SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
, 1996, by and between XXXXXXXXXX LABORATORIES, INC.,
a Texas corporation ("Xxxxxxxxxx"), and XXXXXXX MEDICAL MARKETING LIMITED,
an Ontario corporation ("Xxxxxxx").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxx is engaged in the business of manufacturing, selling
and distributing certain pharmaceutical products and is desirous of
establishing a competent and exclusive distribution source for sales of
such products in Canada (defined in Article 1 hereof as the Territory);
and
WHEREAS, Xxxxxxx is desirous of distributing such products in the
Territory and is willing and able to provide a competent distribution
organization in the Territory, and Xxxxxxx 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) "Products" shall mean the wound and skin care products manufactured by
or for Xxxxxxxxxx set forth on Exhibit A hereto. Xxxxxxxxxx will provide
a ninety (90) day notice to Xxxxxxx on its intent to add or discontinue
Products to Exhibit A. No Product shall be discontinued or removed from
Exhibit A during the term of this Agreement, without Xxxxxxx'x prior
approval, unless regulatory approvals of the Products are removed or
withdrawn by the governing authority or if Xxxxxxxxxx discontinues
distribution of the Product in the Territory.
(b) "Territory" shall mean: Canada, inclusive of Quebec.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement, Xxxxxxxxxx
hereby appoints Xxxxxxx as Xxxxxxxxxx'x exclusive sales distributor in the
Territory for the sale of Products, and Xxxxxxx hereby accepts such
appointment. As sales distributor in the Territory, Xxxxxxx shall,
subject to the terms and conditions of this Agreement, have the exclusive
right to sell Products in the Territory, but shall have no right to sell
Products outside the Territory. During the term of this Agreement,
Xxxxxxxxxx agrees not to appoint any other persons as distributors for the
Products in the Territory.
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2.2.a In a manner reasonably satisfactory to Xxxxxxxxxx, and at Xxxxxxx'x
sole expense, Xxxxxxx agrees to (a) devote reasonable efforts consistent
with other significant product lines to the diligent promotion, marketing,
sale and distribution of the Products in the Territory, (b) provide and
maintain a competent and aggressive organization for the promotion,
marketing, sale and distribution of the Products in the Territory, and (c)
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.
2.2b Xxxxxxxxxx shall, at its sole expense, for all Products mutually
agreed to be sold hereunder, make all declarations, filings, and
registrations with, and obtain all approvals and authorizations from,
governmental and regulatory authorities (including but not limited to the
Health Protection Branch of the Department of Health Canada) required to
be made or obtained in connection with the promotion, marketing, sale and
distribution of the Products in the Territory. Xxxxxxxxxx shall maintain
accurate and appropriate records of all regulatory approvals of the
Products and will promptly notify Xxxxxxx, in accordance with Article 13,
of such approvals and of the status of the Product registrations
throughout the term of this Agreement.
2.2c Except for Products referenced by Product numbers 102060, 102062,
102160, 102040, 102080, 104040, 106040, Xxxxxxxxxx represents that it has
made all declarations, filings and registrations with, and obtained all
approvals and authorizations from, governmental and regulatory authorities
(including, but not limited to, the Health Protection Branch of the
Department of Health Canada) required to be made or obtained in connection
with the promotion, marketing, sale and distribution of Products in the
Territory for the Products listed in Exhibit A. Furthermore, Xxxxxxxxxx
covenants that (i) it will use its reasonable best efforts to make all
declarations, filings and registrations with, and obtain all approvals and
authorizations from, governmental and regulatory authorities (including,
but not limited to, the Health Protection Branch of the Department of
Health Canada) of the excepted Products referenced above in this Article
2.2c, and (ii) it will have made and obtained all such declarations,
filings, registrations, approvals and authorizations for future Products
prior to their addition to Exhibit A.
2.3 Xxxxxxxxxx will provide Xxxxxxx with such reasonable sales personnel
training in relation to the Products in Irving, Texas or a mutually agreed
upon location. Additionally, Xxxxxxxxxx agrees to provide, at its sole
expense, reasonable quantities of (i) its current domestic catalogues,
literature, and applicable policies and procedures, if any, and (ii)
promotional Product literature and Product samples of Xxxxxxxxxx, as
Xxxxxxx may request from time to time. Except for the foregoing
provisions in this Article 2.3, Xxxxxxxxxx and Xxxxxxx shall cover their
respective direct expenses, unless otherwise agreed. Xxxxxxxxxx shall
provide by telephone periodic sales and technical assistance to Xxxxxxx to
assist them in effective marketing of Products, education of customers and
relations with customers. In addition, Xxxxxxxxxx'x professional
clinicians, including the Medical Director from time to time, shall be
made available to Xxxxxxx on mutually agreed upon times at agreed upon
costs.
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2.4 During the term of this Agreement, each Party shall be considered an
independent contractor and shall not be considered a partner, employee,
agent or servant of the other. As such, neither Party has any authority
of any nature whatsoever to bind the other or incur any liability for or
on behalf of the other or to represent itself as anything other than a
buyer and seller.
Article 3. Certain Performance Requirements
3.1 Xxxxxxx agrees to promote, market, sell and distribute the Products
only to customers and potential customers within the Territory for
ultimate use within the Territory. Xxxxxxx will not, under any
circumstances, either directly or indirectly through third parties,
knowingly promote, market, sell, distribute or ship 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 Xxxxxxx is not repatriating
Products to the United States or elsewhere outside the Territory, Xxxxxxx
agrees that:
(a) Xxxxxxx will send to Xxxxxxxxxx a quarterly sales report on the number
of units of each Product sold;
(b) Xxxxxxx will send to Xxxxxxxxxx a quarterly inventory report of the
Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by Xxxxxxxxxx
to Xxxxxxx hereunder.
3.3 Xxxxxxx shall maintain a sufficient inventory of Products to assure an
adequate supply of Products to serve all its market segments. Xxxxxxx
shall maintain all its inventory of Products clearly segregated and
meeting all storage and other required standards applicable governmental
authorities. All such inventory shall be subject to inspection by
Xxxxxxxxxx or its agents during normal business hours with 72 hours
written notice.
3.4 Xxxxxxx 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 Xxxxxxx of Products in Canada. Upon written request
from Xxxxxxx, Xxxxxxxxxx shall provide Xxxxxxx 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 for
Canadian sales.
3.5 All Products shall be advertised, marketed, sold and distributed by
Xxxxxxx in compliance with the rules and regulations of the applicable
governmental authority within the Territory in which the Products are
marketed, as amended from time to time, and (ii) all other applicable
laws, rules and regulations.
3.6 Xxxxxxx 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 and from the applicable governmental authority.
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3.7 Xxxxxxx 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. Such approval shall not be
unreasonably withheld by Xxxxxxxxxx.
3.8 Xxxxxxx will actively and aggressively promote the sale of the
Products to all customers and potential customers within the Territory.
Xxxxxxx agrees not to market, sell or distribute to any customers or
potential customers in the Territory without ninety (90) days written
notice to Xxxxxxxxxx, any wound care, skin care, or incontinence care
product which are competitive with the Xxxxxxxxxx Products ("Competitive
Products"). A complete list of said Competitive Products are set forth on
Exhibit B hereto. This condition shall not apply to Professional
Respiratory Home Care Service Corporation ("ProRESP").
Article 4. Sale of Products by Xxxxxxxxxx to Xxxxxxx
4.1 Subject to the terms and conditions of this Agreement, including
specifically Article 4.6 hereof, Xxxxxxxxxx shall sell to Xxxxxxx its
agreed upon requirements for the Products at a price for each Product (the
"Contract Price") which represents a discount from Xxxxxxxxxx'x
distributor price for such Product as set forth in Xxxxxxxxxx'x published
distributor price list (the "Published Price List"). For orders placed by
Xxxxxxx 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 90 days prior to the end of
each 12-month period of the term of this Agreement, 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
distributor prices for Products as set forth in the Published Price List
if mutually agreed to by Xxxxxxx.
4.2 As consideration for its appointment as a sales distributor entitled to
a Product discount, Xxxxxxx agrees to purchase from Xxxxxxxxxx, during
each 12-month period of the term of this Agreement, commencing with the
12-month period beginning May 15, 1996 through May 14, 1997, at the
Contract Price, a specified minimum aggregate dollar amount (based on the
Contract Price) of the Products (the "Specified Minimum Purchase Amount").
The first 12-month period of the term of this Agreement shall be
considered a benchmark year and there shall be no Specified Minimum
Purchase Amount, but rather a targeted sales range of $125,000.00 to
$200,000.00 in Canadian Currency. The Specified Minimum Purchase Amount
for each subsequent 12-month period shall be determined by mutual
agreement of the Parties prior to the beginning of such period based on
Xxxxxxx'x reasonable, good faith projections of future sales growth and
such other factors as the Parties may deem relevant. Products for which
regulatory approval has not been obtained by Xxxxxxxxxx in accordance with
Articles 2.2b and 2.2c shall not be considered in the calculation of the
Specified Minimum Purchase Amounts. In the event the Parties fail to
agree on Specified Minimum Purchase Amounts, the dispute shall be resolved
pursuant to Article 5.5 of this Agreement.
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4.3 Xxxxxxx shall order Products by submitting a purchase order to
Xxxxxxxxxx describing the type and quantity of the Products to be
purchased. Orders are subject to acceptance by Xxxxxxxxxx. All purchases
shall be spaced in a reasonable manner. If Xxxxxxxxxx accepts the order,
Xxxxxxxxxx will invoice Xxxxxxx upon shipment of the Products. Unless
otherwise agreed, Xxxxxxx shall pay all invoices in full within 31 days of
the date of invoice. All sales and payments shall be made, and all orders
shall be accepted, in the State of Texas. All orders for Products which
have a cost of more than $750.00 U.S. will be prepaid freight. Terms are
1%, 30/Net31.
4.4 Xxxxxxxxxx shall not be obligated to ship Products to Xxxxxxx at any
time when payment of an amount owed by Xxxxxxx is overdue or when Xxxxxxx
is otherwise in material breach of this Agreement.
4.5 All shipments of Products to Xxxxxxx will be packaged in accordance
with Xxxxxxxxxx'x standard packaging procedures and shipped per
Xxxxxxxxxx'x existing distribution policy. All Contract Prices are FOB,
Irving, Texas. Ownership of and title to Products and all risks of loss
with respect thereto shall pass to Xxxxxxx upon delivery of such Products
by Xxxxxxxxxx to the carrier at the designated delivery (FOB) 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.
4.6 Xxxxxxxxxx shall use its reasonable best efforts to ensure availability
of all Products ordered by Xxxxxxx 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 Xxxxxxx, 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.
4.7 Xxxxxxxxxx accepts liability for defective Products and agrees to
replace such defective products with new products. Xxxxxxxxxx shall carry
adequate products liability insurance for the Products containing a broad
Vendor's endorsement in favor of Xxxxxxx. Xxxxxxxxxx warrants and
guarantees that (a) upon delivery by Xxxxxxxxxx the Products will comply
with all specifications expressly stated by Xxxxxxxxxx on the Products or
on Xxxxxxxxxx'x packaging and will be of comparable quality to all samples
delivered to Xxxxxxx, (b) the Products will not be altered, misbranded,
falsely labeled or advertised, or falsely invoiced by Xxxxxxxxxx within
the meaning of any local, provincial or federal law or amendments thereto
now in force, (c) the Products will be labeled, advertised and invoiced by
Xxxxxxxxxx in accordance with the requirements (if applicable) of the
Consumer Packaging and Labeling Act, the National Trademark Act and True
Labeling Act and any and all other governmental laws and the respective
rules and regulations thereunder, (d) the Products will be properly
labeled by Xxxxxxxxxx as to content as required by all applicable laws,
rules, and regulations, (e) subject to Xxxxxxx'x notice to Xxxxxxxxxx of
potential infringement of property rights belonging to others, the
Products do not and will not infringe upon or violate any patent,
copyright, trademark, tradename or, without limitation, any other
intellectual property rights belonging to others, (f) all weights,
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measures, sizes, legends, or descriptions printed, stamped, attached or
otherwise indicated by Xxxxxxxxxx with regard to the Products are true and
correct and conform and comply with all laws, rules, regulations,
ordinances, codes or standards relating to Products of federal, provincial
and local governments, and (g) the Products are not knowingly in violation
of any other laws, ordinances, statues, rules, or regulations of Canada or
any provincial or local government or any subdivision or agency thereof.
Except as expressly stated in Article 4.7 and 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 Xxxxxxx 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. Xxxxxxx 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 4.7 or that is inconsistent with the policies or
publications of Xxxxxxxxxx relating to the Products.
XXXXXXX'X 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 XXXXXXX'X
OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR LIABILITY FOR
DAMAGES TO XXXXXXX 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.
4.8. Xxxxxxxxxx shall indemnify, defend and hold Xxxxxxx and
Xxxxxxx'x affiliates, officers, directors and employees harmless from and
against any liability, losses, damages, costs and expenses (including
reasonable attorney's fees and disbursements) arising out of or with
respect to:
(a) any third party claims, actions or suits for damage to property, death
or injury where the Products are alleged to have caused or contributed to
the damage, injury or death;
(b) any claims, actions or suits alleging that the Products infringe the
patent, trademarks or other proprietary rights of any third party; or
(c) any breach of Xxxxxxxxxx'x obligations, representations, or covenants
contained in Articles 2.2b or 2.2x.
Xxxxxxxxxx'x indemnification obligations contained in this Article 4.8
shall not apply in any case which arises from, or is attributable to,
Xxxxxxx'x negligence. Xxxxxxxxxx'x indemnification obligations contained
in this Article 4.8 shall not be limited or altered by Article 4.7.
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Xxxxxxx shall indemnify, defend and hold Xxxxxxxxxx and its officers,
directors and employees harmless from and against any liability, losses,
damages, costs and expenses (including reasonable attorney's fees and
disbursements) arising out of or with respect to any third party claims,
actions or suits for damage to property, death or injury resulting from
use of the Products due to any of the following actions by Xxxxxxx or its
affiliates, officers, directors or employees: a) any intentional or
negligent alteration of the Products or b) any claims which negligently
misrepresent the Products.
Xxxxxxx'x indemnification obligations contained in the Article 4.8 shall
not apply in any case which arises from, or is attributable to,
Xxxxxxxxxx'x negligence.
For the purpose of this Article 4.8, the Party intending to claim
indemnification shall promptly notify the other in writing. The Party
claiming indemnification shall permit the other to control the defense or
settlement of any claim, action or suit, and shall co-operate with the
other in any defense or settlement.
The indemnification obligations contained in the Article 4.8 shall survive
for a period of five (5) years after the date of termination or expiration
of this Agreement.
4.9a Xxxxxxxxxx shall maintain insurance during the term of this Agreement,
and any extensions thereof, with not less than the same coverage,
endorsements, limits and notice of cancellation as shown in the insurance
certificate attached hereto as Exhibit X. Xxxxxxxxxx shall, within thirty
(30) days after this Agreement is executed by both Parties, provide
Xxxxxxx with a copy of its insurance certificate naming Xxxxxxx as an
additional insured and listing the coverage, endorsements, limits, and
notice of cancellation provisions. Xxxxxxxxxx shall not cancel or
materially alter such policy without providing at least thirty (30) days
prior written notice to all named insured. Failure by Xxxxxxxxxx to
maintain insurance coverage in accordance with this Article 4 shall
constitute a material breach of this Agreement. It is understood and
agreed that the furnishing of such insurance certificate will not relieve
Xxxxxxxxxx of its other respective obligations under this Agreement.
4.9b Credits on defective Products by Xxxxxxx 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.
Article 5. Term and Termination
5.1 The initial term of this Agreement shall be for a period of five years
from the date of this Agreement. After such initial term, this Agreement
shall be automatically extended for an additional term of five years,
unless this Agreement is terminated at the end of the initial five-year
term by written notice given by either Party to the other Party not less
than six months prior to the end of such initial term. Notwithstanding
the foregoing, this Agreement may be terminated earlier in accordance with
the provisions of this Article 5.
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5.2a Either Party shall have the absolute right to terminate this
Agreement if the other Party 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 either Party, Xxxxxxx 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 5.3, if:
(I) Xxxxxxx fails or refuses to pay to Xxxxxxxxxx any sum when due;
(ii) Xxxxxxx breaches any provision of Article 2.2a, 3.1, 3.5, 3.7, 3.8,
4.3, 4.7, 6 or 7; or
(iii) Xxxxxxx fails to purchase the agreed upon Specified Minimum Purchase
Amount of Product for any required period starting in year two (2)
excluding, however, purchases that failed to occur by virtue of any one or
a combination of Xxxxxxxxxx'x (a) failure to deliver, excluding
Xxxxxxxxxx'x failure to deliver as a result of Xxxxxxx'x failure to pay
any terms due to Xxxxxxxxxx, (b) discontinuation of the Product, (c)
recall of the Product, or (d) failure to obtain regulatory approval of the
Product in accordance with Articles 2.2b and 2.2c..
5.2b In the event Xxxxxxx fails to perform or breaches any of the terms of
this Agreement, Xxxxxxxxxx agrees to provide Xxxxxxx notice of intention
to terminate this Agreement. Xxxxxxx shall have thirty (30) days from the
date of receipt of such notice to remedy its breach and/or failure to
perform in accordance with the terms and provisions of this Agreement.
5.3 Each Party shall have the absolute right to terminate this Agreement in
the event the Party shall become insolvent, or if there is instituted by
or against the Party procedures in bankruptcy, or under insolvency laws or
for reorganization, receivership or dissolution, or if the Party loses any
franchise or license to operate its business as presently conducted in any
part of the Territory.
5.4 This Agreement shall automatically terminate effective six months after
the end of any 12-month period of the term of this Agreement referred to
in Articles 4.1 and 4.2 hereof if the Parties are unable to agree upon the
Contract Prices for the next 12-month period of the term or the Specified
Minimum Purchase Amounts after the fourth 12-month period of the term of
this Agreement.
5.5 Any failure to agree on the Specified Minimum Purchase Amount shall be
referred to arbitration, in accordance with Article 15, for resolution
during the first four (4) 12-month periods of the term of this Agreement.
The arbitrator shall be mutually agreed upon and have experience in
international marketing and sales agreements. The arbitrator shall review
general market conditions including increases or decreases in the growth
of the Canadian wound care market, pricing trends, competitors' marketing
and sales efforts, regulatory changes affecting the market or affecting
Xxxxxxxxxx Products, and other similar factors that may impact the sale of
Xxxxxxxxxx Products. After the fourth 12-month period of the term of this
Agreement, the Parties will meet in good faith to agree upon Specified
Minimum Purchase Amounts and if the Parties do not reach a mutual
agreement on said issue, then the Agreement shall terminate in accordance
with Article 5.4.
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5.6 During the one-year period following termination of this Agreement, any
inventory of Products held by Xxxxxxx at the termination of this Agreement
may be sold by Xxxxxxx 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 Xxxxxxx'x
performance obligations and Xxxxxxxxxx'x rights shall remain in effect.
In order to accelerate the liquidation of any such inventory and in the
event a) Xxxxxxxxxx terminates this Agreement, b) Xxxxxxx terminates this
Agreement because of Xxxxxxxxxx'x material breach thereof, or c) this
Agreement terminates automatically pursuant to Section 5.4, Xxxxxxxxxx
shall, if requested by Xxxxxxx during the one year period after the date
of termination of this Agreement, repurchase all or any part of the
remaining inventory of Products at the price at which the inventory was
originally sold by Xxxxxxxxxx to Xxxxxxx, including importation and
shipping charges. The inventory will be shipped back by Xxxxxxx to
Xxxxxxxxxx F.O.B. London, Ontario. Notwithstanding the foregoing, if
Xxxxxxx terminates this Agreement other than because of Xxxxxxxxxx'x
material breach thereof, Xxxxxxxxxx shall have the option, but not the
obligation, to repurchase all or any part of the remaining inventory of
Products at the same above-stated price.
5.7 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 4.7, 6, 7 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 6. Trademarks and Trade Names
6.1 All trademarks, trade names, service marks, logos and derivatives
thereof relating to the Products (the "Trademarks"), and all patents,
technology and other intellectual property relating to the Products, are
the sole and exclusive property of Xxxxxxxxxx or its affiliates.
Xxxxxxxxxx hereby grants Xxxxxxx 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 Xxxxxxx,
modify or discontinue the use of any Trademark and/or use one or more
additional or substitute marks or names, and Xxxxxxx shall be obligated to
do the same.
6.2 Xxxxxxx agrees to use the Trademarks in full compliance with the rules
prescribed from time to time by Xxxxxxxxxx. Xxxxxxx may not use any
Trademark as part of any corporate name or with any prefix, suffix or
other modifying words, terms, designs or symbols. In addition, Xxxxxxx
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.
6.3 In the event of any infringement of, or challenge to, Xxxxxxx'x use of
any Trademark, Xxxxxxx is obligated to notify Xxxxxxxxxx immediately, and
Xxxxxxxxxx shall have sole and absolute discretion to take such action as
it deems appropriate.
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6.4 In the event of the termination of this Agreement for any reason,
Xxxxxxx'x right to use the Trademarks shall cease, and Xxxxxxx shall cease
using such Trademarks at such time as Xxxxxxx'x inventory of Products has
been sold. Xxxxxxx shall, as soon as it is reasonably possible, remove
all Trademarks which appear on or about the premises of the office(s) of
Xxxxxxx and any of the advertising of Xxxxxxx used in connection with
Products.
6.5 In the event of a breach or threatened breach by Xxxxxxx of the
provisions of this Article 6, Xxxxxxxxxx shall be entitled to seek 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 6,
including the recovery of damages from Xxxxxxx.
Article 7. Confidential Information
7.1 Each Party recognizes and acknowledges that both will have access to
confidential information and trade secrets of the other and other entities
doing business with each relating to research, development, manufacturing,
marketing, financial and other business-related activities ("Confidential
Information"). Such Confidential Information constitutes valuable,
special and unique property of each Party and/or other entities doing
business with either Company. Other than as is necessary to perform the
terms of this Agreement, neither Party shall, 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 required by law to be disclosed or as specifically allowed in writing
by an authorized representative of the other. In the event of a breach or
threatened breach by either Party of the provisions of this Article 7,
each shall be entitled to an injunction restraining the other from
disclosing and/or using, in whole or in part, such Confidential
Information. Nothing herein shall be construed as prohibiting either
Party from pursuing other remedies available to it for such breach or
threatened breach of this Article 7, including the recovery of damages
from the other Party. The above does not apply to information or material
that was (a) disclosed to the receiving Party by a third Party under no
obligation of confidentiality , (b) known to the public or generally
available to the public prior to the date it was received by either Party,
or (c) required by law to be disclosed.
Article 8. Force Majeure
8.1 Neither Xxxxxxx nor Xxxxxxxxxx shall be liable hereunder if either is
prevented from performing any of its obligations hereunder by reason of
any factor beyond its reasonable 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"). Excepting
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delay of performance as reasonably necessary due to Force Majeure, Xxxxxxx
or Xxxxxxxxxx'x obligations shall not be suspended or canceled during the
period of such Force Majeure. Such Party shall give to other 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 a Party's obligations under this
Agreement. Should the Force Majeure continue for more than six (6)
months, then either Party shall have the right to terminate this Agreement
and the Parties' shall seek an equitable agreement on the Parties' reward
of interests.
Article 9. Amendment
9.1 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 10. Entire Agreement
10.1 This Agreement 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.
Article 11. Assignment
11.1 Neither this Agreement nor any of the rights or obligations of under
it hereunder shall be assigned by either Party without the prior written
consent of the other, executed by a duly authorized officer of each.
Article 12. Governing Law
12.1 Any controversy arising under this Agreement or in relation to this
Agreement shall be governed and construed in accordance with the local
domestic laws of the Province of Ontario and the local domestic laws of
Canada applicable therein. The Parties hereto agree that the application
of the United Nations Convention on Contracts for the International Sale
of Goods to this Agreement does not apply and is strictly excluded.
Subject to Article 15, the Parties hereto attorn and submit to the
non-exclusive jurisdiction of the Courts of law in Ontario, Canada.
Article 13. Notices
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13.1 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 Xxxxxxx. (Fax
No. 000-000-0000)
(b) Xxxxxxx at: 000 Xxxxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0 attention: President or at such other address as Xxxxxxx shall
have theretofore furnished in writing to Xxxxxxxxxx. (Fax No.
000-000-0000)
Article 14. Waiver
14.1 Either Party's failure to enforce, at any time, any of the provisions
of this Agreement or any right with respect thereto, shall not be
considered a waiver of such provisions or rights or in any way affect the
validity of same. Either Party's exercise of any of its rights shall not
preclude or prejudice said Party thereafter from exercising the same or
any other right it may have, irrespective of any previous action by said
Party.
Article 15. Arbitration
15.1 Except as provided in Articles 6.5 and 7.1, 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 in Chicago, Illinois in the English
language and shall be governed by the procedural rules of the
International Chamber of Commerce (the "ICC") and by the substantive local
domestic laws of the Province of Ontario and the substantive local
domestic laws of Canada applicable therein, as amended from time to time.
Any procedural rule not determined under the rules of the ICC shall be
determined by the local domestic laws of the Province of Ontario and the
local domestic laws of Canada applicable therein, 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 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
interest in the dispute, controversy or claim. If the ICC is unable to
appoint, or fails to appoint, an arbitrator within 90 days of being
requested to do so, then the arbitration shall be heard by three
arbitrators, one selected by each Party within the 30 days of being
required to do so, and the third promptly selected by the two arbitrators
selected by the Parties.
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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. The arbitration shall be held in Chicago, Illinois,
unless otherwise mutually agreed to by the Parties.
Article 16 Tender Clause
16.1 Xxxxxxxxxx'x acknowledges that Xxxxxxx may submit bids to sell the
Products to public entities in the Territory pursuant to public contracts
which impose substantial damages or penalties for failure to deliver the
Products on time or according to the specifications requested. Xxxxxxx
agrees to submit all such public contracts and specifications involving
the Products to Xxxxxxxxxx for approval prior to commitment by Xxxxxxx.
In the event Xxxxxxxxxx accepts and approves the contract and
specifications, it shall also accept liability for direct damages and
penalties Xxxxxxx becomes liable for under such public contracts as a
result of Xxxxxxxxxx'x negligence or breach of its obligations under this
Agreement. Xxxxxxxxxx shall indemnify, defend and hold Xxxxxxx, its
affiliates, officers, directors and employees harmless from and against
all such direct damages and penalties arising out of or with respect to
Xxxxxxxxxx'x breach of its obligations under this Agreement or arising out
of its negligence. The foregoing indemnity in this Article 16.1 shall be
effective and enforceable only in the event Xxxxxxxxxx is given reasonable
notice of the breach or negligent act and fails to remedy the same.
16.2 The Parties' indemnification obligations contained in this Article 16
shall survive for a period of two (2) years after the expiration or
termination date of this Agreement. The Parties' obligations in this
Article 16 shall not be limited or altered by Articles 4.6 or 4.7.
Article 17. No Inconsistent Actions
17.1 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 4.6 and 8
hereof, will promptly do all acts and take all measures as may be
appropriate to comply with the terms, conditions and provisions of this
Agreement.
Article 18. Currency of Account
18.1 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, except as set forth in
Article 4.2. All payments to be made by Xxxxxxx 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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXXXX LABORATORIES, INC.
By:
Name: Xxxxxxx X. Xxxxxx, Ph.D.
Title: President and CEO
XXXXXXX MEDICAL MARKETING LIMITED
By:
Name:
Title:
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EXHIBIT A
Distributor Wholesale Price
Xxxxxxx Medical Marketing Limited
PRICE
PRODUCT PRODUCT US $ PER
NO DESCRIPTION PACKAGE CASE
------- -------------------------------------------- ------- ---------
HYDROGEL WOUND DRESSINGS
101005 Carrasyn(R) Hydrogel Wound Dressing 1/2 oz. tube 36/case $52.56
101010 Carrasyn(R) Hydrogel Wound Dressing 1 oz. tube 12/case $24.96
101030 Carrasyn(R) Hydrogel Wound Dressing 3 oz. tube 12/case $62.40
101080 Carrasyn(R) Hydrogel Wound Dressing 8 oz. 6/case $75.00
spray bottle
101025 Carrasyn(R) V (Viscous) Hydrogel Wound Dressing 36/case $57.60
1/2 oz. tube
101002 Carrasyn(R) V (Viscous) Hydrogel Wound Dressing 100/case $66.00
1 oz. pouch
101023 Carrasyn(R) V (Viscous) Hydrogel Wound Dressing 12/case $68.28
3 oz. tube
101012 CarraGauze(R) Strips 1/2" x 5 yds., bottle 12/case $44.64
101009 CarraGauze(R) Strips 1" x 5 yds., bottle 12/case $46.44
101017 CarraGauze(R) 2" x 2" pad 1 pkg., 15 $138.60
pkgs/bx.,
6 bxs/case
101015 CarraGauze(R) 4" x 4" pad 1 pkg., 15 $185.40
pkgs./bxs., 6
bxs./case
CALCIUM ALGINATES
101032 CarraSorb(TM)H Calcium Alginate Wound 10bxs/10ea $83.00
Dressing 2" x 2"
101033 CarraSorb(TM)H Calcium Alginate Wound 10bxs/10ea $196.00
Dressing 4" x 4"
101034 CarraSorb(TM)H Calcium Alginate Wound 10bxs/10ea $109.00
Dressing 12" rope
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PRICE
PRODUCT PRODUCT US $ PER
NO DESCRIPTION PACKAGE CASE
------- -------------------------------------------- --------- --------
FREEZE-DRIED GEL
101035 CarraSorb(TM) M Freeze-Dried Gel Wound 4bxs/15ea $137.40
Dressing 4" diameter
WOUND & SKIN CLEANSER
102060 *CarraKlenz(TM) Wound & Skin Cleaners 6 oz. 12/case $21.24
pump botte
102062 *CarraKlenz(TM) Wound & Skin Cleaners 8 oz. 6/case $14.16
spray bottle
102160 *CarraKlenz(TM) Wound & Skin Cleaners 16 oz. 6/case $23.88
spray bottle
INCONTINENCE CARE PRODUCTS
102040 *CarraFoam(TM) Skin & Perineal Cleanser 12/case $24.84
(Aerosol) 4oz can
102080 *CarraFoam(TM) Skin & Perineal Cleanser 12/case $34.56
(Aerosol) 8oz can
101044 CarraFoam(TM) Non-Aerosol Skin & Perineal 12/case $17.04
Cleanser 3.5 oz bottle
101043 CarraFoam(TM) Non-Aerosol Skin & Perineal 12/case $21.24
Cleanser 7.8 oz bottle
104040 *Xxxxxxxxxx(TM) Moisture Barrier Cream 3.5 oz. 12/case $22.80
tube
ODOR ELIMINATION PRODUCTS
107010 Carrascent(TM) Odor Eliminator 1 oz. 48/case $70.08
spray bottle
107080 Carrascent(TM) Odor Eliminator 8 oz. 12/case $69.96
spray bottle
101003 CarraFree(TM) Odor Eliminator 1 oz. 48/case $70.08
spray bottle
SKIN CARE PRODUCTS
106040 *Xxxxxxxxxx(TM) Skin Balm 4 oz. tube 12/case $26.40
103040 Xxxxxxxxxx(TM) Foot & Body Moisturizing 12/case $26.40
Cream 4 oz tube
111108 Xxxxxxxxxx(TM) Shampoo & Body Wash 12/case $16.80
8 oz. bottle
*The above marked Products are not to be sold by Xxxxxxx until Xxxxxxxxxx
and Xxxxxxx mutually agree upon their release into the Canadian market.
The prices for CarraFoam Skin & Perineal Cleansers (4 oz. and 8 oz.
aerosol) shall be $12.48 and $21.48, respectively, for the Parkwood
Hospital bid which was agreed upon by Xxxxxxxxxx and previously submitted
by Xxxxxxx.
EXHIBIT B
COMPETITIVE PRODUCTS
THERE ARE NONE AT THIS TIME
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