EXHIBIT 2
SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of
the Effective Date (as defined below) by and between XXXXXXXXXX
LABORATORIES, INC., a Texas corporation and XXXXXXXXXX LABORATORIES
BELGIUM N.V., a Belgium corporation, jointly and severally (together
hereinafter referred to as "Xxxxxxxxxx"), and SAUDE 2000 ("Saude").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxx is engaged in the business of developing,
manufacturing, selling and distributing certain pharmaceutical products
and medical devices and is desirous of establishing a competent and
exclusive distribution source for sales of certain products in Portugal
(defined in Article 1 hereof as the Territory); and
WHEREAS, Saude is desirous of distributing such products in the
Territory, is well introduced in the market, is willing and able to
provide a competent distribution organization in the Territory, and
Saude desires to be Xxxxxxxxxx'x sales distributor for such products in
the Territory;
NOW, THEREFORE, the Parties hereto, in consideration of the
premises and mutual covenants and undertakings herein contained, agree
as follows:
Article 1. Definitions
1.1 As used in this Agreement, the following terms shall have the
meanings specified in this Article 1.1:
(a) "Effective Date" shall mean January 5, 1998.
(b) "Know-how" shall mean secret and substantial technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable Saude to promote,
market and sell the Products in the Territory, and as is or
will be specified in the documentation which Xxxxxxxxxx has
delivered or will deliver to Saude after the Effective Date
and during the term of this Agreement.
(c) "Parties" shall mean Xxxxxxxxxx and Saude and "Party" shall
mean either of them as the context indicates.
(d) "Products" shall mean oral care products manufactured by or
for Xxxxxxxxxx set forth on Exhibit A hereto.
(e) " Registration" shall mean any official approval, or
authorization, or licensing regarding the Products by the
appropriate and competent authorities in the Territory,
including, if applicable, the Products selling prices and
social security approvals, allowing the lawful marketing of
the Products.
(f) "Territory" shall mean the following country: Portugal
(g) "Trademarks" shall mean all Trademarks, trade names, service
marks, logos and derivatives thereof relating to the Products
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx hereby appoints Saude as Xxxxxxxxxx'x sales distributor in
the Territory for the sale of Products, and Saude hereby accepts such
appointment. As sales distributor in the Territory, Saude shall,
subject to the terms and conditions of this Agreement, have the right to
promote, distribute and sell Products in the Territory, but shall have
no right to take any such action outside the Territory.
2.2 In a manner reasonably satisfactory to Xxxxxxxxxx, and at
Xxxxxxxxxx'x sole expense, Xxxxxxxxxx agrees to make and maintain all
declarations, filings, and Registrations with, and obtain all approvals
and authorizations from, governmental and regulatory authorities
required to be made or obtained in connection with the promotion,
marketing, sale or distribution of the Products in the Territory.
2.3 During the term of this Agreement, Saude shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of Xxxxxxxxxx. As such, Saude has no
authority of any nature whatsoever to bind Xxxxxxxxxx or incur any
liability for or on behalf of Xxxxxxxxxx or to represent itself as
anything other than a sales distributor and independent contractor.
Saude agrees to make clear in all dealings with customers or prospective
customers that it is acting as a distributor of the Products and not as
an agent of Xxxxxxxxxx.
2.4 Nothing in this Agreement shall be construed as giving Saude
any right to use or otherwise deal with the Know-how for purposes other
than those expressly provided for in this Agreement.
Article 3. Certain Performance Requirements
3.1 Saude agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. Saude will not, under any
circumstances, either directly or indirectly through third parties,
promote, market, sell, or distribute Products within or to, or for
ultimate use within, the United States or any place outside the
Territory subject to EC requirements.
3.2 In order to assure Xxxxxxxxxx that Saude is in compliance with
Article 3.1, Saude agrees that:
(a) Saude will send to Xxxxxxxxxx quarterly sales reports which
set forth the number of units and sizes of each Product sold,
the net sales, the number of units of free medical samples
distributed, and to whom such Products were sold and/or
distributed during such quarter;
(b) Saude will send to Xxxxxxxxxx quarterly inventory reports of
the Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to Saude hereunder.
3.3 Saude shall promptly provide Xxxxxxxxxx with written reports
of any importation or sale of any of the Products in the Territory of
which Saude has knowledge from any source other than Xxxxxxxxxx, as well
as with any other information which Xxxxxxxxxx may reasonably request in
order to be updated on the market conditions in the Territory.
3.4 Saude shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
Saude shall maintain all its inventory of Products clearly segregated
and meeting all storage and other standards required by applicable
governmental authorities.
3.5 Saude shall be responsible for and shall collect all VAT and
other taxes (excluding license fees) that may be due and owing upon
sales by Saude of Products. Upon written request from Saude,
Xxxxxxxxxx shall provide Saude with such certificates or other documents
as may be reasonably required to establish any applicable exemptions
from the collection of such taxes, charges and fees.
3.6 All Products shall be packaged and labeled for sale and
delivered by Xxxxxxxxxx to Saude subject to and accordance with all
local rules and regulations. Upon mutual agreement. however, final
packaging may occur in Portugal. All Products shall be advertised,
marketed, sold and distributed by Saude in compliance with the rules and
regulations, as amended from time to time, of (i) all applicable
governmental authorities within the Territory in which the Products are
marketed, and (ii) all other applicable laws, rules and regulations.
Saude shall pay all expenses associated with (i) any alterations to the
packaging and labeling of the Products which deviate from Xxxxxxxxxx s
standard packaging materials, designs, methods and/or procedures, (ii)
any language modifications to the packaging or labeling and/or (iii) any
additions to inserts in the general packaging. The Parties shall agree
on minimum production runs for such custom labels.
3.7 Saude shall not make any alterations or knowingly permit any
alterations to be made to the Products without Xxxxxxxxxx'x written
consent.
3.8 Saude shall assume all responsibility for and comply with all
applicable laws, regulations and requirements concerning the inventory,
use, promotion, distribution and sale of the Products in the Territory
and correspondingly for any damage, claim, liability, loss or expense
which Xxxxxxxxxx may suffer or incur by reason of said inventory, use,
promotion, distribution and sale and shall hold Xxxxxxxxxx harmless from
any claim resulting therefrom being directed against Xxxxxxxxxx or Saude
by any third party.
3.9 Saude agrees not to make, or permit any of its employees,
agents or representatives to make, any claims of any properties or
results relating to any Product, unless such claims have received
written approval from Xxxxxxxxxx or from the applicable governmental
authorities.
3.10 Saude shall not use any label, advertisement or marketing
material on or with respect to or relating to any Product unless such
label, advertisement or marketing material has first been submitted to
and approved by Xxxxxxxxxx in writing.
Article 4. Sale of Products by Xxxxxxxxxx to Saude
4.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx shall sell to Saude the Products at a specified price for
each Product (the "Contract Price"). For orders placed by Saude during
the first 12-month period of the term of this Agreement, the Contract
Prices for the Products listed on Exhibit A are set forth on such
exhibit opposite each Product. At least ninety (90) days prior to the
end of each 12-month period of the term of this Agreement, (a) Saude
shall provide in writing to Xxxxxxxxxx both a sales forecast and a
purchase forecast for the following 12-month period, and (b) the Parties
shall commence good faith negotiations to determine and agree upon the
Contract Prices for Products for the next 12-month period of the term.
During any twelve (12) month period Xxxxxxxxxx reserves the right to
change its Contract Price for each Product subject to sixty (60) days
notice being given by Xxxxxxxxxx to Saude.
4.2 As consideration for its appointment as a sales distributor
entitled to a Product discount, Saude agrees to purchase from
Xxxxxxxxxx, during each 12-month period of the term of this Agreement,
commencing with the 12-month period beginning January 31, 1998 through
January, 31, 1999, at the Contract Price, a specified minimum aggregate
dollar amount (based on the Contract Price) of the Products (the
"Specified Minimum Purchase Amount"). For the first 12-month period of
the term of this Agreement, the targeted, but non-binding for this
period only, Specified Minimum Purchase Amount shall be $5,000. The
Specified Minimum Purchase Amounts for each subsequent 12-month period
shall be determined by mutual agreement of the Parties no later than
thirty (30) days prior to the beginning of such period based on Saude s
reasonable, good faith projections of future sales growth and such other
factors as the Parties may deem relevant.
4.3 Saude shall order Products by submitting a purchase order to
Xxxxxxxxxx describing the type and quantity of the Products to be
purchased. All orders are subject to acceptance by Xxxxxxxxxx. All
purchases shall be spaced in a reasonable manner. If Xxxxxxxxxx accepts
the order, Xxxxxxxxxx will invoice Saude upon shipment of the Products.
Unless otherwise agreed, Saude shall pay all invoices in full within
ninety (90) days of the date of invoice. Saude shall be solely
responsible for all costs in connection with affecting payments. All
sales and payments shall be made, and all orders shall be accepted, in
the State of Texas.
4.4 Xxxxxxxxxx shall not be obligated to ship Products to Saude at
any time when payment of an amount owed by Saude is overdue or when
Saude is otherwise in breach of this Agreement.
4.5. All shipments shall be initiated by a Purchase Order. Product
shipment dates will be specified in the Purchase Order. These dates may
not scheduled prior to ninety (90) days after the dated the Purchase
Order is received and acknowledged in writing by Seller, unless by
mutual consent of the parties Purchase Orders will be non-cancellable.
Saude will issue to Xxxxxxxxxx on a monthly basis, a twelve (12) month
rolling forecast so that Xxxxxxxxxx may incorporate said forecasts into
its planning system. The triggering document for production activities
is, however, the purchase order, as stated above. Xxxxxxxxxx will
guarantee delivery dates for Product quantities that vary up to 20%
above the last monthly rolling forecast issued prior to the purchase
order placed by Saude. Variation above 20% shall be discussed between
the Parties and Xxxxxxxxxx will use its best efforts to maintain
delivery dates requested by Saude.
4.6 All shipments of Products to Saude will be packaged in
accordance with Xxxxxxxxxx'x standard packaging procedures and shipped
per Xxxxxxxxxx'x existing distribution policy. All Contract Prices are
F.O.B., (invoice price includes seller's expense for delivery to the
named destination) Xxxxxxxxxx'x facility, Irving, Texas. Ownership of
and title to Products and all risks of loss with respect thereto shall
pass to Saude upon delivery of such Products by Xxxxxxxxxx to the
carrier designated by Saude at the designated delivery (F.O.B.) point.
Deliveries of Products shall be made by Xxxxxxxxxx under normal trade
conditions in the usual and customary manner being utilized by
Xxxxxxxxxx at the time and location of the particular delivery.
4.7 Xxxxxxxxxx accepts liability for defective Products and agrees
to replace such defective Products should they occur with new Products.
Except as may be expressly stated by Xxxxxxxxxx on the Product or on
Xxxxxxxxxx'x packaging, or in Xxxxxxxxxx'x information accompanying the
Product, at the time of shipment to Saude hereunder, XXXXXXXXXX MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. XXXXXXXXXX NEITHER ASSUMES NOR
AUTHORIZES ANYONE TO ASSUME FOR IT ANY OBLIGATION OR LIABILITY IN
CONNECTION WITH THE PRODUCTS. Saude shall not make any representation
or warranty with respect to the Products that is more extensive than, or
inconsistent with, the limited warranty set forth in this Article 4.7 or
that is inconsistent with the policies or publications of Xxxxxxxxxx
relating to the Products.
SAUDE'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER IS
THE DELIVERY BY XXXXXXXXXX OF ADDITIONAL QUANTITIES OF THE PRODUCTS IN
REPLACEMENT OF THE NON-CONFORMING PRODUCTS OR THE REFUND OF THE CONTRACT
PRICE FOR THE PRODUCTS THAT ARE COVERED BY THE WARRANTY, AT SAUDE'S
OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR LIABILITY FOR
DAMAGES TO SAUDE OR ANY OTHER PERSON OF ANY TYPE, INCLUDING, BUT NOT
LIMITED TO, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY OTHER LOSS, DAMAGE
OR EXPENSE, ARISING OUT OF OR IN CONNECTION WITH THE SALE, USE, LOSS OF
USE, NONPERFORMANCE OR REPLACEMENT OF THE PRODUCTS.
SAUDE SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS XXXXXXXXXX AND
CARRINGTON'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM
AND AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, EXPENSES AND
LOSSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING OUT
OF OR CONNECTED WITH (i) ANY USE, SALE OR OTHER DISPOSITION OF PRODUCTS,
KNOW-HOW OR TRADEMARKS BY SAUDE OR ANY OTHER PARTY, (ii) ANY BREACH BY
SAUDE OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS
AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF SAUDE OR ITS
AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND SAUDE S
AUTHORIZATION GRANTED HEREIN.
4.8 Credits for defective Products to Saude shall include
importation and shipment expenses and will be calculated by Xxxxxxxxxx
based on the original Contract Price of the items returned, whether
identified by lot number or another method. Xxxxxxxxxx shall provide
Saude with a copy of its liability Insurance Certificate and shall
include Saude thereunder.
Article 5. Term and Termination
5.1 The term of this Agreement shall be for a period of five (5)
years from the effective date of this Agreement. After such term, this
Agreement shall be automatically terminated unless the parties mutually
agree in writing to extend the term hereof. Notwithstanding the
foregoing, this Agreement may be terminated earlier in accordance with
the provisions of this Article 5 or as expressly provided elsewhere in
this Agreement.
5.2 Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if Saude fails to perform or breaches, in any material
respect, any material terms or provisions of this Agreement. Without
limiting the events which shall be deemed to constitute a breach or
material breach of this Agreement by Saude, Saude understands and agrees
that it shall be in material breach of this Agreement, and Xxxxxxxxxx
shall have the right to terminate this Agreement under this Article 5.2,
if:
(i) Saude fails or refuses to pay to Xxxxxxxxxx any sum when
due;
(ii) Saude breaches any provision of Article 2.2, 3.4, 4, 4.3,
4.7, 6 or 7; or,
(iii) Saude fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period.
5.3 Each Party shall have the absolute right to terminate this
Agreement in the event the other Party shall become insolvent, or if
there is instituted by or against the other Party procedures in
bankruptcy, or under insolvency laws or for reorganization, receivership
or dissolution, or if the other Party loses any franchise or license to
operate its business as presently conducted in any part of the
Territory.
5.4 This Agreement shall automatically terminate effective at the
end of any 12-month period of the term of this Agreement referred to in
Articles 4.1 and 4.2 hereof if the Parties are unable to agree upon the
Contract Prices or the Specified Minimum Amounts for the next 12-month
period of the term.
5.5 During the one-year period following termination of this
Agreement, any inventory of Products held by Saude at the termination of
this Agreement may be sold by Saude to customers in the Territory in the
ordinary course; provided, however, that for the period required to
liquidate such inventory, all of the provisions contained herein
governing Saude's performance obligations and Xxxxxxxxxx'x rights shall
remain in effect. In order to accelerate the liquidation of any such
inventory, Xxxxxxxxxx shall have the option, but not the obligation, to
purchase all or any part of such remaining inventory at the price at
which the inventory was originally sold by Xxxxxxxxxx to Saude,
including importation and shipping.
5.6 The termination of this Agreement shall not impair the rights
or obligations of either Party hereto which shall have accrued hereunder
prior to such termination. The provisions of Articles 4.7, 5.5, 6, 7
and 14 and the rights and obligations of the Parties thereunder shall
survive the termination of this Agreement for a period of one (1) year.
Article 6. Trademarks
6.1 All Xxxxxxxxxx Trademarks, trade names, service marks, logos
and derivatives thereof relating to the Products (the "Trademarks"), and
all patents, technology and other intellectual property (also known as
"Know-how") relating to the Products and of the goodwill associated
therewith, are the sole and exclusive property of Xxxxxxxxxx and/or its
affiliates. Saude may, however, use its Trademark "AftaGel" if it so
desires. Xxxxxxxxxx hereby grants Saude permission to use the
Trademarks for the limited purpose of performing its obligations under
this Agreement.
6.2 Mutually agreed upon Xxxxxxxxxx'x Trademarks shall appear on
all Product packaging, labels, and inserts and other materials which
Saude uses for the marketing of the Products. Xxxxxxxxxx retains the
right to review and approve all intended uses of the Trademark in any
packaging, inserts, labels, or promotional or other materials relating
to the Products prior to Saude's actual use thereof.
6.3 Saude agrees to use the Trademarks in full compliance with the
rules prescribed from time to time by Xxxxxxxxxx. The Trademarks shall
always be used together with the sign "[R]" or the sign "[TM]". Saude
may not use any Trademark as part of any corporate name or with any
prefix, suffix or other modifying word, term, design or symbol. In
addition, Saude may not use any Trademark in connection with the sale of
any unauthorized product or service or in any other manner not
explicitly authorized in writing by Xxxxxxxxxx.
6.4 In the event of any infringement of, or threatened or presumed
infringement of, or challenge to Saude's use of any Trademark or of any
Xxxxxxxxxx'x trademark, Saude is obligated to notify Xxxxxxxxxx
immediately. Xxxxxxxxxx shall investigate any alleged violation and,
if necessary, shall take the appropriate legal action to resolve the
issue and to prevent other competitors from infringing on said
intellectual property rights within the Territory. Xxxxxxxxxx shall
have sole and absolute discretion to take such action as it deems
appropriate.
6.5 In the event of the termination of this Agreement for any
reason, Saude's right to use the Trademarks shall cease after two years
or at such time as Saude's inventory of Products has been sold whichever
is later. Saude shall, as soon as it is reasonably possible after the
two (2) year, remove all Trademarks which appear on or about the
premises of the office(s) of Saude and any of the advertising of Saude
used in connection with the Products.
6.6 In the event of a breach or threatened breach by Saude of the
provisions of this Article 6, Xxxxxxxxxx shall be entitled to an
injunction or injunctions to prevent such breaches. Nothing herein
shall be construed as prohibiting Xxxxxxxxxx from pursuing other
remedies available to it for such breach or threatened breach of this
Article 6, including the recovery of damages from Saude.
6.7 Should for some reason the Trademark be prevented from being
used in any part or whole of the Territory, the Parties shall consult as
to a suitable other trademark (which trademark shall be also defined as
"Trademark" for purposes of this Agreement) owned by Xxxxxxxxxx or to be
transferred from Saude to Xxxxxxxxxx for use in connection with the
marketing and sale of the Products; it being agreed, however, that
Xxxxxxxxxx retains the right to ultimately determine what such
alternative Trademark shall be used, provided it is not confusingly
similar to a Trademark owned by Saude in the Territory.
6.8 Nothing contained in this Agreement shall be construed as
giving Saude the right to use the Trademark outside the Territory or for
any other product than the Products.
Article 7. Confidential Information
7.1 Both Parties recognize and acknowledge that each will have
access to confidential information and trade secrets, including "Know-
how", of the other and other entities doing business with each Party
relating to research, development, manufacturing, marketing, financial
and other business-related activities ("Confidential Information").
Such Confidential Information constitutes valuable, special and unique
property of each Party and/or other entities doing business with each
Party. Other than as is necessary to perform the terms of this
Agreement, neither Party shall not, during and after the term of this
Agreement, make any use of such Confidential Information, or disclose
any of such Confidential Information to any person or firm, corporation,
association or other entity, for any reason or purpose whatsoever,
except as specifically allowed in writing by an authorized
representative of the other. In the event of a breach or threatened
breach by either Party of the provisions of this Article 7, each Party
shall be entitled to an injunction restraining the other from disclosing
and/or using, in whole or in part, such Confidential Information.
Nothing herein shall be construed as prohibiting either Party from
pursuing other remedies available to it for such breach or threatened
breach of this Article 7, including the recovery of damages from the
other. The above does not apply to information or material that was
known to the public or generally available to the public prior to the
date it was received by either Party.
7.2 Saude shall not disclose any of the terms of this Agreement
without the prior written consent of Xxxxxxxxxx.
Article 8. Force Majeure
8.1 N e ither Saude nor Xxxxxxxxxx shall have any liability
hereunder if either is prevented from performing any of its obligations
hereunder by reason of any factor beyond its control, including, without
limitation, fire, explosion, accident, riot, flood, drought, storm,
earthquake, lightning, frost, civil commotion, sabotage, vandalism,
smoke, hail, embargo, act of God or the public enemy, other casualty,
strike or lockout, or interference, prohibition or restriction imposed
by any government or any officer or agent thereof ("Force Majeure"), nor
shall Saude's or Xxxxxxxxxx'x obligations, except as may be necessary,
be suspended during the period of such Force Majeure, nor shall either
Party's obligations be cancelled with respect to such Products as would
have been sold hereunder but for such suspension. Such affected Party
shall give to the other Party prompt notice of any such Force Majeure,
the date of commencement thereof and its probable duration and shall
give a further notice in like manner upon the termination thereof. Each
Party hereto shall endeavor with due diligence to resume compliance with
its obligations hereunder at the earliest date and shall do all that it
reasonably can to overcome or mitigate the effects of any such Force
Majeure upon both Party's obligations under this Agreement. Should the
Force Majeure continue for more than six (6) months, then the other
Party shall have the right to cancel this Agreement and the Parties
shall seek an equitable agreement on the Parties reward of interests.
8.2 The Parties agree that any obligation to pay money is never
excused by Force Majeure.
Article 9. Amendment
9.1 No oral explanation or oral information by either Party hereto
shall alter the meaning or interpretation of this Agreement. No
modification, alteration, addition or change in the terms hereof shall
be binding on either Party hereto unless reduced to writing and executed
by the duly authorized representative of each Party.
Article 10. Entire Agreement
10.1 This Agreement represents the entire Agreement between
the Parties and shall supersede any and all prior agreements,
understandings, arrangements, promises, representations, warranties,
and/or any contracts of any form or nature whatsoever, whether oral or
in writing and whether explicit or implicit, which may have been entered
into prior to the execution hereof between the Parties, their officers,
directors or employees as to the subject matter hereof. Neither of the
Parties hereto has relied upon any oral representation or oral
information given to it by any representative of the other Party.
10.2 Should any provision of this Agreement be rendered invalid or
unenforceable, it shall not affect the validity or enforceability of the
remainder.
Article 11. Assignment
11.1 Neither this Agreement nor any of the rights or obligations of
Saude hereunder shall be transferred or assigned by Saude without the
prior written consent of Xxxxxxxxxx, executed by a duly authorized
officer of Xxxxxxxxxx.
Article 12. Governing Law
12.1 It is expressly agreed that the validity, performance and
construction of this Agreement shall be governed by the laws and
jurisdiction of Portugal.
Article 13. Notices
13.1 Any notice required or permitted to be given under this
Agreement by one of the Parties to the other shall be given for all
purposes by delivery in person, registered air-mail, commercial courier
services, postage prepaid, return receipt requested, or by fax addressed
to:
(a) Xxxxxxxxxx at: Xxxxxxxxxx Laboratories, Inc., 0000 Xxxxxx Xxxx
Xxxx, Xxxxxx, Xxxxx 00000; Attention: President, or at such
other address as Xxxxxxxxxx shall have theretofore furnished
in writing to Saude. (Fax No. 000-000-0000).
(b) Saude at:________________________, Attention: _______________,
or at such other address as Saude shall have theretofore
furnished in writing to Xxxxxxxxxx. (Fax No.____________)
Article 14. Waiver
14.1 Neither Saude's nor Xxxxxxxxxx'x failure to enforce at any
time any of the provisions of this Agreement or any right with respect
thereto, shall be considered a waiver of such provisions or rights or in
any way affect the validity of same. Neither Saude's nor Xxxxxxxxxx'x
exercise of any of its rights shall preclude or prejudice either Party
thereafter from exercising the same or any other right it may have,
irrespective of any previous action by either Party.
Article 15. Arbitration
15.1 Except as expressly provided otherwise herein, any dispute,
controversy or claim arising out of or in relation to or in connection
with this Agreement, the operations carried out under this Agreement or
the relationship of the Parties created under this Agreement, shall be
exclusively and finally settled by confidential arbitration, and any
Party may submit such a dispute, controversy or claim to arbitration.
The arbitration proceeding shall be held at the location of the non-
instituting Party in the English language and shall be governed by the
rules of the International Chamber of Commerce (the "ICC") as amended
from time to time. Any procedural rule not determined under the rules
of the ICC shall be determined by the laws of Switzerland, other than
those laws that would refer the matter to another jurisdiction.
A single arbitrator shall be appointed by unanimous consent of
the Parties. If the Parties cannot reach agreement on an arbitrator
within forty-five (45) days of the submission of a notice of
arbitration, the appointing authority for the implementation of such
procedure shall be the ICC, who shall appoint an independent arbitrator
who does not have any financial or conflicting interest in the dispute,
controversy or claim. If the ICC is unable to appoint, or fails to
appoint, an arbitrator within ninety (90) days of being requested to do
so, then the arbitration shall be heard by three (3) arbitrators, one
selected by each Party within the thirty (30) days of being required to
do so, and the third promptly selected by the two arbitrators selected
by the Parties.
The arbitrators shall announce the award and the reasons
therefor in writing within six (6) months after the conclusion of the
presentation of evidence and oral or written argument, or within such
longer period as the Parties may agree upon in writing. The decision of
the arbitrators shall be final and binding upon the Parties. Judgment
upon the award rendered may be entered in any court having jurisdiction
over the person or the assets of the Party owing the judgment or
application may be made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may be. Unless otherwise
determined by the arbitrator, each Party involved in the arbitration
shall bear the expense of its own counsel, experts and presentation of
proof, and the expense of the arbitrator and the ICC (if any) shall be
divided equally among the Parties to the arbitration.
Article 16 Interpretation
16.1 The language of this Agreement is English. No translation
into any other language shall be taken into account in the
interpretation of the Agreement itself.
16.2 The headings in this Agreement are inserted for convenience
only and shall not affect its construction.
16.3 Where appropriate, the terms defined in Article 1 and denoting
a singular number only shall include the plural and vice versa.
16.4 References to any law, regulation, statute or statutory
provision includes a reference to the law, regulation, statute or
statutory provision as from time to time amended, extended or re-
enacted.
Article 17. Exhibits
17.1 Any and all exhibits referred to herein shall be considered an
integral part of this Agreement.
Article 18. No Inconsistent Actions
18.1 Each Party hereto agrees that it will not voluntarily
undertake any action or course of action inconsistent with the
provisions or intent of this Agreement and, subject to the provisions of
Articles 4.7 and 9 hereof, will promptly perform all acts and take all
measures as may be appropriate to comply with the terms, conditions and
provisions of this Agreement.
Article 19. Currency of Account
19.1 This Agreement evidences a transaction for the sale of goods
in which the specification of U.S. dollars is of the essence, and U.S.
dollars shall be the currency of account in all events. All payments to
be made by Saude to Xxxxxxxxxx hereunder shall be made either (i) in
immediately available funds by confirmed wire transfer to a bank account
to be designated by Xxxxxxxxxx or (ii) in the form of a bank cashier's
check payable to the order of Xxxxxxxxxx.
Article 20. Binding Effect
20.1 This Agreement shall inure to the benefit of and be binding
upon the respective successors of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the day and year first above written.
XXXXXXXXXX LABORATORIES, INC.
By:
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: January 30, 1998
XXXXXXXXXX LABORATORIES BELGIUM N.V.
By:
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: January 30, 1998
SAUDE 2000
By:
Name: Xxxxxxx Cerreia De Achmeida Xxxxx
Title: General Manager
Date: January 28, 1998
EXHIBIT A
SAUDE 2000
CONTRACT PRICE
NUMBER PRODUCT PRICE
500144 Xxxxxxxxxx[TM] Patch (6 patches per $.75/sleeve
sleeve)
NOTE: During the first contract year, Xxxxxxxxxx agrees to provide
free samples to Saude 2000 to be used for the promotion and
evaluation of the product. Such free samples shall not exceed,
however, 25% of the total order invoiced.
