MANUFACTURING AGREEMENT
Exhibit
10.05
DERMA
SCIENCES, INC
COMVITA
NEW ZEALAND LIMITED
AGREEMENT dated February 23,
2010
PARTIES
DERMA SCIENCES, INC, of
Princeton, New Jersey, United States of America (“Derma Sciences”)
COMVITA NEW ZEALAND LIMITED,
of Paengaroa, New Zealand (“Comvita”)
INTRODUCTION
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A.
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Derma
Sciences has the ability to manufacture OTC
Products.
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B.
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Comvita
wishes Derma Sciences to manufacture for and supply to, Comvita OTC
Products.
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C.
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Derma
Sciences has agreed to manufacture for and supply to, Comvita OTC Products
on the terms and conditions set out
below.
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AGREEMENT
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions: In
this Agreement, including the Introduction, unless the context otherwise
requires, the following terms will have the following
meanings:
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“Agreement” means this
agreement and the attached Schedules;
“Business Day” means a day,
excluding Saturdays, Sundays, statutory public holidays or any day in the period
starting on 24 December and ending on 5 January, on which banks are open for
ordinary over-the-counter business in either Tauranga, New Zealand or New
Jersey, United States of America;
“Commencement Date” means the
date of signing of this Agreement by both parties;
“Confidentiality Agreement”
means the agreement entered into between the parties and entitled
“Confidentiality Agreement” and dated on or about the Commencement
Date;
“Confidential Information”
means all information of any kind, whether in tangible or documentary form, and
whether marked or identified as being confidential, relating to the Disclosing
Party or its business affairs and includes information relating to any
of:
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(a)
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the
business operations, business strategies, marketing plans and technologies
of the Disclosing Party; or
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(b)
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the
terms of this Agreement;
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“Cost of Production” means the
cost of direct materials, direct labour and any other expenses directly related
(and fairly allocated based on actual value added or percentage contribution
(whichever is lower)) to the manufacturing cost of the relevant product, along
with a reasonable and systematic allocation of fixed and variable production
overheads;
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exhibit
10.05 - manufacturing agmt
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1
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“Disclosing Party” means the
party to whom or to whose business affairs the Confidential Information
relates;
“FOB” means Free on Board, and
has the meaning given to that term as set out in Incoterms 2000;
“Force Majeure” has the
meaning given to that term in clause 13.1;
“Incoterms 2000” means the
International Chamber of Commerce official rules for the interpretation of trade
terms, which came into force on 1 January 2000, as amended or revised from time
to time;
“Licence Agreement” means the
agreement entered into between the parties and entitled “Licence Agreement” and
dated on or about the date of this Agreement;
“Licensed Products” has the
meaning given to that term in the Licence Agreement;
“Medical Honey” means honey
being to the specifications set out in Schedule 1, or such other specifications
as the parties may agree in writing;
“Notice” has the meaning given
to that term in clause 13.7(a);
“OTC Products”
means:
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(a)
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the
products listed in Schedule 2; and
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(b)
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such
other products containing Medical Honey that Comvita believes are suitable
for sale in an OTC Store;
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“OTC Store”:
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(a)
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means
any retail outlet or website where an end customer could purchase products
containing Medical Honey without the need for a prescription or an order
by a clinician or physician; but
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(b)
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excludes
any part of such retail outlet or website where an end customer could
purchase products containing Medical Honey with a prescription or an order
by a clinician or physician;
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“Recipient” means the party
receiving Confidential Information under this Agreement;
“Restraint Agreement” means
the agreement entered into between the parties and entitled “Restraint
Agreement” and dated on or about the date of this Agreement; and
“Territory” means the
world.
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1.2
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Interpretation: In
this Agreement:
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(a)
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headings
are used for convenience only and will not affect its
interpretation;
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(b)
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references
to the singular include the plural and vice
versa;
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(c)
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references
to a party include that party’s successors, executors, administrators and
permitted assignees (as the case may
be);
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exhibit
10.05 - manufacturing agmt
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2
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(d)
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references
to clauses and Schedules are to those clauses and Schedules in this
Agreement;
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(e)
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where
a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
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(f)
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references
to a gender includes all genders;
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(g)
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references
to a “person” include:
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(i)
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an
individual, firm, company, corporation or unincorporated body of
persons;
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(ii)
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any
public, territorial or regional
authority;
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(iii)
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any
government; and
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(iv)
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any
agency of any government or authority;
and
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(h)
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any
obligation not to do anything includes an obligation not to suffer, permit
or cause that thing to be done.
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2.
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MANUFACTURE
AND SUPPLY
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2.1
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Derma Sciences to manufacture
and supply: Derma Sciences will manufacture for and supply
exclusively to Comvita OTC Products in accordance with this
Agreement.
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2.2
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Meet
orders: Derma Sciences will use reasonable endeavours to
meet all orders for OTC Products from Comvita, subject to availability of
product.
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2.3
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Sub-contracting: Derma
Sciences may subcontract the manufacture of OTC Products only to a
sub-licensee approved by Comvita in accordance with clause 2.8 of the
Licence Agreement. Derma Sciences will remain liable for the
acts of its permitted subcontractors as if they were acts or omissions of
Derma Sciences.
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2.4
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Right to obtain OTC Products
elsewhere: For the avoidance of doubt, Comvita will be entitled to
obtain supplies of OTC Products from persons other than Derma Sciences.
However, Comvita’s intention is to give Derma Sciences the opportunity to
supply OTC Products to Comvita in preference to other suppliers, provided
Derma Sciences can offer competitive pricing and
terms.
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3.
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RANGE
OF OTC PRODUCTS
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3.1
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Range: The
range of OTC Products that Derma Sciences will manufacture and supply
under this Agreement will be:
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(a)
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the
products listed in Schedule 2; and
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(b)
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such
other products to be sold in OTC Stores that the parties may agree in
writing from time to time.
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3.2
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Restriction: Derma
Sciences may not manufacture for and supply to itself or any person other
than Comvita, any OTC Products that are not also Licensed
Products.
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exhibit
10.05 - manufacturing agmt
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3
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4.
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ORDERING
PROCEDURE
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4.1
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Placement of
orders:
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(a)
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Comvita
will place orders for OTC Products with Derma Sciences. Each
order will be in writing, will be sent by facsimile, email or other
electronic means approved by Derma Sciences, and will
specify:
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(i)
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the
date of the order;
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(ii)
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the
volume and type of OTC Products ordered;
and
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(iii)
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a
delivery date for the OTC Products.
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(b)
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Unless
otherwise agreed by the parties, Comvita will place all orders for OTC
Products at least twelve (12) weeks in advance of the date that Comvita
wishes such OTC Products to arrive at its
premises.
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4.2
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Acknowledgement and acceptance
of order:
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(a)
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Derma
Sciences will acknowledge to Comvita in writing all orders received by it
under clause 4.1. Derma Sciences’ acknowledgement will confirm
whether or not Derma Sciences accepts the
order.
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(b)
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Upon
Derma Sciences accepting the order:
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(i)
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a
binding contract to supply the OTC Products on the terms and conditions of
this Agreement will exist; and
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(ii)
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neither
party will be permitted to cancel or vary such order without the other
party’s written consent, unless otherwise expressly permitted under this
Agreement.
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(c)
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For
the avoidance of doubt, each order will constitute a separate contract and
any default by Derma Sciences in relation to any one order will not
entitle Comvita to treat this Agreement as terminated (provided that
if such default in and of itself would constitute a material breach
of this Agreement because of the volume of product ordered, then this
shall not restrict the right of Comvita to exercise its rights under
clause 12.2).
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5.
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FORECASTS
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5.1
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Rolling
forecasts: Comvita will supply to Derma Sciences on or
before 31 March and 30 September of each year a rolling 12 month forecast
of Comvita’s anticipated requirements for each OTC
Product.
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5.2
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Reasonably
accurate: The parties agree that the forecasts given
under this clause 5 will not be binding on the parties, but Comvita will
use reasonable endeavours to ensure such forecasts are reasonably accurate
based on information known to Comvita at the time they are
given.
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exhibit
10.05 - manufacturing agmt
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4
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6.
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PRICE
AND PAYMENT
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6.1
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Price:
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(a)
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The
parties agree that the price for the OTC Products will be Derma Sciences’
Cost of Production plus a margin of 25%. The price for each OTC Product
will be:
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(i)
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calculated
on an annual basis at the start of each calendar
year;
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(ii)
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fixed
for such calendar year; and
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(iii)
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immediately
notified by Derma Sciences to Comvita in
writing.
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(b)
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The
price for the OTC Products will be expressed in United States dollars and
will be exclusive of any goods and services tax or other value added or
sales taxes, which if applicable, will be payable in
addition.
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(c)
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Derma
Sciences will provide to Comvita on request full and complete details on
an “open book” basis of the Cost of Production. For the avoidance of
doubt, such details will be regarded as the Confidential Information of
Derma Sciences.
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(d)
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Derma
Sciences will use reasonable endeavours to manufacture the OTC Products
efficiently and in the most cost effective manner, and to keep the Cost of
Production to a minimum.
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6.2
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Invoicing and
payment:
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(a)
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Derma
Sciences will invoice Comvita for the price for OTC Products ordered by
Comvita upon delivery FOB Factory.
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(b)
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Comvita
will pay all invoices in United States dollars within 60 days following
the date of the invoice, subject to clause
6.2(c).
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(c)
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If
Comvita disputes in good faith the whole or any portion of any invoice
issued under clause 6.2(a), Comvita will pay the portion of the invoice
that is not in dispute, but may withhold payment of the disputed portion
until the dispute is resolved.
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7.
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DELIVERY
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7.1
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FOB: Derma
Sciences will deliver the OTC Products to Comvita FOB
Factory. Delivery must take place by no later than the delivery
date specified in the order.
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7.2
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Incoterms
2000: The FOB provisions of Incoterms 2000 will govern
all matters relating to delivery, including (without
limitation):
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(a)
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who
is responsible for arranging shipping and delivery of the OTC
Products;
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(b)
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who
is to pay any costs related to shipping and delivery, including
carriage, insurance and customs clearance charges;
and
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(c)
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at
what point risk in the OTC Products passes to
Comvita,
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except to
the extent those provisions are inconsistent with the terms of this
Agreement.
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exhibit
10.05 - manufacturing agmt
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5
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7.3
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Additional
charges: Any additional freight charges incurred in the
supply of OTC Products to Comvita as a consequence of failure by a party
to meet its ordering or supply obligations under this Agreement (including
Comvita’s failure to comply with clause 4.1(b) and Derma Sciences’ failure
to deliver the OTC Products by the delivery date pursuant to clause
4.1(a)) will be met by the party responsible for the
failure.
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8.
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TITLE
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8.1
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Title
in the OTC Products sold to Comvita will pass to Comvita upon delivery FOB
Factory.
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9.
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STANDARDS
OF MANUFACTURE
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9.1
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Manufacture to
standards: Derma Sciences will manufacture the OTC
Products in accordance with the written standards and specifications
provided by Comvita from time to time or otherwise approved by Comvita in
writing. Derma Sciences must carry out test procedures for
quality control to ensure all OTC Products manufactured by it and its
permitted subcontractors comply with such
specifications.
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9.2
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Samples:
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(a)
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Before
supplying commercial quantities of any range of OTC Products to Comvita,
Derma Sciences must submit to Comvita for the purposes of verifying
compliance with any standards and specifications provided or approved by
Comvita in writing:
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(i)
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a
reasonable number of samples of that OTC Product;
and
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(ii)
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any
testing data required by Comvita to verify that such OTC Product has been
manufactured to the standards and specifications provided or approved by
Comvita in writing.
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(b)
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Without
limiting clause 9.2(a), Derma Sciences will provide Comvita with a
reasonable number of additional samples of the OTC Products manufactured
by Derma Sciences as and when reasonably requested by
Comvita.
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(c)
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All
costs incurred by Derma Sciences in supplying any samples or data under
this clause 9.2, including all costs of freight and insurance, will be the
responsibility of Derma Sciences. Risk in any such samples or
data will not pass to Comvita until delivery of them to
Comvita.
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9.3
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Approvals: Derma
Sciences will:
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(a)
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apply
in its own name for any licences, approvals, permits and applications
required by any governmental authority or agency in the Territory in
connection with the development, manufacture, use or supply to Comvita of
the OTC Products;
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(b)
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provide
Comvita with copies of any licences, approvals, permits and applications
under clause 9.3(a) requested by Comvita;
and
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(c)
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comply
with all applicable laws and regulations in the Territory in the making
for and supply to Comvita of OTC
Products.
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9.4
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Inspection: Derma
Sciences will itself, and will ensure that its permitted sub-contractors,
permit Comvita or its representative to inspect the manner of manufacture
and the quality control systems of Derma Sciences and any such
sub-contractors relating to the OTC
Products.
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exhibit
10.05 - manufacturing agmt
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6
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10.
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WARRANTIES
AND LIABILITY
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10.1
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Warranty:
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(a)
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Derma
Sciences warrants that the OTC Products supplied by it to Comvita will
conform to the specifications for them pursuant to clause 9.1 for the
duration of their shelf life.
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(b)
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If
any OTC Products do not comply with the warranty in clause 10.1(a), Derma
Sciences will provide to Comvita replacement OTC Products that do comply
at no extra cost to Comvita. In such case, Comvita will return all
non-complying OTC Products to Derma Sciences at Derma Sciences’
cost.
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10.2
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No implied
warranties: Comvita acknowledges
that:
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(a)
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it
does not enter into this Agreement in reliance on any representation,
warranty, term or condition, except as expressly provided in this
Agreement; and
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(b)
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all
conditions, warranties or other terms implied by statute or common law are
excluded by Derma Sciences from this Agreement to the fullest extent
permitted by law.
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10.3
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Exclusion of
liability: In no event will Derma Sciences be liable
(whether in contract, tort, negligence or in any other way) to Comvita
for:
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(a)
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loss
of revenue or profit, loss of anticipated savings, loss of goodwill or
opportunity, loss of production, loss or corruption of data or wasted
management or staff time; or
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(b)
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loss,
damage, cost or expense of any kind whatsoever that is indirect,
consequential, or of a special
nature,
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arising
directly or indirectly out of this Agreement, even if Derma Sciences had been
advised of the possibility of such loss, damage, cost or expense, and even if
such loss, damage, cost or expense was reasonably foreseeable by Derma
Sciences.
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10.4
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Insurance:
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(a)
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During
the term of this Agreement and for three years afterwards, Derma Sciences
will maintain insurance coverage in amounts and against risks that are
normal for businesses similar to that of Derma
Sciences.
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(b)
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Derma
Sciences will, upon request, provide to Comvita a certificate from the
insurer confirming the terms of such
insurance.
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11.
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TERM
AND TERMINATION
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11.1
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Commencement and
term: This Agreement will come into effect on the
Commencement Date and will continue in full force and effect for so long
as the Licence Agreement remains in full force and effect, unless earlier
terminated pursuant to clauses 11.2 or
11.3.
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exhibit
10.05 - manufacturing agmt
|
7
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11.2
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Early
termination: Without prejudice to any other right or
remedy it may have, either party may immediately terminate this Agreement
at any time by giving to the other party notice in writing
if:
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(a)
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the
other party is in material breach of this Agreement and the material
breach is not remedied within 20 Business Days of the other party
receiving notice specifying the material breach and requiring its remedy,
provided that for non-payment defaults, if it is not commercially
reasonable for a material breach to be fully cured within 20 Business
Days, then the cure period shall be extended for an additional period of
no greater than six months provided the party in material breach has
commenced remedying the default and has clearly demonstrated in writing
that it is diligently pursuing and continues to diligently pursue such
cure;
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(b)
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the
other party ceases or threatens to cease to carry on all or substantially
all of its business or operations, is declared or becomes bankrupt or
insolvent, is unable to pay its debts as they fall due, enters into a
general assignment of its indebtedness or a scheme of arrangement or
composition with its creditors, or takes or suffers any similar or
analogous action in consequence of
debt;
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(c)
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a
trustee, manager, administrator, administrative receiver, receiver,
inspector under any legislation or similar officer is appointed in respect
of the whole or any part of the other party’s assets or business;
or
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(d)
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an
order is made or a resolution is passed for the liquidation of the other
party (other than voluntarily for the purpose of a solvent amalgamation or
reconstruction).
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11.3
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Termination of Restraint
Agreement or Licence Agreement: This Agreement will immediately
terminate in the event of termination of the Restraint Agreement or the
Licence Agreement for any reason.
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11.4
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Consequences of
termination: On termination or expiration of this
Agreement for any reason
whatsoever:
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(a)
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Derma
Sciences will (if required by Comvita) complete any order for OTC Products
confirmed by it before the date of termination or expiration, and the
provisions of this Agreement will continue to apply to any such
order;
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(b)
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Comvita
will remain liable to pay to Derma Sciences the price for OTC Products
delivered under this Agreement;
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(c)
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Comvita
will purchase from Derma Sciences any unused Medical Honey that was
manufactured by Comvita, non obsolete packaging for OTC Products, and
other usable inventory for OTC Products in the possession of Derma
Sciences (not to exceed a six month supply based on the higher of
Comvita’s most recent forecast or the prior six months’ sales) at the
price at which Derma Sciences purchased such items from Comvita or a third
party (as the case may be);
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(d)
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the
Recipient will, upon receipt of a written request from the Disclosing
Party, return or destroy (at the Disclosing Party’s option), all
Confidential Information in the Recipient’s possession or under the
Recipient’s control. Upon the return or destruction (as the
case may be) of all such Confidential Information, the Recipient will
provide to the Disclosing Party a certificate stating that the
Confidential Information returned or destroyed comprises all the
Confidential Information in the Recipient’s possession or under the
Recipient’s control;
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exhibit
10.05 - manufacturing agmt
|
8
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(e)
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the
provisions of clauses 6, 10, 11.4, 13 and any other clauses intended to
survive termination, together with those other provisions of this
Agreement that are incidental to, and required in order to give effect to
those clauses, will remain in full force and effect;
and
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(f)
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subject
to this clause 11.4, and except for any rights and remedies of the parties
that have accrued before termination or expiration, including for any
prior breach of this Agreement, neither party will be under any further
obligation to the other party.
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12.
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DISPUTES
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12.1
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Mediation: In
the event of a dispute arising out of or relating to this Agreement,
including any question regarding its existence, validity or termination,
the parties will first seek settlement of that dispute by mediation in
accordance with the LCIA Mediation Procedure, which Procedure is deemed to
be incorporated by reference into this clause
12.
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12.2
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Arbitration: If
the dispute is not settled by mediation within five days of the
commencement of the mediation, or such further period as the parties may
agree in writing, the dispute will be referred to and finally resolved by
arbitration under the LCIA Rules, which Rules are deemed to be
incorporated by reference into this clause
12.
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12.3
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Language: The
language to be used in the mediation and in the arbitration will be
English.
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12.4
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Governing
law: The governing law of this Agreement will be the
substantive law of New Zealand.
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12.5
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Arbitration
procedure: In any arbitration commenced pursuant to this
clause 12:
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(a)
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the
number of arbitrators will be three;
and
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(b)
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the
seat, or legal place, of arbitration will be London,
England.
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12.6
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Interlocutory
relief: Nothing in this clause 12 will prevent either
party, at any time, from seeking any urgent interlocutory relief from a
court of competent jurisdiction in relation to any matter that arises
under this Agreement.
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13.
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GENERAL
|
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13.1
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Force
majeure:
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(a)
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Neither
party will be liable to the other party for any breach or failure to
perform any of its obligations under this Agreement where such breach or
failure is caused by anything beyond that party’s reasonable control,
including (without limitation) war, civil commotion, hostility, act of
terrorism, strike, lockout, other industrial act, weather phenomena or
other act of God, or governmental regulation or direction (“Force Majeure”),
provided that the party seeking to rely on this clause 13.1
has:
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(i)
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notified
the other party as soon as reasonably practicable upon becoming aware of
an actual or potential event of Force
Majeure;
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(ii)
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used
all reasonable endeavours to avoid, overcome or mitigate the effects of
the event of Force Majeure as quickly as practicable;
and
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(iii)
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consulted
with the other party on its efforts under clause
13.1(a)(ii).
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exhibit
10.05 - manufacturing agmt
|
9
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(b)
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If:
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(i)
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as
a result of a Force Majeure a party is unable to perform any of its
material obligations under this Agreement;
and
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(ii)
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the
ability of such party to perform any such material obligation has been
permanently affected by such Force
Majeure,
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then the
party not subject to the event of Force Majeure may terminate this Agreement on
giving the other party 10 Business Days’ written notice.
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(c)
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Nothing
in this clause 13.1 will excuse a party from any obligation to make a
payment when due under this
Agreement.
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13.2
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Variations: No
amendment, variation or modification to this Agreement will be effective
unless it is in writing and signed by duly authorised representatives of
both parties.
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13.3
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Assignment:
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(a)
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Comvita
may assign any or all of its rights and obligations under this Agreement,
provided it first obtains the written consent of Derma Sciences, such
consent not to be unreasonably
withheld.
|
|
|
(b)
|
Derma
Sciences may assign any or all of its obligations under this Agreement,
provided it first obtains the written consent of Comvita, such consent not
to be unreasonably withheld.
|
|
|
(c)
|
Derma
Sciences may assign any or all of its rights under this Agreement at any
time, without requiring the consent of
Comvita.
|
|
13.4
|
No
waiver:
|
|
|
(a)
|
A
delay, neglect or forbearance by a party in enforcing any provision of
this Agreement against the other will not waive or limit any right of that
party.
|
|
|
(b)
|
No
provision of this Agreement will be considered waived by a party unless
that party waives the provision in
writing.
|
|
|
(c)
|
The
parties will not treat a waiver by a party of any breach as a waiver of
any continuing or re-occurring breach, unless the parties have expressly
agreed to do so in writing.
|
|
13.5
|
Invalid
clauses: If any part of this Agreement is held to be
invalid, unenforceable or illegal for any reason, this Agreement will be
deemed to be amended by the addition or deletion of wording necessary to
remove the invalid, unenforceable or illegal part, but otherwise to retain
the provisions of this Agreement to the maximum extent permissible under
applicable law.
|
|
13.6
|
Relationship:
|
|
|
(a)
|
The
parties will perform their obligations under this Agreement as independent
contractors to each other.
|
|
|
(b)
|
Nothing
in this Agreement will create, constitute or evidence any partnership,
joint venture, agency, trust or employer/employee relationship between the
parties, unless it expressly states otherwise. Neither party
may represent, or allow anyone to represent, that any such relationship
exists between the parties.
|
|
exhibit
10.05 - manufacturing agmt
|
Manufacturing
Agreement
|
10
|
|
|
(c)
|
Neither
party will have the authority to act for, or incur any obligation on
behalf of, the other party, except as expressly provided for in this
Agreement.
|
|
13.7
|
Notices:
|
|
|
(a)
|
Each
notice or other communication to be given under this Agreement (“Notice”) must be in
writing and must be:
|
|
|
(i)
|
in
the English language and clearly
legible;
|
|
|
(ii)
|
sent
by pre-paid post, facsimile (confirmed by pre-paid post) or personal
delivery to the addressee at the facsimile number, physical address, or
postal address specified in clause 13.7(b);
and
|
|
|
(iii)
|
marked
for the attention of the person or office holder (if any) specified in
clause 13.7(b).
|
|
|
(b)
|
The
initial facsimile number, address, and relevant person or office holder of
each party are, unless otherwise notified by the relevant party in writing
to the other party, as set out
below:
|
|
|
Derma
Sciences:
|
000
Xxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxx
Xxx
Xxxxxx 00000
Xxxxxx
Xxxxxx of America
Facsimile: x0
000 000 0000
Attention: Chief
Executive Officer
|
|
Comvita:
|
Comvita
New Zealand Limited
|
Xxxxxx
Road South
Paengaroa
NEW
ZEALAND
Facsimile: x00
0 000 0000
Attention: Chief
Executive Officer
|
|
(c)
|
No
Notice will be effective until received. A Notice is, however,
deemed to be received:
|
|
|
(i)
|
in
the case of posting, on the third Business Day following the date of
posting;
|
|
|
(ii)
|
in
the case of personal delivery, when received;
and
|
|
|
(iii)
|
in
the case of a facsimile, following receipt of a report from the machine on
which the facsimile was sent confirming that all pages were successfully
transmitted,
|
but any
Notice personally delivered or received by facsimile either after 5.00 pm on a
Business Day, or on any day that is not a Business Day, will be deemed to have
been received on the next Business Day.
|
exhibit
10.05 - manufacturing agmt
|
Manufacturing
Agreement
|
11
|
|
|
(d)
|
Despite
clauses 13.7(a) and (c)(i), if the Notice is posted from a country other
than the country of the addressee, the method of posting must be pre-paid
airmail, and the Notice will be deemed to be received on the seventh
Business Day following the date of
posting.
|
|
13.8
|
Further
action: Each party agrees to execute, acknowledge and
deliver all instruments, make all applications and do all things, as may
be necessary or appropriate to carry out the purposes and intent of this
Agreement.
|
|
13.9
|
Announcements: Neither
party may:
|
|
|
(a)
|
make
any press or other public announcement about any aspect of this Agreement;
or
|
|
|
(b)
|
use
the name of the other party in connection with or as a result of this
Agreement,
|
without
the other party’s prior written consent.
|
13.10
|
Entire
agreement:
|
|
|
(a)
|
This
Agreement contains the whole of the contract and understanding between the
parties relating to the matters covered by
it.
|
|
|
(b)
|
This
Agreement supersedes all prior representations, agreements, statements and
understandings between the parties relating to those matters, whether
verbal or in writing.
|
|
|
(c)
|
The
parties acknowledge that they do not rely on any representation,
agreement, term or condition that is not set out in this
Agreement.
|
|
|
(d)
|
To
the extent that there is any inconsistency or conflict between the terms
set out in a purchase order or invoice and the terms set out in this
Agreement, the terms set out in this Agreement will
prevail.
|
|
13.11
|
Counterparts:
|
|
|
(a)
|
The
parties may sign this Agreement in any number of counterparts (including
facsimile or PDF copies), and a party may enter into this Agreement by
signing any counterpart.
|
|
|
(b)
|
The
parties confirm that their signing of this Agreement by such means will be
valid and sufficient. All counterparts, when taken together,
will constitute one and the same
agreement.
|
|
13.12
|
Costs: Each
party will bear its own legal costs and expenses incurred in connection
with the preparation, negotiation and execution of this
Agreement.
|
|
13.13
|
Remedies
cumulative:
|
|
|
(a)
|
The
rights of the parties under this Agreement are
cumulative.
|
|
|
(b)
|
The
parties do not exclude any rights provided by law, unless otherwise
expressly stated in this Agreement.
|
|
13.14
|
UN Convention not to
apply: It is specifically agreed between the parties
that the United Nations Convention on the International Sale of Goods will
not apply to this Agreement.
|
|
exhibit
10.05 - manufacturing agmt
|
Manufacturing
Agreement
|
12
|
SIGNED
|
COMVITA NEW ZEALAND
LIMITED
|
by: |
/s/ Xxxxx X. Xxxxxxx
|
|
Signature
of Authorised Signatory
|
||
|
Xxxxx X. Xxxxxxx
|
||
|
Name
of Authorised
Signatory
|
|
DERMA SCIENCES, INC
|
by: |
/s/ Xxxxxx X.
Xxxxxx
|
|
Signature
of Authorised Signatory
|
||
|
Xxxxxx X. Xxxxxx
|
||
|
Name
of Authorised
Signatory
|
|
exhibit
10.05 - manufacturing agmt
|
Manufacturing
Agreement
|
13
|
SCHEDULE
1
MEDICAL
HONEY SPECIFICATIONS
The
specifications that Medical Honey must comply with in terms of content, quality
and essential features are those specifications set out in Comvita’s Product
Specifications numbered 4460A-002, 3980A-001, 4040A-001 and 4124A-001 and
Comvita’s Product Information Sheet for Medical Honey 12+ (Code 743), copies of
which are attached as an exhibit hereto, as may be updated or revised by Comvita
from time to time after consultation with Derma Sciences.
|
exhibit
10.05 - manufacturing agmt
|
Manufacturing
Agreement
|
14
|
SCHEDULE
2
OTC
PRODUCTS
100%
Honey in tubes (maximum retail sale carton up to 10 units)
|
|
·
|
25g
|
|
|
·
|
1oz
(28.35g) – 31501
|
|
|
·
|
1.5oz
(42.52g) – 31515
|
|
|
·
|
50g
|
|
|
·
|
3oz
(85.05g) -31530
|
Medihoney
Gel (honey with gelling agents) in tubes (maximum retail sale carton up to 10
units)
|
|
·
|
25g
|
|
|
·
|
1oz
(28.35g) – 31501
|
|
|
·
|
1.5oz
(42.52g) – 31515
|
|
|
·
|
50g
|
|
|
·
|
3oz
(85.05g) -31530
|
Derma
Cream in tubes (maximum retail sale carton up to 10 units)
|
|
·
|
15g
|
|
|
·
|
20g
|
|
|
·
|
1oz
(28.35g) – 31501
|
|
|
·
|
1.5oz
(42.52g)
|
|
|
·
|
50g
|
|
|
·
|
3.0oz
(85.05g)
|
Barrier
Cream in tubes (maximum retail sale carton up to 10 units)
|
|
·
|
15g
|
|
|
·
|
20g
|
|
|
·
|
1oz
(28.35g) – 31501
|
|
|
·
|
1.5oz
(42.52g)
|
|
|
·
|
50g
|
|
|
·
|
3.0oz
(85.05g)
|
Sticking
plasters
|
|
·
|
Multiple
sizes up to 25cm2
honeycolloid or similar patch size with maximum retail box size of 99
“sticking plaster” units
|
|
Exhibit
10.05 - manufacturing agmt
|
Manufacturing
Agreement
|
15
|
