LICENSE AGREEMENT
This Agreement is made and entered into as of the 31 day of October, 1996
(the "Effective Date"), by and among DERMA SCIENCES, INC. a Pennsylvania
Corporation with its principal offices at 000 Xxxx Xxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxxxx, 00000 ("Derma Sciences"), and Gamida-MedEquip Ltd., with its
principal office at 00, Xxxxx Xxxxxx Xxxxxx, Givat Savyon, Israel.
RECITALS
WHEREAS, Derma sciences is in the business of developing, manufacturing and
selling topical wound care products including without limitation the Products
defined in, and meeting the specifications attached to, Exhibit A hereto;
WHEREAS, Gamida-MedEquip Ltd. is in the business of developing, and
marketing medical products;
WHEREAS, Derma Sciences has obtained U.S. FDA 510K approvals with respect
to the Products;
WHEREAS, Derma Sciences owns or controls patents, licensing rights, and/or
proprietary technology relating to the process of manufacturing the products;
WHEREAS, Gamida-MedEquip Ltd. desires to distribute the Products;
WHEREAS, Derma Sciences is willing to license Gamida-MedEquip Ltd. to
market the Products and in connection therewith the trademarks and
Gamida-MedEquip Ltd. is willing to license and purchase the Products from Derma
Sciences, all on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual benefits to
be derived hereunder, Derma Sciences and Gamida-MedEquip Ltd. hereby agree as
follows:
I. DEFINITIONS
1.01 "Agreement" shall mean this License, Marketing and Distribution
Agreement.
1.02 "Agreement Field" shall mean the field for which the Products are
approved in the treatment of wounds.
1.03 "Confidential Information" shall mean all written and oral information
and data provided by the parties to each other hereunder and (in the case or
oral information and data, reduced to writing and) identified as confidential,
except any portion thereof which:
(a) is known to the receiving party, as evidenced by the
receiving party's written record, before receipt thereof
under this Agreement;
(b) is disclosed to the receiving party by a third person who
has a right to make such disclosure;
(c) is or becomes part of the public domain through no fault of
the receiving party; or
(d) is independently developed by the receiving party as
evidenced by the receiving party's written record.
1.04 "Developments" shall mean all inventions, ideas and improvement
developed during or arising out of the project (hereinafter defined) which are
made or conceived by Derma Sciences and its officer, employees and agents at any
time before or during the term of this Agreement.
1.05 "Project" shall mean the development of a particular design of the
Products to include Product improvements, new product ideas, and line extension
such as packaging changes.
1.06 "Effective Date" shall mean the date on which this Agreement is first
executed by both parties.
1.07 "FDA" shall mean the United States Food and Drug Administration.
1.08 "510K" shall mean a concurrence by the FDA with Manufacturer'
submissions under Section 510(K) of the Food, Drug and Cosmetics Act #895920.
1.09 "Net Trade Sales" shall mean the aggregate billing revenue for Product
sold by Gamida-MedEquip Ltd. or any of its affiliates to an unaffiliated entity
minus (i) discounts allowed on a uniform basis in a manner consistent with other
products sold by Gamida-MedEquip Ltd. or such affiliate(s), (ii) credits for
allowances and returns, (iii) prepaid freight, and (iv) taxes and other
governmental charges added to the face of the invoices for such Product and paid
by Gamida-MedEquip Ltd. and/or any of its affiliates; provided, however, that
the Net Trade Sales for Product sold by Gamida-MedEquip Ltd. shall be the
billing revenue charges to the first unaffiliated entity to which Product is
sold.
1.10 "Products" shall mean the products and wound dressings (described in
Exhibit A) and any product improvements and line extensions in such forms as
lotions, sprays, gels and creams for the treatment of chronic wounds based on
the technology.
1.11 "Product Improvement" shall mean (a) the use, without substantial
modification, of Product to perform a function not initially intended for it or
(b) any improvement, redesign, or modification of any Product.
1.12 "Technology" shall mean the technology related to the manufacture of
the products listed in Exhibit A.
1.13 "Territory" shall mean a particular country, state or other political
subdivision of the world (attached as Exhibit B).
1.14 "Trademarks" shall mean the Trademarks listed in Exhibit C.
1.15 "Unit" shall mean a single, separate Product.
1.16 "Year" shall mean each 12 month period during the Term, each of which
shall commence with the first day of the month, the first of which shall be the
first full month following the Effective Date.
II. LICENSE AND TERRITORY
2.01 Grant of License. Subject to the terms of this Agreement, Derma
Sciences hereby grants to Gamida-MedEquip Ltd. an exclusive license (the
"License") to distribute, market and sell the Products in the agreement field in
the territory for a term of five (5) years from the Effective Date of this
Agreement (the "Initial Term"). Subject to satisfaction of the minimum annual
purchase requirement in Section 4.09, each party shall have the option to
continue the term of this Agreement after the Initial Term for an additional
term of five (5) years (the RENEWAL Term), which option may be exercised by
giving written notice to each other not later than two-hundred and seventy (270)
days prior to the expiration of the Initial Term. Subject as aforesaid, the same
shall apply after each successive period of five (5) years of this Agreement.
The Term of the License, as it may be shortened or lengthened pursuant hereto is
referred as the "License Term".
2.02 Territory. The territory is defined in Exhibit B. If Gamida-MedEquip
Ltd. fails to introduce or sub license the Products into any country in the
territory within 24 months of the signing of the Agreement, the rights to market
the products in such country will revert to Derma Sciences.
2.03 Sub License. Subject to approval of Derma Sciences which approval will
not be unreasonably withheld, Gamida-MedEquip Ltd. may be granted the right to
sub license the Product in countries in the Territory.
III. TRADEMARKS AND REGISTRATIONS
3.01 Rights to Trademarks. Gamida-MedEquip Ltd. during the License Term, is
authorized to use the TRADEMARKS in the Territory listed in Exhibit C (the
initial Trademarks). Gamida-MedEquip Ltd. may only market the Products under
Derma Sciences' Trademarks. Gamida-MedEquip Ltd. may add additional Trademarks
at its discretion. Gamida-MedEquip Ltd. rights in and to the Trademarks shall
revert to Derma Sciences upon expiration of the License Term or earlier
termination thereof.
IV. MANUFACTURE AND SUPPLY
4.01 Exclusive Supplier. During the license term, Gamida-MedEquip Ltd.
agrees that it shall purchase the Products exclusively from Derma Sciences
pursuant to the provisions of this Agreement and that during the license term
Derma Sciences will sell the products in the Territory exclusively to
Gamida-MedEquip Ltd., its Sub Licensees or assigns pursuant to the provisions of
this Agreement.
4.02 Pricing. Gamida-MedEquip Ltd. agrees to pay Derma Sciences for the
Products ordered by and delivered to it in accordance with the price schedule
attached as Exhibit D, provided, however, all Products ordered for delivery in a
particular contract year in accordance with the provisions of this Agreement,
shall be priced and paid for at the 3. Transfer Price for such Product, as set
forth on Exhibit D, applicable at the time of shipment. The transfer prices are
subject to adjustment as provided on Exhibit D.
4.03 Purchase Forecasts. Not later than ten (10) days following execution
of this Agreement, Gamida-MedEquip Ltd. shall deliver to Derma Sciences its
purchase forecast for the first four (4) quarters of the License Term for each
Product, the first quarter to begin December 31, 1997. Thereafter, at least
fourteen (14) days prior to the end of each quarter, Gamida-MedEquip Ltd. shall
furnish Derma Sciences with a further forecast for an additional quarter, so
that the estimate at all times reflects estimated requirements for four (4)
quarters. The purchase forecast provided by Gamida-MedEquip Ltd. pursuant to
this Sub-Section are solely for the convenience of Derma Sciences and shall
under no circumstances be binding upon either party.
4.04 Orders. As soon as is practicable after the execution of this
Agreement, and ninety (90) days prior to the beginning of each calendar month
thereafter, Gamida-MedEquip Ltd. shall deliver to Derma Sciences its firm
purchase order for the Products to be delivered during such month. If the
quantity of any Product ordered on the purchase order for delivery during a
month is more than its forecasted quantity, then Derma Sciences may reschedule
the delivery of such excess in accordance with its production requirements and
schedule. Derma Sciences agrees to ship forecasted monthly purchase orders
accepted for entry within ninety (90) days of the receipt of the order.
4.05 Freight, Insurance & Title. All shipments of the Products will be
F.O.B. from such Derma Sciences facility to Gamida-MedEquip Ltd. or other
destinations designated by Gamida-MedEquip Ltd. Gamida-MedEquip Ltd. agrees to
bear all costs for transporting and insuring the Products to such destination.
Gamida-MedEquip Ltd. shall have the right to determine the mode of
transportation or carrier utilized for shipments of the Products in its
discretion.
4.06 Labeling. Derma Sciences agrees to supply all products with packaging
having the labeling presently used at Derma Sciences' expense and further agrees
to otherwise meet, at Derma Sciences' expense, all packaging and labeling
requirements of then existing governmental requirements or approvals, with the
exception of all expenses related to converting approved packaging and labeling
into non-English format, which shall include but not be limited to the costs of
translation, art work, mechanical and printing plates, which shall be borne by
Gamida-MedEquip Ltd. This cost will be included in pricing. Gamida-MedEquip Ltd.
agrees that all advertising and promotional materials for the Products will not
be in conflict with or violation of then existing governmental requirements and
approvals and will refer to Derma Sciences as the manufacturer of the Products
and the owner of the Trademarks. All labeling changes shall be subject to the
written approval of Derma Sciences given in advance of the use of such changes,
which approval shall not be unreasonably withheld.
4.07 Quality Assurance. Derma Sciences agrees that each lot of Products
shipped to Gamida-MedEquip Ltd. will have passed all in-process and finished
product Quality Assurance testing and will meet the specifications for the
Products set forth in the applicable government regulations as the case may be,
as this may be amended and supplemented from time to time. Derma Sciences agrees
that the Products will be manufactured according to Good Manufacturing Practices
(GMPs) promulgated by U.S. FDA and in a facility registered with and approved
for such purposes by the U.S. FDA. Gamida-MedEquip Ltd. shall have the right,
from time to time, but subject to reasonable notice and other requirements
imposed by Derma Sciences, to have its quality control personnel inspect Derma
Sciences' manufacturing processes and its quality control procedures. While such
personnel shall be subject to the provisions of Section 7.0, Derma Sciences may
require such personnel to sign individual confidentiality agreements.
4.08 Expiration Date. Subject to the provisions of Section 4.06, all
Products sold to Gamida-MedEquip Ltd. shall have (i) not less than twenty-four
(24) months remaining shelf life or (ii) not less than six (6) months less than
the maximum shelf life approved by the applicable government authority for such
Product, at the time of delivery to Gamida-MedEquip Ltd., whichever shall be the
lesser. Product having a shorter shelf life, provided such shelf life is at
least nine (9) months, may be shipped to Gamida-MedEquip Ltd. with its prior
consent, which consent shall not be unreasonably withheld.
4.09 Minimum Purchase Requirement. During each year of the License Term,
Gamida-MedEquip Ltd. agrees that if the revenue as defined in Exhibit E to Derma
Sciences from Gamida-MedEquip Ltd. purchases of Products for delivery during any
such year shall be less than 70% of the purchase forecast for such year set
forth in Exhibit E attached hereto, then Gamida-MedEquip Ltd. shall be deemed in
default of this contract. At Derma Sciences' option, the exclusive agreement
will convert to a non-exclusive agreement as cure for Gamida-MedEquip Ltd.
breach of the Agreement for failure to meet the annual minimum purchase
requirement. If Derma Sciences fails to fulfill a purchase order placed by
Gamida-MedEquip Ltd. in accordance with the provisions of Section 4.04 hereof,
then the amount of such purchase order shall be deemed to have been purchased by
Gamida-MedEquip Ltd. for delivery in such year for purposes of determining
Gamida-MedEquip Ltd. satisfaction of its then-applicable Minimum Purchase
Requirement. Minimum purchase requirements will be set up on yearly basis and a
business plan will be submitted by Gamida-MedEquip Ltd. annually at which time a
minimum purchase will be set for the forthcoming year. This will be submitted by
December 31 of each year, starting December 31, 1997.
V. PAYMENT TERMS; PRICING FREEDOM
5.01 Payment Terms. Product monies due and payable will be paid by
Gamida-MedEquip Ltd. to Derma Sciences within ninety (90) days from shipping
date. All payments required by this Agreement shall be made by wire transfer to
the bank account designated by Derma Sciences from time to time, payable in
United States currency at a U.S. Bank, subject to collection.
5.02 Pricing Freedom. Derma Sciences acknowledges that Gamida-MedEquip Ltd.
may sell the Products at such price as Gamida-MedEquip Ltd. determines at
Gamida-MedEquip Ltd.'s sole discretion.
VI. OTHER TERMS AND CONDITIONS
6.01 Marketing and Sales Efforts. Gamida-MedEquip Ltd. shall exercise
reasonable efforts to lawfully promote and market Products so as to maximize
sales of Products within the Territory, and shall do no thing or act to derogate
from, diminish, or injure the market for Products in the Territory.
Gamida-MedEquip Ltd. marketing efforts may include, but not limited to;
(i) use of sales techniques and sales aids, as Gamida-MedEquip
Ltd. may in its judgment determine to be appropriate, such
as the following: literature, print advertising, sample
kits, direct sales calls, telemarketing and telemarketing
follow-up, direct mail, video presentations and preparation
and distribution of surgical procedure manuals;
(ii) exhibiting at appropriate professional meetings and
providing speaker support as required;
(iii)providing sufficient time at national sales meetings to
adequately train and motivate sales force as well as to
provide for the introduction and training with respect to
new product lines.
As soon as practicable after the execution of this Agreement, Gamida-MedEquip
Ltd. will prepare a marketing plan and submit a copy to Derma Sciences for its
review and comments. The marketing plan shall be reviewed with Derma Sciences on
a yearly basis. Gamida-MedEquip Ltd. will provide Derma Sciences with quarterly
report of its unit sales within thirty (30) days after the end of each calendar
quarter during the term of this Agreement. Gamida-MedEquip Ltd. agrees that the
Products sold hereunder shall be marketed in the Territory under the Trademark
licensed hereunder and in connection with packaging, labeling and literature
prepared by or otherwise approved in advance by Derma Sciences.
6.02 Marketing Participation. Derma Sciences will render assistance to
Gamida-MedEquip Ltd. in sales training and promotional effort; trade and
professional shows; in preparing annual sales and marketing plans; and in
offering technical and customer support for products. Derma Sciences upon
receipt of marketing plans from Gamida-MedEquip Ltd., will promptly review and
provide its input. Derma Sciences may also participate, as may be reasonably
requested and required by Gamida-MedEquip Ltd., in product training,
professional meetings, and strategic planning meetings. Derma Sciences shall
also provide technical sales support as may reasonably be requested. Derma
Sciences reasonable out-of-pocket expenses for such participation and support,
if it requires travel out of the United States or it is required on occasion in
excess of what would reasonably be expected, shall be reimbursed by
Gamida-MedEquip Ltd., provided that Derma Sciences has received Gamida-MedEquip
Ltd.'s prior approval for such expenditures.
6.03 Product Improvements and Line Extensions. In the event that
Gamida-MedEquip Ltd. requests that Derma Sciences develop line extensions or
product improvements beyond the specifications for the Products outlined in
Exhibit A, Derma Sciences agrees to provide a development plan with estimated
funding requirements. Upon negotiated agreement to fund the Project, Derma
Sciences agrees to provide its reasonable efforts to effect the product
improvements or line extension. Gamida-MedEquip Ltd. will have an exclusive
right to market such products in the defined Agreement Field. These line
extensions and/or improvements shall be granted to Gamida-MedEquip Ltd. under
substantially the same term and conditions contained in this Agreement.
6.04 Right of First Refusal. In the event that Derma Sciences develops new
powder, gel or cream wound care products utilizing its technology, Derma
Sciences agrees that it shall first offer Gamida-MedEquip Ltd. the right to fund
development and market such new products in the Defined Agreement Field before
offering such right to market to third parties. The offer to market will be made
in accordance with the following:
(a) Derma Sciences shall give Gamida-MedEquip Ltd. written
notice of such New Product, which notice shall describe the
New Product and its use in reasonable detail. The notice
shall also, if then determined, set forth the terms and
conditions under which the marketing rights are offered to
Gamida-MedEquip Ltd. In addition, Derma Sciences shall
provide Gamida-MedEquip Ltd. with such other information
which Gamida-MedEquip Ltd. might reasonably request in order
for it to make its Initial Decision as described below.
(b) Within sixty (60) days after receipt of such notification
from Derma Sciences, Gamida-MedEquip Ltd. shall advise Derma
Sciences as to whether or not it is interested in obtaining
such marketing rights ("Initial Decision").
(c) If Gamida-MedEquip Ltd.'s Initial Decision is that it does
not wish to market the New Product, then Derma Sciences
shall be free to market such New Product as it determines in
its discretion. If Gamida-MedEquip Ltd.'s Initial Decision
is that it wishes to market such New Product, Gamida-
MedEquip Ltd. shall have, without payment, an option to
acquire marketing rights to such New Product on the terms
and conditions offered for a period of ninety (90) days from
Gamida-MedEquip Ltd.'s Initial Decision (the "Option
Period"). During the Option Period, Derma Sciences shall
provide such samples of the New Product, if it has been
developed and is available, to Gamida- MedEquip Ltd. as it
may reasonably request without charge for use as samples in
its market research. In addition, during such Option Period,
the parties shall negotiate the terms and conditions of a
development agreement, if required, and a marketing
agreement, the provisions of which may include the payment
of a non-refundable license fee for the marketing rights to
the New Product. In the event such Marketing Agreement is
not executed prior to the expiration of the Option Period,
Gamida- MedEquip Ltd.'s option shall expire and Derma
Sciences shall be free to offer such marketing rights to
others.
6.05 Loss of Exclusivity. In the event that Gamida-MedEquip Ltd. fails to
exercise its option for the Renewal Term, pursuant to Section 2.01, then Derma
Sciences, as its option, upon thirty (30) days written notice to Gamida-MedEquip
Ltd., may convert Gamida-MedEquip Ltd. exclusive right to the License to a
non-exclusive right, effective during the last three (3) months of the Initial
Term during which period, any other provision of this Agreement notwithstanding,
Derma Sciences may market the Products in the Territory or license third parties
to do so, provided, however, if Derma Sciences DOES EXERCISE SUCH RIGHT, the
Minimum Purchase Requirements for the last year shall be proportionally reduced
to reflect the reduction in period of exclusivity.
6.06 Repurchase of Inventory. Upon the expiration of the License Term or
earlier termination thereof, Derma Sciences will have the option, exercisable
upon six (6) months prior written notice, or purchasing from Gamida-MedEquip
Ltd. all of its salable inventory of Products. The purchase price for the
inventory shall be equal to the last landed cost paid by Gamida-MedEquip Ltd.
prior to Derma Sciences' offer to repurchase the inventory; provided, however,
if Derma Sciences does not exercise such option, Gamida-MedEquip Ltd. may
continue to sell its inventory after the expiration or termination of the
License Term.
6.07 Transfer of Business. Promptly after the execution of this Agreement,
and for the period of the License Term during which the License granted
Gamida-MedEquip Ltd. hereunder remains exclusive, Derma Sciences shall refer all
orders and inquiries for orders for the Territory to Gamida-MedEquip Ltd.
6.08 Regulatory Notification and Reports. Gamida-MedEquip Ltd. shall be
responsible to maintain files and documentation on all complaints or other
adverse information received concerning the Products and their use and agrees to
immediately notify Derma Sciences in writing, of any such complaint or
information received and provide copies of all documentation received.
Gamida-MedEquip Ltd. shall retain such responsibility under the applicable laws
of Countries in the territory.
6.09 Foreign Government Approval. Prior to selling the Products in any
country, nation, territory or other political subdivision in which
Gamida-MedEquip Ltd. is permitted to make sales hereunder, Gamida-MedEquip Ltd.
shall, if required, apply for at its own expense and in Derma Sciences' name
(wherever not prohibited) and, at Gamida-MedEquip Ltd.'s election, in
Gamida-MedEquip Ltd.'s name, and shall have received, all governmental or other
licenses, consents or approvals necessary for the sale or use of Products in
such country, nation, territory or other political subdivision. Copies of all
applications and related documents for such approvals shall be provided to Derma
Sciences.
VII. CONFIDENTIAL DISCLOSURE
7.01 Definition. The term "Confidential Information" as used herein shall
include, but not be limited to, inventions, processes, formulas, products,
equipment, know-how, technology, data and information except where said
information (i) presently is or hereinafter becomes part of the public domain,
(ii) is already in the non-disclosing party's possession at the time of the
disclosure, (iii) comes into the non-disclosure party's possession from a third
party without breach of this Agreement, or (iv) is independently developed by
the non-disclosing party or a third party without recourse to or utilization of
any portion of the Confidential Information imparted or transmitted hereunder.
7.02 Mutual Covenants. In consideration of the willingness of each party to
disclose confidential information to the other, each party agrees for the term
of this Agreement and a period of five (5) years thereafter (i) to use the
Confidential Information only for the purpose of conducting the business
arrangement in-tended by the terms of this Agreement, (ii) to take precautions
to keep Confidential Information secret and to prevent its disclosure to third
parties except with the written consent of the disclosing party, with such
precautions being at least equivalent to those taken by the non-disclosing party
with respect to its own Confidential Information, and (iii) to return all
documents containing Confidential Information upon request of the disclosing
party.
VIII. INDEMNIFICATION
8.01 Indemnification of Derma Sciences - Product Liability. Derma Sciences
agrees, at its own expense, to defend, indemnify, and hold harmless
Gamida-MedEquip Ltd., its officers, agents, and employees from and against any
and all claims, losses, damages, causes of action, suits and liability of every
kind, including all expenses of litigation, court costs, and attorney's fees,
for injury to or death of any person, or for damage to any property, arising
from the negligence of Derma Sciences with respect to the design, manufacture,
implantation or use of any product supplied under this Agreement.
8.02 Indemnification by Gamida-MedEquip Ltd. Gamida-MedEquip Ltd. agrees to
hold harmless, protect and indemnify Derma Sciences from any and all claims for
property damage or personal injury arising out of the negligent activities of
Gamida-MedEquip Ltd., its employees, agents and representatives in the marketing
and sale of the Products on or after the date of this Agreement provided,
however, such indemnification shall not cover claims with respect to which Derma
Sciences has agreed to indemnify Gamida-MedEquip Ltd. pursuant to Section 8.01
above. Such indemnification shall include, but not be limited to, the cost of an
attorney's fees and other fees, damages, liabilities, and customary expenses
related to such litigation or claims.
8.03 General Indemnification Provisions. The right to each party hereto to
claim indemnification pursuant to the provisions set forth above is conditioned
upon (i) such party (the "Indemnified Party") notifying the other party (the
"Indemnitor") of such claim or suit within adequate time to avoid default
judgment being taken and (ii) notice of the claim or suit being received by
Indemnitor prior to the expiration of the applicable statute of limitations.
Indemnitor shall have the right to select defense counsel and direct the defense
or settlement of such claim or suit as it shall deem appropriate and Indemnified
Party agrees to cooperate, at its expense, in the defense of such claim or suit.
In no event shall an Indemnitor be liable where the claim arises out of the
negligence or willful misconduct of the Indemnitee or of any employee, agent, or
representative of the Indemnified Party or any party claiming through the
Indemnified Party. The provisions of Article 8 will survive termination of this
Agreement for any reason.
8.04 Insurance. Derma Sciences will maintain general liability/product
liability insurance, written on an events basis, during the term of this
Agreement in the minimum amount of two million dollars ($2,000,000) so long as
such insurance is available and the cost is not prohibitive. The product
liability/general liability insurance so maintained will be written by an
insurance carrier acceptable to Gamida-MedEquip Ltd. with Gamida-MedEquip Ltd.
named as an additional insured.
IX. FORCE MAJEURE
9.01 Definition. "Force Majeure" shall mean any act of God, governmental
act or regulation, judicial decree or order, outbreak of hostilities (whether or
not war is declared), insurrection, riot, civil disturbance, climatic
conditions, fire, flood, explosion, accident, theft, shortage of materials,
energy shortages, delay or failure of carriers, subcontractors or suppliers,
strike or other labor difficulty, lockout or trade dispute (whether involving
Gamida-MedEquip Ltd. or Derma Sciences' employees or other parties), or any
other events or circumstances (whether or not of the same or similar kind to
those enumerated) beyond Gamida-MedEquip Ltd. or Derma Sciences', as the case
may be, reasonable control.
9.02 Failure to Perform. Notwithstanding any other provisions of this
Agreement to the contrary, if either party to this Agreement is unable to
perform any of its obligations hereunder by reason of the occurrence of an event
of Force Majeure, despite such party's best efforts to correct the cause and
resume performance, the period for performance of such obligation will be
suspended during the continuance of such event of Force Majeure, provided such
party continues to use its best efforts to correct the cause and resume
performance of such obligations, provided, however, the party whose performance
is affected promptly notifies the other party, and further provided that no
event of Force Majeure shall be deemed to prevent or excuse the payment of any
amounts due under this Agreement, whether for Product delivered, services
provided or otherwise.
X. TERMINATION
10.01 Termination. Notwithstanding the stated five (5) year term or any
other provision of this Agreement, this Agreement may be terminated prior to the
expiration of its stated term as set forth below.
10.02 Termination for Default. If either party defaults in its observance
or performance of any material term or provision on its respective part to be
observed and performed under this Agreement between Derma Sciences and
Gamida-MedEquip Ltd., the other party will have the right to give that party
sixty (60) days notice to cure such default or breach. If such default or breach
is cured within such 60-day period, then at the written election of the party
giving such notice, this Agreement will terminate. Notwithstanding the
foregoing, the cure period for Gamida-MedEquip Ltd. failure to pay Derma
Sciences monies due shall be five (5) business days.
10.03 Deliveries After Termination Notice. If Derma Sciences gives any
notice under Section 10.02, it will have no obligation to deliver any further
shipments of the Product to Gamida-MedEquip Ltd. notwithstanding any previously
acknowledged and accepted purchase orders from Gamida-MedEquip Ltd., unless and
until the breach is cured within the applicable period. If Gamida-MedEquip Ltd.
gives any notice under Section 10.02, it will have no obligation to accept any
further deliveries of Products unless and until the breach is cured within the
60-day period.
10.04 Survival. All representatives or warranties made in this Agreement
and all terms and provisions hereof intended to be observed and performed after
the termination hereof, shall survive such termination and continue, thereafter,
in full force and effect.
10.05 No Damages on Termination. Both parties have considered the
expenditures necessary in preparing for performance of and performing this
Agreement, and the possible losses and damages incident to each in the event of
termination. Each party understands that this Agreement will terminate
automatically pursuant to Section 2.01, and neither party is obligated to extend
the Agreement.
XI. MISCELLANEOUS PROVISION
11.01 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of and be enforceable by the permitted successors and assigns of
each party. This Agreement may not be assigned by any party without the prior
written consent of the other party, which consent shall not be unreasonably
withheld. The foregoing notwithstanding, no consent shall be required with
respect to an assignment by either Gamida-MedEquip Ltd. or Derma Sciences of its
rights and obligations hereunder to an affiliated company, provided, however,
any such assignee shall become obligated hereunder and such assignment shall not
relieve the assignor of its obligations under this Agreement, or to assign its
rights of the payments due hereunder to a financial institution. For the
purposes of this Agreement an "affiliated company" shall mean a company
controlling or controlled by Gamida-MedEquip Ltd. or Derma Sciences, or at least
50% owned by Gamida-MedEquip Ltd. or Derma Sciences as the case may be, neither
directly or indirectly or controlled by a company which controls Gamida-MedEquip
Ltd. or Derma Sciences, as the case may be, either directly or indirectly.
11.02 Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument
executed by such party.
11.03 Notices. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be in writing
and shall be deemed given only if delivered to the address set forth below (to
the attention of the person identified below) or sent by telegram, telex,
telecopy or sent by Courier as follows:
If to Gamida-MedEquip Ltd., to:
Gamida-MedEquip Ltd.
00, Xxxxx Xxxxxx Xxxxxx
(P.O.B. 94 Savyon 56530)
Givat Savyon, Israel
Attention: Jacob Niv, Managing Director
With required copies to:
_______________________________
_______________________________
If to Derma Sciences, to:
Derma Sciences
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx, Chief Executive Officer
or to such other address as the addressee may have specified in a notice duly
given to the sender and to counsel as provided herein. Such notice, request,
demand, waiver, consent, approval or other communication will be deemed to have
been given, if delivered, as of the date so delivered, if by telex, telecopy or
telegraph, when received or, if via courier, three business days after the date
so sent.
11.04 Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the substantive laws of the State of
Pennsylvania, USA
11.05 Remedies Not Exclusive. Nothing in this Agreement shall be deemed to
limit or restrict in any manner other rights or remedies that any party may have
against any other party at law, in equity or otherwise.
11.06 No Benefit to Others. The representations, warranties, covenants and
agreements contained in this Agreement are for the sole benefit of the parties
hereto and their successors and assigns, and shall not be construed as
conferring, and are not intended to confer, any rights on any other persons.
11.07 Contents of Agreement. This Agreement, together with any documents
referred to herein, sets forth the entire agreement of the parties hereto with
respect to the transactions contemplated hereby. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto, and no
claimed amendment, modification, termination or waiver shall be binding unless
in writing and signed by the party against which such claimed amendment
modification, termination or waiver is sought to be enforced.
11.08 Section Headings and Gender. All section headings and the use of a
particular gender are for convenience only and shall in no way modify or
restrict any of the terms or provisions hereof. Any reference in this Agreement
to a Section, Exhibit or Schedule shall be deemed to be a reference to a
Section, Exhibit or Schedule of this Agreement unless the context otherwise
expressly requires.
11.09 Schedules and Exhibits. All attachments, Exhibits and Schedules
referred to herein are intended to be and hereby are specifically made a part of
this Agreement.
11.10 Cooperation. Subject to the provisions hereof, the parties hereto
shall use their best efforts to take, or cause to be taken, such action, to
execute and deliver, or cause to be executed and delivered, such additional
documents and instruments and to do, or cause to be done, all things necessary,
proper or advisable under the provisions of this Agreement and under applicable
law to consummate and make effective the transactions contemplated by this
Agreement.
11.11 Severability. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
11.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which is an original and all of which together shall be
deemed to be one and the same instrument. This Agreement shall become binding
when one or more counterparts taken together shall have been executed and
delivered by each of the parties to the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized officers as of the date first above written.
GAMIDA-MEDEQUIP, LTD.
By: /s/ Jacob Niv
---------
Jacob Niv
Title: Managing Director
DERMA SCIENCES
By: /s/ Xxxx X. Xxxxxxxxx
-----------------
Xxxx X. Xxxxxxxxx
Title: President; CEO
EXHIBIT A
(Amended 01/24/97)
"THE PRODUCT"
Dermagran Ointment (all sizes)
Dermagran Spray (all sizes)
Dermagran Wet Saline Dressing
Dermagran Zinc-Saline Dressing
Dermagran Hydrophilic Wound Dressing (all sizes)
Dermagran Hydrophilic-B Wound Dressing
Dermagran Wound Cleanser with Zinc
Dermagran (Zinc-Saline) Hydrogel Wound Dressing (85 grm)
EXHIBIT B
TERRITORY
Israel, Israeli-administered territories and
areas of Palestinian autonomy.
EXHIBIT C
TRADEMARKS
All products with the Dermagran Trademark on them.
EXHIBIT D
PRICING
Name Unit Size Item Code Unit Price
Dermagran Ointment (Jar) 2 oz. DG2 $4.00
Dermagran Ointment (Jar) 4 oz. DG4 $4.00
Dermagran Ointment (Tube) 4 oz. DT4 $4.00
Dermagran Spray 4 oz. DM4 $1.85
Dermagran Hydrophilic
Wound Dressing 2 x 2 SPD20 $ .85
4 x 4 XXX00 .00
5 x 9 SPD22 .85
8 x 4 XXX00 .00
Xxxxxxxxx Hydrophilic B 3 oz. SPD03 $5.00
Dermagran Zinc-Saline
Dressing 8 x 4 ZSD10 $ .00
Xxxxxxxxx Tri-Zinc
Incontinent Wash 8 oz. DIW8 $ .00
Xxxxxxxxx Wound Cleanser 4 oz. WC04 $ .00
Xxxxxxxxx Moisturizing
Hydrogel 1 oz. DH01 $ .35
Following the first twelve (12) months after the execution date, Derma Sciences
may increase its price once every year, upon at least ninety (90) days advance
written notice of such increase. Such price increase may not exceed the
documented increase in manufacturing cost.
EXHIBIT E
"MINIMUM PURCHASE REQUIREMENT"
The "Minimum Purchase Requirement" for any year shall mean the purchase of
the Products by Gamida-MedEquip Ltd. for delivery during such year, adjusted by
any subsequent cancellations, of such orders by Gamida-MedEquip Ltd., whether or
not permitted under the Agreement, in an aggregate amount of no less than the
unit amounts set forth below opposite such year. For the purpose of this
Agreement, a unit equals one gram of existing Product. In the event that
additional sizes are added, the contribution to the unit Minimum Purchase
Requirement would be prorated on the basis of the ratio of the dry weight of the
Product to such one gram unit.
Revenue to Gamida-MedEquip at First Year Transfer Price
Year Units Exclusive of Royalties
Year 1 _______Units $__________
Year 2 _______Units $__________
Year 3 _______Units $__________
Year 4 _______Units $__________
Year 5 _______Units $__________
TO BE MUTUALLY DETERMINED NO LATER THAN DECEMBER 31, 1997.
