EXHIBIT 10.2
SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the
Effective Date (as defined below) by and between XXXXXXXXXX
LABORATORIES, INC., a Texas corporation and XXXXXXXXXX LABORATORIES
BELGIUM N.V., a Belgium corporation, jointly (together hereinafter
referred to as "Xxxxxxxxxx"), and CSC PHARMACEUTICALS LTD., DUBLIN, a
Swiss corporation ("CSC").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxx is engaged in the business of developing,
manufacturing, selling and distributing certain pharmaceutical
products and medical devices and is desirous of establishing a
competent and exclusive distribution source for sales of such
products in Austria, Hungary, Czech Republic, Slovak Republic,
Romania, Bulgaria, Poland, (defined in Article 1 hereof as the
Territory); and
WHEREAS, CSC is desirous of distributing such products in
the Territory, represents that it has experience in obtaining
registration of pharmaceutical preparations in the Territory, is well
introduced on the market, is willing and able to provide a competent
distribution organization in the Territory, and CSC desires to be
Xxxxxxxxxx'x sales distributor for such products in the Territory;
NOW, THEREFORE, the Parties hereto, in consideration of the
premises and mutual covenants and undertakings herein contained,
agree as follows:
Article 1. Definitions
1.1 As used in this Agreement, the following terms shall have
the meanings specified in this Article 1.1:
(a) "Effective Date" shall mean the date of last signature of
the Parties hereto.
(b) "Know-how" shall mean secret and substantial technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable CSC to obtain the
Registration of, promote, market and sell the Products in
the Territory, and as is or will be specified in the
documentation which Xxxxxxxxxx has delivered or will
deliver to CSC after the Effective Date and during the term
of this Agreement.
(c) "Parties" shall mean Xxxxxxxxxx and CSC and "Party" shall
mean either of them as the context indicates.
(d) "Products" shall mean the wound and skin care products
manufactured by or for Xxxxxxxxxx set forth on Exhibit A
hereto.
(e) "Registration" shall mean any official approval, or
authorization, or licensing regarding the Products by the
appropriate and competent authorities in the Territory,
including, if applicable, the Products selling prices and
social security approvals, allowing the lawful marketing of
the Products.
(f) "Territory" shall mean the following countries: Austria,
Croatia, Hungary, Czech Republic, Slovak Republic, Romania,
Bulgaria, Slovenia, and Poland.
(g) "Trademarks" shall mean all Trademarks, trade names,
service marks, logos and derivatives thereof relating to
the Products.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx hereby appoints CSC as Xxxxxxxxxx'x sales distributor in
the Territory for the sale of Products, and CSC hereby accepts such
appointment. As sales distributor in the Territory, CSC shall,
subject to the terms and conditions of this Agreement, have the right
to obtain in it's own name the Registration of, promote, distribute
and sell Products in the Territory, but shall have no right to take
any such action outside the Territory.
2.2 In a manner reasonably satisfactory to Xxxxxxxxxx, and at
CSC's sole expense, CSC agrees to (a) make and maintain all
declarations, filings, and Registrations with, and obtain all
approvals and authorizations from, governmental and regulatory
authorities required to be made or obtained in connection with the
promotion, marketing, sale or distribution of the Products in the
Territory, (b) devote its best efforts to the diligent promotion,
marketing, sale and distribution of the Products in the Territory,
(c) provide and maintain a competent and aggressive organization for
the promotion, marketing, sale and distribution of the Products in
the Territory, (d) assure competent and prompt handling of inquiries,
orders, shipments, xxxxxxxx and collections, and returns of or
with respect to the Products and careful attention to customers
requirements for all Products, and (e) promptly assign back to
Xxxxxxxxxx, at Xxxxxxxxxx'x expenses, any product Registrations in
the Territory upon termination of Agreement. Such expenses shall be
limited to the actual direct expenses previously paid by CSC for the
Registrations.
2.3 During the term of this Agreement, CSC shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of Xxxxxxxxxx. As such, CSC has no
authority of any nature whatsoever to bind Xxxxxxxxxx or incur any
liability for or on behalf of Xxxxxxxxxx or to represent itself as
anything other than a sales distributor and independent contractor.
CSC agrees to make clear in all dealings with customers or
prospective customers that it is acting as a distributor of the
Products and not as an agent of Xxxxxxxxxx.
2.4 Nothing in this Agreement shall be construed as giving CSC
any right to use or otherwise deal with the Know-how for purposes
other than those expressly provided for in this Agreement.
2.5 CSC shall promptly inform Xxxxxxxxxx of any
misappropriation of the Know-how which comes to its attention. After
having discussed such situation with CSC, Xxxxxxxxxx shall have sole
and absolute discretion to take such action as it deems appropriate
and CSC, at its own cost, shall assist Xxxxxxxxxx in taking legal
action, if deemed necessary, against such misappropriation.
2.6 All costs and expenses connected with CSC's activities or
performance under this Agreement are to be borne solely by CSC.
Article 3. Certain Performance Requirements
3.1 CSC agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the
Territory for ultimate use within the Territory. CSC will not, under
any circumstances, either directly or indirectly through third
parties, promote, market, sell, or distribute Products within or to,
or for ultimate use within, the United States or any place outside
the Territory.
3.2 In order to assure Xxxxxxxxxx that CSC is in compliance
with Article 3.1, CSC agrees that:
(a) CSC will send to Xxxxxxxxxx annual sales reports which set
forth the number of units and sizes of each Product sold,
the net sales, the number of units of free medical samples
distributed, and to which countries such Products were sold
and/or distributed during such year;
(b) CSC will send to Xxxxxxxxxx annual inventory reports of the
Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to CSC hereunder.
3.3 CSC shall promptly provide Xxxxxxxxxx with written reports
of any importation or sale of any of the Products in the Territory of
which CSC has knowledge from any source other than Xxxxxxxxxx, as
well as with any other information which Xxxxxxxxxx may reasonably
request in order to be updated on the market conditions in the
Territory.
3.4 CSC shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market
segments. CSC shall maintain all its inventory of Products clearly
segregated and meeting all storage and other standards required by
applicable governmental authorities. All such inventory and CSC's
facilities shall be subject to inspection by Xxxxxxxxxx or its agents
upon 72 hours written notice.
3.5 CSC shall be responsible for and shall collect all
governmental and regulatory sales and other taxes, charges and fees
that may be due and owing upon sales by CSC of Products. Upon
written request from CSC, Xxxxxxxxxx shall provide CSC with such
certificates or other documents as may be reasonably required to
establish any applicable exemptions from the collection of such
taxes, charges and fees.
3.6 All Products shall be packaged and delivered by Xxxxxxxxxx
to CSC. All Products shall be labeled, advertised, marketed, sold
and distributed by CSC in compliance with the rules and regulations,
as amended from time to time, of (i) all applicable governmental
authorities within the Territory in which the Products are marketed,
and (ii) all other applicable laws, rules and regulations. CSC shall
pay all expenses associated with (i) any alterations to the packaging
and labeling of the Products which deviate from Carrington's standard
packaging materials, designs, methods and/or procedures, (ii) any
language modifications to the packaging or labeling and/or (iii) any
additions to inserts in the general packaging. The Parties shall
agree on minimum production runs for such custom labels.
3.7 CSC shall not make any alterations or permit any
alterations to be made to the Products without Xxxxxxxxxx'x written
consent.
3.8 CSC shall assume all responsibility for and comply with all
applicable laws, regulations and requirements concerning the
Registration, inventory, use, promotion, distribution and sale of the
Products in the Territory and correspondingly for any damage, claim,
liability, loss or expense which Xxxxxxxxxx may suffer or incur by
reason of said Registration, inventory, use, promotion, distribution
and sale and shall hold Xxxxxxxxxx harmless from any claim resulting
therefrom being directed against Xxxxxxxxxx or CSC by any third
party.
3.9 CSC agrees not to make, or permit any of its employees,
agents or representatives to make, any claims of any properties or
results relating to any Product, unless such claims have received
written approval from Xxxxxxxxxx or from the applicable governmental
authorities.
3.10 CSC shall not use any label, advertisement or marketing
material on or with respect to or relating to any Product unless such
label, advertisement or marketing material has first been submitted
to and approved by Xxxxxxxxxx in writing.
3.11 CSC will actively and aggressively promote, develop demand
for and maximize the sale of the Products to all customers and
potential customers within the Territory. CSC agrees not to
manufacture, promote, market, sell or distribute to any customers or
potential customers in the Territory without ninety (90) days written
notice to and approval from Xxxxxxxxxx, any directly competitive
product.
3.12 CSC represents that its books, records and accounts
pertaining to all its operations hereunder are complete and accurate
in all material respects and have been maintained in accordance with
sound and generally accepted accounting principles.
Article 4 Registration of Products
4.1 It being understood that Registration is a prerequisite to
the lawful sale of the Products in the Territory, Xxxxxxxxxx hereby
agrees to supply CSC, promptly after the execution of this Agreement,
with any Know-how or relevant documentation necessary for preparing
the Registration dossier to be submitted to the applicable
governmental authorities of the Territory.
4.2 Upon receipt by Xxxxxxxxxx of the CE xxxx for the DiaB[TM]
and RadiaCare[TM] lines, Xxxxxxxxxx shall forward the pertinent file
information to CSC. CSC shall then file the appropriate registration
documents with the Ministries of Health for the following countries:
Austria, Hungary, Czech Republic, Slovak, Romania, Bulgaria, Poland.
When CSC received approval from the Ministries of Health in Austria,
Hungary, Slovenia and the Czech Republic CSC shall commit to purchase
a minimum of $100,000 (U.S.) of Xxxxxxxxxx Products within the next
twelve months. Further, when the Austrian government accepts the CE
xxxx for Xxxxxxxxxx Products, CSC shall promptly pay an additional
$10,000 (U.S.) to Xxxxxxxxxx to offset a portion of Xxxxxxxxxx s
prior registration costs.
4.3 It shall be the responsibility of CSC, at its sole expense
to apply for, obtain and maintain in force the Registration of the
Products. Subject to having obtained the prior approval of
Xxxxxxxxxx, the application shall be submitted to all applicable
governmental authorities, including the health authorities of the
Territory. CSC expressly acknowledges and agrees that the absolute
and exclusive ownership of the Registration and all rights
originating out of or from the same shall at all times belong only
and exclusively to Xxxxxxxxxx after the termination of the Agreement.
All local governmental taxes for said registration, will be paid by
CSC, provided however, upon reassignment of the Registration,
Xxxxxxxxxx shall pay any taxes required by the local government for
reassignment.
4.4 As soon as CSC has received Know-how from Xxxxxxxxxx, CSC
shall prepare, at its sole expense, the Registration dossier and
submission and any translation which may be required by the
applicable authorities of the Territory. Upon request by Xxxxxxxxxx,
CSC shall promptly supply Xxxxxxxxxx with a copy of the said
Registration dossier and submission and Xxxxxxxxxx shall be entitled
to a free and unrestrained use of the same.
4.5 Subject to having obtained Xxxxxxxxxx'x documentation ,CSC
shall, as soon as possible and in any case within 120 days of
execution of this Agreement, submit the Registration application to
the appropriate authorities of the Territory.
4.6 CSC shall use its best endeavors to obtain the
Registrations as soon as possible from the relevant submission. It
is, however, understood that CSC's deadline to obtain Registration is
twenty-four (24) months from the date of filing.
4.7 Upon termination of this Agreement, Xxxxxxxxxx agrees to
pay to CSC any transfer taxes or other associated fees required by
any country as a condition of the transfer of any Registration from
CSC to Xxxxxxxxxx.
4.8 CSC shall copy and keep Xxxxxxxxxx fully and timely
informed, throughout the term of this Agreement, of all
communications sent to or received from all applicable governmental
authorities, including the health authorities, of the Territory
concerning the Products.
4.9 Xxxxxxxxxx makes no warranty that the supplied Know-how
will necessarily result in the grant of the Registration and CSC
shall have no claim against Xxxxxxxxxx arising out of any delay or
refusal by the authorities to issue the Registration.
Article 5. Sale of Products by Xxxxxxxxxx to CSC
5.1 Subject to the terms and conditions of this Agreement,
including specifically Article 5.7 hereof, Xxxxxxxxxx shall sell to
CSC the Products at a specified price for each Product (the "Contract
Price"). For orders placed by CSC during the first 12-month period
of the term of this Agreement, the Contract Prices for the Products
listed on Exhibit A are set forth on such exhibit opposite each
Product. At least ninety (90) days prior to the end of each 12-month
period of the term of this Agreement, (a) CSC shall provide in
writing to Xxxxxxxxxx both a sales forecast and a purchase forecast
for the following 12-month period, and (b) the Parties shall commence
good faith negotiations to determine and agree upon the Contract
Prices for Products for the next 12-month period of the term. During
any twelve (12) month period Xxxxxxxxxx reserves the right to change
its Contract Price for each Product.
5.2 As consideration for its appointment as a sales distributor
entitled to a Product discount, CSC agrees to purchase from
Xxxxxxxxxx, after the first year of registration and each 12-month
period of the term of this Agreement, commencing with the 12-month
period beginning October, 1999 through October, 2000, at the Contract
Price, a specified minimum aggregate dollar amount (based on the
Contract Price) of the Products (the "Specified Minimum Purchase
Amount"). For the first 12-month period of the term of this
Agreement, the Specified Minimum Purchase Amount shall be $100,000.
The Specified Minimum Purchase Amounts for each subsequent 12-month
period shall be determined by mutual agreement of the Parties no
later than thirty (30) days prior to the beginning of such period
based on CSC's reasonable, good faith projections of future sales
growth and such other factors as the Parties may deem relevant.
5.3 CSC shall order Products by submitting a purchase order to
Xxxxxxxxxx describing the type and quantity of the Products to be
purchased. All orders are subject to acceptance by Xxxxxxxxxx. All
purchases shall be spaced in a reasonable manner. If Xxxxxxxxxx
accepts the order, Xxxxxxxxxx will invoice CSC upon shipment of the
Products. Unless otherwise agreed, CSC shall pay all invoices in
full within ninety (90) days of the date of invoice. CSC shall be
solely responsible for all costs in connection with affecting
payments. All sales and payments shall be made, and all orders shall
be accepted, in the State of Texas.
5.4 Xxxxxxxxxx shall not be obligated to ship Products to CSC
at any time when payment of an amount owed by CSC is overdue or when
CSC is otherwise in breach of this Agreement.
5.5. All shipments shall be initiated by a Purchase Order.
Product shipment dates will be specified in the Purchase Order.
These dates may not e scheduled prior to ninety (90) days after the
dated the Purchase Order is received and acknowledged in writing by
Seller, unless by mutual consent of the parties Purchase Orders will
be non-cancellable. CSC will issue to Xxxxxxxxxx on a monthly basis,
a twelve (12) month rolling forecast so that Xxxxxxxxxx may
incorporate said forecasts into its planning system. The triggering
document for production activities is, however, the purchase order,
as stated above. Xxxxxxxxxx will guarantee delivery dates for
Product quantities that vary up to 20% above the last monthly rolling
forecast issued prior to the purchase order placed by CSC. Variation
above 20% shall be discussed between the Parties and Xxxxxxxxxx will
use its best efforts to maintain delivery dates requested by CSC.
5.6 All shipments of Products to CSC will be packaged in
accordance with Xxxxxxxxxx'x standard packaging procedures and
shipped per Xxxxxxxxxx'x existing distribution policy. All final
Contract Prices are CIP Vienna, (final Invoice Price shall include
seller's expense for delivery to the named destination) from
Carrington's facility, Irving, Texas. Ownership of and title to
Products and all risks of loss with respect thereto shall pass to CSC
upon delivery of such Products by Xxxxxxxxxx to the carrier at the
designated delivery (CIP) point. Deliveries of Products shall be
made by Xxxxxxxxxx under normal trade conditions in the usual and
customary manner being utilized by Xxxxxxxxxx at the time and
location of the particular delivery unless otherwise agreed by the
Parties hereto.
5.7 Xxxxxxxxxx shall use its reasonable best efforts to ensure
availability of all Products ordered by CSC under this Agreement.
However, if necessary in the best judgment of Carrington, Carrington
may allocate its available supply of Products among all its
customers, distributors or other purchasers, including CSC, on such
basis as it shall deem reasonable, practicable and equitable, without
liability for any failure of performance or lost sales which may
result from such allocations.
5.8 Xxxxxxxxxx accepts liability for defective Products and
agrees to replace such defective Products should they occur with new
Products. Except as may be expressly stated by Xxxxxxxxxx on the
Product or on Xxxxxxxxxx'x packaging, or in Xxxxxxxxxx'x information
accompanying the Product, at the time of shipment to CSC hereunder,
XXXXXXXXXX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH
RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
XXXXXXXXXX NEITHER ASSUMES NOR AUTHORIZES ANYONE TO ASSUME FOR IT ANY
OBLIGATION OR LIABILITY IN CONNECTION WITH THE PRODUCTS. CSC shall
not make any representation or warranty with respect to the Products
that is more extensive than, or inconsistent with, the limited
warranty set forth in this Article 5.8 or that is inconsistent with
the policies or publications of Xxxxxxxxxx relating to the Products.
CSC'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER IS
THE DELIVERY BY XXXXXXXXXX OF ADDITIONAL QUANTITIES OF THE PRODUCTS
IN REPLACEMENT OF THE NON-CONFORMING PRODUCTS OR THE REFUND OF THE
CONTRACT PRICE FOR THE PRODUCTS THAT ARE COVERED BY THE WARRANTY, AT
CSC'S OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR LIABILITY
FOR DAMAGES TO CSC OR ANY OTHER PERSON OF ANY TYPE, INCLUDING, BUT
NOT LIMITED TO, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY OTHER LOSS,
DAMAGE OR EXPENSE, ARISING OUT OF OR IN CONNECTION WITH THE SALE,
USE, LOSS OF USE, NONPERFORMANCE OR REPLACEMENT OF THE PRODUCTS.
CSC SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS XXXXXXXXXX AND
CARRINGTON'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS,
FROM AND AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, EXPENSES
AND LOSSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES)
ARISING OUT OF OR CONNECTED WITH (i) ANY USE, SALE OR OTHER
DISPOSITION OF PRODUCTS, KNOW-HOW OR TRADEMARKS BY CSC OR ANY OTHER
PARTY, (ii) ANY BREACH BY CSC OF ANY OF ITS REPRESENTATIONS,
WARRANTIES OR COVENANTS UNDER THIS AGREEMENT OR (iii) ANY ACTS OR
OMISSIONS ON THE PART OF CSC OR ITS AGENTS, SERVANTS OR EMPLOYEES
WHICH ARE OUTSIDE OR BEYOND CSC'S AUTHORIZATION GRANTED HEREIN.
5.9 Credits for defective Products to CSC shall include
importation and shipment expenses and will be calculated by
Xxxxxxxxxx based on the original Contract Price of the items
returned, whether identified by lot number or another method.
Xxxxxxxxxx shall provide CSC with a copy of its liability Insurance
Certificate and shall include CSC thereunder.
Article 6. Term and Termination
6.1 The term of this Agreement shall be for a period of ten
(10) years from the effective date of this Agreement. After such
term, this Agreement shall be automatically terminated unless the
parties mutually agree in writing to extend the term hereof.
Notwithstanding the foregoing, this Agreement may be terminated
earlier in accordance with the provisions of this Article 6 or as
expressly provided elsewhere in this Agreement.
6.2 Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if CSC fails to perform or breaches, in any material
respect, any of the terms or provisions of this Agreement. Without
limiting the events which shall be deemed to constitute a breach or
material breach of this Agreement by CSC, CSC understands and agrees
that it shall be in material breach of this Agreement, and Xxxxxxxxxx
shall have the right to terminate this Agreement under this Article
6.2, if:
(i) CSC fails or refuses to pay to Xxxxxxxxxx any sum when
due;
(ii) CSC breaches any provision of Article 2.2, 3.4, 4,
5.3, 5.8, 7 or 8; or,
(iii) CSC fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period.
6.3 Each Party shall have the absolute right to terminate this
Agreement in the event the other Party shall become insolvent, or if
there is instituted by or against the other Party procedures
in bankruptcy, or under insolvency laws or for reorganization,
receivership or dissolution, or if the other Party loses any
franchise or license to operate its business as presently conducted
in any part of the Territory.
6.4 This Agreement shall automatically terminate effective at
the end of any 12-month period of the term of this Agreement referred
to in Articles 5.1 and 5.2 hereof if the Parties are unable to agree
upon the Contract Prices or the Specified Minimum Amounts for the
next 12-month period of the term.
6.5 During the one-year period following termination of this
Agreement, any inventory of Products held by CSC at the termination
of this Agreement may be sold by CSC to customers in the Territory in
the ordinary course; provided, however, that for the period required
to liquidate such inventory, all of the provisions contained herein
governing CSC's performance obligations and Xxxxxxxxxx'x rights shall
remain in effect. In order to accelerate the liquidation of any such
inventory, Xxxxxxxxxx shall have the option, but not the obligation,
to purchase all or any part of such remaining inventory at the price
at which the inventory was originally sold by Xxxxxxxxxx to CSC,
including importation and shipping.
6.6 The termination of this Agreement shall not impair the
rights or obligations of either Party hereto which shall have accrued
hereunder prior to such termination. The provisions of Articles 5.8,
6.5, 7, 8 and 15 and the rights and obligations of the Parties
thereunder shall survive the termination of this Agreement for a
period of one (1) year.
Article 7. Trademarks
7.1 All Xxxxxxxxxx Trademarks, trade names, service marks,
logos and derivatives thereof relating to the Products (the
"Trademarks"), and all patents, technology and other intellectual
property (also known as "Know-how") relating to the Products and of
the goodwill associated therewith, are the sole and exclusive
property of Xxxxxxxxxx and/or its affiliates. The Products shall be
promoted, sold and distributed only under the Trademarks. Xxxxxxxxxx
hereby grants CSC permission to use the Trademarks for the limited
purpose of performing its obligations under this Agreement.
Xxxxxxxxxx may, in its sole discretion after consultation with CSC,
modify or discontinue the use of any Trademark and/or use one or more
additional or substitute marks or names, and CSC shall be obligated
to do the same.
7.2 Xxxxxxxxxx'x Trademarks shall appear on all Product
packaging, labels, and inserts and other materials which CSC uses for
the marketing of the Products in such form and manner as Xxxxxxxxxx
shall reasonably require. Xxxxxxxxxx retains the right to review and
approve all intended uses of the Trademark in any packaging, inserts,
labels, or promotional or other materials relating to the Products
prior to CSC's actual use thereof.
7.3 It shall be the sole responsibility of Xxxxxxxxxx, at its
sole expense, to keep in force and maintain the Trademarks in the
Territory by paying all necessary fees throughout the term of this
Agreement. CSC agrees to use the Trademarks in full compliance with
the rules prescribed from time to time by Xxxxxxxxxx. The Trademarks
shall always be used together with the sign "[R]" or the sign "[TM]".
CSC may not use any Trademark as part of any corporate name or with
any prefix, suffix or other modifying word, term, design or symbol.
In addition, CSC may not use any Trademark in connection with the
sale of any unauthorized product or service or in any other manner
not explicitly authorized in writing by Xxxxxxxxxx.
7.4 In the event of any infringement of, or threatened or
presumed infringement of, or challenge to CSC's use of any Trademark
or of any CSC trademark, CSC is obligated to notify Xxxxxxxxxx
immediately. CSC shall investigate any alleged violation and, if
necessary, shall take the appropriate legal action to resolve the
issue and to prevent other competitors from infringing on said
intellectual property rights within the Territory. Xxxxxxxxxx shall
have sole and absolute discretion to take such action as it deems
appropriate.
7.5 In the event of the termination of this Agreement for any
reason, CSC's right to use the Trademarks shall cease, and CSC shall
cease using such Trademarks at such time as CSC's inventory of
Products has been sold. CSC shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of CSC and any of the advertising of CSC used in
connection with the Products.
7.6 In the event of a breach or threatened breach by CSC of the
provisions of this Article 7, Xxxxxxxxxx shall be entitled to an
injunction or injunctions to prevent such breaches. Nothing herein
shall be construed as prohibiting Xxxxxxxxxx from pursuing other
remedies available to it for such breach or threatened breach of this
Article 7, including the recovery of damages from CSC.
7.7 Should for some reason the Trademark be prevented from
being used in any part or whole of the Territory, the Parties shall
consult as to a suitable other trademark (which trademark shall be
also defined as "Trademark" for purposes of this Agreement) owned by
Xxxxxxxxxx or to be transferred from CSC to Xxxxxxxxxx for use in
connection with the marketing and sale of the Products; it being
agreed, however, that Xxxxxxxxxx retains the right to ultimately
determine what such alternative Trademark shall be used, provided it
is not confusingly similar to a Trademark owned by CSC in the
Territory.
7.8 Nothing contained in this Agreement shall be construed as
giving CSC the right to use the Trademark outside the Territory or
for any other product than the Products.
Article 8. Confidential Information
8.1 CSC recognizes and acknowledges that CSC will have access
to confidential information and trade secrets, including "Know-how",
of Xxxxxxxxxx and other entities doing business with Xxxxxxxxxx
relating to research, development, manufacturing, marketing,
financial and other business-related activities ("Confidential
Information"). Such Confidential Information constitutes valuable,
special and unique property of Xxxxxxxxxx and/or other entities doing
business with Xxxxxxxxxx. Other than as is necessary to perform the
terms of this Agreement, CSC shall not, during and after the term of
this Agreement, make any use of such Confidential Information, or
disclose any of such Confidential Information to any person or firm,
corporation, association or other entity, for any reason or purpose
whatsoever, except as specifically allowed in writing by an
authorized representative of Xxxxxxxxxx. In the event of a breach or
threatened breach by CSC of the provisions of this Article 8,
Xxxxxxxxxx shall be entitled to an injunction restraining CSC from
disclosing and/or using, in whole or in part, such Confidential
Information. Nothing herein shall be construed as prohibiting
Xxxxxxxxxx from pursuing other remedies available to it for such
breach or threatened breach of this Article 8, including the recovery
of damages from CSC. The above does not apply to information or
material that was known to the public or generally available to the
public prior to the date it was received by CSC.
8.2 CSC shall not disclose any of the terms of this Agreement
without the prior written consent of Xxxxxxxxxx.
Article 9. Force Majeure
9.1 Neither CSC nor Xxxxxxxxxx shall have any liability
hereunder if either is prevented from performing any of its
obligations hereunder by reason of any factor beyond its control,
including, without limitation, fire, explosion, accident, riot,
flood, drought, storm, earthquake, lightning, frost, civil commotion,
sabotage, vandalism, smoke, hail, embargo, act of God or the public
enemy, other casualty, strike or lockout, or interference,
prohibition or restriction imposed by any government or any officer
or agent thereof ("Force Majeure"), nor shall CSC's or Xxxxxxxxxx'x
obligations, except as may be necessary, be suspended during the
period of such Force Majeure, nor shall either Party's obligations be
cancelled with respect to such Products as would have been sold
hereunder but for such suspension. Such affected Party shall give to
the other Party prompt notice of any such Force Majeure, the date of
commencement thereof and its probable duration and shall give a
further notice in like manner upon the termination thereof. Each
Party hereto shall endeavor with due diligence to resume compliance
with its obligations hereunder at the earliest date and shall do all
that it reasonably can to overcome or mitigate the effects of any
such Force Majeure upon both Party's obligations under this
Agreement. Should the Force Majeure continue for more than six (6)
months, then the other Party shall have the right to cancel this
Agreement and the Parties shall seek an equitable agreement on the
Parties reward of interests.
9.2 The Parties agree that any obligation to pay money is never
excused by Force Majeure.
Article 10. Amendment
10.1 No oral explanation or oral information by either Party
hereto shall alter the meaning or interpretation of this Agreement.
No modification, alteration, addition or change in the terms hereof
shall be binding on either Party hereto unless reduced to writing and
executed by the duly authorized representative of each Party.
Article 11. Entire Agreement
11.1 This Agreement represents the entire Agreement between the
Parties and shall supersede any and all prior agreements,
understandings, arrangements, promises, representations, warranties,
and/or any contracts of any form or nature whatsoever, whether oral
or in writing and whether explicit or implicit, which may have been
entered into prior to the execution hereof between the Parties, their
officers, directors or employees as to the subject matter hereof.
Neither of the Parties hereto has relied upon any oral representation
or oral information given to it by any representative of the other
Party.
11.2 Should any provision of this Agreement be rendered invalid
or unenforceable, it shall not affect the validity or enforceability
of the remain.
Article 12. Assignment
12.1 Neither this Agreement nor any of the rights or obligations
of CSC hereunder shall be transferred or assigned by CSC without the
prior written consent of Xxxxxxxxxx, executed by a duly authorized
officer of Xxxxxxxxxx.
Article 13. Governing Law
13.1 It is expressly agreed that the validity, performance and
construction of this Agreement shall be governed by the laws and
jurisdiction of Texas.
Article 14. Notices
14.1 Any notice required or permitted to be given under this
Agreement by one of the Parties to the other shall be given for all
purposes by delivery in person, registered air-mail, commercial
courier services, postage prepaid, return receipt requested, or by
fax addressed to:
(a) Xxxxxxxxxx at: Xxxxxxxxxx Laboratories, Inc., 0000 Xxxxxx
Xxxx Xxxx, Xxxxxx, Xxxxx 00000; Attention: President, or
at such other address as Xxxxxxxxxx shall have theretofore
furnished in writing to CSC. (Fax No. 000-000-0000)
(b) CSC at: CSC Pharmaceuticals, Xxxxxxxxxxxxxxxx Xxxxxxx 000
x, X-0000 Xxxxxx, Xxxxxxx, Attention: CEO, Xx. X.
Xxxxxxxxx, or at such other address as CSC shall have
theretofore furnished in writing to Xxxxxxxxxx. (Fax No:
011-43-1-369 04 44 20)
Article 15. Waiver
15.1 Neither CSC's nor Xxxxxxxxxx'x failure to enforce at any
time any of the provisions of this Agreement or any right with
respect thereto, shall be considered a waiver of such provisions or
rights or in any way affect the validity of same. Neither CSC's nor
Xxxxxxxxxx'x exercise of any of its rights shall preclude or
prejudice either Party thereafter from exercising the same or any
other right it may have, irrespective of any previous action by
either Party.
Article 16. Arbitration
16.1 Except as expressly provided otherwise herein, any dispute,
controversy or claim arising out of or in relation to or in
connection with this Agreement, the operations carried out under this
Agreement or the relationship of the Parties created under this
Agreement, shall be exclusively and finally settled by confidential
arbitration, and any Party may submit such a dispute, controversy or
claim to arbitration. The arbitration proceeding shall be held at
the location of the non-instituting Party in the English language and
shall be governed by the rules of the International Chamber of
Commerce (the "ICC") as amended from time to time. Any procedural
rule not determined under the rules of the ICC shall be determined by
the laws of the United Kingdom, other than those laws that would
refer the matter to another jurisdiction.
A single arbitrator shall be appointed by unanimous consent
of the Parties. If the Parties cannot reach agreement on an
arbitrator within forty-five (45) days of the submission of a notice
of arbitration, the appointing authority for the implementation of
such procedure shall be the ICC, who shall appoint an independent
arbitrator who does not have any financial or conflicting interest in
the dispute, controversy or claim. If the ICC is unable to appoint,
or fails to appoint, an arbitrator within ninety (90) days of being
requested to do so, then the arbitration shall be heard by three
arbitrators, one selected by each Party within the thirty (30) days
of being required to do so, and the third promptly selected by the
two arbitrators selected by the Parties.
The arbitrators shall announce the award and the reasons
therefor in writing within six months after the conclusion of the
presentation of evidence and oral or written argument, or within such
longer period as the Parties may agree upon in writing. The decision
of the arbitrators shall be final and binding upon the Parties.
Judgment upon the award rendered may be entered in any court having
jurisdiction over the person or the assets of the Party owing the
judgment or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the case may
be. Unless otherwise determined by the arbitrator, each Party
involved in the arbitration shall bear the expense of its own
counsel, experts and presentation of proof, and the expense of the
arbitrator and the ICC (if any) shall be divided equally among the
Parties to the arbitration.
Article 17 Interpretation
17.1 The language of this Agreement is English. No translation
into any other language shall be taken into account in the
interpretation of the Agreement itself.
17.2 The headings in this Agreement are inserted for convenience
only and shall not affect its construction.
17.3 Where appropriate, the terms defined in Article 1 and
denoting a singular number only shall include the plural and vice
versa.
17.4 References to any law, regulation, statute or statutory
provision includes a reference to the law, regulation, statute or
statutory provision as from time to time amended, extended or re-
enacted.
Article 18. Exhibits
18.1 Any and all exhibits referred to herein shall be considered
an integral part of this Agreement.
Article 19. No Inconsistent Actions
19.1 Each Party hereto agrees that it will not voluntarily
undertake any action or course of action inconsistent with the
provisions or intent of this Agreement and, subject to the provisions
of Articles 5.7 and 9 hereof, will promptly perform all acts and take
all measures as may be appropriate to comply with the terms,
conditions and provisions of this Agreement.
Article 20. Currency of Account
20.1 This Agreement evidences a transaction for the sale of
goods in which the specification of U.S. dollars is of the essence,
and U.S. dollars shall be the currency of account in all events. All
payments to be made by CSC to Xxxxxxxxxx hereunder shall be made
either (i) in immediately available funds by confirmed wire transfer
to a bank account to be designated by Xxxxxxxxxx or (ii) in the form
of a bank cashier's check payable to the order of Xxxxxxxxxx.
Article 21. Binding Effect
21.1 This Agreement shall inure to the benefit of and be binding
upon the respective successors of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the day and year written below.
XXXXXXXXXX LABORATORIES, INC.
By: _______________________________________
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: April 24, 1998
XXXXXXXXXX LABORATORIES BELGIUM N.V.
By: ________________________________________
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: April 24, 1998
CSC PHARMACEUTICALS, LTD.
By: ________________________________________
Name: Xx.Xxxxxxx Xxxxxxxxx
Title: CEO
Date: June 17, 1998
EXHIBIT A
CSC PHARMACEUTICALS, LTD.
Products & Contract Price
Product Contract
No. Product Price
DIABETIC CARE
101011 DiaB[TM] Gel Daily Care Gel (1/2 oz. tube) $1.95/unit
12/cs.
101048 DiaB[TM] Gel Hydrogel Wound Dressing (3 oz. $4.70/unit
tube) 12/cs.
101027 DiaB[TM] Cream (3 oz. tube) 12/cs. $3.33/unit
RADIATION THERAPY CARE
106043 RadiaCare[TM] Gel Hydrogel Wound Dressing (1/2 $1.50/unit
oz. tube) 36/cs.
106042 RadiaCare[TM] Gel Hydrogel Wound Dressing (3 $4.56/unit
oz. tube) 12/cs.
101052 RadiaCare[TM] Gel Sheet (Clear Hydrogel Sheet) $3.10/unit
4 x 4, 6/cs.
103042 RadiaCare[TM] Post Healing Cream (0.14 oz. $0.45/unit
sachet) 600/cs.
103041 RadiaCare[TM] Post Healing Cream (2 oz. tube) $3.05/unit
12/cs.
101006 RadiaCare[TM] Oral Wound Rinse 1 oz. btl. $9.75/unit
12/cs.
WOUND & SKIN CLEANSERS
102060 CarraKlenz[TM] Wound & Skin Cleanser 6 oz. $2.99/unit
pump btl. 12/cs.
Final Product Invoice Price shall include delivery cost.
