SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
, 1995, by and between XXXXXXXXXX LABORATORIES,
INC., a Texas corporation ("Xxxxxxxxxx"), and LABORATORIOS PiSA S.A. DE
C.V., a Mexican corporation ("PiSA").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxx is engaged in the business of manufacturing,
selling and distributing certain pharmaceutical products and is
desirous of establishing a competent and exclusive distribution source
for sales of such products in Mexico and certain countries in Central
America and the Caribbean (defined in Article I hereof as the
Territory); and
WHEREAS, PiSA is desirous of distributing such products in the
Territory and is willing and able to provide a competent distribution
organization in the Territory, and PiSA 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) "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 PiSA on its intent to add or discontinue Products to
Exhibit A.
(b) "Territory" shall mean the following countries: Mexico,
Guatemala, Nicaragua, Panama, El Salvador, and the
Dominican Republic.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx hereby appoints PiSA as Xxxxxxxxxx'x sales distributor in
the Territory for the sale of Products, and PiSA hereby accepts such
appointment. As sales distributor in the Territory, PiSA shall,
subject to the terms and conditions of this Agreement, have the right
to sell Products in the Territory, but shall have no right to sell
Products outside the Territory. During the term of this Agreement,
Xxxxxxxxxx agrees not to appoint any other persons as distributors for
the Products in the Territory, provided in this Agreement.
2.2a. In a manner reasonably satisfactory to Xxxxxxxxxx, and at
PiSA's sole expense, PiSA agrees to (a) make 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, and (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, (e) promptly
assign back to Xxxxxxxxxx any product registrations in the Territory
upon termination of Agreement.
2.2b. If Xxxxxxxxxx terminates the Agreement without cause under
the Agreement, excluding the instance where the parties fail to reach
agreement on price or minimums, then Xxxxxxxxxx agrees to a one year
sales moratorium in the Territory.
2.3 Xxxxxxxxxx will provide PiSA with such (i) reasonable sales
personnel training in relation to the Products in Irving, Texas or a
mutually agreed upon location in Mexico, and (ii) promotional Product
literature of Xxxxxxxxxx, as PiSA may request from time to time.
Xxxxxxxxxx and PiSA shall cover their respective direct expenses.
2.4 During the term of this Agreement, PiSA shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of Xxxxxxxxxx. As such, PiSA 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.
Article 3. Certain Performance Requirements
3.1 PiSA agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. PiSA will not, under any
circumstances, either directly or indirectly through third parties,
promote, market, sell, distribute or ship 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 PiSA is not repatriating
Products to the United States or elsewhere outside the Territory, PiSA
agrees that:
(a) PiSA will send to Xxxxxxxxxx a monthly sales report on the
number of units of each Product sold;
(b) PiSA will send to Xxxxxxxxxx a monthly inventory report of
the Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to PiSA hereunder.
3.3 PiSA shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
PiSA shall maintain all its inventory of Products clearly segregated
and meeting all storage and other required standards applicable
governmental authorities. All such inventory shall be subject to
inspection by Xxxxxxxxxx or its agents with 72 hours written notice.
3.4 PiSA 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 PiSA of Products. Upon written
request from PiSA, Xxxxxxxxxx shall provide PiSA 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.
3.5 All Products shall be packaged, labeled, advertised,
marketed, sold and distributed by PiSA in compliance with the rules and
regulations of the applicable governmental authority within the
territory in which the Products are marketed, as amended from time to
time, and (ii) all other applicable laws, rules and regulations.
3.6 PiSA 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 and from the applicable governmental
authority.
3.7 PiSA 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.
3.8 PiSA agrees that Xxxxxxxxxx shall have the right to inspect
PiSA's facilities at all reasonable times to ensure PiSA's compliance
with the provisions of this Agreement.
3.9 PiSA will actively and aggressively promote the sale of the
Products to all customers and potential customers within the Territory.
PiSA agrees not to market, sell or distribute to any customers or
potential customers in the Territory without ninety (90) days written
notice to Xxxxxxxxxx, any wound care, skin care, or incontinence care.
Article 4. Sale of Products by Xxxxxxxxxx to PiSA
4.1 Subject to the terms and conditions of this Agreement,
including specifically Article 4.6 hereof, Xxxxxxxxxx shall sell to
PiSA its requirements for the Products at a price for each Product (the
"Contract Price") which represents a discount from Xxxxxxxxxx'x
distributor price for such Product as set forth in Xxxxxxxxxx'x
published distributor price list (the "Published Price List"). For
orders placed by PiSA 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 90
days prior to the end of each 12-month period of the term of this
Agreement, 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 distributor prices for
Products as set forth in the Published Price List if mutually agreed to
by PiSA. Such cost increases shall be no greater than 5% of the U.S.
inflation rate.
4.2 As consideration for its appointment as a sales distributor
entitled to a Product discount, PiSA agrees to purchase from
Xxxxxxxxxx, during each 12-month period of the term of this Agreement,
commencing with the 12-month period beginning January 1, 1996 through
December 31, 1996, at the Contract Price, a specified minimum aggregate
dollar amount (based on the Contract Price) of the Products (the
"Specified Minimum Amount"). For the first 12-month period of the term
of this Agreement, the Specified Minimum Amount shall be $300,000. The
Specified Minimum Amounts for each subsequent 12-month period shall be
determined by mutual agreement of the parties prior to the beginning of
such period based on PiSA's reasonable, good faith projections of
future sales growth and such other factors as the parties may deem
relevant.
4.3 PiSA shall order Products by submitting a purchase order to
Xxxxxxxxxx describing the type and quantity of the Products to be
purchased. Orders are subject to acceptance by Xxxxxxxxxx. All
purchases shall be spaced in a reasonable manner. If Xxxxxxxxxx
accepts the order, Xxxxxxxxxx will invoice PiSA upon shipment of the
Products. Unless otherwise agreed, PiSA shall pay all invoices in full
within 90 days of the date of invoice. All sales and payments shall be
made, and all orders shall be accepted, in the State of Texas.
4.4 Xxxxxxxxxx shall not be obligated to ship Products to PiSA
at any time when payment of an amount owed by PiSA is overdue or when
PiSA is otherwise in breach of this Agreement.
4.5 All shipments of Products to PiSA will be packaged in
accordance with Xxxxxxxxxx'x standard packaging procedures and shipped
per Xxxxxxxxxx'x existing distribution policy. All Contract Prices are
C.I.F., Xxxxxxxxxx'x facility, Dallas or Laredo, Texas. Ownership of
and title to Products and all risks of loss with respect thereto shall
pass to PiSA upon delivery of such Products by Xxxxxxxxxx to the
carrier at the designated delivery (C.I.F.) point. Deliveries of
Products shall be made by Xxxxxxxxxx under normal trade conditions in
the usual and customary manner being utilized by Xxxxxxxxxx at the time
and location of the particular delivery.
4.6 Xxxxxxxxxx shall use its reasonable best efforts to ensure
availability of all Products ordered by PiSA 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 PiSA, 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.
4.7 Xxxxxxxxxx accepts liability for defective products and
agrees to replace such defective product should they occur with new
products. Xxxxxxxxxx carries liability insurance and is willing to
have PiSA added as a covered party under this policy. 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 PiSA 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. PiSA shall not make any representation
or warranty with respect to the Products that is more extensive than,
or inconsistent with, the limited warranty set forth in this Article
4.7 or that is inconsistent with the policies or publications of
Xxxxxxxxxx relating to the Products.
PiSA'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
PiSA'S OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR LIABILITY
FOR DAMAGES TO PiSA 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.
XXXXXXXXXX AND PiSA SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS
EACH OTHER AND ITS AFFILIATES, AND THEIR RESPECTIVE 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 BY XXXXXXXXXX
AND PiSA OR ANY OTHER PARTY, (ii) ANY BREACH BY XXXXXXXXXX AND PiSA OF
ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS
AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF XXXXXXXXXX AND
PiSA OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND
PiSA'S AUTHORIZATION GRANTED HEREIN.
4.8 Credits on defective Products by PiSA 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
PiSA a copy of its Insurance Certificate and shall include PiSA
thereunder.
Article 5. Term and Termination
5.1 The initial term of this Agreement shall be for a period of
five years from the date of this Agreement. After such initial term,
this Agreement shall be automatically extended for an additional term
of five years, unless this Agreement is terminated at the end of the
initial five-year term by written notice given by either party to the
other party not less than six months prior to the end of such initial
term. Notwithstanding the foregoing, this Agreement may be terminated
earlier in accordance with the provisions of this Article 5.
5.2 Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if PiSA 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 PiSA, PiSA understands and agrees
that it shall be in material breach of this Agreement, and Xxxxxxxxxx
shall have the right to terminate this Agreement under this Article
5.3, if:
(i) PiSA fails or refuses to pay to Xxxxxxxxxx any sum
when due;
(ii) PiSA breaches any provision of Article 2.2, 3.1, 3.5,
3.7, 3.9, 4.3, 4.7, 6 or 7; or
(iii) PiSA fails to purchase the Specified Minimum Amount
of Product for any required period starting in year two (2).
5.3 Each Party shall have the absolute right to terminate this
Agreement in the event the Party shall become insolvent, or if there is
instituted by or against the Party procedures in bankruptcy, or under
insolvency laws or for reorganization, receivership or dissolution, or
if the Party loses any franchise or license to operate its business as
presently conducted in any part of the Territory.
5.4 This Agreement shall automatically terminate effective at
the end of any 12-month period of the term of this Agreement referred
to in Articles 4.1 and 4.2 hereof if the parties are unable to agree
upon the Contract Prices or the Specified Minimum Amount for the next
12-month period of the term. Xxxxxxxxxx shall give PiSA six months
notice of its intent to terminate.
5.5 During the one-year period following termination of this
Agreement, any inventory of Products held by PiSA at the termination of
this Agreement may be sold by PiSA 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 PiSA'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 PiSA including
importation and shipping.
5.6 The termination of this Agreement shall not impair the
rights or obligations of either party hereto which shall have accrued
hereunder prior to such termination. The provisions of Articles 4.7,
6, 7 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 6. Trademarks and Trade Names
6.1 All trademarks, trade names, service marks, logos and
derivatives thereof relating to the Products (the "Trademarks"), and
all patents, technology and other intellectual property relating to the
Products, are the sole and exclusive property of Xxxxxxxxxx or its
affiliates. Xxxxxxxxxx hereby grants PiSA 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 PiSA, modify or discontinue the use of any Trademark
and/or use one or more additional or substitute marks or names, and
PiSA shall be obligated to do the same.
6.2 PiSA agrees to use the Trademarks in full compliance with
the rules prescribed from time to time by Xxxxxxxxxx. PiSA may not use
any Trademark as part of any corporate name or with any prefix, suffix
or other modifying words, terms, designs or symbols. In addition, PiSA
may not use any Trademark in connection with the sale of any
unauthorized product or service or in any other manner not explicitly
authorized in writing by Xxxxxxxxxx.
6.3 In the event of any infringement of, or challenge to,
PiSA's use of any Trademark, PiSA is obligated to notify Xxxxxxxxxx
immediately, and Xxxxxxxxxx shall have sole and absolute discretion to
take such action as it deems appropriate.
6.4 In the event of the termination of this Agreement for any
reason, PiSA's right to use the Trademarks shall cease, and PiSA shall
cease using such Trademarks at such time as PiSA's inventory of
Products has been sold. PiSA shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of PiSA and any of the advertising of PiSA used in
connection with Products.
6.5 In the event of a breach or threatened breach by PiSA of
the provisions of this Article 6, Xxxxxxxxxx shall be entitled to an
injunction or injunctions to prevent such breaches. Nothing herein
shall be construed as prohibiting Xxxxxxxxxx from pursuing other
remedies available to it for such breach or threatened breach of this
Article 6, including the recovery of damages from PiSA.
Article 7. Confidential Information
7.1 PiSA recognizes and acknowledges that PiSA will have access
to confidential information and trade secrets 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, PiSA 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 PiSA of the provisions of
this Article 7, Xxxxxxxxxx shall be entitled to an injunction
restraining PiSA 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 7, including the
recovery of damages from PiSA. 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 PiSA.
7.2 PiSA shall not disclose the existence of this Agreement or
any of the terms hereof without the prior written consent of
Xxxxxxxxxx.
Article 8. Force Majeure
8.1 Neither PiSA 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"), and Neither PiSA nor Xxxxxxxxxx'x obligations, so
far as may be necessary, shall be suspended during the period of such
Force Majeure and shall be cancelled in respect of such Products as
would have been sold hereunder but for such suspension. Such shall give
to other 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 a party's obligations under this Agreement.
Article 9. Amendment
9.1 No oral explanation or oral information by either party
hereto shall alter the meaning or interpretation of this Agreement. No
modification, alteration, addition or change in the terms hereof shall
be binding on either party hereto unless reduced to writing and
executed by the duly authorized representative of each party.
Article 10. Entire Agreement
10.1 This Agreement 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.
Article 11. Assignment
11.1 Neither this Agreement nor any of the rights or obligations
of PiSA hereunder shall be assigned by PiSA without the prior written
consent of Xxxxxxxxxx, executed by a duly authorized officer of
Xxxxxxxxxx.
Article 12. Governing Law
12.1 It is expressly agreed that the validity, performance and
construction of this Agreement will be governed by the laws and
jurisdiction of Canada.
Article 13. Notices
13.1 Any notice required or permitted to be given under this
Agreement by one of the parties to the other shall be given for all
purposes by delivery in person, registered air-mail, commercial courier
services, postage prepaid, return receipt requested, or by fax
addressed to:
(a) Xxxxxxxxxx at: Xxxxxxxxxx Laboratories, Inc., 0000 Xxxxxx
Xxxx Xxxx, Xxxxxx, Xxxxx 00000, attention Xxxxx Record, or
at such other address as Xxxxxxxxxx shall have theretofore
furnished in writing to PiSA. (Fax No. 000-000-0000)
(b) PiSA at: Laboratories PiSA S.A. De C.V., Xx. Xxxxx'x Xx.
0000, Xxxxxxxxxxx, Xxx. 00000, Xxxxxx, attention
________________, or at such other address as PiSA shall
have theretofore furnished in writing to Xxxxxxxxxx. (Fax
No. 00(0) 000 0000)
Article 14. Waiver
14.1 Neither PiSA nor Xxxxxxxxxx'x failure to enforce at any
time any of the provisions of this Agreement or any right with respect
thereto, shall not be considered a waiver of such provisions or rights
or in any way affect the validity of same. Neither PiSA's nor
Xxxxxxxxxx'x exercise of any of its rights shall not preclude or
prejudice neither PiSA nor Xxxxxxxxxx thereafter from exercising the
same or any other right it may have, irrespective of any previous
action by neither PiSA nor Xxxxxxxxxx.
Article 15. Arbitration
15.1 Except as provided in Articles 6.5 and 7.1, 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 the Canada, 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 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 interest in the dispute, controversy or claim. If the
ICC is unable to appoint, or fails to appoint, an arbitrator within 90
days of being requested to do so, then the arbitration shall be heard
by three arbitrators, one selected by each party within the 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 16 Tender Clause
16.1 Xxxxxxxxxx s acknowledges that PiSA may submit bids to sell
the products to public entities in the Territory pursuant to public
contracts which impose substantial damages or penalties for failure to
deliver the products on time or according to the specifications
requested. PiSA agrees to submit all such public contracts and
specifications involving the products to Xxxxxxxxxx for approval prior
to commitment by PiSA. In the event Xxxxxxxxxx accepts the contract
and specifications, it shall also accept liability for direct damages
PiSA becomes liable for as a result of Xxxxxxxxxx'x negligence.
Xxxxxxxxxx shall indemnify PiSA for such direct costs or penalties that
results from Xxxxxxxxxx'x negligence if Xxxxxxxxxx is given reasonable
notice of the negligent act, fails to correct it, it if agrees one
occurred or is allowed to defend itself should it believe no such
negligent act caused damage under the contract.
Article 17. No Inconsistent Actions
17.1 Each party hereto agrees that it will not voluntarily
undertake any action or course of action inconsistent with the
provisions or intent of this Agreement and, subject to the provisions
of Articles 4.6 and 8 hereof, will promptly do all acts and take all
measures as may be appropriate to comply with the terms, conditions and
provisions of this Agreement.
Article 18. Currency of Account
18.1 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 PiSA 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXXXXXXX LABORATORIES, INC.
By:
Name:
Title:
LABORATORIES PiSA S.A. DE C.V.
By:
Name:
Title:
