Confidential Treatment Requested [ ]
EXHIBIT 10.14
OSMOTICS CORPORATION
SOLE SOURCE PRIVATE LABEL AGREEMENT
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(Xxxxx Xxxxx)
This Sole Source Private Label Agreement (this "Agreement") is made
and entered into as of 01.1.97, by and between Osmotics Corporation, a Colorado
corporation ("Osmotics"), and Xxxxx Xxxxx, a company organized under the laws of
France ("Buyer").
RECITALS
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A. Osmotics is engaged in the development, manufacture and sale of
cosmetics products, perfumes and toiletries and Buyer is engaged in the business
of marketing and distributing cosmetics in international markets.
B. Buyer desires to purchase for distribution and resale in the
Territory (as defined in Section 1(g)) and under Buyer's Trademarks (as defined
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in Section 1(b)), certain quantities of the Products (as defined in Section
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1(f), and Osmotics desires to sell such Products to the Buyer, upon the terms
and conditions set forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Definitions.
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(A) "AGREEMENT" shall mean this document and any annex, exhibit,
attachment, schedule, addendum, or modification hereto, unless the context
otherwise indicates.
(B) "BUYER'S TRADEMARKS" shall mean the trademarks, logos and
other marks owned or licensed by Buyer and used in connection with the
promotion, distribution and sale of the Products, whether registered or not.
(C) "CUSTOMER" OR "CUSTOMERS" shall mean any purchaser or
purchasers of Products from Buyer.
(D) "INTELLECTUAL PROPERTY" shall mean the Osmotics Trademarks
and
the patents, copyrights, trade secrets, formulas, know-how, proprietary
information and all other intellectual property rights owned or licensed by
Osmotics relating to the Products.
(E) "OSMOTICS TRADEMARKS" shall mean the trademarks, logos and
other marks owned or licensed by Osmotics relating to the Products, whether or
not registered, all as identified on Exhibit A hereto, as the same may be
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amended from time to time by Osmotics, including all translations thereof.
(F) "PRODUCTS" shall mean specially formulated cosmetic patches
("Pouched Patches") and related liquid solution ("Oil Solvent") developed and
manufactured by Osmotics and sold by Osmotics under the trademark WRINKLE PATCH,
and which Buyer desires to purchase for resale under Buyer's Trademarks.
(G) "TERRITORY" shall mean any country or countries, other than
the countries situated in the region commonly known as the Pacific Rim (the
"Excluded Territory"), as more specifically identified in Exhibit B, as the same
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may be amended from time to time by agreement of the parties.
2. Sole Source Agreement.
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(A) SOLE SOURCE; REQUIREMENTS. Subject to the terms and
conditions of this Agreement, Osmotics hereby agrees to supply Products to Buyer
from time to time in such quantities as Buyer shall request in a written order
pursuant to Section 6(a). Buyer acknowledges and agrees that Osmotics shall,
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during the initial term and any renewal term hereof, Osmotics shall be its sole
source manufacturer with respect to the Products, and Buyer shall not purchase
any product substantially similar to the Products from any other supplier for
sale or distribution within either the Territory or the Excluded Territory. The
Buyer agrees to purchase all of its requirements for the Products from Osmotics.
(B) PACKAGING. Products sold to Buyer hereunder shall be sold
and delivered in bulk. Buyer shall be solely responsible for providing all
packaging of the Products for resale under Buyer's Trademarks.
(C) NON-EXCLUSIVITY. The Buyer acknowledges and agrees that
nothing contained herein shall prevent Osmotics from selling Products in the
Territory under the Osmotics Trademarks. Osmotics reserves the right to appoint
sales representatives, agents, and/or distributors for the Products in or for
the Territory, and Osmotics reserves the right, for itself and its designees, at
any time, to sell the Products directly in the Territory, in each case without
thereby incurring any setoff or other payment obligation to the Buyer of any
type or nature.
(D) TRADE CHANNELS. Buyer acknowledges and agrees that Osmotics
will market and sell Products in the Territory under the Osmotics Trademarks
during and after the term hereof and the parties desire to avoid any marketing
conflict respecting the sale of
Products under their respective trademarks. Accordingly, Buyer agrees that it
shall not market, promote or sell any Products under the Buyer's Trademarks in
the Up-Scale Market (as defined herein) and Osmotics agrees that it shall not
sell Products under the Osmotics Trademarks except in the Up-Scale Market. As
used herein, the term "Up-Scale Market" shall mean and refer to the entire trade
channel which is comprised of perfumeries and retail stores and establishments
such as those listed, by way of example, on Exhibit C hereto.
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(E) LIMITATIONS ON RESALE ACTIVITIES. The reselling activities
of Buyer with respect to the Products are hereby expressly subject to the
following provisions: (i) Buyer shall refrain from seeking Customers,
establishing any branch and establishing any distribution depot within any
country located within the Excluded Territory; (ii Buyer shall use only its name
or trade names and the Buyer's Trademarks in marketing, distributing and selling
the Products. Buyer shall not, without the prior written consent of Osmotics,
use any Osmotics Trademarks in connection therewith or for any other purpose,
and shall not use the name "Osmotics Corporation" or any trade name of Osmotics
for any reason in connection with its promotion and distribution of the Products
or disclose the terms and conditions of this Agreement to any third party,
except as required by applicable law or governmental authority; and (iii) Buyer
shall not sell or assign any Products to any discount house or similar retail
discount operation.
(F) BUSINESS RISKS. Except as expressly provided otherwise in
this Agreement, Buyer shall bear all risks attendant to its capacity as a
purchaser, exporter, importer and reseller of the Products, including risks of
credit, currency devaluation, blocked currency, confiscation, expropriation,
rebellion, revolution, war, and all other risks of transaction within the
Territory.
(G) INDEPENDENT CONTRACTORS. It is expressly understood that the
relations of the parties are those of a purchaser, on the part of Buyer, and
seller on the part of Osmotics, and that each party is an independent contractor
with the sole responsibility for its own business. Buyer shall not be
considered an agent, distributor or legal representative of Osmotics for any
purpose and neither the Buyer nor any director, officer, agent, employee, or
independent contractor of the Buyer shall be, or be considered, an agent or
employee of Osmotics. Buyer is not granted and shall not exercise the right or
authority to assume, create, or represent to have the authority to assume or
create contractual obligations or responsibilities on behalf of Osmotics,
including without limitation contractual undertakings and obligations based on
warranties or guarantees, on behalf of or in the name of Osmotics.
(H) OPERATIONS AND EXPENSES. All operations and activities of
the Buyer, including but not limited to its employees, agents, independent
contractors, facilities, and equipment, shall be subject to the sole control and
management of the Buyer. Buyer is solely responsible for its own costs and
expenses and Buyer shall not incur any costs or expenses on behalf of Osmotics.
The Buyer shall provide, at its own expense, such office space and facilities,
and hire and train such personnel, as may be required to carry out its
obligations under this Agreement.
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(I) RETAILER PRIVATE LABELS. Buyer may, and at the request of
Osmotics shall, accept orders for Products from third party retailers approved
or designated by Osmotics ("Designated Retailers") to be resold at retail by
such Designated Retailers under their own brand names and private labels. In
connection with its sales of Products to any Designated Retailer, and as a
condition of Osmotics' obligation to supply Products for resale by such
Designated Retailer, Buyer shall enter into an agreement with such Designated
Retailer containing the covenant of the Designated Retailer (in substance
satisfactory to Osmotics) that it will not, during or after the term of such
agreement, sell Competing Products. Buyer shall, upon the request of Osmotics or
any Designated Retailer, deliver Products to such Designated Retailer in
packaging provided or approved by such Designated Retailer.
3. Buyer's General Obligations.
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(A) BEST EFFORTS. Buyer agrees to use its continuing diligence
and best efforts to market, promote, and distribute the Products and to secure
purchasers for the Products within the Territory.
(B) RECORDS AND REPORTS. Buyer hereby acknowledges that Osmotics
requires accurate information regarding the retail prices at which Products are
sold in certain locations within the Territory and that, due to the nature of
the cosmetics industry, Osmotics desires to maintain the ability to trace the
purchasers of the Products. Accordingly:
(i) Buyer shall keep true and accurate records of sales of
Products to its Customers. All of such records and the files upon which they are
based shall be open to inspection by Osmotics' authorized representatives during
Buyer's regular business hours for the purpose of monitoring Buyer's compliance
with the terms and conditions of this Agreement; provided, that such
representatives shall be required to agree to maintain the confidentiality of
such records except as necessary to the purposes contemplated by this Section 3.
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(ii) Buyer shall provide Osmotics with quarterly forecasts
of sales and any other information, such as special marketing events, which may
cause potential increases in demand, not later than thirty days prior to the end
of each quarter. Such reports, setting forth the required information
respecting the quarter immediately succeeding the following dates, shall be due
on the first day of December, March, June and September of each year during the
initial term and any renewal term hereof.
(iii) Buyer shall keep Osmotics informed of its price lists
(including retail) and shall inform Osmotics immediately of any actual or
anticipated changes in Buyer's organization or method of doing business which
might affect the performance of Buyer's duties hereunder.
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(C) RETAIL PRICING. To the extent permitted under the laws of
the Territory, Buyer will consult with Osmotics with reference to the
determination of retail prices, trade discounts, promotional discount, sales
incentives and special offers as Osmotics may determine and establish, and Buyer
shall to the best of its ability cause all of its customers to maintain such
retail prices, trade discounts, promotional discounts, sales incentives and
special offers and shall cease selling the Products to any of its customers who
fail to maintain the aforementioned retail prices, trade discounts, promotional
discounts, sales incentives and special offers.
4. Compliance with Laws. Buyer acknowledges that it will at all
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times be acting as an exporter and importer of the Products for distribution in
accordance with the provisions of this Agreement. Accordingly, all sales of
Products hereunder shall at all times be subject to the export control laws and
regulations of the United States, as the same may be amended from time to time.
The Buyer agrees that it shall not make any disposition, by way of trans-
shipment, re-export, diversion or otherwise, except as such laws and regulations
may expressly permit, of U.S. origin Products. Buyer shall strictly comply with
all laws and regulations pertaining to the exportation, importation, promotion,
sale and distribution of the Products at any time in force in countries within
the Territory and the United States. Without limiting the generality of the
foregoing provision, Buyer expressly agrees as follows:
(A) IMPORTATION OF PRODUCTS. Buyer shall arrange for clearance
through customs of all Products and the transportation thereof to Buyer's
facility in Paris, France solely at Buyer's cost and expense. Buyer shall pay
all customs, import, excise, sales, and other similar duties and taxes payable
in respect of the Products shipped to Buyer.
(B) AUTHORIZATIONS. Buyer shall obtain any licenses,
authorizations, permissions, and other documents, and shall comply with all
formalities for import, export, distribution, sale and/or other disposal of the
Products in, to and from Paris, France and within the Territory solely at its
cost and expense and in its own name.
5. General Obligations of Osmotics.
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(A) PRODUCT INFORMATION AND ASSISTANCE. Osmotics shall promptly
deliver to the Buyer information relating to the Products which Osmotics
reasonably believes to be necessary to enable the Buyer to market and sell the
Products. Upon Buyer's request and at its expense, Osmotics shall provide
additional assistance and training to the Buyer at a site designated by the
Buyer at times as may be mutually agreed upon by the parties.
(B) OTHER ASSISTANCE. Osmotics shall assist Buyer to the extent
reasonably necessary to comply with any of its obligations under Section 4.
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Notwithstanding the foregoing, Osmotics shall not be liable if any authorization
is delayed, denied, revoked, restricted or not renewed.
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Confidential Treatment Requested [ ]
6. Purchase and Delivery of Products.
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(A) PURCHASE ORDERS. All orders shall be made in writing, telex
and facsimile included. All orders placed by Buyer shall be deemed offers to
purchase upon transmission which shall not be binding upon Osmotics unless and
until they have been accepted by Osmotics, such acceptance to be evidenced
solely by Osmotics' shipment of Products upon any such order. The terms of this
Agreement shall govern any purchases of Products by the Buyer, notwithstanding
any additional or contrary terms set forth in Buyer's purchase order. Each order
shall be made not less than thirty days nor more than 45 days prior to the
Buyer's desired delivery date.
(B) PURCHASE PRICE. The purchase price for the Pouched Patches
shall be [ ]. The purchase price of the Oil Solvent shall be [ ]. The foregoing
prices are F.O.B. Osmotics' facility at Montrose, Colorado. The aggregate price
per order may vary if Buyer requests any additional or special shipping or
handling.
(C) PAYMENT; CURRENCY. Payment in full for any order shall be
due and payable net 60 days following the date of delivery by wire transfer of
immediately available funds pursuant to such instructions therefor as Osmotics
shall provide to Buyer from time to time in writing. Any and all sums due
Osmotics under the terms of this Agreement shall be paid in United States
dollars (or such other currency as Osmotics shall designate) at the rate of
exchange prevailing on the date payment is due, and at such place, in such
manner and on such credit terms, if any, as Osmotics shall determine. Osmotics
shall have the right to revise the place and the manner of payment and credit
terms, if any, to protect its interests.
7. Delivery; Risk of Loss; Security Interest.
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(A) SHIPMENT. Osmotics shall ship the Products ordered by
Buyer as soon as possible within the normal shipping schedule established by
Osmotics from time to time, but cannot guarantee a specific shipment date.
Accordingly, Osmotics' sole obligation to Buyer shall be to ship Products as
promptly as reasonably practicable following each order. All deliveries of
Products shall be made F.O.B. Osmotics' plant.
(B) RISK OF LOSS. Title and all risk of loss or damage to the
Products shall vest in the Buyer at the time of Osmotics' delivery of the
Products to the carrier notwithstanding any shipping and insurance arrangements
made by Osmotics on the Buyer's behalf. However, Osmotics reserves a purchase
money security interest in each Product delivered until full payment is
received. Osmotics may file this Agreement as a financing statement pursuant to
applicable law to evidence or perfect Osmotics' security interest. Buyer agrees
to execute any additional documents Osmotics deems necessary or desirable to
perfect or protect its security interest in the Products or to enable Osmotics
to exercise its rights and
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remedies hereunder.
8. Insurance. Buyer represents that it currently maintains, and
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hereby agrees that it shall continue to maintain during the term of this
Agreement, comprehensive general liability insurance, property damage insurance,
and such other insurance in such amounts and with such coverage as are and shall
be customary in the Buyer's line of business and as required by law. Buyer
shall provide Osmotics with certificates evidencing such insurance upon
commencement of this Agreement and upon commencement of each extension of this
Agreement. Osmotics shall cause Buyer to be added as a named insured on its
product liability insurance policy.
9. Warranty and Limitation of Liability.
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(A) WARRANTY; DISCLAIMER. Osmotics warrants to the Buyer that,
until the expiration date stated on the Products or, if none, one year from the
date of shipment, the Products shall conform to the description of such Products
as provided in Osmotics' written materials setting forth such descriptions and
such specification as may be required from time to time by the United States
government. THIS WARRANTY IS EXCLUSIVE AND OSMOTICS MAKES NO OTHER
REPRESENTATION OR WARRANTY TO BUYER OR ANY CUSTOMER OR OTHER THIRD PARTY,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. Osmotics specifically
disclaims any warranty that the Products are free from infectious agents or
deleterious properties. This warranty shall not apply if Osmotics determines in
its sole discretion, that Buyer or any purchaser of the Product has misused or
mishandled the Products in any manner or has failed to use the Products in
accordance with instructions furnished by Osmotics. During the warranty period,
Osmotics will, at its option, refund the purchase price of or replace any
Product proved to Osmotics' satisfaction to be defective or nonconforming;
provided that Buyer returns the Product to the point of shipment properly packed
and shipment prepaid. Concurrently with any refund or Product replacement,
Osmotics shall reimburse Buyer for the cost of shipping the defective Product to
Osmotics.
(B) RETURNS. No returns of Products will be accepted unless
Buyer complies with Osmotics' return policy, as amended from time to time. A
copy of Osmotics' current return policy is attached hereto as Exhibit D.
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Replacement shall mean furnishing a new shipment (F.O.B. place of original
shipment) of the Product in an amount sufficient to replace any Product found to
be defective or nonconforming.
(C) LIMITATION OF LIABILITY. OSMOTICS' ENTIRE LIABILITY AND THE
BUYER'S (AND ITS CUSTOMERS') EXCLUSIVE REMEDY SHALL BE AS FOLLOWS:
IF THE BUYER RIGHTFULLY REJECTS THE PRODUCTS, OR JUSTIFIABLY REVOKES ACCEPTANCE
OF THE PRODUCTS, THE BUYER'S (AND ITS
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CUSTOMERS') SOLE REMEDY IS A REFUND OR CREDIT FOR ANY PAYMENTS MADE FOR THE
REJECTED OR REVOKED PRODUCTS UPON RETURN OF THE PRODUCTS TO OSMOTICS IN
ACCORDANCE WITH SECTION 9(a) ABOVE.
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AFTER ACCEPTANCE OF THE PRODUCTS, BUYER'S AND ITS CUSTOMERS' SOLE REMEDY IS FOR
REFUND OR REPLACEMENT, PURSUANT TO THE TERMS OF THE WARRANTY SET FORTH IN
SECTIONS 9(a) and (b) ABOVE.
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OTHER THAN OSMOTICS' OBLIGATION TO REFUND OR REPLACE AS SET FORTH ABOVE,
OSMOTICS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL,
INDIRECT, SPECIAL OR OTHER DAMAGES OF ANY KIND, FOR ANY REASON WHATSOEVER
INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON NEGLIGENCE, BREACH OF
WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY, EXCEPT AS SET FORTH IN SECTION
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10(b).
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INCIDENTAL AND CONSEQUENTIAL DAMAGES SHALL NOT BE RECOVERABLE EVEN IF THE
REPLACEMENT REMEDY FAILS ITS PURPOSE OR FOR ANY OTHER REASON.
10. Indemnification.
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(A) OSMOTICS' RIGHT OF INDEMNIFICATION. Buyer agrees that it
shall indemnify and hold Osmotics harmless from and against all claims, damages,
losses, and expenses, including reasonable attorneys' fees, arising out of or
resulting from (i) the sale, handling, storage, transport, use or application of
the Products by Buyer, or its employees, agents, customers, or anyone for whose
actions any of them may be liable or (ii) any breach by the Buyer of the terms
or conditions of this Agreement, including any misrepresentation by Buyer of its
authority hereunder or any representation or warranty made by the Buyer to
Osmotics or with respect to Osmotics and/or the Products, which were untrue when
made or were not authorized in writing by Osmotics.
(B) BUYER'S RIGHT OF INDEMNIFICATION. Osmotics agrees that it
shall indemnify and hold Buyer harmless from and against all claims, damages,
losses, and expenses, including reasonable attorneys' fees, arising out of or
resulting from any claim of any individual for personal injury arising out of
such individual's use of Products sold in the Territory; provided that the
foregoing right of indemnification shall not apply in any instance where such
alleged personal injury arose from the use of Products which have been altered
in any way following shipment by Osmotics, or which were used by such individual
other than in accordance with instructions provided by Osmotics, or which were
used in conjunction with products other than the Products. As a condition to the
enforceability of such right of indemnification, Buyer shall give Osmotics
timely written notice of any action brought against Buyer or Osmotics and
Osmotics shall have the right and option to direct and control the defense of
such action.
11. Intellectual Property.
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(a) Osmotics does not grant to the Buyer any license to use any of
its Intellectual Property. Buyer agrees not to use any packaging, labels,
advertising or any other materials on which the Osmotics Trademarks appear.
(b) The Buyer acknowledges that Osmotics is the owner of the
Intellectual Property, including the Osmotics Trademarks, and all rights and
good will associated with the Intellectual Property. Buyer shall not claim
adversely to possess any right, title or interest in and to such Intellectual
Property or to assist any third party in so claiming.
(c) Upon the request of Osmotics, the Buyer agrees to provide
Osmotics information regarding its packaging, labels, advertising, and other
materials it uses in connection with its sales and marketing of the Product for
the purpose of monitoring the Buyer's compliance with Osmotic's Intellectual
Property rights.
12. Proprietary Information.
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(A) CONFIDENTIAL INFORMATION. In performing this Agreement,
each party may receive information of a confidential and proprietary nature
regarding the other, including information about such party's intellectual
property and its operations, including, but not limited to, research, formulas,
marketing plans, strategies, forecasts, budgets, and customer and supplier lists
(hereinafter called "Confidential Information"). Confidential Information shall
be held in strict confidence by the recipient, shall not be used except as
permitted hereunder, and shall not be disclosed to any third party without the
prior written consent of the disclosing party. The employees, agents, and
sublicensees of the recipient shall be bound to the same obligations of
confidentiality and restrictions on use as the recipient. Confidential
Information shall not include:
(i) information which is known to the recipient prior to
the date of receipt and not obtained or derived in any manner related to this
Agreement;
(ii) information which is or becomes part of the public
domain through no fault of the recipient; or
(iii) information which is obtained from a third party who
lawfully possesses such Confidential Information and is under no obligation to
keep such Confidential Information confidential.
(B) DISCLOSURE TO TRIBUNAL. If disclosure of Confidential
Information is required by law, regulation or order, other than as contemplated
by subsection (c) below, such Confidential Information may be disclosed by the
recipient; provided that the disclosing party is notified before the recipient
makes any such disclosure and the recipient uses its best efforts to ensure that
the disclosures are treated, to the extent possible, as confidential by the
government agency or other person or entity receiving Confidential
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Information.
(C) REGISTRATIONS. If, in connection with the obtaining of
any health or other registration or authorization with respect to the Products,
Buyer shall be required to present to a government agency or authority formulas
with respect to the Products and such formulas shall be furnished by Osmotics to
Buyer for such purpose, then, in such event Buyer shall treat the said formulas
in all respects as strictly confidential and as trade secrets and will not
disclose the same to any party other than the aforesaid government agency or
authority. Buyer shall promptly notify Osmotics of any request for such formulas
made by said government agency or authority. Further, said formulas shall be
disclosed by Buyer only to such persons within Buyer's organization who require
the same for the purpose of the filing of formula statements with the said
government agency or authority, and at Osmotics' request, Buyer shall cause the
aforesaid people in Buyer's organization to sign such nondisclosure or trade
secrets agreements as Osmotics may require with respect to said formulas. In all
other respects, the said formulas shall be kept confidential by Buyer and shall
not be used for any purpose other than that described herein.
13. Covenant not to Compete. Buyer hereby covenants and agrees that
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it shall not be an owner, partner, officer, director, manager, employee, or
other representative any person or entity which manufactures, markets or sells
products which compete directly with the Products ("Competing Products"), (b)
that no such person or entity shall hold any interest, directly or indirectly,
in Buyer and (c) that it shall not otherwise, directly or indirectly,
manufacture, promote or sell Competing Products under any contract, joint
venture or other arrangement.
14. Survival. The provisions of Sections 12 and 13 shall survive the
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termination or expiration of this Agreement.
15. Remedies. The parties acknowledge that a breach by either party
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of the provisions of Sections 10, 11, 12 and 13 of this Agreement will cause the
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other party irreparable injury for which it cannot be reasonably or adequately
compensated in money damages. The injured party shall, therefore, be entitled,
in addition to all other remedies available to it, to injunctive and other
equitable relief to prevent a breach of such provisions, or any part of them,
and to secure their enforcement. Nothing contained herein shall be construed as
prohibiting a party from pursuing any other remedies available to it, including
the recovery of damages, in the event of a breach of this Agreement.
16. Term and Termination. Unless sooner terminated as provided
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below, the term of this Agreement shall commence as of the date set forth above
and shall continue for five years, whereupon this Agreement shall automatically
extend for additional periods of five years each unless either party gives
written notice to the other that it does not intend so to extend this Agreement,
at least 90 days prior to the expiration of the initial term or any renewal term
hereof.
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17. Termination.
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(A) AUTOMATIC TERMINATION. This Agreement shall immediately and
automatically terminate without notice to the Buyer upon either of the following
events:
(i) the attempted or actual assignment by Buyer of this
Agreement or any of its rights or obligations hereunder without the prior
written consent of Osmotics; or
(ii) the voluntary bankruptcy, dissolution or liquidation
of Buyer or the appointment of a receiver for any substantial portion of the
assets of Buyer.
(B) MATERIAL DEFAULT. In the event of a material default by
either party in the performance of this Agreement, the other party may give
written notice to the defaulting party specifying the nature and extent of the
default and requiring cure; and the defaulting party shall have sixty (60) days
thereafter to cure such default. If such default is not cured within such sixty
(60) day period, then the aggrieved party may by written notice declare this
Agreement immediately terminated.
(c) This Agreement may be terminated immediately by Osmotics by
notice in writing to Buyer upon either of the following events:
(i) there are any changes in the financial or business
condition or other circumstances of Buyer which, in the judgment of Osmotics,
are materially detrimental to the interests of Osmotics, including, without
limitation, any acquisition of any interest in Buyer by an entity engaged in any
business which, in the judgment of Osmotics, manufactures Competing Products (or
the acquisition by Buyer of any interest in any such entity); or
(ii) the commencement of an involuntary bankruptcy
proceeding against Buyer which proceeding is not dismissed within sixty (60)
days; or
18. Disposition of Products Upon Termination. Osmotics assumes no
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responsibility or obligation for or with respect to Products in the possession
of the Buyer at or after termination of this Agreement; provided, however, that
Osmotics shall have the right, at its option, within thirty (30) days after the
date of termination to purchase or cause to be purchased any or all of the
Products in the Buyer's inventory at a price equal to the "F.O.B." price thereof
to the Buyer. The Buyer shall pack and arrange for shipping of such Products as
are so purchased.
19. Force Majeure. Neither party to this Agreement shall be liable
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to the other and neither shall be deemed in default hereunder for any failure or
delay in the performance of any of its covenants, agreements or obligations,
hereunder, other than the failure to pay money when due, caused by or arising
out of conditions of force majeure. In
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this clause, "conditions of force majeure" shall mean any war, riot, social
disturbance, act of God, strike, lockout, trade dispute or labor disturbance,
accident, breakdown of plant or machinery, fire, flood, difficulty in obtaining
workmen or materials or transportation, any law, act or order of any court,
board, government, or other direct authority of competent jurisdiction, or any
other cause beyond the reasonable control of the party. The party affected by
any condition of force majeure as described in this provision shall promptly
notify the other party in writing and hereby agrees to use reasonable diligence
to remove any such conditions of force majeure as may occur from time to time;
provided, however, nothing contained herein shall require the settlement of
strikes, lockouts, or other labor difficulties by the party affected contrary to
its wishes.
20. Notices. Any notices, payments or other communications required
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or permitted to be given or made hereunder shall be in writing in the English
language and shall be hand delivered or sent by registered airmail letter,
postage prepaid, express courier, and (except for payments) facsimile or telex
to the other party at its address set forth below or to such other address as
may from time to time be notified by one party to the other in accordance with
this Section.
If to Osmotics:
Osmotics Corporation
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 XXX
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer:
Xxxxx Xxxxx
00-00, Xxx Xxx Xxxxxx
00000 Xxxxxxxx
Xxxxx, Xxxxxx
Attn: Xxxxxx Xxxxxx
Telephone: 00 00 00 00 00
Facsimile: 01 47 91 03 79
All notices, payments and other communications shall be effective (i) if sent by
registered airmail letter, when received or seven (7) days after mailing,
whichever is earlier; (ii) if hand delivered or sent by express courier, when
delivered; or (iii) if by facsimile or telex, when received by the machine to
which it was transmitted (a machine-generated transaction report produced by
sender bearing recipient's facsimile number being prima facie proof of receipt.)
21. Entire Agreement. This Agreement constitutes the entire
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agreement
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between the parties relating to the subject matter hereof and supersedes all
prior written and oral understand ings and agreements between the parties. No
modification or waiver of any term or condition of this Agreement shall be valid
or binding unless the same is in writing signed by both parties.
22. Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement, or the breach thereof shall be settled by arbitration in
Denver, Colorado in accordance with the commercial rules, then obtaining, of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof pursuant to Section 23.
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23. Choice of Law; Jurisdiction. This Agreement shall be governed by
---------------------------
and construed in accordance with the laws of the State of Colorado, USA, without
regard to its conflict of laws principles. Buyer hereby waives French
jurisdiction and consents to the jurisdiction and venue of the state and federal
courts of Colorado over any disputes arising hereunder. The English language
text of this Agreement shall be the authorized text for all purposes.
24. Assignability; Binding Effect. This Agreement may not be
-----------------------------
assigned, sublicensed or transferred by Buyer, by operation of law or otherwise,
without the prior written consent of Osmotics. For purposes of this Agreement,
a change in control of or a merger or consolidation involving Buyer, shall be
deemed an assignment. Subject to this condition, this Agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
parties.
25. Authority. Each party to this Agreement warrants that it has the
---------
authority to execute and perform this Agreement and that this Agreement is the
valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
26. Severability. If any provision of this Agreement shall be
------------
adjudged by a court to be void or unenforceable, the Agreement shall be deemed
modified to the minimum extent necessary to avoid the illegality, but the void
or unenforceable provision shall in no way affect any other provision of this
Agreement or the validity or enforceability of the remainder of this Agreement.
27. Governmental Approvals. The parties agree that if any
----------------------
governmental approvals or filings are required, the parties will jointly
cooperate to make all such filings and obtain all such approvals. If any such
approval will require substantive modifications to this Agreement and the
parties cannot agree upon modifications which will permit governmental approval,
either party may terminate this Agreement by written notice to the other without
further liability to the other except for obligations accrued to the date of
termination and obligations which are otherwise specified herein as surviving
termination.
IN WITNESS WHEREOF, the parties hereto have caused this Sole Source
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Private Label Agreement to be executed by their respective duly authorized
representatives on the day and year first above written.
OSMOTICS CORPORATION
By_____________________________________
Xxxxxx Xxxxxx, President
XXXXX XXXXX
By_____________________________________
Xxxxxx Xxxxxx, Directeur General
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EXHIBIT A
DISTRIBUTOR'S TRADEMARKS
------------------------
[trademarks graphics]
A-1
EXHIBIT B
EXCLUDED TERRITORY
------------------
Japan
Korea
Australia
New Zealand
Thailand
China
Malaysia
Hawaii
Singapore
Indonesia
B-1
EXHIBIT C
Up-Scale Market
---------------
The following establishments within the Territory are representative of the
retail establishments included in the Up-Scale Market:
Galeries Lafayette
Sephora
Le Printemps
C-1
Confidential Treatment Requested [ ]
Exhibit D
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RETURN POLICY
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Except as described below, no returns of Products will be accepted by Osmotics
unless agreed to in writing by Osmotics. When a defective Product claim is
received, Osmotics will immediately recheck its quality control records to
ensure the Product performed according to Osmotics' Certificate of Analysis upon
shipment.
Osmotics will retest Product Buyer believes to be defective and compare its
performance to that of Osmotics' retention samples.
a) If Osmotics' retention samples perform according to Osmotics'
original release specifications but the returned Product does not, Osmotics
will assume the Product was compromised either in shipping or handling
after it left the Osmotics facility. In this case, Osmotics will assist
Buyer in filing a claim with Buyer's carrier but Osmotics will assume no
liability for the claim.
b) If the Product's performance compares favorably with Osmotics'
retention samples but Buyer wants to exchange the Product for a different
lot, Osmotics will exchange the lot for Buyer, but Buyer will be charged a
[ ] restocking fee.
C-2
