EXHIBIT 10.1
Supply Agreement
(1) MedTrade Products Ltd
(2) Xxxxxxxxxx Laboratories Inc
Dated: June 1st, 2005
This Agreement is made the 1st day June 2005
Between:
(1) MedTrade Products Limited (company number: 3839609) whose registered
office is at Electra House, Xxxxx Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxx, XX0
0XX ('MTP').
(2) Xxxxxxxxxx Laboratories, Inc. whose registered office is at 0000 Xxxxxx
Xxxx Xxxx, Xxxxxx, Xxxxx, XX 00000, XXX. ('CLI').
Background:
The parties wish to enter this Agreement, on the terms and conditions below,
for the supply by MTP of Products to CLI for distribution solely to the
companies given in Schedule 2.
MTP designs, develops, manufactures and supplies professional and retail
woundcare, footcare and skin care products.
CLI designs, develops, manufactures and supplies professional and retail
woundcare, footcare and skin care products.
It is agreed as follows:
1. Definitions and interpretation
1.1 In this Agreement, unless the context otherwise requires, the following
words have the following meanings:
"this Agreement" This Agreement (including any schedule or
annex to it and any document in agreed
form relating hereto);
"Commencement Date" 1st June 2005
"Agreement Period" The period of one year from the
Commencement Date.
"Product(s)" The Products detailed in Schedule 3,
which are or are to be, sold under a
branding or brand name, which is owned,
operated, or marketed by the companies
given in Schedule 2.
"Technical The respective proprietary information of
Information" each party hereto embodied in the design
of the Products and or packaging, and,
in general, all confidential information,
specifications, design data, know-how,
experience, and all other technical
information relating to Products.
"Customers" or "Potential A company in Schedule 2, or any of its
Customers' Subsidiaries
"Supplier" or "Potential Any person, firm or company who is a
Supplier" sub-contractor to MTP for the manufacture
of this Product.
"Subsidiary" In relation to a company any other
company in the world of which the first
mentioned company owns (either directly
or indirectly) more than fifty percent
(50%) of the voting stock thereof or
controls the composition of a majority
of its Board of Directors.
1.2 In this Agreement, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and
words in one gender include any other gender; and
(b) headings are for convenience only and shall not affect the
interpretation of this Agreement.
2. Sale, Supply and Delivery of the Products.
2.1 MTP agrees to provide CLI the Products in consideration of the purchase
price, described in Section 7.1, to be paid by CLI, and in accordance
with the specifications for the Products set forth in Schedule 3, in
accordance with Section 7.1.
3.2 MTP shall supply the Products to CLI on the following terms of
delivery:
(a) Delivery of the Products shall be made CIF USA port of entry,
UK side of customs, unless the parties otherwise agree in
writing
(b) MTP shall deliver the Products by the mutually-agreed upon
delivery dates agreed at time of creation of purchase order
(the "Delivery Dates").
(c) Where part shipments are agreed by both parties, they
shall be treated as separate deliveries and therefore separate
sales. MTP shall invoice for such deliveries separately.
4. Documentation
MTP shall deliver with the Products such technical or quality
documentation as the parties may agree prior to the relevant Delivery
Date.
5. Risk and Property in the Products
5.1 Title and risk of damage to, or loss of, the Products shall pass to
CLI upon delivery to USA port of entry, UK side of customs.
5.2 When (i) payment for the Products is overdue and undisputed by CLI,
(ii) CLI suffers distress, (iii) CLI makes an arrangement or
composition with creditors (iv) CLI enters into liquidation (otherwise
than for the purpose of amalgamation or reconstruction where the
corporate body, as amalgamated or reconstructed accepts in full the
CLI's liability to pay for the goods), or (v) CLI has a receiver
appointed for the whole or a substantial part of its business then:
(a) If CLI remains in possession of the goods, whether of not CLI
has sold them, MTP shall, to the extent permitted by applicable
law, be entitled to recover the goods from CLI; or
(b) If CLI has parted with possession of the goods by way of sale,
whether or not the goods have been mixed with or incorporated
into other good, CLI, shall, to the extent permitted by applicable
law, hold for MTP so much of the proceeds of the sale of the goods
as represents CLI's liability to the MTP in respect of them.
6. Supply of the Products
6.1 MTP shall supply the Products to CLI, in response to orders received
and accepted by MTP on the Standard Terms and Conditions of Supply as
stipulated in Schedule 1, written quotations or on any other terms
which are agreed by both parties in writing.
6.2 In the event of any inconsistency or conflict between the provisions of
this Agreement and the Terms and Conditions of Supply referred to
above, the provisions of this Agreement shall prevail.
6.3 All claims for errors, omissions, damage, pilferage or shortage shall
be notified in writing by CLI to MTP within 60 days after receipt of
the goods.
7. Price and Payment
7.1 The prices and terms for payment for Products shall be agreed in
writing between the parties on a product by product basis.
7.2 MTP undertakes that while this Agreement is in force, CLI shall receive
prices and other terms of purchase for the Products to be sold in the
US that are no less favorable than those offered to any other US
customer of MTP. Pricing for Products to be sold in other countries
will be agreed upon in writing.
7.3 All invoices sent and payments made shall be in USA Dollars.
7.4 MTP shall be entitled to withhold delivery of the Products under this
Agreement at any time if payments are due from, and undisputed by, CLI
hereunder and have not been paid in accordance with Clause 7.1 hereof.
7.5 CLI shall be entitled to withhold payment of the Products under this
agreement at any time if the Products do not meet any mutually agreed
specifications.
8. Undertakings
8.1 MTP undertakes during the Agreement Period not to knowingly supply the
Products direct to CLI's Customers.
8.2 CLI undertakes that during the Agreement Period not to knowingly
purchase the Products from any company which supplies the Products to
MTP.
8.3 CLI undertakes during the Agreement Period only to buy the Products or
any substantially similar Products from MTP.
9. Termination
9.1 Notwithstanding any provision herein to the contrary, this Agreement
may be terminated by thirty (30) days notice in writing to the other
(and without compensation becoming due to the other by reason only
termination) in any of the following events:-
(a) if the other party fails to perform or observe any of the terms
of this Agreement or breaches of the contract and in the case of
a breach capable of remedy has not remedied the breach within
thirty (30) day's of receipt of written notification requiring
it to do so;
(b) if any action applicable or proceeding is taken in respect of
the other party for (a) a voluntary, arrangement or composition
of reconstruction of its debts, (b) the presentation of an
administration petition, (c) its winding up or dissolution, (d)
the appointment of a liquidator administrator trustee receiver
administrative receiver or a similar officer, (e) any similar
action application or proceeding in a jurisdiction to which it
is subject;
(c) if CLI has not placed its first order with MTP for the Products
within twelve (12) months of the Effective Date; or
(d) if, with respect to the provisions of this Agreement requiring
further determinations or agreements between the parties hereto,
the parties are unable to make any such determinations or
agreements for a period of thirty (30) days or more.
11. Warranties and liability
11.1 MTP warrants that the Products will correspond with their
specifications at the time of delivery, and will be made in accordance
with the specifications set forth on Schedule 3, or such other
manufacturing specifications as may be agreed to by the parties.
11.2 MTP will not be under any liability in respect of any defect arising
from any wilful damage, misuse or negligence of CLI's agents or
employees.
11.3 Subject as expressly provided within this clause, all warranties
conditions or other terms implied by statute or common law are excluded
to the fullest extent permitted by law.
11.4 MTP will indemnify and defend CLI and its directors, employees,
shareholders, representatives and agents (collectively, the
"Indemnitees") from and against and hold the Indemnitees harmless from
any and all claims, suits, liabilities, losses, damages, costs and
expenses ("Actions") (including without limitation attorneys' fees and
costs) asserted against or incurred by the Indemnitees arising out of
or resulting from, directly or indirectly (i) any breach of this
Agreement, (ii) any acts, omissions, misrepresentations or negligence
by MTP or any of its employees, agents or contractors, (iii) any
injury, including death, to person or property caused by a Product
defect, (iv) any violation of laws in connection with the manufacture,
sale, shipping or delivery of Products; provided that MTP is given
notice of any such Action within a reasonable period after CLI learns
of such Action.
11.5 CLI will indemnify and defend MTP and its directors, employees,
shareholders, representatives and agents (collectively, the
"Indemnitees") from and against and hold the Indemnitees harmless from
any and all claims, suits, liabilities, losses, damages, costs and
expenses ("Actions") (including without limitation attorneys' fees and
costs) asserted against or incurred by the Indemnitees arising out of
or resulting from, directly or indirectly (i) any breach of this
Agreement, (ii) any acts, omissions, misrepresentations or negligence
by CLI or any of its employees, agents or contractors, (iii) any
material violation of laws in connection with the sale, shipping or
delivery of Products; provided that CLI is given notice of any such
Action within a reasonable period after MTP learns of such Action.
11.6 The parties acknowledge that the primary duty of care for the consumer
health and safety aspects of the Products shall lie with CLI. The
parties acknowledge that the primary duty for manufacture to
specifications shall lie with MTP.
12 Force majeure
Notwithstanding any other provision of this Agreement, neither party
shall be deemed to be in breach of this Agreement, or otherwise be
liable to the other, for any delay in the performance or the non-
performance of its obligations under this Agreement, to the extent that
the delay or non performance is due to any circumstances beyond the
reasonable control of the defaulting party.
13 Confidentiality
Confidentiality shall be maintained in accordance with the
confidentiality agreement signed by both parties and dated June 1st,
2005. A copy of this agreement is included as Schedule 4.
14 General
14.1 No partnership
Nothing in this Agreement shall create, or be deemed to create, a
partnership between the parties.
14.2 Entire Agreement
This Agreement (including its schedules) sets out the entire agreement
and understanding between the parties in respect of the subject matter
of this Agreement.
Both parties acknowledge that they have entered into this Agreement in
reliance only upon the representations, warranties and promises
specifically contained or incorporated in this Agreement and, save as
expressly set out in this Agreement. Neither party shall have any
liability in respect of any other representation, warranty or promise
made prior to the date of this Agreement unless it was made
fraudulently.
14.2.1 Variation
No purported variation of this Agreement shall be effective unless it
is in writing and signed by or on behalf of each of the parties.
14.2.2 Notices
Any notice to a party under this Agreement shall be in writing signed
by or on behalf of the party giving it and shall, unless delivered to a
party personally, be left at, or sent by prepaid first class post,
prepaid recorded delivery, telex or facsimile to the address of the
party as set out on page 1 of this Agreement or as otherwise notified
in writing from time to time.
14.3.1 Governing law and jurisdiction
In the event of a dispute between the parties hereto relating to the
subject matter hereof, this Agreement shall be governed by and
construed in accordance with (a) if CLI shall be the a defendant in any
such dispute, the laws of the State of Texas, without regard to the
conflicts of laws principles thereof and (b) if MTP shall be a
defendant in any such dispute, in accordance with the laws of the
United Kingdom, without regard to the conflicts of laws principles
thereof.
15. Dispute Resolution; Arbitration:
15.1 Prior to pursuing arbitration with respect to any dispute hereunder,
the proper officers (or a person appointed by them) shall meet to seek
an amicable resolution to such dispute. No party shall be entitled to
make and bring a claim in arbitration unless it has attempted for a
period of 30 days from written notice of a dispute to reach such
amicable resolution with the other party.
15.2 After expiration of the 30-day period referred to in the prior
section, any and all disputes arising under or affecting this
Agreement, including any questions regarding the existence, validity
and/or termination, shall be resolved exclusively by confidential
arbitration pursuant to and in accordance with the International
Arbitration Rules of the London Court of International Arbitration
then in effect, in London, and the applicable law specified in Section
14.3.1 hereof. Each of the parties shall designate one arbitrator and
the two arbitrators so designated shall select the third arbitrator.
Among the remedies available to them, the arbitrators shall be
authorized to order the specific performance of provisions of this
Agreement. The award rendered by the arbitrators shall include costs
of arbitration, reasonable attorneys' fees, and reasonable costs for
expert and other witnesses. The final decisions of the arbitrators
shall be binding and may be enforced in any court of competent
jurisdiction. Subject only to the provisions of applicable law, the
procedure described in this Section shall be the exclusive means of
resolving disputes arising under or affecting this Agreement. The
site selection for such arbitration shall be made by the defendant in
such arbitration.
This Agreement has been signed on the date appearing at the head of page 1.
Signed by )
for and on behalf of ) /s/ X.X. Xxxxx
MedTrade Products Ltd )
Witnessed by ) /s/ X.X. Xxxxx
Of ) Medtrade Products, Ltd.
Signed by ) /s/ Xxxxxxx X. Xxxxxx
for and on behalf of ) President & CEO
Xxxxxxxxxx Laboratories Inc. )
Witnessed by ) /s/ Xxxxx Xxxxxxxx
Of ) Xxxxxxxxxx Laboratories, Inc.
*Schedule 1
Standard Terms and Conditions of Supply
---------------------------------------
*Denotes Confidential Portion Omitted and Filed Separately with the
Commission.
*Schedule 2
Customers or Potential Customers
*Denotes Confidential Portion Omitted and Filed Separately with the
Commission.
*Schedule 3
Products
*Denotes Confidential Portion Omitted and Filed Separately with the
Commission.
*Schedule 4
Confidentiality Agreement of June 1st, 2005
*Denotes Confidential Portion Omitted and Filed Separately with the
Commission.
