Dated 29th day of September, 1997
Innovative Technologies Limited
- and -
Derma Sciences Incorporated
SALES AND DISTRIBUTION AGREEMENT
Ref: DERMS&D2
THIS AGREEMENT is made the 29th day of September 1997 BETWEEN:
PARTIES:
INNOVATIVE TECHNOLOGIES LIMITED (a British Company, registration number 2666957)
whose principal place of business is Road Three, Xxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx ('IT'); and
DERMA SCIENCES INCORPORATED (an American Corporation whose principal place of
business is 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000, XXX
("DERMA SCIENCES").
THE PARTIES AGREE as follows:
1. APPOINTMENT, DURATION AND PRODUCT
1.1 The appointment shall be with effect from 29 September, 1997, (the
"Effective Date") and subject to the provisions for earlier termination in
Clause 5 shall last until 28 September 2002 (the "Expiry Date") and shall
continue thereafter unless and until terminated by either party giving to
the other not less than six months notice in writing expiring on or at any
time after the expiry of the said 5 year term.
1.2 IT appoints DERMA SCIENCES as its non-exclusive distributor in The United
States of America (the "Territory") for the products listed in the first
schedule to this Agreement ("Schedule 1") (the "Products") which may be
amended by written agreement between IT and DERMA SCIENCES.
2 PRICES AND PAYMENTS
2.1 The prices to be paid by DERMA SCIENCES for Products shall be those set out
in the second schedule ("Schedule 2"), (the "Prices") or such prices as
otherwise may be in effect at the time of IT's receipt of DERMA SCIENCES's
purchase order. DERMA SCIENCES shall be invoiced for the price of the
Products on despatch of the same and terms of payment shall be forty five
(45) days from the date of such invoice.
2.2 The Prices shall be reviewed and any necessary changes made to them on each
successive anniversary of the Effective Date of this Agreement. The prices
for Product B only shall be reviewed and renegotiated in December 1997 and
thereafter on each successive anniversary of the Effective Date. The price
reviews shall be negotiated in good faith and take into account IT's
production costs and the market situation in the Territory.
2.3 All invoices sent and payment made shall be in American Dollars.
2.4 DERMA SCIENCES acknowledges that IT incurs considerable costs associated
with manufacturing set-up and agrees to share equally with IT any such
manufacturing set-up costs in respect of each new (to IT) product size or
format.
2.5 DERMA SCIENCES acknowledges that IT will incur costs associated with
printing set up utilising DERMA SCIENCES artwork. DERMA SCIENCES agrees to
pay for the full costs associated with printing set up or artwork changes
for which DERMA SCIENCES shall be invoiced immediately IT incurs them.
Terms of payment shall be thirty (30) days from the date of such invoice.
In the event of DERMA SCIENCES requesting any changes to printing set up or
artwork DERMA SCIENCES agrees to either purchase from IT any remaining stock
bearing the previous printing or artwork or to compensate IT for any loss
incurred in relation to such stock.
2.6 The Prices include the cost of packaging and labelling the Products and are
FOB named Port of Shipment excluding all shipping costs, import duties,
insurance tariffs and customs charges directly or indirectly involved with
so shipping the Products. FOB named Port of Shipment shall have the meaning
and import the respective rights and obligations of buyer and seller as
provided in Incoterms 1990 or any subsequent revision thereto.
2.7 IT shall be entitled to withhold delivery of the Products under this
Agreement at any time if payments are due from DERMA SCIENCES and have not
been paid in accordance with Clause 2.1. All sums due to IT under this
Agreement and unpaid shall bear interest at the rate of two per cent (2%)
over the base rate of Lloyds Bank Plc from time to time for the period from
the due date for payment until the actual payment by DERMA SCIENCES.
3 TITLE, RISK AND INSURANCE
3.1 Title to and property in a particular order of the Products (but not risk
which shall pass on delivery) in accordance with Clause 2.6 shall remain
vested in IT until the price of such Products has been paid, discharged or
satisfied in full:
3.2 Until title to and property in the Products pass to DERMA SCIENCES the
following provisions shall apply:
3.2.1 IT may at any time without prior notice to DERMA SCIENCES require
DERMA SCIENCES to deliver up to IT the Products and may repossess and
resell such Products if any sum due from DERMA SCIENCES to IT under
this Agreement for such Products is not paid on the due date for
payment; and
3.2.2 DERMA SCIENCES shall store separately the Products without charge to
IT and shall not tamper with any IT identification upon such Products
or their packaging but shall ensure that they are clearly identified
as belonging to IT.
3.3 DERMA SCIENCES and IT undertake to maintain adequate product liability
insurance for the Products which is or is equivalent to or exceeds five
million (5,000,000) Pounds Sterling and shall give details of such
insurance to the other party upon written request.
4 OBLIGATIONS OF DERMA SCIENCES
DERMA SCIENCES hereby undertakes during the term of this Agreement:
4.1 to submit its artwork or changes to artwork in respect of the Products to
IT at least ninety (90) days prior to the first date on which it desires
delivery of Products bearing such artwork.
4.2 to submit to IT quarterly on or before the first day of each calendar
quarter (ie January 1, April 1, July 1 and October 1) its non binding
twelve (12) month rolling forecasts for Products.
4.3 to submit its purchase orders not less than sixty (60) days prior to its
requested delivery date. In the event that DERMA SCIENCES's purchase orders
or IT's order acceptances contain terms that contradict any contained in
this Agreement, the terms of this Agreement shall prevail.
4.4 that any purchase order made for the Products for any one particular size
or format will be for a quantity in excess of five thousand (5,000) units.
4.5 not to amend or in any way relabel, repackage or overlabel the Products
without IT's prior written consent and approval, such consent and approval
not to be unreasonably withheld.
4.6 not to cancel any purchase order (or any part of a purchase order) which
has been accepted by IT except upon prior written agreement by IT and upon
such terms as will indemnify IT for all IT's actual out-of-pocket costs,
charges, expenses, damage or loss including pre-paid freight, costs of
tooling for Products and purchase of raw materials for Products which
cannot be cancelled or used for other IT customers, but excluding lost
profits. IT is not bound to agree to any such cancellation and may complete
the contract notwithstanding any purported cancellation from DERMA
SCIENCES.
4.7 In the event of a non delivery or alleged shortage of Products in a
particular order, DERMA SCIENCES shall submit a written claim to IT within
thirty (30) days following the expected date of receipt or the actual date
of receipt of the shipment. IT will adjust the invoice for the incomplete
shipment and promptly issue a revised invoice to DERMA SCIENCES. DERMA
SCIENCES shall not be entitled to refuse to accept delivery by reason only
of short delivery. In the absence of notice as required above, the correct
quantities of the products shall be deemed to have been delivered in
accordance with this Agreement.
4.8 DERMA SCIENCES shall inform IT without delay in the event of any complaint
in respect of any of the Products, and DERMA SCIENCES shall provide IT with
complete information, including names and addresses of complainants and all
facts concerning the complaint (including whether the complaint concerns an
alleged reaction to the Product or an alleged defect in the Product). DERMA
SCIENCES shall be responsible for acknowledging, dealing with and
investigating any complaint made to it in respect of the Products. DERMA
SCIENCES investigation thereof and DERMA SCIENCES shall without delay
inform IT of any material developments in respect of either the complaint
or DERMA SCIENCES investigation. DERMA SCIENCES shall be responsible for
making any necessary reports on such complaints to the US Food and Drug
Administration ("FDA") and DERMA SCIENCES shall attempt to consult IT on
the content of such reports before submitting them to the FDA. Each of the
parties hereto shall give the other all reasonable assistance if requested
by the other in investigating the complaint or in locating and recovering
any Products alleged to be unsaleable or defective and in preventing their
sale to third parties. Any request by IT as aforesaid shall not of itself
be an admission of liability to DERMA SCIENCES or any other party as to the
condition of the Products
5 OBLIGATIONS OF IT
5.1 IT hereby undertakes during the term of this Agreement:
5.1.1 to manufacture and package quantities of Products in conformance with
DERMA SCIENCES's purchase orders subject to the following provisions:-
5.1.1.1 only to the extent that the purchase order is for a quantity
in excess of five thousand (5,000) units for each individual
product size and format.
5.1.1.2 only to the extent that they comply with DERMA SCIENCES's most
recent non-binding quarterly forecast provided that DERMA
SCIENCES shall accept such quantities being 5% (five per cent)
above or below the quantity specified in the purchase order;
5.1.2 to use reasonable efforts to manufacture Products ordered by DERMA
SCIENCES that are in quantities in excess of DERMA SCIENCES's most
recent non-binding quarterly forecast provided by DERMA SCIENCES
pursuant to Clause 4.2;
5.1.3 to accept all DERMA SCIENCES purchase orders that conform with the
most recent non-binding quarterly forecast.
5.1.4 to keep in stock such packaging materials, bearing artwork submitted
by DERMA SCIENCES pursuant to Clause 4.1, as needed to package the
quantities of Products specified in DERMA SCIENCES's most recent
non-binding quarterly forecast provided that, in the event of such
materials not being used, DERMA SCIENCES shall reimburse IT for all
direct costs reasonably incurred in the procurement of such.
6 WARRANTIES AND INDEMNITIES
6.1 IT warrants and represents to DERMA SCIENCES that to the best of its
knowledge IT owns the intellectual property rights in the Products free of
any restrictions from third parties, and that to the best of its knowledge
IT may enter into this Agreement without infringing third party rights and
without requiring consents, approvals or similar actions from any third
parties in respect of the Products.
6.2 IT shall indemnify and hold DERMA SCIENCES harmless from all losses, costs
or damages, except financial loss such as consequential loss, loss of time,
loss of profit or similar types of indirect losses, which DERMA SCIENCES
may be held liable to pay as a result of claims or suits arising out of any
injuries to persons and/or damage to property caused by any breach by IT of
any provision of this Agreement or by the fact that the Products were other
than in accordance with the Product Specifications if the claims or suits
incurred are not due to DERMA SCIENCE's own or DERMA SCIENCE's
sub-distributors warranties or negligence.
6.3 DERMA SCIENCES shall in turn indemnify and hold IT harmless from all
losses, costs or damages, except financial loss such as consequential loss,
loss of time, loss of profit or similar types of indirect losses, which IT
may be held liable to pay as a result of claims or suits arising out of any
injuries to persons and/or damage to property by any breach by DERMA
SCIENCES of any provision of this Agreement or arising from DERMA SCIENCE's
own warranties or negligence or if DERMA SCIENCES fails to comply with any
storage, handling or other such instructions in respect of the Products
issued by IT.
6.4 The indemnification which either party may receive under Clause 6.2 and 6.3
shall never exceed the aggregate maximum of the coverage of each party's
product liability insurance for the Product's in accordance with sub-clause
3.3.
7 TERMINATION FOR CAUSE
7.1 Notwithstanding any provision herein to the contrary this Agreement may be
terminated by sixty (60) days notice in writing to the other (and without
compensation becoming due to the other by reason only of such termination)
if the other party fails to perform or observe any of the terms of this
Agreement or any term of a contract and in the case of a breach capable of
remedy has not remedied the breach within thirty (30) days of receipt of
written notification requiring it to do so.
7.2 If DERMA SCIENCES makes default in the payment of any money which shall
have become due hereunder for more than thirty (30) days after
the due date for payment IT may give DERMA SCIENCES thirty (30) days
written notice of termination notwithstanding any other remedy which may be
available to IT.
7.3 If IT is unable to supply Products as requested by DERMA SCIENCES, provided
that the requests are within the parameters of the current rolling
forecasts supplied by DERMA SCIENCES pursuant to Clause 4.2 DERMA SCIENCES
may give IT thirty (30) days written notice of termination, and IT will
within thirty (30) days of notification compensate DERMA SCIENCES for any
loss directly arising from such inability to supply. Alternatively DERMA
SCIENCES may waive its right to termination and agree to delayed delivery
of the Products without prejudice to its right to compensation for loss
arising directly from the delay of supply of the Products. Nothing in this
Clause 7.3 shall, however, make IT liable for any indirect economic or
consequential loss (including loss of profit or legal fees) or damage.
7.4 Termination of this Agreement, howsoever caused, shall not affect the
accrued rights, or liabilities of either party to it nor shall it eliminate
obligations arising prior to termination.
7.5 Without prejudice to any rights or remedies available to IT, IT may
terminate this agreement, upon one months prior written notice to DERMA
SCIENCES if DERMA SCIENCES undergoes a Change of Control, whereby Control
passes to a direct competitor of IT in the field of healthcare.
7.6 For the purposes of Clause 7.5 "Control" means ownership of more than half
of the capital, business or assets of DERMA SCIENCES, or the power to
exercise or acquire more than half of the voting rights of or the power to
appoint more than half the members of the Board of Directors (or equivalent
officers) of DERMA SCIENCES, and a "Change of Control" shall be deemed to
take place where any person other than the person(s) in Control of DERMA
SCIENCES at the date of execution of this Agreement subsequently acquires
Control of DERMA SCIENCES (either acting alone or in concert with others.)
7.7 On termination of this Agreement howsoever caused, IT shall complete all
orders for the Products which it has accepted from DERMA SCIENCES prior to
the date of termination, provided that such orders are within the
parameters of the rolling forecasts supplied by DERMA SCIENCES pursuant to
Clause 4.2.
7.8 On termination of this Agreement howsoever caused DERMA SCIENCES shall:-
7.8.1 complete all orders from customers for the Products which it has
accepted up to date of termination;
7.8.2 on the expiry of six (6) months following the date of termination of
this Agreement have disposed of all stocks of the Products; and
7.8.3 return to IT or otherwise dispose of as IT may in writing direct and
at DERMA SCIENCES's expense all documents and records including,
without limitation, all promotional literature, catalogues, and other
documents relating to the Products or to the business of IT, and all
copies thereof, in the possession or under the control of DERMA
SCIENCES, providing that DERMA SCIENCES shall have the right to retain
copies of any documentation which may be required by any regulatory
authority in the Territory.
7.9 On and following termination of this Agreement howsoever caused, both
parties shall continue to be bound by the obligations imposed under Clause
8.
8 CONFIDENTIAL INFORMATION
8.1 On 15th November, 1996 IT and DERMA SCIENCES signed a Secrecy Agreement, a
copy of which is attached as the third schedule hereto ("Schedule 3 -
Secrecy Agreement"). IT and DERMA SCIENCES agree to observe and continue to
be bound by the terms of that Secrecy Agreement, both in respect of
information disclosed independently of, and in respect of information
disclosed pursuant or in relation to, the terms of this Agreement. The
parties agree:
8.1.1 that any Proprietary Information (as defined in the Secrecy Agreement)
disclosed by either hereto to the other under or pursuant to this
Agreement may only be used by the recipient of such Proprietary
Information for the performance of the recipient's obligations under
this Agreement; and
8.1.2 that such disclosure is made under and on the terms of the Secrecy
Agreement.
8.2 Such obligations shall last during the terms of the Secrecy Agreement and
this Agreement and for a period of 5 years from the expiry or termination
of the Secrecy Agreement or this Agreement whichever is the later.
8.3 Except as provided in Clause 8.5 below DERMA SCIENCES agrees and undertakes
that during the term of this Agreement and thereafter it will keep secret
and will not without the prior written consent of IT disclose either
directly or indirectly to any third party the Proprietary Information nor
disclose to any third party any of the financial or other terms and
conditions of this Agreement other than as required by regulatory agencies
or law but such information shall be transmitted only under agreed
conditions as to confidentiality, ie directly to such authorities.
8.4 Except as provided in Clause 8.5 below IT agrees and undertakes that during
the term of this Agreement and thereafter it will keep secret and will not
without the prior written consent of DERMA SCIENCES disclose either
directly or indirectly to any third party any Proprietary Information
provided to it by DERMA SCIENCES nor disclose to any third party any of the
financial or other terms and conditions of this Agreement.
8.5 The obligations contained in Clauses 8.1, 8.2 and 8.3 shall not apply to
any Proprietary Information which:
8.5.1 is at the date of this Agreement or at any time after the date of this
Agreement comes into the public domain other than through breach of
this Agreement by DERMA SCIENCES or its employees or contractors or by
IT or its employees or contractors; or
8.5.2 can be shown by DERMA SCIENCES to the reasonable satisfaction of IT
to have been known by DERMA SCIENCES before disclosure to IT by DERMA
SCIENCES and vice versa; or
8.5.3 subsequently comes lawfully into the possession of DERMA SCIENCES or
IT from a third party.
9 FORCE MAJEURE
9.1 If the performance by either party of any of its obligations (other than
the obligation to make payments hereunder) shall be in any way prevented,
interrupted or hindered in consequence of circumstances beyond the control
of such party, including without limitation an act of God, war, civil
disturbance, strike, lock-out, cessation of work, combination of workmen or
employees, legislation or restriction of any governmental or other
authority, breakdown or interruption of raw material supply or transport
the obligations of the party concerned shall be wholly or partially
suspended during the continuance and to the extent of such prevention,
interruption or hindrance. If a force majeure situation has continued for
more than one hundred and eighty days (180) days, either party may
terminate this Agreement by notice to the other party, provided that in the
event the parties agree (notwithstanding the provisions of this clause)
that IT shall recommence manufacture and supply of the Products this
agreement shall be deemed to have continued despite the interruption and
the term of the Agreement unexpired before the start of the interruption in
supply shall be the residual term. Any party seeking to rely upon the
provisions of this Clause 9.1 shall notify the other party promptly upon
the event of force majeure or other circumstances arising and a failure to
do so shall prevent the party experiencing the force majeure or other
circumstances from being able to involve the provisions of this clause.
10 GRANT OF SUB LICENCES AND ASSIGNMENT
10.1 DERMA SCIENCES shall have no right to assign or delegate the performance of
its duties hereunder nor to grant sub-licences.
11 ENTIRE AGREEMENT, VARIATION AND CONFLICT
11.1 This Agreement contains the entire agreement between the parties as at the
Effective Date and supersedes all prior agreements and understandings
between the parties whether oral or in writing in relation to the subject
matter herein contained except that both parties hereto agree to observe
and continue to be bound by the terms of the Secrecy Agreement between the
parties bearing an effective date of 15th November, 1996 and annexed hereto
as Schedule 3.
Any amendments to or modifications to this Agreement shall only be valid if
made in writing and signed by both parties hereto.
11.2 In the event of any conflict between this Agreement and any other contract,
the terms of this Agreement shall prevail.
12 GOVERNING Law AND DISPUTES
12.1 The formation, construction, performance, validity and all aspects
whatsoever of this Agreement and any individual contract for the purchase
of the Products by DERMA SCIENCES made hereunder shall be governed by and
construed in accordance with the laws of the state in which the defendant,
in any proceedings, is domiciled. Any proceedings for the determination of
any question or dispute arising in connection with this Agreement shall be
held in New Jersey if initiated by IT and in London if initiated by DERMA
SCIENCES.
13 NOTICES
13.1 Any notice authorised or required to be given pursuant to this Agreement
shall be in writing and given as follows:-
13.2 Attn: Xxxxxx Xxxxxx IT: Attn: D Xxxxx Xxxxxxx
Chairman Managing Director
Derma Sciences Incorporated Innovative Technologies Limited
000 Xxxxxxxx Xxxxxx Xxxx Xxxxx
Xxxxx 000, Princeton Industrial Estate, Winsford
New Jersey 08540 USA Xxxxxxxx XX0 0XX XX
Facsimile: 001 609 452 0880 Facsimile: 44 1606 86 3600
Any such notice may be given by post or facsimile transmission. To prove
service in the case of a notice given by post it shall be sufficient to
show that the notice was despatched by airmail recorded delivery service in
a correctly addressed and adequately stamped envelope and to prove service
in the case of a notice given by facsimile transmission it shall be
sufficient to show that it was dispatched to the correct telephone number
with a transmission 'OK' printed message. Service by facsimile shall be
deemed to have been effected 24 (twenty-four) hours after dispatch by
facsimile transmission and service by post shall be deemed to have been
effected seven (7) days after the date of postmark.
14 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which
when executed and delivered shall be an original but all the counterparts
together shall constitute one and the same instrument.
AS WITNESS the hands of the duly authorised representatives of IT and DERMA
SCIENCES the day and year first above written.
Signed by Xxx Xxxxx ) /s/ Xxx Xxxxx
for and on behalf of INNOVATIVE TECHNOLOGIES LTD ) 25/09/97
Signed by Xxxxxx X. Xxxxxx ) /s/ Xxxxxx X. Xxxxxx
for and on behalf of DERMA SCIENCES INCORPORATED ) 9/29/97
SCHEDULE 1 - PRODUCTS
Product A
Alginate wound dressing known as SAD 2C
Product B
Hydrocolloid dressing with intelligent film known as SHD 40
Product C
Intelligent Film known as SFD C44-2 SH40 MB
Product D
Standard Film known as SFD C34 PAD LB
Product E
Sheet Hydrogel (more detailed specification to follow).
SCHEDULE 2 - PRICES
PRODUCT SIZE UNIT PRICE US$
A 2" x 2" 0.62
A 4" x 4" 1.22
A 16" Rope 1.39
B 3" x 3" 0.78
B 5" x 5" 1.29
B Sacral 2.04
C 2" x 3" 0.47
C 4" x 5" 0.93
C 6" x 7" 1.73
D 2" x 3" 0.15
D 4" x 5" 0.29
D 6" x 7" 0.7
E To be determined
SCHEDULE 3 - SECRECY AGREEMENT
SECRECY AGREEMENT
DATE: 15th November 1996
PARTIES:
1. 'IT': INNOVATIVE TECHNOLOGIES LIMITED, a British Company (registered number
2666957) whose principal place of business in Road Three, Xxxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, XX0 0XX XX
2. 'DERMASCI': DERMA SCIENCES INCORPORATED a United States COmpany whose
principal place of business is 000, Xxxx Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000,
XXX.
BACKGROUND:
A. IT has developed novel products and ideas for wound dressing and wound
management products and has technology relating to the same including but
not limited to polyurethane film technology and alginate and other
polysaccharide fibre technology and is the owner of confidential
information relating to the same.
B. DERMASCI has developed and/or acquired chronic wound dressing and/or wound
management product technology and has technology relating to the same
including but not limited to nutrient supply to chronic wounds technology
and is involved in the manufacture and/or distribution of wound dressings
and wound management products and is the owner of confidential information
relating to the same.
C. The parties wish to make disclosure of the confidential information in
their respective possession relating to wound dressings and wound
management including specifically technology relating to nutrient supply to
chronic wounds and alginate fibre technology for the purposes of their
evaluation but subject to the terms of confidentiality appearing below.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings unless inconsistent with the context.
"IT Information" means any and all information of whatever nature relating
to the business of IT or any Subsidiary or Holding Company of IT
including without limitation data, know-how, formulae, processes,
designs, drawings, specifications, software programmes and samples of
any other material or commercial information generally bearing or
incorporating any information relating to the business of IT.
"DERMASCI Information" means any and all information of whatever nature
relating to the business of DERMASCI or any Subsidiary or Holding
Company of DERMASCI including without limitation data, know-how,
formulae, processes, designs, drawings, specifications, software
programmes and samples of any other material or commercial information
generally bearing or incorporating any information relating to the
business of DERMASCI.
"Proprietary Information" means the IT Information and the DERMASCI
Information together or either of them.
"Subsidiary" has the meaning set out in section 736 of the Companies Xxx
0000.
"Holding Company" has the meaning set out in section 736 of the Companies
Xxx 0000.
"Recipient" means the recipient of any Proprietary Information disclosed in
pursuance of this Agreement.
"Owner" means in relation to the IT Information, IT or any Subsidiary or
Holding Company of IT and in relation to the DERMASCI Information,
DERMASCI or any Subsidiary or Holding Company of DERMASCI.
1.2 In this Agreement the masculine shall include the feminine and neuter and
the singular the plural and vice versa as the context shall admit or
require.
1.3 Reference in this Agreement to a Clause or Schedule shall be construed as a
reference to a Clause or Schedule of this Agreement.
2. UNDERTAKINGS OF THE RECIPIENT
2.1 In consideration of the disclosure of Proprietary Information to the
Recipient by the Owner under this Agreement the Recipient hereby
undertakes:
2.1.1 to use all Proprietary Information so disclosed exclusively for the
purpose of evaluation the accuracy and commercial potential of the
information so disclosed; and
2.1.2 to maintain confidential all Proprietary Information that it may
acquire in any manner; and it will accordingly not directly or
indirectly use or disclose any of the Proprietary Information in whole
or in part save for the purposes of and in accordance with this
Agreement.
3. EXCEPTIONS
3.1 The foregoing restrictions on the Recipient shall not apply to any
Proprietary Information which:
3.1.1 the Recipient can prove by documentary evidence produced to the Owner
within 28 days of disclosure that such Proprietary Information was
already in the possession of the Recipient and at its free disposal
before the disclosure hereunder to the Recipient; or
3.1.2 is hereafter disclosed to the Recipient without any obligation of
confidence by a third party who has derived it directly or indirectly
from the Owner; or
3.1.3 is or becomes generally available to the public in printed
publications in general circulation through no act or default on the
part of the Recipient or the Recipient's agents or employees.
4 INCLUSIONS
4.1 Without prejudice to the generality of clause 3.1.3 information shall not
be deemed to be generally available to the public by reason only that it is
known to only a few of those people to whom it might be of commercial
interest, and a combination of two or more portions of the Proprietary
Information shall not be deemed to be generally available to the public by
reason only of each separate portion being so available.
5. CONFIDENTIAL MEASURES
5.1 To secure the confidentiality attaching to the Proprietary Information, the
Recipient shall:
5.1.1 keep separate all Proprietary Information and all information
generated by the Recipient based thereon from all documents and other
records of the Recipient;
5.1.2 keep all documents and any other material bearing or incorporating
any of the Proprietary Information at the usual place of business of
the Recipient;
5.1.3 not use, reproduce, transform, or store any of the Proprietary
Information in an externally accessible computer system or electronic
information retrieval system or transmit it in any for or by any means
whatsoever outside of its usual place of business.
5.1.4 allow access to the Proprietary Information exclusively to those
employees of the Recipient who has reasonable need to see and use it
for the purposes of its evaluation by the Recipient and shall inform
each of said employees of the confidential nature of the Proprietary
Information and of the obligations on the Recipient in respect
thereof;
5.1.5 wherever reasonably practicable obtain a written statement from each
of its employees having access to the Proprietary Information
undertaking to maintain the same confidential, and shall take such
steps as may be reasonably desirable to enforce sub obligations;
5.1.6 make copies of the Proprietary Information only to the extent that
the same is strictly required for the purposes of its evaluation by
the Recipient;
5.1.7 on request of the Owner made at any time deliver up to the Owner all
documents and other material in the possession custody or control of
the Recipient that bear or incorporate any part of the Proprietary
Information.
6 TERM
6.1 This Agreement controls only Proprietary Information disclosed to the
Recipient during a five (5) year period from the date of this Agreement.
6.3 The Recipient's obligations under Clauses 2 and 5 subsist for a further
five (5) year period ending ten (10) years from the date of this Agreement.
7 ENTIRE AGREEMENT
7.1 This Agreement sets forth the entire agreement between the parties with
respect to the subject matter herein and supercedes and replaces all prior
communications, representations warranties, stipulations, undertakings and
agreements whether oral or written between the parties.
8 HEADINGS
8.1 The headings to the Clauses of this Agreement shall not effect the
construction of this Agreement.
9 COPIES
9.1 This Agreement may be executed in more than one copy which, taken together,
shall constitute a single agreement.
10 ENGLISH LAW
10.1 The formation, construction, performance, validity and all aspect
whatsoever of this Agreement shall be governed by English Law and the
parties hereby agree to submit to the exclusive jurisdiction of the English
Courts.
Signed:
/s/ Xxxxx X. Xxxxxxxx
for and on behalf of
Innovative Technologies Ltd. Xxxxx X. Xxxxxxxx
Date: 15/11/96
/s/ Xxxxxx XxXxxxxxx
for and on behalf of
Derma Sciences Inc. Xxxxxx XxXxxxxxx - Director
Date: 15/11/96
