EXHIBIT 10.1
AGENCY & 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 EGYPTIAN AMERICAN MEDICAL
INDUSTRIES, INC., an Egyptian corporation ("EAMI").
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 agent and exclusive distribution source for sales of such
products in Egypt (defined in Article 1 hereof as the Territory); and
WHEREAS, EAMI is desirous of distributing such products in
the Territory, represents that it has experience in obtaining
registration of 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 EAMI desires to be
Xxxxxxxxxx'x sales agent and 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 EAMI 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 EAMI after the Effective Date and during the
term of this Agreement.
(c) "Parties" shall mean Xxxxxxxxxx and EAMI 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 EAMI 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 country: Egypt
(g) "Trademarks" shall mean all Trademarks, trade names,
service marks, logos and derivatives thereof relating to
the Products.
(h) "Packaging" shall mean the packaging of bulk gels, creams,
or lotions into tubes or other appropriate containers.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx hereby appoints EAMI as Xxxxxxxxxx'x agent and exclusive
sales distributor in the Territory for the sale of Products, and EAMI
hereby accepts such appointment. As agent and sales distributor in
the Territory, EAMI 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
EAMI's sole expense, EAMI 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, EAMI shall be considered
Xxxxxxxxxx'x agent acting as an independent contractor and shall not
be considered a partner, employee, and servant of Xxxxxxxxxx. As
such, EAMI 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 agent and
distributor. EAMI agrees to make clear in all dealings with
customers or prospective customers that it is acting as an agent and
sales distributor of the Products.
2.4 Nothing in this Agreement shall be construed as giving EAMI
any right to use or otherwise deal with the Know-how for purposes
other than those expressly provided for in this Agreement.
2.5 EAMI shall promptly inform Xxxxxxxxxx of any
misappropriation of the Know-how which comes to its attention. After
having discussed such situation with EAMI, Xxxxxxxxxx shall have sole
and absolute discretion to take such action as it deems appropriate
and EAMI, 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 EAMI's activities or
performance under this Agreement are to be borne solely by EAMI.
Article 3. Certain Performance Requirements
3.1 EAMI agrees as agent and distributor to promote, market,
sell and distribute the Products only to customers and potential
customers within the Territory for ultimate use within the Territory.
EAMI 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 EAMI is in compliance
with Article 3.1, EAMI agrees that:
(a) EAMI will send to Xxxxxxxxxx annual sales reports which set
forth the number of units and sizes of each Product sold,
the net sales and the number of units of free medical
samples distributed;
(b) EAMI will send to Xxxxxxxxxx annual inventory reports of
the Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to EAMI hereunder.
3.3 EAMI shall promptly provide Xxxxxxxxxx with written reports
of any importation or sale of any of the Products in the Territory of
which EAMI 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 EAMI shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market
segments. EAMI shall maintain all its inventory of Products clearly
segregated and meeting all storage and other standards required by
applicable governmental authorities.
3.5 EAMI 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 EAMI of Products. Upon
written request from EAMI, Xxxxxxxxxx shall provide EAMI 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 Initially, all Products shall be packaged and delivered by
Xxxxxxxxxx to EAMI. After agreed upon volumes have been decided upon
between the Parties to ensure economic local Packaging, all Products
shall be packaged, labeled, advertised, marketed, sold and
distributed by EAMI 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. EAMI
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 EAMI shall not make any alterations or permit any
alterations to be made to the Products without Xxxxxxxxxx'x written
consent.
3.8 EAMI 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 EAMI by any third
party.
3.9 EAMI 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 EAMI 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 EAMI will actively and aggressively promote, develop demand
for and maximize the sale of the Products to all customers and
potential customers within the Territory. EAMI 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 wound care,
skin care, or incontinence care product.
3.12 EAMI 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.
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 EAMI, 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 EAMI, 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 EAMI being named as Products agent and distributor in the
Territory. EAMI expressly acknowledges and agrees that the absolute
a n d 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 and EAMI is Xxxxxxxxxx'x agent,
therefore.
4.3 As soon as EAMI has received Know-how from Xxxxxxxxxx, EAMI
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. EAMI 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, EAMI
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 EAMI shall use its best endeavors to obtain the
Registration within one (1) year from the relevant submission. EAMI
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
EAMI's fulfilment of its obligations in this respect. It is,
however, understood that EAMI's deadline to obtain Registration is
one year from the date of filing.
4.6 EAMI 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 EAMI
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 EAMI
5.1 Subject to the terms and conditions of this Agreement,
including specifically Article 5.7 hereof, Xxxxxxxxxx shall sell to
EAMI the Products at a specified price for each Product (the
"Contract Price"). For orders placed by EAMI 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) EAMI 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, EAMI agrees to purchase from
Xxxxxxxxxx, during each 12-month period of the term of this
Agreement, commencing with the 12-month period beginning thirty (30)
days after product registration approval _______________, 19__
through ___________, 19__, 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 $125,000. 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 EAMI's reasonable, good faith
projections of future sales growth and such other factors as the
Parties may deem relevant.
5.3 EAMI 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 EAMI upon shipment of the
Products. Unless otherwise agreed, EAMI shall pay all invoices in
full within ninety (90) days of the date of invoice. EAMI 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 EAMI
at any time when payment of an amount owed by EAMI is overdue or when
EAMI 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. EAMI 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 EAMI. Variation
above 20% shall be discussed between the Parties and Xxxxxxxxxx will
use its best efforts to maintain delivery dates requested by EAMI.
5.6 All shipments of Products to EAMI 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 EAMI 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 EAMI 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 EAMI, 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 EAMI 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. EAMI 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.
EAMI'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
EAMI'S OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR
LIABILITY FOR DAMAGES TO EAMI 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.
EAMI 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 EAMI OR ANY OTHER
PARTY, (ii) ANY BREACH BY EAMI OF ANY OF ITS REPRESENTATIONS,
WARRANTIES OR COVENANTS UNDER THIS AGREEMENT OR (iii) ANY ACTS OR
OMISSIONS ON THE PART OF EAMI OR ITS AGENTS, SERVANTS OR EMPLOYEES
WHICH ARE OUTSIDE OR BEYOND EAMI'S AUTHORIZATION GRANTED HEREIN.
5.9 Credits for defective Products to EAMI 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 EAMI with a copy of its liability Insurance
Certificate and shall include EAMI 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 EAMI 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 EAMI, EAMI 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) EAMI fails or refuses to pay to Xxxxxxxxxx any sum
when due;
(ii) EAMI breaches any provision of Article 2.2, 3.4, 4,
5.3, 5.8, 7 or 8; or,
(iii) EAMI 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 EAMI at the termination
of this Agreement may be sold by EAMI 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 EAMI'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 EAMI, 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 EAMI 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 EAMI,
modify or discontinue the use of any Trademark and/or use one or more
additional or substitute marks or names, and EAMI 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 EAMI 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 EAMI'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. EAMI 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]".
EAMI 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, EAMI 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 EAMI's use of any Trademark
or of any EAMI trademark, EAMI is obligated to notify Xxxxxxxxxx
immediately. EAMI 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, EAMI's right to use the Trademarks shall cease, and EAMI
shall cease using such Trademarks at such time as EAMI's inventory of
Products has been sold. EAMI shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of EAMI and any of the advertising of EAMI used in
connection with the Products.
7.6 In the event of a breach or threatened breach by EAMI 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 EAMI.
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 EAMI 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 EAMI in the
Territory.
7.8 Nothing contained in this Agreement shall be construed as
giving EAMI the right to use the Trademark outside the Territory or
for any other product than the Products.
Article 8. Confidential Information
8.1 EAMI recognizes and acknowledges that EAMI 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, EAMI 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 EAMI of the provisions of this Article 8,
Xxxxxxxxxx shall be entitled to an injunction restraining EAMI 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 EAMI. 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 EAMI.
8.2 EAMI shall not disclose any of the terms of this Agreement
without the prior written consent of Xxxxxxxxxx.
Article 9. Force Majeure
9.1 Neither EAMI 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 EAMI'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 EAMI hereunder shall be transferred or assigned by EAMI 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 EAMI. (Fax No. 000-000-0000)
(b) EAMI at: _____________________; Attention: _______________,
or at such other address as EAMI shall have theretofore
furnished in writing to Xxxxxxxxxx. (Fax No.____________)
Article 15. Waiver
15.1 Neither EAMI'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 EAMI'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 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
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 EAMI 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: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: _________________________________
XXXXXXXXXX LABORATORIES BELGIUM N.V.
By:
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: April 13, 1998
EGYPTIAN AMERICAN MEDICAL INDUSTRIES, INC.
By:
Name: Xxxxx Xxxx
Title: President & Chief Executive Officer
Date: April 1, 1998
