EXHIBIT 5
EXCLUSIVE 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 (together hereinafter
referred to as "Xxxxxxxxxx"), and VINCULA INTERNATIONAL TRADE COMPANY, a
Texas corporation ("VINCULA").
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 such products in Oman and
Saudi Arabia (defined in Article 1 hereof as the Territory); and
WHEREAS, Vincula is desirous of distributing such products in the
Territory, represents that it has experience in obtaining registration
of pharmaceutical preparations or products and medical devices in the
Territory, is well introduced on the market, is willing and able to
provide a competent distribution organization in the Territory, and
Vincula 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 the date of last signature of the
Parties hereto.
(b) "Know-how" shall mean secret and substantial technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable Vincula to obtain the
Registration of, 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 Vincula
after the Effective Date and during the term of this
Agreement.
(c) "Parties" shall mean Xxxxxxxxxx and Vincula and "Party" shall
mean either of them as the context indicates.
(d) "Products" shall mean the wound and skin care products
manufactured by or for Xxxxxxxxxx set forth on Exhibit A
hereto. Xxxxxxxxxx will provide a ninety (90) day notice to
Vincula on its intent to add or discontinue Products to
Exhibit A.
(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 countries: Oman and
Saudi Arabia. (Other countries in the Middle East may be
added upon mutual agreement).
(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 Vincula as Xxxxxxxxxx'x exclusive sales
distributor in the Territory for the sale of Products, and Vincula
hereby accepts such appointment. As exclusive sales distributor in the
Territory, Vincula shall, subject to the terms and conditions of this
Agreement, have the right to obtain the Registration of, 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
Vincula's sole expense, Vincula agrees to (a) 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, (b)
devote its best efforts to the diligent promotion, marketing, sale and
distribution of the Products in the Territory, (c) provide and maintain
a competent and aggressive organization for the promotion, marketing,
sale and distribution of the Products in the Territory, (d) assure
competent and prompt handling of inquiries, orders, shipments, xxxxxxxx
and collections, and returns of or with respect to the Products and
careful attention to customers' requirements for all Products, and (e)
promptly assign back to Xxxxxxxxxx any product Registrations in the
Territory upon termination of Agreement.
2.3 During the term of this Agreement, Vincula shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of Xxxxxxxxxx. As such, Vincula 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.
Vincula 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 Vincula
any right to use or otherwise deal with the Know-how for purposes other
than those expressly provided for in this Agreement.
2.5 V i n cula shall promptly inform Xxxxxxxxxx of any
misappropriation of the Know-how which comes to its attention. After
having discussed such situation with Vincula, Xxxxxxxxxx shall have sole
and absolute discretion to take such action as it deems appropriate and
Vincula, at its own cost, shall assist Xxxxxxxxxx in taking legal
action, if deemed necessary, against such misappropriation.
2.6 All costs and expenses connected with Vincula's activities or
performance under this Agreement are to be borne solely by Vincula.
Article 3. Certain Performance Requirements
3.1 Vincula agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. Vincula 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.
3.2 In order to assure Xxxxxxxxxx that Vincula is in compliance
with Article 3.1, Vincula agrees that:
(a) Vincula 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) Vincula will send to Xxxxxxxxxx quarterly inventory reports of
the Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to Vincula hereunder.
3.3 Vincula shall promptly provide Xxxxxxxxxx with written reports
of any importation or sale of any of the Products in the Territory of
which Vincula 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 Vincula shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
Vincula shall maintain all its inventory of Products clearly segregated
and meeting all storage and other standards required by applicable
governmental authorities and Xxxxxxxxxx. Xxxxxxxxxx shall provide any
such requirements in advance in writing. All such inventory and
Vincula's facilities shall be subject to inspection by Xxxxxxxxxx or its
agents upon 72 hours written notice.
3.5 Vincula shall be responsible for and shall collect all
governmental and regulatory sales and other taxes, charges and fees that
may be due and owing upon sales by Vincula of Products. Upon written
request from Vincula, Xxxxxxxxxx shall provide Vincula 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 delivered by Xxxxxxxxxx to
Vincula. All Products shall be labeled, advertised, marketed, sold and
distributed by Vincula 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. Vincula shall
pay all expenses associated with (i) any alterations to the packaging
and labeling of the Products which deviate from Carrington'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 V i ncula shall not make any alterations or permit any
alterations to be made to the Products without Xxxxxxxxxx'x written
consent.
3.8 Vincula shall assume all responsibility for and comply with
all applicable laws, regulations and requirements concerning the
Registration, 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 Registration, inventory, use, promotion, distribution and
sale and shall hold Xxxxxxxxxx harmless from any claim resulting
therefrom being directed against Xxxxxxxxxx or Vincula by any third
party.
3.9 Vincula 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 Vincula 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.
3.11 Vincula will actively and aggressively promote, develop demand
for and maximize the sale of the Products to all customers and potential
customers within the Territory. Vincula agrees not to manufacture,
promote, market, sell or distribute to any customers or potential
customers in the Territory without ninety (90) days written notice to
and approval from Xxxxxxxxxx, any competitive products.
3.12 Relative to the distribution of Xxxxxxxxxx products, Vincula
represents that its books, records and accounts pertaining to all its
operations hereunder are complete and accurate in all material respects
and have been maintained in accordance with sound and generally accepted
accounting principles. Xxxxxxxxxx shall have the right to have such
books, records, and accounts examined, at its expense, by a qualified
accountant nominated by Xxxxxxxxxx.
Article 4 Registration of Products
4.1 It being understood that Registration is a prerequisite to the
lawful sale of the Products in the Territory, Xxxxxxxxxx hereby agrees
to supply Vincula, promptly after the execution of this Agreement, with
any Know-how or relevant documentation necessary for preparing the
Registration dossier to be submitted to the applicable governmental
authorities of the Territory.
4.2 It shall be the responsibility of Vincula, at its sole expense
to apply for, obtain and maintain in force the Registration of the
Products. Subject to having obtained the prior approval of Xxxxxxxxxx,
the application shall be submitted to all applicable governmental
authorities, including the health authorities of the Territory and said
application shall be in the name of Xxxxxxxxxx, with Vincula being
named as Products distributor in the Territory. Vincula expressly
acknowledges and agrees that the absolute and exclusive ownership of the
Registration and all rights originating out of or from the same shall at
all times belong only and exclusively to Xxxxxxxxxx.
4.3 As soon as Vincula has received Know-how from Xxxxxxxxxx,
Vincula shall prepare, at its sole expense, the Registration dossier
and submission and any translation which may be required by the
applicable authorities of the Territory. Vincula shall promptly supply
Xxxxxxxxxx with a copy of the said Registration dossier and submission
and Xxxxxxxxxx shall be entitled to a free and unrestrained use of the
same.
4.4 Subject to having obtained Xxxxxxxxxx'x written approval of
all such documentation and any subsequent amendments thereto, Vincula
shall, as soon as possible and in any case within sixty (60) days of
Xxxxxxxxxx'x approval, submit the Registration application to the
appropriate authorities of the Territory.
4.5 V i n c ula shall use its best endeavors to obtain the
Registration within six (6) months from the relevant submission.
Vincula shall notify Xxxxxxxxxx in writing at least 3 (three) months
before the expiration of said term of any need for an extension in time
to obtain Registration. The notification shall specify the duration of,
and the reason for, any proposed extension. Xxxxxxxxxx shall consider
any such request, evaluating the objective situation and Vincula's
fulfilment of its obligations in this respect. It is, however,
understood that Vincula's deadline to obtain Registration is one year
from the date of filing.
4.6 Vincula shall copy and keep Xxxxxxxxxx fully and timely
informed, throughout the term of this Agreement, of all communications
sent to or received from all applicable governmental authorities,
including the health authorities, of the Territory concerning the
Products.
4.7 Xxxxxxxxxx makes no warranty that the supplied Know-how will
necessarily result in the grant of the Registration and Vincula shall
have no claim against Xxxxxxxxxx arising out of any delay or refusal by
the authorities to issue the Registration.
Article 5. Sale of Products by Xxxxxxxxxx to Vincula
5.1 Subject to the terms and conditions of this Agreement,
including specifically Article 5.7 hereof, Xxxxxxxxxx shall sell to
Vincula the Products at a specified price for each Product (the
"Contract Price"). For orders placed by Vincula 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) Vincula 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.
5.2 As consideration for its appointment as a sales distributor
entitled to a Product discount, Vincula agrees to purchase from
Xxxxxxxxxx, during each 12-month period of the term of this Agreement,
commencing with the 12-month period beginning August 1, 1998 through
August 1, 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 Specified Minimum Purchase Amount shall
be $50,000. 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 Vincula's reasonable, good faith projections of future sales
growth and such other factors as the Parties may deem relevant.
5.3 Vincula 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 Vincula upon shipment of the
Products. Unless otherwise agreed, Vincula shall pay all invoices in
full within ninety (90) days of the date of invoice. Vincula 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.
5.4 Xxxxxxxxxx shall not be obligated to ship Products to Vincula
at any time when payment of an amount owed by Vincula is overdue or when
Vincula is otherwise in breach of this Agreement.
5.5. All shipments shall be initiated by a Purchase Order. Product
shipment dates will be specified in the Purchase Order. These dates may
not be 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.
Vincula 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 Vincula. Variation above 20% shall be discussed between
the Parties and Xxxxxxxxxx will use its best efforts to maintain
delivery dates requested by Vincula.
5.6 All shipments of Products to Vincula 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 Vincula upon delivery of such Products by Xxxxxxxxxx to the
carrier 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.
5.7 Xxxxxxxxxx shall use its reasonable best efforts to ensure
availability of all Products ordered by Vincula under this Agreement.
However, if necessary in the best judgment of Carrington, Carrington may
allocate its available supply of Products among all its customers,
distributors or other purchasers, including Vincula, on such basis as it
shall deem reasonable, practicable and equitable, without liability for
any failure of performance or lost sales which may result from such
allocations.
5.8 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 Vincula 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. Vincula 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 5.8 or that is inconsistent with the policies or
publications of Xxxxxxxxxx relating to the Products.
VINCULA'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 VINCULA'S
OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR LIABILITY FOR
DAMAGES TO VINCULA 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.
VINCULA 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 VINCULA OR ANY OTHER PARTY, (ii) ANY BREACH BY
Vincula OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER
THIS AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF VINCULA OR
ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND VINCULA'S
AUTHORIZATION GRANTED HEREIN.
5.9 Credits for defective Products to Vincula 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
Vincula with a copy of its liability Insurance Certificate and shall
include Vincula thereunder.
Article 6. Term and Termination
6.1 The term of this Agreement shall be for a period of five 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 6 or as expressly provided elsewhere in
this Agreement.
6.2 Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if Vincula fails to perform or breaches, in any material
respect, any of the terms or provisions of this Agreement. Without
limiting the events which shall be deemed to constitute a breach or
material breach of this Agreement by Vincula, Vincula 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 6.2, if:
(i) Vincula fails or refuses to pay to Xxxxxxxxxx any sum
when due;
(ii) Vincula breaches any provision of Article 2.2, 3.4, 4,
5.3, 5.8, 7 or 8; or,
(iii) Vincula fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period.
6.3 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.
6.4 This Agreement shall automatically terminate effective at the
end of any 12-month period of the term of this Agreement referred to in
Articles 5.1 and 5.2 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.
6.5 During the one-year period following termination of this
Agreement, any inventory of Products held by Vincula at the termination
of this Agreement may be sold by Vincula 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 Vincula'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
Vincula, including importation and shipping.
6.6 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 5.8, 6.5, 7, 8
and 15 and the rights and obligations of the Parties thereunder shall
survive the termination of this Agreement for a period of one (1) year.
Article 7. Trademarks
7.1 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. The Products shall be promoted, sold and distributed only
under the Trademarks. Xxxxxxxxxx hereby grants Vincula permission to
use the Trademarks for the limited purpose of performing its obligations
under this Agreement. Xxxxxxxxxx may, in its sole discretion after
consultation with Vincula, modify or discontinue the use of any
Trademark and/or use one or more additional or substitute marks or
names, and Vincula shall be obligated to do the same.
7.2 Xxxxxxxxxx'x Trademarks shall appear on all Product packaging,
labels, and inserts and other materials which Vincula uses for the
marketing of the Products in such form and manner as Xxxxxxxxxx shall
reasonably require. 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
Vincula's actual use thereof.
7.3 It shall be the sole responsibility of Xxxxxxxxxx, at its sole
expense, to keep in force and maintain the Trademarks in the Territory
by paying all necessary fees throughout the term of this Agreement.
Vincula 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]". Vincula 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,
Vincula 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.
7.4 In the event of any infringement of, or threatened or presumed
infringement of, or challenge to Vincula's use of any Trademark or of
any Vincula trademark, Vincula is obligated to notify Xxxxxxxxxx
immediately. Vincula 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.
7.5 In the event of the termination of this Agreement for any
reason, Vincula's right to use the Trademarks shall cease, and Vincula
shall cease using such Trademarks at such time as Vincula's inventory of
Products has been sold. Vincula shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises of
the office(s) of Vincula and any of the advertising of Vincula used in
connection with the Products.
7.6 In the event of a breach or threatened breach by Vincula of
the provisions of this Article 7, 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 7, including the recovery of damages from Vincula.
7.7 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 Vincula 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 Vincula in the Territory.
7.8 Nothing contained in this Agreement shall be construed as
giving Vincula the right to use the Trademark outside the Territory or
for any other product than the Products.
Article 8. Confidential Information
8.1 Vincula recognizes and acknowledges that Vincula will have
access to confidential information and trade secrets, including "Know-
how", of Xxxxxxxxxx and other entities doing business with Xxxxxxxxxx
relating to research, development, manufacturing, marketing, financial
and other business-related activities ("Confidential Information").
Such Confidential Information constitutes valuable, special and unique
property of Xxxxxxxxxx and/or other entities doing business with
Xxxxxxxxxx. Other than as is necessary to perform the terms of this
Agreement, Vincula 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 Xxxxxxxxxx. In the event of a breach or threatened
breach by Vincula of the provisions of this Article 8, Xxxxxxxxxx shall
be entitled to an injunction restraining Vincula from disclosing and/or
using, in whole or in part, such Confidential Information. Nothing
herein shall be construed as prohibiting Xxxxxxxxxx from pursuing other
remedies available to it for such breach or threatened breach of this
Article 8, including the recovery of damages from Vincula. 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 Vincula.
8.2 Vincula shall not disclose any of the terms of this Agreement
without the prior written consent of Xxxxxxxxxx.
Article 9. Force Majeure
9.1 Neither Vincula 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 Vincula'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.
9.2 The Parties agree that any obligation to pay money is never
excused by Force Majeure.
Article 10. Amendment
10.1 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 11. Entire Agreement
11.1 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.
11.2 Should any provision of this Agreement be rendered invalid or
unenforceable, it shall not affect the validity or enforceability of the
remainder.
Article 12. Assignment
12.1 Neither this Agreement nor any of the rights or obligations of
Vincula hereunder shall be transferred or assigned by Vincula without
the prior written consent of Xxxxxxxxxx, executed by a duly authorized
officer of Xxxxxxxxxx.
Article 13. Governing Law
13.1 It is expressly agreed that the validity, performance and
construction of this Agreement shall be governed by the laws and
jurisdiction of Texas.
Article 14. Notices
14.1 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 Vincula. (Fax No. 000-000-0000)
(b) Vincula at: Vincula International Trade, Inc., 00000 Xxxx
Xxxx, Xxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxxxx or at such
other address as Vincula shall have theretofore furnished in
writing to Xxxxxxxxxx. (Fax No. 000-000-0000)
Article 15. Waiver
15.1 Neither Vincula'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 Vincula'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 16. Arbitration
16.1 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 forth-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 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 17 Interpretation
17.1 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.
17.2 The headings in this Agreement are inserted for convenience
only and shall not affect its construction.
17.3 Where appropriate, the terms defined in Article 1 and denoting
a singular number only shall include the plural and vice versa.
17.4 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 18. Exhibits
18.1 Any and all exhibits referred to herein shall be considered an
integral part of this Agreement.
Article 19. No Inconsistent Actions
19.1 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 5.7 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 20. Currency of Account
20.1 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 Vincula 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 21. Binding Effect
21.1 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 as written below.
XXXXXXXXXX LABORATORIES, INC.
By:
Name: Xx. Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: Xxxxx 00, 0000
XXXXXXXXXX XXXXXXXXXXXX XXXXXXX N.V.
By:
Name: Xx. Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: March 27, 1998
VINCULA INTERNATIONAL TRADE, INC.
By:
Name: Xxxxx Xxxxxxxxxx
Title: President
Date: March 22, 1998
EXHIBIT A
VINCULA INTERNATIONAL TRADE, INC.
PRODUCT
NO. PRODUCT NAME PRICE
WOUND CARE
101005 XXXXXXXXXX[R] CARRASYN[R] HYDROGEL WOUND $2.18
DRESSING, 1/2 oz. tube
101010 XXXXXXXXXX[R] CARRASYN[R] HYDROGEL WOUND $2.87
DRESSING, 1 oz. tube
101030 XXXXXXXXXX[R] CARRASYN[R] HYDROGEL WOUND $3.73
DRESSING, 3 oz. tube
101080 XXXXXXXXXX[R] CARRASYN[R] HYDROGEL WOUND $9.41
DRESSING, (spray gel),8 oz. bottle
101025 XXXXXXXXXX[R] CARRASYN[R] V (VISCOUS) $2.61
HYDROGEL WOUND DRESSING, 1/2 oz. tube
101002 XXXXXXXXXX[R] CARRASYN[R] V (VISCOUS) $1.78
HYDROGEL WOUND DRESSING, 1 oz. sachet (up
to 150,000)
101002 XXXXXXXXXX[R] CARRASYN[R] V (VISCOUS) $1.61
HYDROGEL WOUND DRESSING, 1 oz. sachet
(150,001 to 200,000)
101002 XXXXXXXXXX[R] CARRASYN[R] V (VISCOUS) $1.51
HYDROGEL WOUND DRESSING, 1 oz. sachet
(200,001 to 250,000)
101002 XXXXXXXXXX[R] CARRASYN[R] V (VISCOUS) $1.45
HYDROGEL WOUND DRESSING, 1 oz. sachet
(250,001 to 300,000)
101002 XXXXXXXXXX[R] CARRASYN[R] V (VISCOUS) $1.36
HYDROGEL WOUND DRESSING, 1 oz. sachet
(over 300,000)
101023 XXXXXXXXXX[R]CARRASYN[R] V (VISCOUS) $4.25
HYDROGEL WOUND DRESSING, 3 oz. tube
101012 XXXXXXXXXX[R] CARRAGAUZE[R] STRIPS, 1/2" x 5 $6.50
yds, bottle
101009 XXXXXXXXXX[R] CARRAGAUZE[R] STRIPS, 1" x 5 $7.51
yds, bottle
101017 XXXXXXXXXX[R] CARRAGAUZE[R], 2"x 2" pads $1.00
(up to 150,000)
101017 XXXXXXXXXX[R] CARRAGAUZE[R], 2"x 2" pads $0.75
(over 150,000)
101015 XXXXXXXXXX[R] CARRAGAUZE[R], 4"x 4" pads $2.15
TM
102060 XXXXXXXXXX[R] CARRAKLENZ WOUND & SKIN $2.99
CLEANSER, 6 oz. pump
TM
102062 XXXXXXXXXX[R] CARRAKLENZ WOUND & SKIN $3.97
CLEANSER, 8 oz. spray
EXHIBIT A
VINCULA INTERNATIONAL TRADE, INC.
PRODUCT
NO. PRODUCT NAME PRICE
TM
102160 XXXXXXXXXX[R] CARRAKLENZ WOUND & SKIN $6.06
CLEANSER, 16 oz. spray
TM
108080 XXXXXXXXXX[R] ULTRAKLENZ WOUND CLEANSER, $4.07
8 oz. bottle
TM
108120 XXXXXXXXXX[R] ULTRAKLENZ WOUND CLEANSER, $5.15
12 oz. bottle
TM
108008 XXXXXXXXXX[R] MICROKLENZ ANTIMICROBIAL $4.28
WOUND CLEANSER, 8 oz. bottle
101032 XXXXXXXXXX[R] CARRASORB[TM] H CALCIUM $1.25
ALGINATE WOUND DRESSING, 2" x 2" pad
101033 XXXXXXXXXX[R] CARRASORB[TM] H CALCIUM $2.73
ALGINATE WOUND DRESSING, 4" x 4" pad
101034 XXXXXXXXXX[R] CARRASORB[TM] H CALCIUM $2.63
ALGINATE WOUND DRESSING, 12" rope
101035 XXXXXXXXXX[R]CARRASORB[TM] M FREEZE-DRIED $3.27
GEL WOUND DRESSING, 4" diameter pad
101036 XXXXXXXXXX[R] CARRAFILM[TM] TRANSPARENT $1.40
FILM DRESSING, 4" x 5" 1/2 sheet
101037 XXXXXXXXXX[R] CARRAFILM[TM] TRANSPARENT $2.23
FILM DRESSING, 5" x 7" sheet
101038 XXXXXXXXXX[R] CARRAFILM[TM] TRANSPARENT $2.28
FILM DRESSING, 6" x 6" sheet
101039 XXXXXXXXXX[R] CARRAFILM[TM] TRANSPARENT $0.63
FILM DRESSING, 2 3/4" x 2 3/8" sheet
101040 XXXXXXXXXX[R] CARRAFILM[TM] TRANSPARENT $3.73
FILM DRESSING, 8" x 10" sheet
101041 XXXXXXXXXX[R] CARRAFILM[TM] TRANSPARENT $2.60
FILM DRESSING, 4" x 10" sheet
INCONTINENCE CARE PRODUCTS
101043 XXXXXXXXXX[R] CARRAFOAM[TM] NON-AEROSOL $4.03
SKIN & PERINEAL CLEANSER, 7.8 oz. bottle
101044 XXXXXXXXXX[R] CARRAFOAM[TM] NON-AEROSOL $3.22
SKIN & PERINEAL CLEANSER, 3.5 oz. bottle
104004 XXXXXXXXXX[R] MOISTURE BARRIER CREAM, 0.4 $0.40
oz. packet
104040 XXXXXXXXXX[R] MOISTURE BARRIER CREAM, 3.5 $2.38
oz. tube
105020 XXXXXXXXXX[R] ANTIFUNGAL CREAM WITH 2 % $3.49
MICONAZOLE NITRATE, 2 oz. tube
105050 XXXXXXXXXX[R] ANTIFUNGAL CREAM WITH 2 % $6.33
MICONAZOLE NITRATE, 5 oz. tube
EXHIBIT A
VINCULA INTERNATIONAL TRADE, INC.
PRODUCT
NO. PRODUCT NAME PRICE
110001 XXXXXXXXXX[R] INCONTINENCE SKIN CARE KIT, $7.75
6/3.5 oz.
TM
110004 XXXXXXXXXX[R] CARRAFOAM SKIN CARE KIT, $5.82
4/3.5 oz.
TM
110005 XXXXXXXXXX[R] CARRAFOAM SKIN CARE KIT, $6.61
8/3.5 oz.
ENVIRONMENTAL PRODUCTS
TM
101003 XXXXXXXXXX[TM] CARRAFREE , 1 oz. bottle $1.60
TM
107010 XXXXXXXXXX[TM] CARRASCENT Odor $1.67
Eliminator, 1 oz. bottle
TM
107080 XXXXXXXXXX[TM] CARRASCENT Odor $4.54
Eliminator, 8 oz. bottle
CB PRODUCTS
101021 GEL PAD, 4" x 4" $1.51
101022 GEL PAD, 5" x 5" $1.45
SKIN CARE PRODUCTS
103040 XXXXXXXXXX[R] CARRADERM[TM] MOISTURIZING $4.39
CREAM, 4 oz. tube (formerly FOOT&BODY
MOISTURIZING CREAM)
106040 XXXXXXXXXX[R] SKINBALM, 4 oz. tube $4.63
111108 XXXXXXXXXX[R] SHAMPOO & BODY WASH, 8 oz. $2.90
bottle
DIABETIC CARE
101027 DIAB[TM] CREAM, 3 oz. tube $3.33
101028 DIAB[TM] Cream, .14 oz. sachet $0.45
101011 DIAB[TM] DAILY CARE GEL, 1/2 oz. $4.00
101048 DIAB[TM] GEL, 3 oz. tube $4.70
101047 DIAB[TM] XXXXX, 8 oz. bottle $4.30
101014 DIAB[TM] NUTRI, 60 tablets $7.88
RADIATION CARE
106043 RADIACARE[TM] GEL 1/2 oz. tube $2.50
106042 RADICARE[TM] GEL, 3 oz. tube $4.56
101081 RADICARE[TM] XXXXX, 8 oz. bottle $4.48
103042 RADIACARE[TM] CREAM, .14 oz. sachet $0.45
103041 RADIACARE[TM] POST HEALING CREAM, 2 oz. $3.05
VINCULA INTERNATIONAL TRADE, INC.
PRODUCT
NO. PRODUCT NAME PRICE
101059 RADIACARE[TM] LIP BALM, .15 oz. $1.25
101006 RADIACARE[TM] ORAL WOUND RINSE $7.63
101052 RADICARE[TM] GEL SHEET, 4" x 4" sheet $4.28
ORAL TECHNOLOGY
500144 XXXXXXXXXX[R] PATCH, 6 pack (6 $0.75/sleeve
patches/sleeve)
