assist Distributor in selecting third-party vendors located in the
United States for the manufacture and supply of the Distributor Components. Once
such a vendor(s) have been selected by OSUR and approved by Distributor (which
approval shall not be unreasonably withheld, delayed or conditioned),
Distributor shall order Distributor Components directly from such vendor(s) and
OSUR shall assist Distributor in placing such orders to ensure timely delivery
of Distributor Components to the Assembly Contractor. Distributor Components
shall be supplied with sufficient lead-times and in sufficient quantities as
directed by OSUR to permit the packaging and assembly of Product purchased
hereunder and delivery of such Product to Distributor in accordance with
Distributor's Purchase Orders. Distributor shall directly pay each vendor for
the Distributor Components supplied by such vendor. OSUR shall assist
Distributor in ensuring that all Distributor Components are manufactured, stored
and supplied in accordance with the Specifications and all applicable treaties,
laws, rules and regulations within the Territory.
4.3. Terms and Conditions. The terms and conditions of this Agreement shall
control all sales of Product by OSUR to Distributor. No different or additional
terms and conditions on any purchase order, acknowledgment or other transmittal,
whether a standard business form or otherwise, utilized by Distributor or OSUR
in connection with the sale by OSUR of Product to Distributor shall be construed
or deemed to be an amendment of or supplement to this Agreement or otherwise
binding on either Distributor or OSUR.
4.4. Prices.
4.4.1. Product Price. Subject to Sections 4.4.2 and 4.4.4, below, Distributor
shall pay OSUR the applicable price set forth in or determined pursuant to
Exhibit D hereto, for each Unit purchased hereunder (the "Price"). The Price
includes all costs of OSUR associated with the manufacture and packaging of the
Products including raw materials and labor but excluding the cost of the
Distributor Components. It is recognized that Products having different SKU or
Part Numbers may be needed to reflect the use of language clusters for Product
labeling and packaging and may result in different Prices for each separate SKU
or Part Number. The need for separate SKU or Part Numbers and the appropriate
Price therefore shall be determined by the parties and added to Exhibit D
hereto. If Distributor requests, and OSUR agrees to provide, non-standard
packaging for Product supplied hereunder, Distributor shall pay OSUR an
additional fee for such packaging in accordance with OSUR's then existing
pricing policies.
4.4.2. Price Increases. The applicable Price payable by Distributor for Product
may be adjusted, at either party's option, at the beginning of *** and each ***
thereafter during the Term, to an amount equal to the applicable Price then in
effect, plus or minus the cumulative percentage increase or decrease, as the
case may be, in the Index (as defined below) during the most recently completed
12-month period prior to delivery of the applicable Price Adjustment Notice (as
defined below) for which the Index data (preliminary or final) is available. By
December 1 of ***, the party desiring to exercise its