SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this
day of , 1996, by and between XXXXXXXXXX
LABORATORIES, INC., with offices located at 0000 Xxxxxx Xxxx Xxxx,
Xxxxxx, Xxxxx 00000, hereinafter referred to as ("Xxxxxxxxxx"), and
GAMIDA FOR LIFE BV, with offices located at Marton Xxxxxxx 00,
Xxxxxxxxx, Xxx Xxxxxxxxxxx, 3068 AV, hereinafter referred to as
("GBV").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxx is engaged in the business of developing,
manufacturing, selling and distributing certain pharmaceutical products
and medical devices and is desirous of establishing a competent and
exclusive distribution source for sales of such products in Israel and
South Africa (defined in Article 1 hereof as the Territory); and
WHEREAS, GBV is desirous of distributing such products in the
Territory, represents that it has experience in obtaining registration
of pharmaceutical preparations or products and medical devices in the
Territory, is well introduced on the market, is willing and able to
provide a competent distribution organization in the Territory, and GBV
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 GBV on its intent to add or discontinue Products to
Exhibit A.
(b) "Territory" shall mean the following countries: South
Africa.
(c) "Parties" shall mean Xxxxxxxxxx and GBV and Party shall
mean either of them as the context indicates.
(d) "Know-how" shall mean secret and substantial technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable GBV 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 GBV after execution of this Agreement.
(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) "Trademarks" shall mean all Trademarks, trade names,
service marks, logos and derivatives thereof relating to
the Products.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx hereby appoints GBV as Xxxxxxxxxx'x sales distributor in the
Territory for the sale of Products, and GBV hereby accepts such
appointment. As sales distributor in the Territory, GBV 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. During the term of this Agreement, Xxxxxxxxxx undertakes to
appoint no other sales distributor for the Products in the Territory,
nor itself to sell the Products in the Territory other than through
GBV.
2.2 In a manner reasonably satisfactory to Xxxxxxxxxx, and at
GBV's sole expense, GBV 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, GBV shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of Xxxxxxxxxx. As such, GBV 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. GBV
agrees to make clear in all dealings with customers or prospective
customers that it is acting as a distributor of the Products and not as
an agent of Xxxxxxxxxx.
2.4 Nothing in this Agreement shall be construed as giving GBV
any right to use or otherwise deal with the Know-how for purposes other
than those expressly provided for in this Agreement.
2.5 GBV shall promptly inform Xxxxxxxxxx of any
misappropriation of the Know-how which comes to its attention.
Xxxxxxxxxx shall have sole and absolute discretion to take such action
as it deems appropriate and shall reimburse GBV for any costs or
expenses pre-approved or authorized by Xxxxxxxxxx which GBV incurs in
protecting or defending the Know-how, unless such misappropriation of
Know-how was caused in whole or part by GBV.
2.6 All costs and expenses connected with GBV s activities or
performance under this Agreement are to be borne solely by GBV.
Article 3. Certain Performance Requirements
3.1 GBV agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. GBV 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 GBV is in compliance
with Article 3.1, GBV agrees that upon written request:
(a) GBV will send to Xxxxxxxxxx a quarterly sales report (not
more than once quarterly) which sets forth the number of
units and sizes of each Product sold, as well as net sales;
and
(b) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to GBV hereunder.
3.3 GBV shall promptly provide Xxxxxxxxxx with written reports
of any importation or sale of any of the Products in the Territory of
which GBV 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 GBV shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market seGBVnts.
GBV shall maintain all its inventory of Products clearly segregated and
meeting all storage and other standards required by applicable
governmental authorities. All such inventory and GBV's facilities
shall be subject to inspection by Xxxxxxxxxx or its agents upon 72
hours written notice.
3.5 GBV 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 GBV of Products. Upon written
request from GBV, Xxxxxxxxxx shall provide GBV with such certificates
or other documents as may be reasonably required to establish any
applicable exemptions from the collection of such taxes, charges and
fees.
3.6 All Products shall be packaged and delivered by Xxxxxxxxxx
to GBV. All Products shall be labeled, advertised, marketed, sold and
distributed by GBV 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. GBV 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 G B V shall not make any alterations or permit any
alterations to be made to the Products without Xxxxxxxxxx'x written
consent.
3.8 GBV shall assume all responsibility for its compliance 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 GBV's non-compliance with such applicable laws, regulations
a n d requirements concerning said Registration, inventory, use,
promotion, distribution and sale and shall hold Xxxxxxxxxx harmless
from any claim resulting therefrom being directed against Xxxxxxxxxx or
GBV by any third party.
3.9 GBV 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 GBV 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 GBV will actively and aggressively promote, develop demand
for and maximize the sale of the Products to all customers and
p o tential customers within the Territory. GBV 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, oral care or incontinence care product which is competitive
with any Product listed on Exhibit A at such time.
3.12 GBV 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 GBV, 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 GBV, 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
shall be in the name of Xxxxxxxxxx, with GBV being named as Products
distributor in the Territory. GBV expressly acknowledges and agrees
that the absolute and exclusive ownership of the Registration and all
rights originating out of or from the same shall at all times belong
only and exclusively to Xxxxxxxxxx.
4.3 As soon as GBV has received Know-how from Xxxxxxxxxx, GBV
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. GBV 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, GBV
shall, as soon as possible and in any case within sixty (60) days of
Xxxxxxxxxx s approval, submit the Registration application to the
appropriate authorities of the Territory.
4.5 GBV shall use its best endeavors to obtain the Registration
within six (6) months from the relevant submission. GBV 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 GBV s fulfilment of its
obligations in this respect. It is, however, understood that GBV s
dead-line to obtain Registration is one year from the date of filing.
4.6 GBV 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 GBV 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 GBV
5.1 Subject to the terms and conditions of this Agreement,
including specifically Article 5.7 hereof, Xxxxxxxxxx shall sell to GBV
the Products at a specified price for each Product (the "Contract
Price"). For orders placed by GBV 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) GBV shall provide in writing to Xxxxxxxxxx
both a sales forecast and a purchase forecast for the following 12-
m o n th 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.
5.2 As consideration for its appointment as a sales distributor
entitled to a Product discount, GBV agrees to purchase from Xxxxxxxxxx,
during each 12-month period of the term of this Agreement, commencing
with the 12-month period beginning _________, 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"). The first 12-month period of the term of
this Agreement shall be considered a benchmark year and there shall be
no Specified Minimum Purchase Amount, but rather a sales target of
$________.00. 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 GBV's reasonable, good faith projections of future
sales growth and such other factors as the Parties may deem relevant.
5.3 GBV 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 GBV upon shipment of the
Products. Unless otherwise agreed, GBV shall pay all invoices in full
within ninety (90) days of the date of invoice. GBV 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 GBV
at any time when payment of an amount owed by GBV is overdue or when
GBV is otherwise in breach of this Agreement.
5.5 All shipments will 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 date the
Purchase Order is received and acknowledged in writing by Xxxxxxxxxx,
unless by mutual consent of the Parties. Purchase Orders will be non-
cancelable. GBV will issue to Xxxxxxxxxx on a quarterly 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 quarterly rolling forecast issued prior
to the Purchase Order placed by GBV. Variation above 20% shall be
discussed between the Parties and Xxxxxxxxxx will use its best efforts
to maintain delivery dates requested by GBV.
5.6 All shipments of Products to GBV will be packaged in
accordance with Xxxxxxxxxx'x standard packaging procedures and shipped
per Xxxxxxxxxx s 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 GBV 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 GBV under this Agreement.
However, if necessary in the best judGBVnt of Carrington, Carrington
may allocate its available supply of Products among all its customers,
distributors or other purchasers, including GBV, 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.
5.8a 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 GBV 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. GBV 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.
GBV'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
GBV'S OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR LIABILITY
FOR DAMAGES TO GBV 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.
5.8b Xxxxxxxxxx shall indemnify, defend and hold GBV and GBV's
officers, directors and employees harmless from and against any
liability, losses, damages, costs and expenses (including reasonable
attorney's fees and disbursements) arising out of or with respect to:
(i) any third party claims, actions or suits alleging product
liability; or
(ii) any claims, actions or suits alleging that the Products or
Trademarks infringe the intellectual property rights or other
proprietary rights of any third party.
5.8c GBV shall indemnify, defend and hold Xxxxxxxxxx and
Carrington's officers, directors and employees harmless from and
against any liability, losses, damages, costs and expenses (including
reasonable attorney's fees and disbursements) arising out of or with
respect to any third party claims, actions or suits due to the
following acts or omissions by GBV, its agents, servants or employees:
(i) any alterations or mishandling (subsequent to delivery by
Xxxxxxxxxx) of the Products;
(ii) any unauthorized claims regarding the Products, including,
but not limited to, misrepresentations of any aspect, element,
component or result of use of the Products;
(iii) any misuse or unauthorized use of the Trademarks or Know-
how; or
(iv) a n y breach by GBV of any of its representations,
warranties, or covenants under this agreement.
5.8d EACH PARTY S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS
ARTICLE 5.8 SHALL NOT APPLY TO THE EXTENT THAT THE ACT OR OMISSIONS
CONTAINED THEREIN ARE ATTRIBUTED TO OR CAUSED BY THE OTHER PARTY,
WHETHER INTENTIONALLY OR NEGLIGENTLY.
5.9 Credits for defective Products to GBV 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
GBV with a copy of its liability Insurance Certificate and shall
include GBV 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 renewed for successive periods of five
(5) years each unless or until either Party terminates this Agreement
pursuant to the termination provisions set forth herein, or by giving
notice of termination to the other Party on the last day of any period,
p r o v iding at least 365 days prior notice to such effect.
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.
6.2a Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if GBV fails to perform or breaches, in any material respect,
any of the terms or provisions of this Agreement and fails to rectify
such non-performance or breach within ninety (90) days (or, in the case
of a financial breach, thirty (30) days) of receipt of a written demand
from Xxxxxxxxxx. Without limiting the events which shall be deemed to
constitute a breach or material breach of this Agreement by GBV, GBV
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) GBV fails or refuses to pay to Xxxxxxxxxx any sum
when due; or
(ii) GBV breaches any provision of Article 2.2, 3.4, 4,
5.3, 5.8a, 7 or 8.
6.2b In the event GBV fails to purchase the Specified Minimum
Purchase Amount of Product for any given period for a particular
Territory and Xxxxxxxxxx provides a written notice of breach of such
performance, and breach of such performance is not remedied within
sixty (60) days, then Xxxxxxxxxx shall have the absolute right to
remove that particular Territory from the Agreement and terminate the
Agreement with regard to same Territory.
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
b a n k r uptcy, 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 GBV at the termination of
this Agreement may be sold by GBV 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 GBV'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 GBV, 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 three (3) years.
Article 7. Trademarks
7.1 All Xxxxxxxxxx Trademarks, trade names, service marks,
l o g o s 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
GBV 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 GBV, modify or discontinue
the use of any Trademark and/or use one or more additional or
substitute marks or names, and GBV 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 GBV 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 GBV 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. GBV 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]. GBV
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, GBV 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 GBV's use of any Trademark or
o f any GBV trademark, GBV is obligated to notify Xxxxxxxxxx
immediately. GBV 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, GBV's right to use the Trademarks shall cease, and GBV shall
cease using such Trademarks at such time as GBV's inventory of Products
has been sold. GBV shall, as soon as it is reasonably possible, remove
all Trademarks which appear on or about the premises of the office(s)
of GBV and any of the advertising of GBV used in connection with the
Products.
7.6 In the event of a breach or threatened breach by GBV 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 GBV.
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
trademark be also defined as "Trademark" for purposes of this
Agreement) owned by Xxxxxxxxxx or to be transferred from GBV 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 GBV in
the Territory.
7.8 Nothing contained in this Agreement shall be construed as
giving GBV the right to use the Trademark outside the Territory or for
any other product than the Products.
Article 8. Confidential Information
8.1 GBV recognizes and acknowledges that GBV 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
b u s iness-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, GBV shall not, during and after the term of this Agreement,
make any use of such Confidential Information, or disclose any of such
C o n f idential Information to any person or firm, corporation,
association or other entity, for any reason or purpose whatsoever,
e x c e p t as specifically allowed in writing by an authorized
representative of Xxxxxxxxxx. In the event of a breach or threatened
breach by GBV of the provisions of this Article 8, Xxxxxxxxxx shall be
entitled to an injunction restraining GBV 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 GBV. 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
GBV.
8.2 GBV shall not disclose any of the terms of this Agreement
without the prior written consent of Xxxxxxxxxx.
Article 9. Force Majeure
9.1 Neither GBV 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,
s t orm, earthquake, lightning, frost, civil commotion, sabotage,
vandalism, smoke, hail, embargo, act of God or the public enemy, other
c a s u alty, strike or lockout, or interference, prohibition or
restriction imposed by any government or any officer or agent thereof
("Force Majeure"), and neither GBV's nor Xxxxxxxxxx'x obligations, so
far as may be necessary, shall 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 rights and remedies.
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
P a r t i e s 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, this 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 GBV hereunder shall be transferred or assigned by GBV without the
prior written consent of Xxxxxxxxxx, executed by a duly authorized
officer of Xxxxxxxxxx, except that GME by notice in writing to
Xxxxxxxxxx may delegate any or all of its rights and obligations
hereunder to one or more of its Affiliates responsible for business in
the Territory or particular countries thereof. In this Agreement, an
"Affiliate" of GME shall mean any company controlling, controlled by or
under common control with GME, "control" for the purposes hereof
meaning the holding, directly or through one or more intermediaries, of
more than fifty per cent (50%) of the voting equity share capital of or
an equivalent interest in the controlled company, or the power
otherwise to direct or cause the direction of its general policies and
management.. This Agreement shall inure to the benefit of and fully
bind the permitted assigns and successors-in-interest of each of the
Parties.
Article 13. Governing Law
13.1 It is expressly agreed that the validity, performance and
construction of this Agreement will 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 GBV. (Fax No. 000-000-0000)
(b) GBV at: _____________________; Attention: _______________,
or at such other address as GBV shall have theretofore
furnished in writing to Xxxxxxxxxx. (Fax No.____________).
All notices provided by mail or courier services shall also be promptly
copied by fax.
Article 15. Waiver
15.1 Neither GBV'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 GBV'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 England, 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 or conflicting 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.
JudGBVnt upon the award rendered may be entered in any court having
jurisdiction over the person or the assets of the Party owing the
judGBVnt 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
i n t o 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 GBV 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 first above written.
XXXXXXXXXX LABORATORIES, INC.
By:
Name:
Title:
GAMIDA FOR LIFE BV
By:
Name:
Title:
EXHIBIT A
GAMIDA FOR LIFE BV
Products & Contract Price
___________, 1996
Current
Product Price
----------------------------------------------------- -----------
Xxxxxxxxxx Patch (6 patches per sleeve) $.75/sleeve
Note: Any volume discounts are based on yearly purchases which
correspond with the specified 12-month period as set forth in Article
5.1 of this Agreement.
Projected Purchases:
South Africa First Year 67,000 sleeves (400,000
patches)
