procure to be done and executed all necessary acts, deeds, documents

and things reasonably within its power to give effect to this Agreement.




 




17.                               AMENDMENTS AND WAIVERS




 




17.1        Amendments

In Writing




 




No amendment or variation

of the terms of this Agreement shall be effective unless it is made or

confirmed in a written document signed by both parties.




 




17.2        Delay

Not To Operate As Waiver etc.




 




No delay in exercising or

non-exercise by either party of any of its rights under or in connection with

this Agreement shall operate as a waiver or release of that right.  Rather, any such waiver or release must be

specifically granted in writing signed by the party granting it.




 




18.                               ASSIGNMENT




 




18.1        No

Assignment by the Supplier




 




The Supplier may not

assign, sub-contract, sub-license or otherwise dispose of any of its rights

under this Agreement without the prior written consent of the Customer, such

consent not to be unreasonably withheld or delayed.




 




 




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18.2        Assignment

by the Customer




 




The Customer may assign,

sub-contract, sub-license or otherwise dispose of all or any of its rights and

transfer all or any of its obligations under this Agreement to:




 




(a)           any company limited by shares which

is a member of the Unilever Group; or




 




(b)           any person or company to whom the

whole or a substantial part of the business of the Customer is sold or

transferred.




 




Apart from that, the

Customer may not assign, sub-contract, sub-license or otherwise dispose of any

of its rights under this Agreement without the prior written consent of the

Supplier, such consent not to be unreasonably withheld or delayed.




 




18.3        Treatment

of Permitted Assignees




 




Following any permitted

assignment and/or transfer under Clause 18.2, any reference in this Agreement

to the Customer shall, where the context allows, include the assignee and/or

transferee.




 




18.4        Disclosure

to Permitted Assignee




 




Notwithstanding the

provisions of Clause 14 (Confidentiality) and any confidentiality obligation

imposed on the Customer by law, the Customer may disclose to any assignee or

proposed assignee such information about the Supplier, this Agreement and the

transactions referred to herein as the Customer thinks fit and the Supplier irrevocably

waives all rights of confidentiality in respect of such disclosure.




 




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19.                               ENTIRE AGREEMENT




 




19.1        Entire

Agreement




 




This Agreement and the

Confidentiality Agreement dated 20 October 1992 as amended and restated on

28/7/98, made between the parties to this Agreement together represent the

entire agreement between the parties in relation to the subject matter of this

Agreement and supersede any previous agreement whether written or oral between

the parties in relation to that subject matter.  Accordingly, all other terms, conditions, representations,

warranties and other statements which would otherwise be implied (by law or

otherwise) shall not form part of this Agreement.




 




19.2        No

Reliance etc.




 




Each party acknowledges

that in entering into this Agreement it places no reliance on any

representation, warranty or other statement relating to the subject matter of

this Agreement, save for the representations and warranties set out in Clause 8

(Quality).




 




20.                               NOTICES




 




All communications

relating to this Agreement shall be in writing and delivered by hand or sent by

post or facsimile to the party concerned at the relevant address shown at the

start of this Agreement (or such other address as may be notified from time to

time in accordance with this Clause by the relevant party to the other

party).  Any such communication shall

take effect if delivered, upon delivery; if posted, upon delivery and if sent

by facsimile, when a complete and legible copy of the communication, whether

that sent by facsimile a hard copy sent by post or delivered by hand, has been

received at the appropriate address.




 




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21.                               SEVERABILITY




 




21.1        Invalidity

of Part




 




If any part of any provision

of this Agreement shall be invalid or unenforeceable, than the remainder of

such provision and all other provisions of this Agreement shall remain valid

and enforceable.




 




21.2        RTPA




 




No provision of this

Agreement or of any agreement or arrangement of which this Agreement forms part

and which is subject to registration under the Restrictive Trade Practices Act

1976 shall take effect until the day after particulars of this Agreement or of

the agreement or arrangement of which it forms part (as the case may be) have

been furnished to the Director General of Fair Trading pursuant to the

provisions of Section 24 of that Act.




 




22.                               LAW AND JURISDICTION




 




This Agreement shall be

construed in accordance with English law and the parties irrevocably submit to

the non-exclusive jurisdiction of the English courts to settle any dispute

which may arise in connection with this Agreement (provided that, if the

parties so agree, any dispute may be referred for arbitration or mediation).




 




23.                               COUNTERPARTS




 




This Agreement may be

executed in any number of counterparts and by the parties to it on separate

counterparts, each of which when so executed and delivered shall be an

original, but all the counterparts shall together constitute one and the same

instrument.




 




EXECUTION:




 




The parties have shown

their acceptance of the terms of this Agreement by executing it at the end of

the Schedules.




 




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