1
EXHIBIT 99.4
EXCLUSIVE PRODUCT DISTRIBUTION AGREEMENT
THIS EXCLUSIVE PRODUCT DISTRIBUTION AGREEMENT ("Agreement") is made effective as
of the date set forth on the signature page hereof (the "Effective Date") by and
between CampaMed, LLC ("Supplier"), a limited liability company with its
principal place of business located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000, and Garra Sciences, Inc. ("Distributor"), whose principal place of
business is located at 00000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000.
RECITALS
A. Supplier has created or has rights to certain products known as the
"Campamed Product Line" (as hereinafter defined), which are proprietary
to Supplier.
B. Distributor desires that Supplier appoint Distributor as Supplier's
exclusive distributor throughout the world with respect to the
distribution and sale of the Campamed Product Line to potential
purchasers.
C. Supplier desires to so appoint Distributor as Supplier's exclusive
distributor, all in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of their mutual promises set forth below and
other valuable consideration, the parties agree as follows:
SECTION 1. SCOPE OF AGREEMENT
1.1 DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
(a) CAMPAMED PRODUCT LINE or PRODUCTS refer to any and all
nutritional supplement products presently manufactured or
purchased by or for Supplier and/or any subsidiaries or
affiliates thereof, including (but not limited to) those which
incorporate multiple vitamin, mineral, and herbal supplements,
digestive enzymes, electrolytes, antioxidants, cellular energy
compounds, fatty acids, nucleic acids, amino acids, and any
form of the C-Med 100 nutritional supplement.
(b) CONTRACT YEAR means any given twelve month period ending on an
anniversary of the Effective Date.
42
2
(c) LICENSE refers to the exclusive distribution license granted
to Distributor by Supplier pursuant to Section 1.2.
(d) UNIT shall mean one (1) standard unit of shipment of a
particular Product. "Unit" shall not refer to the individual
Product dose, but to a single package of multiple doses.
(e) DEFAULT refers to a reasonable determination on the part of
either party hereto that the other party is not meeting a
specific obligation of such party as set forth in this
Agreement or the Joint Venture Agreement.
(f) SPECIFICATIONS refers to the specific formulary listing the
ingredients (active and inert) of any Product.
(g) JOINT VENTURE AGREEMENT refers to that certain Joint Venture
Agreement for the formation of Distributor to which Supplier
is a party.
1.2 EXCLUSIVE LICENSE. Supplier hereby grants Distributor an exclusive
right and license to be Supplier's exclusive distributor throughout the
World with respect to the distribution and sale of the Products through
any and all distribution channels established by Distributor. The
License granted hereby shall continue indefinitely unless assigned or
terminated pursuant to the provisions of Section 8.1 hereof. Upon
termination of this License for any reason, all rights granted herein
shall immediately revert to Supplier.
(a) SCOPE: The License confers upon Distributor the exclusive
right to purchase the Products directly from Supplier, and to
distribute those Products through Distributor's distribution
channels throughout the world, and extends to all Products
and/or proprietary technologies of Supplier. Supplier further
grants Distributor the right to sublicense distribution rights
within specific geographic areas throughout the world (for
which commission payments shall be due pursuant to Section
1.21(d)); provided, however, that Distributor shall not grant
any rights to third party distributors that are not
contemplated by the License. No license is granted to prepare,
make, or have made derivative products based on the licensed
CampaMed Product Line.
(i) ASSUMPTION OF EXISTING SALES AGREEMENTS: Distributor shall
assume the obligations, liabilities, and benefits of
Supplier's existing and/or contemplated contracts for the sale
or distribution of Supplier's C-Med 100 Product (subject to
the provisions set forth in such contracts), irrespective of
the date of execution of such contract, in accordance with the
intent and purpose of the exclusive License granted herein. In
addition, Distributor shall assume all other contracts for the
sale or distribution of other elements of the CampaMed Product
Line as soon as those markets are deemed serviceable by
Distributor as determined by Distributor's Board of Directors
(such assumption not to be
43
3
unreasonably withheld, provided, however that such agreements
are, in fact assignable or assumable in accordance with their
terms). Following the execution of this Agreement, Supplier
shall inform Distributor of all future sales inquiries.
(b) LICENSE TO ENHANCEMENTS AND FUTURE PRODUCTS: The License
granted herein shall automatically extend to include any
enhancements of the existing Campamed Product Line, and
Distributor shall have the right of first refusal to purchase
and distribute any new Products on an exclusive basis that are
added to the Campamed Product Line following the execution of
this Agreement, for so long as the License is in effect.
(c) LICENSE TERMINATION: The License granted hereby shall
automatically terminate upon the voluntary or involuntary
dissolution of Distributor. Upon such termination, the License
and all rights granted to Distributor in connection therewith
shall revert to Supplier, including any Intellectual Property
rights developed in connection with such License.
(d) COMMISSION FOR SUBLICENSES: The License granted to Distributor
contemplates the right to grant sublicenses for distribution
of the CampaMed Product Line within specific geographic areas
throughout the world. Upon the receipt of the negotiated fee
associated with any such sublicense, Distributor shall pay
Supplier a cash commission equivalent to 8% of the sublicense
fee received by Distributor. The commission shall be limited
to sublicense fees, and not on products sold pursuant to the
sublicense.
1.3 INDEPENDENT CONTRACTORS. Neither party shall, for any purpose, be
deemed to be an agent of the other party and the relationship between
the parties shall only be that of independent contractors.
1.4 NO OTHER TERMS AND CONDITIONS. The parties acknowledge and agree that
any terms and conditions of any purchase order, sales acknowledgement
or other document submitted to the other by either party which conflict
with the terms and conditions of this Agreement shall be of no force or
effect, and the terms and conditions hereof control and supersede such
conflicting documents and any course of conduct or usage of the trade
inconsistent with any of the terms and conditions hereof.
SECTION 2. PURCHASE AND SALE OF PRODUCT
2.1 PURCHASE AND SALE. Subject to the terms and conditions set forth
herein, Supplier agrees to sell and Distributor agrees to purchase
Products in accordance with Distributor's purchase orders and this
Agreement. In this regard:
(a) Distributor agrees to purchase and direct delivery of a
minimum of $1.5 million worth of Products for each of the
first two Contract Years (the "Minimum
44
4
Purchase Requirement"). The Minimum Purchase Requirement is
calculated based upon a sale price of the C-Med 100 product of
$160 USD/kilo, with 9,375 kilos to be purchased during the
course of each Contract Year (781 kilos per month). Supplier
and Distributor agree to an initial purchase order of 6,250
kilos to be submitted following the execution of this
Agreement. Further product prices and minimum orders are set
forth in Exhibit "A" attached hereto and by this reference
incorporated herein.
(b) Distributor and Supplier shall agree in writing to minimum
purchase requirements for the third, fourth, and fifth
Contract Years ninety (90) days prior to the commencement of
each Contract Year. Should the parties fail to come to an
agreement as to the minimum purchase requirement for any given
year following the first two Contract Years, the minimum
purchase requirement for that year shall reflect an increase
of no less than ten percent (10%) over the minimum purchase
requirement in effect for the previous contract year.
(c) The foregoing Minimum Purchase Requirement will be satisfied
for any given Contract Year if Distributor's aggregate
purchase of Product units equals or exceeds the Minimum
Purchase Requirement for that Contract Year. Notwithstanding
the foregoing, it is understood and agreed that Distributor
shall purchase not less than fifty percent (50%) of the
Minimum Purchase Requirement during the first six (6) months
of each Contract Year. If Distributor fails to meet or exceed
the foregoing minimum purchase requirement in any given
Contract Year, then, as Supplier's sole remedy, Supplier may
elect, by written notice to Distributor (i) to terminate this
Agreement or (ii) to make non-exclusive for all purposes the
sales and distribution rights granted Distributor by Section
1.2.
(d) Unless otherwise agreed, the minimum order quantity is as set
forth in Exhibit "A."
(e) All Products will be sold under Supplier's trademarks and
tradenames only, using Supplier's trade dress, and Supplier
will retain all proprietary rights in and to the same.
2.2 PURCHASE ORDERS AND FORECASTS. Upon execution of this Agreement,
Distributor shall provide Supplier with an initial eight (8) months
firm purchase order (at 781 kilos per month or 6250 total kilos) for
the purchase of Products and a forecast of its Product requirements for
the last four (4) months of the Contract Year on a monthly basis
commencing in the ninth (9th) month of the first Contract Year.
Continuing thereafter, Distributor will provide Supplier, on or before
the last day of each calendar month during the term of this Agreement,
an additional firm purchase order for Products for the third full
calendar month thereafter and a revised or supplemental forecast of
Product requirements for the fourth (4th) through ninth (9th) months
thereafter (unless the term hereof is shorter), it being the intent
that in general
45
5
Distributor will provide three (3) months purchase orders and six (6)
months forecasts on a rolling monthly basis during the term of this
Agreement. Distributor's purchase orders for a given month, in order to
be conforming, must specify only delivery dates during that month.
Distributor's forecasts are non-binding, but shall be Distributor's
reasonable best estimate of its future Product requirements.
2.3 ACCEPTANCE OF PURCHASE ORDERS. Within ten (10) days of receipt of a
purchase order from Distributor, Supplier may request in writing a
modification of the Product designations, quantities, delivery dates,
and special shipment instructions specified thereon. Supplier's failure
to request a modification or to reject a purchase order within the ten
(10) day period shall be deemed an acceptance thereof. Upon actual or
deemed acceptance of a purchase order by Supplier, a binding contract
for the sale and purchase of Product shall exist between Supplier and
Distributor in accordance with this Agreement and Distributor's
purchase order. If Supplier requests modification of any of the
aforementioned terms of Distributor's purchase order, then Distributor
shall have ten (10) days following receipt of the request to accept or
reject Supplier's modifications. If Distributor does not respond or
object to Supplier's request within ten (10) days of receipt, the
modifications specified thereon shall be deemed accepted by
Distributor. Upon Distributor's actual or deemed acceptance of purchase
order modifications by Supplier, a binding contract for the sale and
purchase of Products shall exist between Supplier and Distributor in
accordance with this Agreement and Distributor's purchase order as so
modified. The foregoing modification procedure shall apply only with
the regard to Product designations, quantities, delivery dates, and
special shipment instructions. With respect to all other terms,
Supplier and Distributor agree that the terms and conditions of this
Agreement shall apply to the sale of Product hereunder and cannot be
modified or amended except as provided in Section 12.8.
2.4 NON-CONFORMING ORDERS. Supplier will use reasonable commercial efforts
to fill non-conforming purchase orders for Products in accordance with
Distributor's requests.
2.5 SHIPMENT. Supplier will ship Product to Distributor to the delivery
destination(s) specified in Distributor's purchase orders. Supplier
shall arrange prepaid insured common carrier transportation of the
Products in accordance with Distributor's instructions, at
Distributor's expense. Supplier may not undership or overship by more
than ten percent (10%) without Distributor's prior written consent.
2.6 DELIVERY, TITLE AND RISK OF LOSS. For purposes of this Agreement,
delivery to or on behalf of Distributor will occur when the Products
are placed in the possession of the common carrier by Supplier. Title
and risk of loss or damage with respect to the Products shall pass to
Distributor upon delivery by Supplier to one common carrier.
46
6
2.7 PACKAGING FOR SHIPMENT. Unless otherwise agreed in advance, all
Products shall be packed by Supplier as Supplier reasonably deems
appropriate to minimize risk of loss or damage in transit.
SECTION 3. PRICES AND PAYMENT
3.1 PRICE. The prices for the Products (including volume discounts) for the
first twelve (12) months of this Agreement (the first "contract year")
are as set forth on Exhibit A and by this reference incorporated
herein. Prices do not include applicable sales or use taxes and
shipping & handling costs (freight and insurance), which shall be
separately stated on Supplier's invoices and born by Distributor.
3.2 PRICE CHANGES. The prices set forth on Exhibit A shall be revised
annually, on or before the start of each Contract Year, to reflect any
increase or decrease in manufacturing costs for the Products reasonably
projected by Supplier for the next Contract Year (in each case,
determined in accordance with generally accepted accounting principles,
consistently applied), with the first pricing review occurring ten (10)
months after the Effective Date of this Agreement. Price changes are
not effective unless mutually agreed to in writing (agreement not to be
unreasonably withheld if consistent with this Section 3.2). Prices may
also be subject to change immediately following the imposition of any
material cost increase associated with the manufacture of the Products,
with the change being effective immediately following Supplier's
demonstration of any material cost increase to the reasonable
satisfaction of Distributor. All such manufacturing cost increases
shall be factored into an increased Product price to maintain the C-Med
100 price structure established by this Agreement.
(a) AUDITS: In the event Supplier indicates an intent to increase
the price of any Product, upon the written request of
Distributor, Supplier shall provide Distributor with an
audited financial statement of Supplier's finances for the
preceding year. Such audited financial statement shall be
prepared at Distributor's expense. In addition, to validate
the necessity of the requested price increase, Distributor's
representatives shall have the right, during ordinary business
hours and with reasonable prior notice, to inspect Supplier's
books and records as they pertain to this Agreement.
3.3 TAXES. Distributor shall be responsible for all VAT, sales, use and
other similar taxes applicable to Product supplied under this
Agreement, unless Distributor provides written proof of exemption.
3.4 PAYMENT. Supplier shall issue invoices for Product on or after the date
of shipment. Payment shall be due within thirty (30) days from the date
of invoice. A late charge at the rate of one and one-half percent (1
-1/2%) per month or the highest rate allowed
47
7
by law, whichever is lower, shall be applied to the total invoice price
for payments not received within thirty (30) days after the date of
invoice. Supplier reserves the right to refuse shipment on any new
invoice when payment is more than thirty (30) days past due for a
previous invoice, until such previous invoice is paid in full.
SECTION 4. SPECIFICATIONS, QUALITY CONTROL, ACCEPTANCE
4.1 SPECIFICATIONS. Subject to Section 4.3, Supplier shall produce copies
of the Products in all material respects in accordance with their
Specifications and all applicable federal, state and local laws and
regulations.
4.2 SPECIFICATION CHANGES. Supplier reserves the right to change the
Specifications by written notice to Distributor. If Distributor objects
to any Specification change proposed by Supplier, then the parties will
consult in good faith to resolve their differences and Supplier will
not implement the change without Distributor's consent (not to be
unreasonably withheld).
4.3 QUALITY ASSURANCE. Supplier shall be responsible for ensuring that the
Products meet Supplier's internal quality assurance tests and
procedures prior to shipment hereunder. Upon request, Supplier will
provide Distributor with written certification by a responsible
supervisory employee of Supplier that the requirements of this Section
4.3 have been met.
4.4 ACCEPTANCE. Products shipped hereunder shall be subject to acceptance
by Distributor within fifteen (15) days of receipt. Distributor shall
promptly inform Supplier of any Product rejected as non-conforming and
at Supplier's request shall return non-conforming Products to Supplier,
at Supplier's risk of loss and expense. Products as to which no
rejection has occurred within fifteen (15) days shall be deemed
accepted.
SECTION 5. WARRANTY, DISCLAIMER, LIMITATION
5.1 PRODUCT WARRANTY. Supplier warrants to Distributor that the Products
purchased hereunder shall be free from all defects in materials,
workmanship, and packaging and shall conform in all material respect to
the Specifications, provided the Product in question has been stored
and used in accordance with ordinary industry practices and conditions.
5.2 REMEDIES. In the event that a Product does not comply with the product
warranty set out in Section 5.1 and such non-conforming Product is
returned to Supplier within the warranty period by Distributor freight
prepaid, Supplier will replace such non-conforming Product at no
additional charge to Distributor; the replaced Product will be returned
to Distributor, freight prepaid.
48
8
5.3 DISCLAIMER OF WARRANTIES. The foregoing express warranties are limited
to Supplier and are not transferable and are in lieu of any other
warranty by Supplier with respect to Products furnished hereunder.
SUPPLIER GRANTS NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
5.4 LIMITATION OF LIABILITY. EXCEPT AS PROVIDED FOR IN SECTION 6, SUPPLIER
SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SALE OR USE OF
ITS PRODUCTS, WHETHER OR NOT SUPPLIER HAS ADVANCE NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES. IF SUPPLIER BREACHES ANY PROVISION OF THIS
AGREEMENT, SUPPLIER'S SOLE AND EXCLUSIVE MAXIMUM LIABILITY, WHETHER
BASED IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED
THE CONTRACT PRICE FOR THE PARTICULAR PRODUCTS.
SECTION 6. INDEMNIFICATION
6.1 SUPPLIER INDEMNIFICATION: Supplier hereby agrees to indemnify and hold
harmless Distributor, including its affiliates, subsidiaries,
successors, assigns, officers, directors, agents, and employees, from
and against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines, or judgments (including, but not limited to,
reasonable attorneys' fees, expert witness costs, court costs, and
expenses) that may at any time be threatened against, suffered by,
accrued against, charged to, or recoverable against Distributor in any
forum by reason of any alleged defect in the CampaMed Product Line,
including (but not limited to) a failure to design, manufacture, and
label the Products accordance with applicable federal, state, and local
regulations; Supplier's failure to obtain or maintain all permits and
licenses required under law in relation to the manufacture of the
Products or this Agreement, any trademark disputes that may arise
pursuant to use of trademarks as set forth in Section 9.8, and any
financial loss, injuries or death of persons or loss of, damage to, or
destruction of property (including loss of use thereof) arising
directly out of the distribution of Supplier's products by or through
Distributor (including any punitive and/or exemplary damages associated
with such claims). With the exception of any liability to Distributor
for personal injury or death caused by Supplier's negligence,
Supplier's liability under this Agreement shall not exceed the total
dollar amount received by Supplier in connection with the sale of
Products to Distributor determined as of the time of claim for
indemnification.
49
9
SECTION 7. PROPRIETARY INFORMATION
7.1 PROTECTION OF PROPRIETARY INFORMATION. Supplier and Distributor agree
to keep in confidence and not disclose to others all knowledge,
information and data furnished to either by the other party and claimed
by the other party to be proprietary, provided such information is
given in writing or, if oral, is reduced to writing within thirty (30)
days and such writing is marked to indicate the claims of ownership
and/or secrecy. Supplier and Distributor agree that neither shall use,
nor reproduce for use in any way, any proprietary information of the
other except in furtherance of the relationship set forth herein.
Supplier and Distributor agree to protect the proprietary information
of the other with the same standard of care and procedures used by each
to protect its own proprietary information of similar importance but at
all times using at least a reasonable degree of care.
7.2 LIMITATIONS. Section 7.1 shall not be applicable and shall impose no
obligation on a party with respect to any portion of proprietary
information which:
(a) Was at the time received or which thereafter becomes, through
no act or failure on the part of such party, generally known
or available to the public;
(b) Is known to such party at the time of receiving such
information as evidenced by documentation then rightfully in
the possession of either party;
(c) Is furnished to others by the other party without restriction
of disclosure;
(d) Is thereafter rightfully furnished to such party by a third
party without restriction by that third party on disclosure;
or
(e) Has been disclosed pursuant to the requirements of law or
court order without restrictions or other protection against
public disclosure; provided, however, that the other party
shall have been given a reasonable opportunity to resist
disclosure and/or to obtain a suitable protective order.
7.3 SURVIVAL. The covenants of confidentiality set forth herein shall
survive and continue and be maintained from the Effective Date hereof
until three (3) years after termination of this Agreement.
SECTION 8. TERM AND TERMINATION
8.1 TERM. The initial term of this Agreement shall commence upon the
Effective Date and shall continue for a period of five (5) Contract
Years (the "Initial Term"). Thereafter, this Agreement shall be
automatically renewed for successive one (1) year terms unless
terminated by either party by ninety (90) days written notice given on
or before the commencement of any renewal term.
50
10
8.2 TERMINATION. Notwithstanding the effective period of this Agreement as
set forth in this Section 8, this Agreement shall terminate immediately
upon the termination of the Joint Venture Agreement. In addition, the
parties may mutually agree in writing to the early termination of this
Agreement at any time during the effective period hereof.
8.3 DEFAULT: The occurrence of any one or more of the following events
shall constitute an event of default (the "Event of Default") pursuant
to the terms of this Agreement:
(a) Any party fails to timely, fully, and properly perform any
material covenant, agreement, obligation, term, or condition
contained herein or within the Joint Venture Agreement, and
such failure continues for a period of thirty (30) days after
receipt by the defaulting party of written notice thereof from
the other party.
(b) Any party: (i) ceases to do business; (ii) takes any action or
otherwise commences legal proceedings to declare bankruptcy,
or to wind-up, liquidate, dissolve, or reorganize (other than
a reorganization while solvent), or (iii) has appointed on its
behalf a receiver, trustee, or similar officer.
8.4 RIGHTS UPON DEFAULT: Upon the occurrence of an Event of Default, the
non-defaulting party shall have the right to: (i) terminate this
Agreement and all rights granted hereunder; (ii) retain a third party
to take on the responsibilities of the defaulting party as set forth
herein until the default is cured; and/or (iii) seek all legal and
equitable remedies to which it is entitled, including without
limitation all actual and direct damages it may have suffered by virtue
of the breach.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 NOTICES: Any notice or communication required under this Agreement to
be made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by registered
mail with confirmed receipt (postage prepaid), or delivered by
overnight courier to the address of the party as set forth above. A
notice sent by facsimile transmission shall be deemed to have been
delivered on transmission provided that a copy of such notice was also
sent via registered mail with confirmed receipt.
9.2 TITLES AND CAPTIONS: All article and section titles or captions in this
Agreement are for convenience only. They shall not be deemed a part of
this Agreement, and in no way define, limit, extend, or describe the
scope or intent of any of its provisions.
9.3 BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the Parties and their successors, legal representatives, and
permitted assigns.
51
11
9.4 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior and
contemporaneous agreements, arrangements, negotiations, and
understandings between the parties hereto relating to the subject
matter hereof. There are no other understandings, statements, promises
or inducements, oral or otherwise, contrary to the terms of this
Agreement. No representations, warranties, covenants, or conditions,
express or implied, whether by statute or otherwise, other than as set
forth herein have been made by any party hereto.
9.5 NO WAIVER: No waiver of any term, provision, or condition of this
Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any
other provision hereof, whether or not similar, nor shall any such
waiver constitute a continuing waiver, and no waiver shall be binding
unless executed by the party making such waiver.
9.6 PARTIES IN INTEREST: Nothing in this Agreement (whether express or
implied) is intended to confer upon any person other than the parties
hereto and their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement, nor is
anything in this Agreement intended to relieve or discharge the
liability of any other party hereto, nor shall any provision hereof
give any entity any right to subrogation against any party.
9.7 RELATIONSHIP: The relationship between the parties shall be limited to
the performance of the terms and conditions of this Agreement. Nothing
herein shall be construed to create a general partnership, joint
venture, or other arrangement between the parties, or to authorize any
party to act as a general agent for another, or to permit any party to
bind another other than as set forth in this Agreement, or to borrow
money on behalf of another party, or to use the credit of any party for
any purpose.
9.8 BRANDING: Either party may use the other's logos, trademarks,
tradenames, and trade dress for advertising purposes with prior written
approval, which shall not be unreasonably withheld. No xxxx of supplier
may be placed upon products not manufactured or otherwise supplied by
Supplier. No party may make any unauthorized claims with regard to the
other party's products; any such unauthorized claims shall absolve the
other party of any liability in connection therewith
9.9 COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.10 INVALIDITY OF PROVISIONS: If any provisions of this Agreement is or
becomes wholly or partly invalid, illegal, or unenforceable:
52
12
(a) The validity, legality, and enforceability of the remaining
provisions shall continue in force unaffected, and
(b) The parties shall meet as soon as possible and negotiate in
good faith upon a replacement provision that is legally valid
and that as nearly as possible achieves the objectives of the
Agreement and produces an equivalent economic effect. A
replacement provision shall apply as of the date that the
replaced provision had become invalid, illegal, or
unenforceable.
9.11 TRANSACTION EXPENSES: Each party shall pay its own fees and expenses
(including legal and accounting fees) incident to the preparation and
execution of this Agreement.
9.12 FORCE MAJEURE: Neither party shall be liable to the other in the event
and to the extent that performance is delayed or prevented by any cause
reasonably beyond such party's control, including, but not limited to,
acts of God, public enemies, war, civil disorder, fire, flood,
explosion, labor disputes, or any acts or orders of any governmental
authority, inability to obtain supplies or materials (including,
without limitation, computer hardware) or any delay or deficiency
caused by the electrical or telephone line suppliers or other common
carriers (herein referred to as "Force Majeure"). A party's failure to
perform due to the existence of a Force Majeure event shall be excused
only for so long as the Force Majeure event continues.
9.13 GOVERNING LAW/ARBITRATION: This Agreement shall be construed and
governed in accordance with the laws of the United States and the State
of New York. Any controversy or claim arising out of or relating to
this agreement shall be determined by arbitration in accordance with
the International Arbitration Rules of the International Arbitration
Association. The number of arbitrators shall be three (3) and the place
of arbitration shall be New York City, New York, and the language of
the arbitration shall be in English. Arbitration proceedings shall take
no more than three (3) days, and no party shall be entitled to conduct
discovery in connection with any such arbitration.
9.14 FURTHER DOCUMENTS: The parties agree to execute such other documents as
may be necessary to effectuate the purposes of this Agreement as set
forth above.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date last written below.
CAMPAMED, LLC GARRA SCIENCES, INC.
BY: BY:
---------------------------- ----------------------------------------
NAME: XX. XXXXXX XXXX NAME: XX. XXXXXX XXXX
------------------------- -------------------------------------
53
13
TITLE: PRESIDENT TITLE: CHAIRMAN
---------------------------- --------------------------------
DATE: JUNE 12, 2001 DATE: JUNE 12, 2001
----------------------------- ---------------------------------
54
14
EXHIBIT A
PRODUCT PRICES
MINIMUM QUANTITY PRICE
C-MED 100 BULK: 100 KG
C-MED NZ: TO BE DETERMINED
NICOPLEX: 100 KG
THIOL TEST: 10 TESTS
NOTE: The agreements granting Supplier rights to the Nicoplex and Thiol Test
products are in process of finalization. Therefore, this Agreement, as pertains
to those products, is subject to the final execution of those agreements.
55
