EXHIBIT 1
SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the
Effective Date (as defined below) by and between XXXXXXXXXX LABORATORIES,
INC., a Texas corporation and XXXXXXXXXX LABORATORIES BELGIUM N.V., a
Belgium corporation, jointly and severally (together hereinafter referred
to as "Xxxxxxxxxx"), and XXXXX XXXXXX U.K. HOLDINGS, LTD., ("Schein").
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 certain products in the United
Kingdom (defined in Article 1 hereof as the Territory); and
WHEREAS, Schein is desirous of distributing such products in the
Territory, is well introduced in the market, is willing and able to
provide a competent distribution organization in the Territory, and
Schein 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) "Effective Date" shall mean January 1, 1998.
(b) "Know-how" shall mean secret and substantial technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable Schein to 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 Schein after the Effective Date
and during the term of this Agreement.
(c) "Parties" shall mean Xxxxxxxxxx and Schein and "Party" shall
mean either of them as the context indicates.
(d) "Products" shall mean oral care products manufactured by or for
Xxxxxxxxxx set forth on Exhibit A hereto.
(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) "Territory" shall mean the following countries: the United
Kingdom and Ireland.
(g) "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 Schein as Xxxxxxxxxx'x sales distributor in
the Territory for the sale of Products, and Schein hereby accepts such
appointment. As sales distributor in the Territory, Schein shall,
subject to the terms and conditions of this Agreement, have the right to
promote, distribute and sell Products in the Territory, but shall have no
right to take any such action outside the Territory.
2.2 In a manner reasonably satisfactory to Xxxxxxxxxx, and at
Xxxxxxxxxx'x sole expense, Xxxxxxxxxx agrees to 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.
2.3 During the term of this Agreement, Schein shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of Xxxxxxxxxx. As such, Schein 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.
Schein 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 Schein
any right to use or otherwise deal with the Know-how for purposes other
than those expressly provided for in this Agreement.
Article 3. Certain Performance Requirements
3.1 Schein agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. Schein 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
subject to EC requirements.
3.2 In order to assure Xxxxxxxxxx that Schein is in compliance with
Article 3.1, Schein agrees that:
(a) Schein will send to Xxxxxxxxxx quarterly sales reports which
set forth the number of units and sizes of each Product sold,
the net sales, the number of units of free medical samples
distributed, and to whom such Products were sold and/or
distributed during such quarter;
(b) Schein will send to Xxxxxxxxxx quarterly inventory reports of
the Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to Schein hereunder.
3.3 Schein shall promptly provide Xxxxxxxxxx with written reports
of any importation or sale of any of the Products in the Territory of
which Schein 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 Schein shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
Schein shall maintain all its inventory of Products clearly segregated
and meeting all storage and other standards required by applicable
governmental authorities.
3.5 Schein shall be responsible for and shall collect all VAT and
other taxes (excluding license fees) that may be due and owing upon sales
by Schein of Products. Upon written request from Schein, Carrington
shall provide Schein 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 labeled for sale and
delivered by Xxxxxxxxxx to Schein subject to and accordance with all
local rules and regulations. All Products shall be advertised, marketed,
sold and distributed by Schein 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.
Schein shall pay all expenses associated with (i) any alterations to the
packaging and labeling of the Products which deviate from Xxxxxxxxxx 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 Schein shall not make any alterations or knowingly permit any
alterations to be made to the Products without Xxxxxxxxxx'x written
consent.
3.8 Schein shall assume all responsibility for and comply with all
applicable laws, regulations and requirements concerning the 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 said inventory, use,
promotion, distribution and sale and shall hold Xxxxxxxxxx harmless from
any claim resulting therefrom being directed against Xxxxxxxxxx or Schein
by any third party.
3.9 Schein 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 Schein 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.
Article 4. Sale of Products by Xxxxxxxxxx to Schein
4.1 Subject to the terms and conditions of this Agreement,
Xxxxxxxxxx shall sell to Schein the Products at a specified price for
each Product (the "Contract Price"). For orders placed by Schein 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) Schein shall
provide in writing to Xxxxxxxxxx both a sales forecast and a purchase
forecast for the following 12-month 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. During any
twelve (12) month period Xxxxxxxxxx reserves the right to change its
Contract Price for each Product subject to sixty (60) days notice being
given by Xxxxxxxxxx to Schein.
4.2 As consideration for its appointment as a sales distributor
entitled to a Product discount, Schein agrees to purchase from
Xxxxxxxxxx, during each 12-month period of the term of this Agreement,
commencing with the 12-month period beginning January 31, 1998 through
January, 31, 1999, at the Contract Price, a specified minimum aggregate
dollar amount (based on the Contract Price) of the Products (the
"Specified Minimum Purchase Amount"). For the first 12-month period of
the term of this Agreement, the targeted, but non-binding for this period
only, Specified Minimum Purchase Amount shall be $100,000. 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 Schein's reasonable,
good faith projections of future sales growth and such other factors as
the Parties may deem relevant.
4.3 Schein 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 Schein upon shipment of the Products.
Unless otherwise agreed, Schein shall pay all invoices in full within
ninety (90) days of the date of invoice. Schein 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.
4.4 Xxxxxxxxxx shall not be obligated to ship Products to Schein at
any time when payment of an amount owed by Schein is overdue or when
Schein is otherwise in breach of this Agreement.
4.5. All shipments shall be initiated by a Purchase Order. Product
shipment dates will be specified in the Purchase Order. These dates may
not scheduled prior to ninety (90) days after the dated the Purchase
Order is received and acknowledged in writing by Seller, unless by mutual
consent of the parties Purchase Orders will be non-cancellable. Schein
will issue to Xxxxxxxxxx on a monthly 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
monthly rolling forecast issued prior to the purchase order placed by
Schein. Variation above 20% shall be discussed between the Parties and
Xxxxxxxxxx will use its best efforts to maintain delivery dates requested
by Schein.
4.6 All shipments of Products to Schein will be packaged in
accordance with Xxxxxxxxxx'x standard packaging procedures and shipped
per Xxxxxxxxxx'x 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 Schein upon delivery of such Products by Xxxxxxxxxx to the
carrier designated by Schein 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.
4.7 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 Schein 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. Schein shall not make any
representation or warranty with respect to the Products that is more
extensive than, or inconsistent with, the limited warranty set forth
in this Article 4.7 or that is inconsistent with the policies or
publications of Xxxxxxxxxx relating to the Products.
SCHEIN'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 SCHEIN'S
OPTION.
SCHEIN SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS XXXXXXXXXX AND
CARRINGTON'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM
AND AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, EXPENSES AND
LOSSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING OUT OF
OR CONNECTED WITH (i) ANY USE, SALE OR OTHER DISPOSITION OF PRODUCTS,
KNOW-HOW OR TRADEMARKS IN A MANNER RECOMMENDED BY SCHEIN WHICH IS
CONTRARY TO XXXXXXXXXX'X WRITTEN OR PUBLISHED REPRESENTATIONS, (ii) ANY
BREACH BY SCHEIN OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS
UNDER THIS AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF SCHEIN
OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND SCHEIN S
AUTHORIZATION GRANTED HEREIN.
EXCEPT AS OTHERWISE PROVIDED HEREIN, XXXXXXXXXX SHALL INDEMNIFY AND
HOLD HARMLESS SCHEIN AGAINST ANY AND ALL COSTS, CLAIMS, INCLUDING,
WITHOUT LIMITATION, CLAIMS OF PRODUCT LIABILITY, WHETHER SOUNDING IN TORT
OR IN CONTRACT, LAPSES, DAMAGES, INCLUDING, WITHOUT LIMITATION, ACTUAL
DAMAGES, LIABILITIES, LITIGATION, FEES AND EXPENSES, INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS FEES AND EXPENSES, INCURRED AS A RESULT
OF (i) ANY ALLEGED OR ACTUAL USE OF THE PRODUCTS, OR (ii) ANY BREACH BY
XXXXXXXXXX OF ANY OBLIGATION TO SCHEIN, INCLUDING, WITHOUT LIMITATION,
THOSE CONTAINED HEREIN, OR (iii) ANY NEGLIGENT OR WILLFUL ACTION OR
OMISSION OF XXXXXXXXXX OR ANY OF ITS AGENTS, REPRESENTATIVES, ASSIGNS
EMPLOYEES OR SUCCESSORS IN CONNECTION WITH THE MANUFACTURE, DEVELOPMENT,
SALE, DISTRIBUTION, STORAGE OR DISPENSING OF THE PRODUCTS, OR (iv) ANY
ACTION, INCLUDING, BUT NOT LIMITED TO, AN ACTION FOR THE RECALL OR
SEIZURE OF THE PRODUCTS BROUGHT BY ANY COUNTRY AND/OR STATE, PROVINCIAL
OR LOCAL AGENCY OR REGULATORY BODY PROVIDED SCHEIN'S ACTIONS OR OMISSIONS
DO NOT CAUSE OR CONTRIBUTE TO THE RECALL. THIS INDEMNIFICATION SHALL BE
LIMITED TO THE EXTENT THAT ANY ACTION OR LOSS ARISING OUT OF USE OF THE
PRODUCT IN A MANNER OTHER THAN INTENDED BY XXXXXXXXXX, OR, IN A MANNER
REPRESENTED BY SCHEIN WHICH IS NOT IN ACCORDANCE WITH XXXXXXXXXX S
WRITTEN RECOMMENDATIONS OR REPRESENTATIONS.
4.8 Credits for defective Products to Schein 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
Schein with a copy of its liability Insurance Certificate and shall
include Schein thereunder.
Article 5. Term and Termination
5.1 The term of this Agreement shall be for a period of ten years
from the effective date of this Agreement. After such term, this
Agreement shall be automatically terminated unless the parties mutually
agree in writing to extend the term hereof. 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.
5.2 Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if Schein fails to perform or breaches, in any material
respect, any material terms or provisions of this Agreement. Without
limiting the events which shall be deemed to constitute a breach or
material breach of this Agreement by Schein, Schein understands and
agrees that it shall be in material breach of this Agreement, and
Xxxxxxxxxx shall have the right to terminate this Agreement under this
Article 5.2, if:
(i) Schein fails or refuses to pay to Xxxxxxxxxx any sum when
due;
(ii) Schein breaches any provision of Article 2.2, 3.4, 4, 4.3,
4.7, 6 or 7; or,
(iii) Schein fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period.
5.3 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
bankruptcy, 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.
5.4 This Agreement shall automatically terminate effective at the
end of any 12-month period of the term of this Agreement referred to in
Articles 4.1 and 4.2 hereof if the Parties are unable to agree upon the
Contract Prices or the Specified Minimum Amounts for the next 12-month
period of the term.
5.5 During the one-year period following termination of this
Agreement, any inventory of Products held by Schein at the termination of
this Agreement may be sold by Schein 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 Schein'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 Schein,
including importation and shipping.
5.6 The termination of this Agreement shall not impair the rights
or obligations of either Party hereto which shall have accrued hereunder
prior to such termination. The provisions of Articles 4.7, 5.5, 6, 7 and
14 and the rights and obligations of the Parties thereunder shall survive
the termination of this Agreement for a period of one (1) year.
Article 6. Trademarks
6.1 All Xxxxxxxxxx Trademarks, trade names, service marks, logos
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 Schein 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 Schein, modify or discontinue the use of any Trademark
and/or use one or more additional or substitute marks or names, and
Schein shall be obligated to do the same.
6.2 Mutually agreed upon Xxxxxxxxxx'x Trademarks shall appear on
all Product packaging, labels, and inserts and other materials which
Schein uses for the marketing of the Products. 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 Schein's actual use thereof.
6.3 Schein 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]". Schein
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, Schein may not use any Trademark in connection with the sale of
any unauthorized product or service or in any other manner not explicitly
authorized in writing by Xxxxxxxxxx.
6.4 In the event of any infringement of, or threatened or presumed
infringement of, or challenge to Schein's use of any Trademark or of
any Xxxxxxxxxx'x trademark, Schein is obligated to notify Xxxxxxxxxx
immediately. Xxxxxxxxxx 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.
6.5 In the event of the termination of this Agreement for any
reason, Schein's right to use the Trademarks shall cease after two years
or at such time as Schein's inventory of Products has been sold whichever
is later. Schein shall, as soon as it is reasonably possible after the
two (2) year, remove all Trademarks which appear on or about the premises
of the office(s) of Schein and any of the advertising of Schein used in
connection with the Products.
6.6 In the event of a breach or threatened breach by Schein of the
provisions of this Article 6, Xxxxxxxxxx shall be entitled to an
injunction or injunctions to prevent such breaches. Nothing herein shall
be construed as prohibiting Xxxxxxxxxx from pursuing other remedies
available to it for such breach or threatened breach of this Article 6,
including the recovery of damages from Schein.
6.7 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 be also defined as
"Trademark" for purposes of this Agreement) owned by Xxxxxxxxxx or to be
transferred from Schein 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 Schein in the Territory.
6.8 Nothing contained in this Agreement shall be construed as
giving Schein the right to use the Trademark outside the Territory or for
any other product than the Products.
Article 7. Confidential Information
7.1 Both Parties recognize and acknowledge that each will have
access to confidential information and trade secrets, including "Know-
how", of the other and other entities doing business with each Party
relating to research, development, manufacturing, marketing, financial
and other business-related activities ("Confidential Information").
Such Confidential Information constitutes valuable, special and unique
property of each Party and/or other entities doing business with each
Party. Other than as is necessary to perform the terms of this
Agreement, neither Party shall not, during and after the term of this
Agreement, make any use of such Confidential Information, or disclose any
of such Confidential Information to any person or firm, corporation,
association or other entity, for any reason or purpose whatsoever, except
as specifically allowed in writing by an authorized representative of the
other. In the event of a breach or threatened breach by either Party of
the provisions of this Article 7, each Party shall be entitled to an
injunction restraining the other from disclosing and/or using, in whole
or in part, such Confidential Information. Nothing herein shall be
construed as prohibiting either Party from pursuing other remedies
available to it for such breach or threatened breach of this Article 7,
including the recovery of damages from the other. 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
either Party.
7.2 Schein shall not disclose any of the terms of this Agreement
without the prior written consent of Xxxxxxxxxx.
Article 8. Force Majeure
8.1 Neither Schein nor Xxxxxxxxxx shall have any liability
hereunder if either is prevented from performing any of its obligations
hereunder by reason of any factor beyond its control, including, without
limitation, fire, explosion, accident, riot, flood, drought, storm,
earthquake, lightning, frost, civil commotion, sabotage, vandalism,
smoke, hail, embargo, act of God or the public enemy, other casualty,
strike or lockout, or interference, prohibition or restriction imposed by
any government or any officer or agent thereof ("Force Majeure"), nor
shall Schein's or Xxxxxxxxxx'x obligations, except as may be necessary,
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 reward of interests.
8.2 The Parties agree that any obligation to pay money is never
excused by Force Majeure.
Article 9. Amendment
9.1 No oral explanation or oral information by either Party hereto
shall alter the meaning or interpretation of this Agreement. No
modification, alteration, addition or change in the terms hereof shall be
binding on either Party hereto unless reduced to writing and executed by
the duly authorized representative of each Party.
Article 10. Entire Agreement
10.1 This Agreement represents the entire Agreement between the
Parties 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.
10.2 Should any provision of this Agreement be rendered invalid or
unenforceable, it shall not affect the validity or enforceability of the
remainder.
Article 11. Assignment
11.1 Neither this Agreement nor any of the rights or obligations of
Schein hereunder shall be transferred or assigned by Schein without the
prior written consent of Xxxxxxxxxx, executed by a duly authorized
officer of Xxxxxxxxxx.
Article 12. Governing Law
12.1 It is expressly agreed that the validity, performance and
construction of this Agreement shall be governed by the laws and
jurisdiction of Texas.
Article 13. Notices
13.1 Any notice required or permitted to be given under this
Agreement by one of the Parties to the other shall be given for all
purposes by delivery in person, registered air-mail, commercial courier
services, postage prepaid, return receipt requested, or by fax addressed
to:
(a) Xxxxxxxxxx at: Xxxxxxxxxx Laboratories, Inc., 0000 Xxxxxx Xxxx
Xxxx, Xxxxxx, Xxxxx 00000; Attention: President, or at such
other address as Xxxxxxxxxx shall have theretofore furnished in
writing to Schein (Fax No. 000-000-0000).
(b) Schein at: Xxxxx Xxxxxx U.K. Holdings, Ltd. , Attention:
_______________, or at such other address as Schein shall
have theretofore furnished in writing to Xxxxxxxxxx. (Fax
No.____________)
Article 14. Waiver
14.1 Neither Schein'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 Schein'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 15. Arbitration
15.1 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 Switzerland, 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 forty-five (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 ninety (90) days of being requested to do so, then the
arbitration shall be heard by three arbitrators, one selected by each
Party within the thirty (30) days of being required to do so, and the
third promptly selected by the two arbitrators selected by the Parties.
The arbitrators shall announce the award and the reasons
therefor in writing within six months after the conclusion of the
presentation of evidence and oral or written argument, or within such
longer period as the Parties may agree upon in writing. The decision of
the arbitrators shall be final and binding upon the Parties. Judgment
upon the award rendered may be entered in any court having jurisdiction
over the person or the assets of the Party owing the judgment or
application may be made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may be. Unless otherwise
determined by the arbitrator, each Party involved in the arbitration
shall bear the expense of its own counsel, experts and presentation of
proof, and the expense of the arbitrator and the ICC (if any) shall be
divided equally among the Parties to the arbitration.
Article 16 Interpretation
16.1 The language of this Agreement is English. No translation into
any other language shall be taken into account in the interpretation of
the Agreement itself.
16.2 The headings in this Agreement are inserted for convenience
only and shall not affect its construction.
16.3 Where appropriate, the terms defined in Article 1 and denoting
a singular number only shall include the plural and vice versa.
16.4 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 17. Exhibits
17.1 Any and all exhibits referred to herein shall be considered an
integral part of this Agreement.
Article 18. No Inconsistent Actions
18.1 Each Party hereto agrees that it will not voluntarily undertake
any action or course of action inconsistent with the provisions or intent
of this Agreement and, subject to the provisions of Articles 4.7 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 19. Currency of Account
19.1 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 Schein 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 20. Binding Effect
20.1 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 below.
XXXXXXXXXX LABORATORIES, INC.
By:
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: February 4, 1998
XXXXXXXXXX LABORATORIES BELGIUM N.V.
By:
Name: Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
Title: President & CEO
Date: February 4, 0000
XXXXX XXXXXX, X.X. HOLDINGS, LTD.
By:
Name: Xxxxxx Xxxxxxxx
Title: Director
Date: February 3, 1998
EXHIBIT A
XXXXX XXXXXX U.K. HOLDINGS, LTD.
CONTRACT PRICE
NUMBER PRODUCT PRICE
500144 Xxxxxxxxxx[TM] Patch (6 patches per $.75/sleeve
sleeve)
