EXHIBIT 10.3
SALES DISTRIBUTION AGREEMENT
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THIS AGREEMENT is made and entered into as of the 16th day of August, 1995,
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by and between ▇▇▇▇▇▇▇▇▇▇ LABORATORIES, INC., a Texas corporation
("▇▇▇▇▇▇▇▇▇▇"), and CHINESE ACADEMY OF SCIENCES ("Academy").
W I T N E S S E T H :
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ is engaged in the business of manufacturing, selling
and distributing certain pharmaceutical products and is desirous of establishing
a competent distribution source for sales of such products in The Peoples
Republic of China (defined in Article I hereof as the Territory); and
WHEREAS, the Academy is desirous of aggressively distributing such products
in the Territory and is willing and able to provide a competent distribution
organization in the Territory, and the Academy desires to be ▇▇▇▇▇▇▇▇▇▇'▇
exclusive 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
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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 ▇▇▇▇▇▇▇▇▇▇ set forth on Exhibit A hereto. ▇▇▇▇▇▇▇▇▇▇ may, in
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its sole discretion from time to time, add wound and skin care
products to, and delete products from, Exhibit A to take into account
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the development, modification or discontinuance by ▇▇▇▇▇▇▇▇▇▇ of wound
and skin care products.
(b) "Territory" shall mean the following countries: The Peoples Republic
of China.
Article 2. Appointment
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2.1 Subject to the terms and conditions of this Agreement, ▇▇▇▇▇▇▇▇▇▇
hereby appoints the Academy as ▇▇▇▇▇▇▇▇▇▇'▇ sales distributor in the Territory
for the sale of Products, and the Academy hereby accepts such appointment. As
sales distributor in the Territory, the Academy shall, subject to the terms and
conditions of this Agreement, have the right to sell Products in the Territory,
but shall have no right to sell Products outside the Territory. During the term
of this Agreement, ▇▇▇▇▇▇▇▇▇▇ agrees not to appoint any other persons as
distributors for the Products in the Territory nor directly sell any Products
within the Territory. Furthermore, in case of inquiries for Product Sales from
the Territory, directly to Carrington, Carrington shall forward such inquiries
to the Academy for further handling.
2.2 In a manner reasonably satisfactory to ▇▇▇▇▇▇▇▇▇▇, and at the
Academy's sole expense, the Academy agrees to (a) make all declarations,
filings, and registrations with, and obtain all approvals and authorizations
from, governmental and regulatory authorities required to be made or obtained in
connection with the promotion, marketing, sale or distribution of the Products
in the Territory, (b) devote its best efforts to the diligent promotion,
marketing, sale and distribution of the Products in the Territory, (c) provide
and maintain a competent and aggressive organization for the promotion,
marketing, sale and distribution of the Products in the Territory and (d) assure
competent and prompt handling of inquiries, orders, shipments, ▇▇▇▇▇▇▇▇ and
collections, and returns of or with respect to the Products and careful
attention to customers' requirements for all Products, (e) promptly assign back
to ▇▇▇▇▇▇▇▇▇▇ any product registrations in the Territory upon termination of
Agreement.
2.3 In a manner reasonably satisfactory to the Academy and Carrington,
Carrington agrees to provide mutually agreed upon quantities of Products to the
Academy for testing the Products at the beginning of the three (3) month period
(the "Initial Period") after the first purchase order is accepted by ▇▇▇▇▇▇▇▇▇▇.
This Initial Period shall commence when the Academy receives the relevant
approval indicated in 2.2 and submits its first order to ▇▇▇▇▇▇▇▇▇▇.
Nevertheless, the Academy will use best efforts to start the test as soon as
possible after signing the Agreement. ▇▇▇▇▇▇▇▇▇▇ agrees to provide reasonable,
mutually agreed upon quantities at a 50% price discount from the ▇▇▇▇▇▇▇▇▇▇
Price List attached after receiving positive results from the initial test and
obtaining all approvals and authorizations indicated above. The payment for the
Products for this additional period will be made at the trial sale. The payment
for the Products sold for this additional period shall be made with the
placement of the formal order under the price list for the China Market after
the conclusion of the initial three (3) month period.
2.4 ▇▇▇▇▇▇▇▇▇▇ will provide the Academy, without direct charge from
▇▇▇▇▇▇▇▇▇▇, with such (i) reasonable sales personnel training in relation to the
Products in Irving, Texas and (ii) a reasonable amount of promotional Product
literature of ▇▇▇▇▇▇▇▇▇▇, as the Academy may request from time to time. The
Academy will be responsible for any travel, hotel or other related charges
associated with the training. ▇▇▇▇▇▇▇▇▇▇ agrees that it will be responsible for
any of its direct expenses associated with travel, lodging or meals by
▇▇▇▇▇▇▇▇▇▇ employees to China.
2.5 ▇▇▇▇▇▇▇▇▇▇ and the Academy will mutually agree upon the holding of a
Seminar in Beijing, China after an agreement is reached on the minimum sales for
the first contract year.
2.6 ▇▇▇▇▇▇▇▇▇▇ agrees to consider the establishment of a manufacturing
facility in China, based upon appropriate Product sales and profitability of its
operations in China. This manufacturing facility may be in joint venture with
appropriate Chinese partners.
2.7 During the term of this Agreement, Both Parties shall be considered
independent contractors and neither shall not be considered a partner, employee,
agent or servant of the other. As such, neither party has the authority of any
nature whatsoever to bind the other or incur any liability for or on behalf of
the other or to represent itself as anything other than a sales distributor and
independent contractor or supplier, as the case may be.
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Article 3. Certain Performance Requirements
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3.1 The Academy agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory for
ultimate use within the Territory. The Academy will not, under any
circumstances, either directly or indirectly through third parties, promote,
market, sell, distribute or ship Products within or to, or for ultimate use
within, the United States or any place outside the Territory.
3.2 In order to assure ▇▇▇▇▇▇▇▇▇▇ that the Academy is not repatriating
Products to the United States or elsewhere outside the Territory, the Academy
agrees that upon request from ▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ may examine, and copy at
the Academy's headquarters:
(a) All invoices related to the sale of Products by the Academy;
(b) All sales reports on the number and price of units of each Product
sold;
(c) All monthly inventory reports of the Products; and
(d) The Academy also agrees that ▇▇▇▇▇▇▇▇▇▇ may ▇▇▇▇ for identification
all Products sold by ▇▇▇▇▇▇▇▇▇▇ to the Academy hereunder.
3.3 The Academy shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments. The
Academy shall maintain all its inventory of Products clearly segregated and
meeting all storage and other required standards of all applicable governmental
authorities. All such inventory shall be subject to inspection by ▇▇▇▇▇▇▇▇▇▇ or
its agents at all reasonable times.
3.4 The Academy shall provide a report to ▇▇▇▇▇▇▇▇▇▇ no later than January
15 and July 15 of each year regarding the previous six-month period ended
December 31 and June 30, respectively. The report shall contain (i) reports on
sales of Products by the Academy during such six-month period, by Product, and
including information on the number and price of units sold, (ii) a current list
of customers and (iii) any other information that the Academy believes would be
useful to ▇▇▇▇▇▇▇▇▇▇ or that ▇▇▇▇▇▇▇▇▇▇ may reasonably request.
3.5 The Academy 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 the Academy of Products. Upon written request from
the Academy, ▇▇▇▇▇▇▇▇▇▇ shall provide the Academy 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, labeled, advertised, marketed, sold
and distributed by the Academy in compliance with the rules and regulations of
the applicable governmental authority within the Territory in which the Products
are marketed, as amended from time to time, and all other applicable laws, rules
and regulations.
3.7 The Academy 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
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such claims have received written approval from ▇▇▇▇▇▇▇▇▇▇ and from the
applicable governmental authority.
3.8 The Academy 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
▇▇▇▇▇▇▇▇▇▇ in writing.
3.9 The Academy agrees that ▇▇▇▇▇▇▇▇▇▇ shall have the right to inspect the
Academy's facilities at all reasonable times to ensure the Academy's compliance
with the provisions of this Agreement.
3.10 The Academy will actively and aggressively promote the sale of the
Products to all customers and potential customers within the Territory. The
Academy agrees not to market, sell or distribute to any customers or potential
customers in the Territory any wound care, skin care, incontinence care or other
pharmaceutical products that compete with any of the Products.
Article 4. Sale of Products by ▇▇▇▇▇▇▇▇▇▇ to The Academy
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4.1 Subject to the terms and conditions of this Agreement, including
specifically Article 4.6 hereof, ▇▇▇▇▇▇▇▇▇▇ shall sell to the Academy its
requirements for the Products at a price for each Product (the "Contract Price")
which represents a mutually agreed upon discount from ▇▇▇▇▇▇▇▇▇▇'▇ distributor
price for the Territory for such Product as set forth in ▇▇▇▇▇▇▇▇▇▇'▇ published
distributor price list (the "Published Price List"). For orders placed by the
Academy 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
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exhibit opposite each Product. At least 60 days prior to the end of each 12-
month period of the term of this Agreement, the parties shall commence good
faith negotiations to determine and agree upon the Contract Prices for Products
for the next 12-month period of the term. ▇▇▇▇▇▇▇▇▇▇ reserves the right to
change its distributor prices for Products as set forth in the Published Price
List at any time and from time to time for the next 12 month period. However,
any price changes shall be discussed and negotiated in relation to the specified
minimum and if no agreement is reached, the Academy has no obligation to
purchase products from ▇▇▇▇▇▇▇▇▇▇.
4.2 ▇▇▇▇▇▇▇▇▇▇ shall sell the same products to the Academy as it
manufactures and sells in the United States; provided however, the parties may
agree to produce Chinese labels and other product information once a sufficient
quantity of products is ordered.
4.3 As consideration for its appointment as exclusive sales distributor
entitled to a Product discount, the Academy agrees to purchase from ▇▇▇▇▇▇▇▇▇▇,
during each 12-month period of the term of this Agreement, commencing with the
12-month period beginning January 1, 1996 or such other date as mutually agreed
upon, at the Contract Price, a specified minimum aggregate dollar amount (based
on the Contract Price) of the Products (the "Specified Minimum Amount"). For
the first 12-month period of the term of this Agreement, the Specified Minimum
Amount shall be agreed upon at lease sixty days prior to January 1, 1996 or such
other date as mutually agreed upon. If no amount is reached, this Agreement
shall no longer be exclusive. The Specified Minimum Amounts for each subsequent
12-month period shall be determined by mutual agreement of the parties prior to
the beginning of such period based on the Academy's
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reasonable, good faith projections of future sales growth and such other factors
as the parties may deem relevant.
4.4 The Academy shall order Products by submitting a purchase order to
▇▇▇▇▇▇▇▇▇▇ describing the type and quantity of the Products to be purchased.
The minimum order shall be 100 cases of one or assorted Products. Orders are
subject to by ▇▇▇▇▇▇▇▇▇▇'▇ consent. All purchases shall be spaced in a
reasonable manner. The Academy shall pay all invoices in full prior to shipment
pursuant to Article 17 hereafter. The Academy shall pay directly or reimburse
▇▇▇▇▇▇▇▇▇▇ for all applicable taxes, assessments, duties, charges and fees,
however designated (including import and export charges), imposed by any taxing
or other governmental authority (including United States authorities), by reason
of the sale and delivery by ▇▇▇▇▇▇▇▇▇▇, and purchase by the Academy, of Products
hereunder, except for any taxes based upon ▇▇▇▇▇▇▇▇▇▇'▇ income. ▇▇▇▇▇▇▇▇▇▇
shall give the Academy notice of these charges prior to delivery. If the
Academy refuses to pay for such charges, no shipment shall be made hereunder.
All sales and payments shall be made, and all orders shall be accepted, in the
State of Texas.
4.5 ▇▇▇▇▇▇▇▇▇▇ shall not be obligated to ship Products to the Academy at
any time when payment of an amount owed by the Academy is overdue or when the
Academy is otherwise in breach of this Agreement.
4.6 All shipments of Products to the Academy will be packaged in
accordance with ▇▇▇▇▇▇▇▇▇▇'▇ standard packaging procedures and shall be suitable
for long distance by air or sea with the appropriate handling information agreed
to by the Parties.. All Contract Prices are F.O.B., ▇▇▇▇▇▇▇▇▇▇'▇ facility,
Dallas or Irving, Texas. Ownership of and title to Products and all risks of
loss with respect thereto shall pass to the Academy upon delivery of such
Products by ▇▇▇▇▇▇▇▇▇▇ to the carrier at the designated delivery (F.O.B.) point.
Deliveries of Products shall be made by ▇▇▇▇▇▇▇▇▇▇ under normal trade conditions
in the usual and customary manner being utilized by ▇▇▇▇▇▇▇▇▇▇ at the time and
location of the particular delivery.
4.7 ▇▇▇▇▇▇▇▇▇▇ shall use its reasonable best efforts to ensure
availability of all Products ordered by the Academy under this Agreement.
However, if necessary in the best judgment of Carrington, Carrington may
allocate its available supply of Products among all its customers, distributors
or other purchasers, including the Academy, on such basis as it shall deem
reasonable, practicable and equitable, without liability for any failure of
performance or lost sales which may result from such allocations.
4.8 Except as may be expressly stated by ▇▇▇▇▇▇▇▇▇▇ on the Product or on
▇▇▇▇▇▇▇▇▇▇'▇ packaging, or in ▇▇▇▇▇▇▇▇▇▇'▇ information accompanying the Product,
at the time of shipment to the Academy hereunder, ▇▇▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇▇▇ NEITHER ASSUMES NOR AUTHORIZES ANYONE TO ASSUME
FOR IT ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE PRODUCTS. the Academy
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 4.8 or that is inconsistent with the policies or publications of
▇▇▇▇▇▇▇▇▇▇ relating to the Products.
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THE ACADEMY'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER IS THE
DELIVERY BY ▇▇▇▇▇▇▇▇▇▇ 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 THE ACADEMY'S OPTION. ▇▇▇▇▇▇▇▇▇▇
SHALL HAVE NO OTHER OBLIGATION OR LIABILITY FOR DAMAGES TO THE ACADEMY 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.
THE ACADEMY SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS ▇▇▇▇▇▇▇▇▇▇ AND ITS
AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM
AND AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, EXPENSES AND LOSSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING OUT OF OR CONNECTED
WITH (I) ANY USE, SALE OR OTHER DISPOSITION OF PRODUCTS BY THE ACADEMY OR ANY
OTHER PARTY, (II) ANY BREACH BY THE ACADEMY OF ANY OF ITS REPRESENTATIONS,
WARRANTIES OR COVENANTS UNDER THIS AGREEMENT OR (III) ANY ACTS OR OMISSIONS ON
THE PART OF THE ACADEMY OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE
OR BEYOND THE ACADEMY'S AUTHORIZATION GRANTED HEREIN.
4.9 Credits on defective Products by the Academy will be calculated by
▇▇▇▇▇▇▇▇▇▇ based on the original Contract Price of the items returned, whether
identified by lot number or another method.
4.10 ▇▇▇▇▇▇▇▇▇▇ shall provide the Academy evidence of its standard
liability coverage and certificate of insurance and shall endeavor to have the
Academy included in a Third Party beneficiary thereunder.
4.11 Upon the acceptance of an initial first order of a size and price
agreeable to Carrington, Carrington shall provide airfare, a daily per diem for
meals and lodging, for up to five Chinese representatives for product training.
Article 5. Term and Termination
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5.1 The initial term of this Agreement shall be for a period of five (5)
years from the date of this Agreement. After such initial term, this Agreement
shall be automatically extended for an additional term of three (3) years,
unless this Agreement is terminated at the end of the initial five-year term by
written notice given by either party to the other party not less than six months
prior to the end of such initial term. Notwithstanding the foregoing, this
Agreement may be terminated earlier in accordance with the provisions of this
Article 5.
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5.2 Regardless of Article 5.1, either party hereto may terminate this
Agreement effective at any time after January 1, 1998, by giving the other party
at least six months' prior written notice of termination.
5.3 Either Party has the absolute right to terminate this Agreement if the
other parties fails to perform or breaches, in any material respect, any of the
terms or provisions of this Agreement. Without limiting the events which shall
be deemed to constitute a breach or material breach of this Agreement by the
Academy, the Academy understands and agrees that it shall be in material breach
of this Agreement, and ▇▇▇▇▇▇▇▇▇▇ shall have the right to terminate this
Agreement under this Article 5.3, if:
(i) The Academy fails or refuses to pay to ▇▇▇▇▇▇▇▇▇▇ any sum when
due;
(ii) The Academy breaches any provision of Article 2.2, 3.1, 3.3, 3.6,
3.8, 3.10, 4.4, 4.8, 6 or 7; or
(iii) The Academy fails to purchase the Specified Minimum Amount of
Product for any required period.
5.4 Either Party has the absolute right to terminate this Agreement in the
event the other shall become insolvent, or if there is instituted by or against
the other procedures in bankruptcy, or under insolvency laws or for
reorganization, receivership or dissolution, or if the other loses any franchise
or license to operate its business as presently conducted in any part of the
Territory.
5.5 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 4.3 hereof if the parties are unable to agree upon the Contract Prices or
the Specified Minimum Amount for the next 12-month period of the term.
5.6 During the one-year period following termination of this Agreement,
any inventory of Products held by the Academy at the termination of this
Agreement may be sold by the Academy 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 the Academy's
performance obligations and ▇▇▇▇▇▇▇▇▇▇'▇ rights shall remain in effect. In
order to accelerate the liquidation of any such inventory, ▇▇▇▇▇▇▇▇▇▇ may buy
back, if the Academy agrees 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 ▇▇▇▇▇▇▇▇▇▇ to the Academy. ▇▇▇▇▇▇▇▇▇▇ shall give first priority to
buying back such inventory.
5.7 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 4.8, 6, 7 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.
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Article 6. Trademarks and Trade Names
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6.1 All trademarks, trade names, service marks, logos and derivatives
thereof relating to the Products (the "Trademarks"), and all patents, technology
and other intellectual property relating to the Products, are the sole and
exclusive property of ▇▇▇▇▇▇▇▇▇▇ or its affiliates. ▇▇▇▇▇▇▇▇▇▇ hereby grants
the Academy permission to use the Trademarks for the limited purpose of
performing its obligations under this Agreement. ▇▇▇▇▇▇▇▇▇▇ may, in its sole
discretion, modify or discontinue the use of any Trademark and/or use one or
more additional or substitute marks or names, and the Academy shall be obligated
to do the same.
6.2 The Academy agrees to use the Trademarks in full compliance with the
rules prescribed from time to time by ▇▇▇▇▇▇▇▇▇▇. The Academy may not use any
Trademark as part of any corporate name or with any prefix, suffix or other
modifying words, terms, designs or symbols. In addition, the Academy 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
▇▇▇▇▇▇▇▇▇▇.
6.3 In the event of any infringement of, or challenge to, the Academy's
use of any Trademark, the Academy is obligated to notify ▇▇▇▇▇▇▇▇▇▇ immediately,
and ▇▇▇▇▇▇▇▇▇▇ shall have sole and absolute discretion to take such action as it
deems appropriate.
6.4 In the event of the termination of this Agreement for any reason, the
Academy's right to use the Trademarks shall cease, and the Academy shall cease
using such Trademarks at such time as the Academy's inventory of Products has
been sold. The Academy shall, as soon as it is reasonably possible, remove all
Trademarks which appear on or about the premises of the office(s) of the Academy
and any of the advertising of the Academy used in connection with Products.
6.5 In the event of a breach or threatened breach by the Academy of the
provisions of this Article 6, ▇▇▇▇▇▇▇▇▇▇ shall be entitled to all legal remedies
including an injunction or injunctions to prevent such breaches. Nothing herein
shall be construed as prohibiting ▇▇▇▇▇▇▇▇▇▇ from pursuing other remedies
available to it for such breach or threatened breach of this Article 6,
including the recovery of damages from the Academy.
Article 7. Confidential Information
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7.1 The Academy recognizes and acknowledges that the Academy will have
access to confidential information and trade secrets of ▇▇▇▇▇▇▇▇▇▇ and other
entities doing business with ▇▇▇▇▇▇▇▇▇▇ relating to research, development,
manufacturing, marketing, financial and other business-related activities
("Confidential Information"). Such Confidential Information constitutes
valuable, special and unique property of ▇▇▇▇▇▇▇▇▇▇ and/or other entities doing
business with ▇▇▇▇▇▇▇▇▇▇. Other than as is necessary to perform the terms of
this Agreement, the Academy 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 ▇▇▇▇▇▇▇▇▇▇. In the event
of a breach or threatened breach by the Academy of the provisions of this
Article 7, ▇▇▇▇▇▇▇▇▇▇ shall be entitled to an
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injunction restraining the Academy from disclosing and/or using, in whole or in
part, such Confidential Information. Nothing herein shall be construed as
prohibiting ▇▇▇▇▇▇▇▇▇▇ from pursuing other remedies available to it for such
breach or threatened breach of this Article 7, including the recovery of damages
from the Academy.
Article 8. Force Majeure
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8.1 Each party shall have any liability hereunder if it shall be 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 Nature or the public enemy, other
casualty, strike or lockout, or interference, prohibition or restriction imposed
by any government or any officer or agent thereof ("Force Majeure"), and either
party's obligations, so far as may be necessary, shall be suspended during the
period of such Force Majeure and shall be canceled in respect of such Products
as would have been sold hereunder but for such suspension. Either party shall
give to the other prompt notice of any such Force Majeure, the date of
commencement thereof and its probable duration and shall give a further notice
in like manner upon the termination thereof. Each party hereto shall endeavor
with due diligence to resume compliance with its obligations hereunder at the
earliest date and shall do all that it reasonably can to overcome or mitigate
the effects of any such Force Majeure upon a party's obligations under this
Agreement.
Article 9. Amendment
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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
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10.1 This Agreement shall supersede any and all prior agreements,
understandings, arrangements, promises, representations, warranties, and/or any
contracts of any form or nature whatsoever, whether oral or in writing and
whether explicit or implicit, which may have been entered into prior to the
execution hereof between the parties, their officers, directors or employees as
to the subject matter hereof. Neither of the parties hereto has relied upon any
oral representation or oral information given to it by any representative of the
other party. In case of dispute, arbitration, or other proceedings, the arbiter
or other presiding party shall attempt to equally utilize both the English and
Chinese versions of this agreement, but in case of conflict between the two, the
English version shall control.
Article 11. Assignment
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11.1 Neither this Agreement nor any of the rights or obligations of the
Academy hereunder shall be assigned by the Academy without the prior written
consent of ▇▇▇▇▇▇▇▇▇▇, executed by a duly authorized officer of ▇▇▇▇▇▇▇▇▇▇.
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Article 12. Governing Law
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12.1 It is expressly agreed that the validity, performance and
construction of this Agreement will be governed by the laws of the State of
Texas, United States of America.
Article 13. Notices
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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, postage prepaid, return receipt requested, or by
fax addressed to:
(a) ▇▇▇▇▇▇▇▇▇▇ at: ▇▇▇▇▇▇▇▇▇▇ Laboratories, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention ▇▇▇▇▇ Record, or at such other address
as ▇▇▇▇▇▇▇▇▇▇ shall have theretofore furnished in writing to the
Academy. (Fax No. ▇▇▇-▇▇▇-▇▇▇▇)
(b) The Academy at: ____________ attention ________________, or at such
other address as the Academy shall have theretofore furnished in
writing to ▇▇▇▇▇▇▇▇▇▇. (Fax No. ______________)
Article 14. Waiver
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14.1 Either parties failure to enforce at any time any of the provisions
of this Agreement or any right with respect thereto, shall not be considered a
waiver of such provisions or rights or in any way affect the validity of same.
Either parties exercise of any of its rights shall not preclude or prejudice it
thereafter from exercising the same or any other right it may have, irrespective
of any previous action by it.
Article 15. Arbitration
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15.1 Except as provided in Articles 6.5 and 7.1, any dispute, controversy
or claim arising out of or in relation to or in connection with this Agreement,
the operations carried out under this Agreement or the relationship of the
parties created under this Agreement, shall be exclusively and finally settled
by confidential arbitration, and any party may submit such a dispute,
controversy or claim to arbitration. After the failure to settle disputes by
friendly negotiation, 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 American Arbitration Association (the "AAA") as amended from
time to time. Any procedural rule not determined under the rules of the AAA
shall be determined by the laws of the State of Texas, 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 AAA, who shall appoint an
independent arbitrator who does not have any financial interest in the dispute,
controversy or claim. If the AAA 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.
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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 AAA (if any) shall be divided equally among
the parties to the arbitration.
Article 16. No Inconsistent Actions
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16.1 Each party hereto agrees that it will not voluntarily undertake any
action or course of action inconsistent with the provisions or intent of this
Agreement and, subject to the provisions of Articles 4.6 and 8 hereof, will
promptly do all acts and take all measures as may be appropriate to comply with
the terms, conditions and provisions of this Agreement.
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Article 17. Currency of Account
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17.1 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 the Academy
to ▇▇▇▇▇▇▇▇▇▇ hereunder shall be made either (i) in immediately available funds
by confirmed wire transfer to a bank account to be designated by ▇▇▇▇▇▇▇▇▇▇ or
(ii) in the form of a bank cashier's check payable to the order of ▇▇▇▇▇▇▇▇▇▇.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written and it shall be effective upon receipt of
the mutually agreed upon and certified Mandarin version by both parties.
▇▇▇▇▇▇▇▇▇▇ LABORATORIES, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
CHINESE ACADEMY OF SCIENCES
By:__________________________________
Name:________________________________
Title:_______________________________
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