Common use of Exclusive Distributorship Clause in Contracts

Exclusive Distributorship. (a) Upon and subject to the terms and conditions of this Agreement, Cipher hereby appoints Distributor as its exclusive distributor of the Product in the Territory throughout the Term with the exclusive right and obligation to Market the Product in the Territory and the right to conduct post-regulatory approval clinical program development for the Product pursuant to Section 4.6, and Distributor hereby accepts such appointment. Cipher represents and warrants to Distributor that except for the exclusive license granted in this Section 2.1, Cipher has not granted any other license to use, market and/or import, the Product in the Territory. Cipher shall take all reasonable and prudent actions to ensure that Product does not enter the Territory as black market goods, and shall include in any contracts with distributors outside the Territory terms and conditions (i) that prohibit the export of Product into the Territory, and (ii) that (A) prohibit the sale of Product to Third Parties known to participate in the export in the Territory of Product or of a product with the same formulation and range of strengths as the Product, as approved by the Regulatory Authorities from time to time (“Prohibited Sales”) or/and (B) permit Cipher to terminate the contract if Distributor does not cure Prohibited Sales. (b) To the extent required by Distributor to Market the Product in accordance with this Agreement, Cipher hereby grants to Distributor a non-exclusive license to use all Product Technology necessary in order to Market the Product in the Territory. (c) Distributor shall obtain exclusively from Cipher all Product for Marketing in the Territory, except as otherwise permitted by the terms of this Agreement. Cipher shall supply the Product to Distributor for Marketing by Distributor in the Territory in accordance with the terms of this Agreement. (d) Distributor shall have the right to retain SubDistributors to Market the Product for use solely within the Territory, and Distributor shall cause such SubDistributors to perform the applicable obligations of Distributor under this Agreement, or otherwise ensure that such obligations are performed by Distributor, provided that nothing herein shall imply a right of Distributor to grant a sublicense to a SubDistributor other than pursuant to Section 2.1(e) below. Distributor shall remain fully responsible and liable to Cipher for the performance of all of the terms of this Agreement by its SubDistributors. Distributor shall not he entitled to retain as a SubDistributor any Person which is engaged in, directly or indirectly, developing or Marketing any Competing Product in the Territory. (e) Except as otherwise expressly provided herein, Distributor shall have no right to sublicense any rights granted under this Agreement, without prior written consent of Cipher.

Exclusive Distributorship. (a) Upon and subject Subject to the terms and conditions provisions of this Agreement, Cipher Supplier hereby appoints Distributor as its the exclusive distributor of to promote, market and sell the Product in Products (set forth on Exhibit B) within the Territory throughout United States (the Term with the exclusive right and obligation to Market the Product in the Territory and the right to conduct post-regulatory approval clinical program development for the Product pursuant to Section 4.6, and “Territory”). Distributor hereby accepts such appointment. 2.1.1. Cipher represents Distributor shall not (i) distribute Products outside of the Territory, (ii) solicit sales of Products outside of the Territory, or (iii) distribute any Products to any Person that it knows, has reason to know, or reasonably should know will resell, distribute or consume the Products outside of the Territory. All outstanding trunk stock of Products in the possession or control of Supplier’s internal sales representatives or Supplier’s independent sales agents shall be returned to Supplier by no later than May 15, 2023, and warrants Supplier shall use commercially reasonable efforts to Distributor cause all other outstanding trunk stock of Products in the Territory to be returned to Supplier. 2.1.2. Supplier shall not (i) enter into agreements to distribute Products in the Territory, (ii) solicit sales of Products in the Territory, or (iii) enter into any agreements to distribute any Products to any Person that except for it knows, has reason to know, or reasonably should know will resell, distribute or consume the exclusive license granted in this Section 2.1, Cipher has not granted any other license to use, market and/or import, the Product Products in the Territory. Cipher shall take all reasonable and prudent actions to ensure that Product does not enter the Territory as black market goods, and shall include in any contracts with distributors outside the Territory terms and conditions (i) that prohibit the export Commencing upon execution of Product into the Territory, and (ii) that (A) prohibit the sale of Product to Third Parties known to participate in the export in the Territory of Product or of a product with the same formulation and range of strengths as the Product, as approved by the Regulatory Authorities from time to time (“Prohibited Sales”) or/and (B) permit Cipher to terminate the contract if Distributor does not cure Prohibited Sales. (b) To the extent required by Distributor to Market the Product in accordance with this Agreement, Cipher hereby grants to Distributor a non-exclusive license to use all Product Technology necessary in order to Market the Product in the Territory. Supplier shall (ca) Distributor shall obtain exclusively from Cipher all Product for Marketing in the Territory, except as otherwise permitted by the terms of this Agreement. Cipher shall supply the Product to Distributor for Marketing by Distributor in the Territory in accordance with the terms of the applicable agreement or authorization, terminate any agreement (or portion thereof) or authorization of its employees, distributors, sales representatives and authorized sales agents with respect to sales of Products in the Territory or where Supplier knows, or has reason to know, or reasonably should know that Products sold by such Person will be resold, distributed of consumed in the Territory, (b) cease to accept orders (other than by Distributor) with respect to sales of Products in the Territory or where Supplier knows, or has reason to know, or reasonably should know that Products sold by such Person will be resold, distributed of consumed in the Territory, (c) refer to Distributor any request for orders with respect to sales of Products in the Territory or where Supplier knows, or has reason to know, or reasonably should know that Products sold by such Person will be resold, distributed of consumed in the Territory, (d) as applicable, either cause Distributor to be admitted as a distributor pursuant to Supplier’s existing hospital, group purchasing organization (GPO) agreements (the “GPO Agreements”), government and other customer agreements or transition Supplier’s existing agreements with respect to sales of Products to Distributor and not adversely amend or terminate any such agreement to which Distributor is admitted without the prior written consent of Distributor, not to be unreasonably withheld, conditioned or delayed. Prior to the termination of any such agreement or authorization, Supplier shall take all reasonable measures to ensure that neither it, nor any of its employees, distributors, sales representatives or independent sales agents engage in any practice in the Territory with the intent of increasing the levels of inventory of the Products in the distributor or sales channels outside of the ordinary course of business or in anticipation of entering into this Agreement with respect to the Products. Supplier shall remit to Distributor the gross profit realized by Supplier in accordance with U.S. generally accepted accounting practices consistently applied by Supplier with respect to any income recognized by Supplier subsequent to the date hereof with respect to Products sold or distributed in the Territory, other than to Distributor. 2.1.3. Notwithstanding anything to the contrary, Distributor acknowledges that the appointment granted hereunder does not impose any liability on Supplier if there are any currently ongoing active or passive sales, or marketing activities, relating to Products in the Territory by unauthorized third parties; provided, however, that such third parties are not acting on behalf of Supplier or otherwise authorized (expressly or impliedly) by Supplier, and Supplier has taken reasonable measures to terminate such sales and marketing activities; provided, further, that Supplier deliver a complete and accurate list of all such third parties of which it is aware as of the Effective Date and promptly notify Distributor of any such third parties of which Supplier it becomes aware during the Term of this Agreement. (d) Distributor shall have 2.1.4. Supplier reserves all rights not expressly granted herein. Supplier reserves the right to retain SubDistributors sell Products itself or through agents, distributors or other representatives to Market the Product any parties for use solely within distribution and sale outside of the Territory; provided, and Distributor however, Supplier shall cause such SubDistributors to perform the applicable obligations of Distributor under this Agreement, or otherwise ensure that such obligations are performed by Distributor, provided that nothing herein shall imply a right of Distributor to grant a sublicense to a SubDistributor other than pursuant to Section 2.1(e) below. Distributor shall remain fully responsible and liable to Cipher for the performance of all of the terms of this Agreement by its SubDistributors. Distributor shall not he entitled to retain as a SubDistributor any Person which is engaged innot, directly or indirectly, developing (i) appoint as its distributor any Person to, nor shall itself, sell, distribute, market, promote or Marketing any Competing Product advertise Products in the Territory. , (eii) Except as otherwise expressly provided hereinsolicit sales of Products in the Territory, Distributor shall have no right (iii) distribute any Products to sublicense any rights granted under this AgreementPerson that it knows, without prior written consent has reason to know, or reasonably should know will resell, distribute or consume the Products in the Territory, or (iv) authorize or license the use of Cipher.any Supplier Intellectual Property Rights to a Person to manufacture, sell, distribute or market products that compete with the Products in the Territory. ​