Exhibit 10.17
AyurCore, Inc.
DISTRIBUTION AGREEMENT
AyurCore, Inc. ("AyurCore"), a Delaware Corporation, located at 0000 X. Xxxxx
Xx. #000, Xxx Xxxx Xxxxxxxxxx 00000, appoints MD Pharmaceuticals Laboratories
Ltd. ("MD"), 000 Xxxxxxx Xxxx, #00-00 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx 000000,
acting through its distributor, the Xxxx-Xxxxx Ltd. Company located at
Xxxx-Xxxxx Xxxxxx, 000 Xxxxxxx Xxxx, Xxxxxxxxx 000000, to sell the AyurCore
products listed in Exhibit I ("Products) in the countries of Singapore,
Malaysia, Thailand, Myanmar (Burma) Viet Nam, Laos and Cambodia
("Territory"), as discussed in Paragraph 3 of the Agreement. The specific
terms and conditions of this Distribution Agreement, which, for reference
purposes, shall be dated as of 1st September 1997, are set forth in the
following paragraphs.
In consideration of the mutual covenants and agreements hereinafter set
forth, the parties hereto agree as follows:
1.0 PRODUCTS
1.1 Current Products
The products listed in Exhibit 1 are the current products. Products will be
added to or deleted from this list by mutual written consent of AyurCore and
MD.
1.2 Compliance with Law
MD will be solely responsible for registration applications of PRODUCT in the
TERRITORY (i) to secure government approvals, certifications, authorizations,
and registrations for the Products in the Territory, (ii) complying with all
regulations and laws applicable in the Territory relating to the importation
and sale of the Products including regulations and laws relating to labeling
and packaging. In addition, MD will keep AyurCore advised of the steps it
proposes to take to comply with said regulations. MD shall promptly advise
AyurCore of any changes in the Products, labeling or packaging that MD
believes are necessary in order to comply with applicable law.
1.3 Forecast
MD will provide to AyurCore, by Fax or Electronic mail (reconfirmed by mail
post) a 12 month forecast annually and place advance orders by quarters of
its product needs giving a month to month schedule. Individual minimum order
requirements are; ARTREX - 10,000 blisters of 10's (100,000 capsules) and
PERIBAN - 500 Liters (may be combined order of 200 and 500 ml bottles).
1.4 Product Discontinuation
AyurCore reserves the right, without limitation but with six (6) months prior
notice to MD, to cease manufacturing particular Products herein listed
(Exhibit I). AyurCore agrees to refund the purchase price paid by MD for any
Product which remains in MD's inventory as a result of Product
discontinuation by AyurCore, or replace the inventory with comparable ongoing
Product if available.
2.0 MARKETING AND SALES
2.1 Product Samples
AyurCore agrees to provide sample packs of product at no charge to support
the introductory marketing launch by MD. The amount of said samples will be
determined by AyurCore and dependent upon the sales forecast by MD prior to
the launch. MD will pay CIF charges associated with the free goods for
sampling.
2.2 Packaging and Labeling
Within the general and reasonable cost structure, AyurCore will provide
labels and color schemes/designs to meet MD requirements. AyurCore will
comply with local regulatory requirements as specified by MD.
3.0 EXCLUSIVITY
3.1 Exclusivity
AyurCore shall not appoint any other person or entity to distribute the
Products in the Territory during the term of this Agreement. Ayurcore will
not knowingly sell to any person or party who will resell the Products in the
Territory.
4.0 TRADEMARKS
4.1 Trademarks
MD recognizes that AyurCore owns the trademark(s) and trade names of its
Products, processes and services. As part of this Distribution Agreement,
AyurCore grants to MD the royalty free right to use these trademarks in its
product advertising as appropriate and necessary to sell the Products.
Product advertising material used by MD shall discontinue the use of all
AyurCore trademarks and trade names upon the termination of this Agreement.
5.0 CONFIDENTIALITY
5.1 Confidentiality
A confidentiality (Non-Disclosure) Agreement between MD and AyurCore covering
transfer of information relating to products, product development and
commercial issues was signed on May 14, 1997 and remains in force.
6.0 PRICING/PAYMENT
6.1 Prices
Prices covered for the Products are listed in Exhibit I commencing
September 1, 1997.
Prices for new Products, if any, added to the list of Products covered under
this Agreement will be negotiated at the time such Products are added.
6.2 Price Changes
AyurCore will review current prices with MD at six month intervals. AyurCore
will solely revise these prices as appropriate. New prices will come into
effect with the first purchase order issued by MD to AyurCore following the
written price change notice.
6.3 Payment Terms
Payment terms are US dollars within 60 days. MD agrees to pay a late fee of
1 1/2% per month that any amount due under this Agreement is not paid within
60 days of receipt of shipment.
The first shipment payment will be accomplished through a Letter of Credit.
AyurCore will receive payment from the Xxxx-Xxxxx Ltd. Company located at
Xxxx-Xxxxx Xxxxxx, 000 Xxxxxxx Xxxx, Xxxxxxxxx 000000. Xxxx Xxxxx is the
authorized distributor for MD. Payments will be made though wire transfer to
the bank to be stipulated by AyurCore. MD guarantees all payments due from
Xxxx-Xxxxx to AyurCore.
AyurCore may withhold further shipments if payment is overdue.
MD has total responsibility for payment of any local taxes due.
6.4 Shipping and Handling Costs
Products will be shipped as specified to Singapore Air/Sea port. Shipping
and handling costs are included in the price schedule shown in Exhibit I.
7.0 TERM
7.1 Term
This Distribution Agreement shall remain in force for three years beginning
1st September, 1997 and ending 31st August, 2000. Following This three year
period, the Distribution Agreement would be renewed for another Three year
period unless terminated in writing as specified in Paragraph 8.1.
8.0 TERMINATION
8.1 Termination
This Distribution Agreement may be terminated by each of the parties at any
time with six (6) months notice. In the event of termination, all rights
revert to AyurCore.
Either party may also terminate this Distribution Agreement for cause by
written notice with immediate effect, in the event that the other party
(1) fails to cure any material breach of this Agreement within thirty
days after written notice of such breach; or
(2) commits or suffers an act of insolvency or bankruptcy.
9.0 PRODUCT WARRANTY
9.1. Product Warranty
Ayurcore warranty to MD that the Products shall:
(1) conform with all written guidelines and specifications thereof
(including but not limited to the guidelines and specifications
issued by the relevant authorities in respect of the Products or
products of a similar nature) and shall be free from manufacturing
and other defects.
(2) shall be suitable for the purposes for which the Products are
manufactured and sold.
AyurCore hereby undertakes to hold MD harmless from and to indemnify MD fully
against any action, proceeding, loss damages (including damages arising from
injuries to persons) and any cost or expenses suffered or incurred by MD as a
result of any manufacturing defect in the Products or any defect in the
materials used in the manufacture of the Products.
9.2 Indemnity
AyurCore hereby indemnifies and holds harmless MD from any and all claims,
proceedings, costs, or judgments which may be made by a third party arising
as a result of a manufacturing defect in the products as manufactured by
AyurCore or a defect in the raw materials included in the Products as
manufactured by AyurCore.
10.0 MISCELLANEOUS
10.1 Applicable Law
The Agreement shall be governed by and interpreted under the laws of the
State of California USA.
10.2 Forum and Attorney's Fees
Any legal proceeding pertaining to this Agreement shall be brought in US
Federal District Court in , except that if jurisdiction in the Federal Court
is not applicable than such proceeding shall be brought and tried in the
appropriate State Court situated in San Jose, California.
If this Agreement or any provision thereof becomes the subject of any legal
proceeding, then the party prevailing in such proceeding shall be entitled to
reasonable attorneys fees upon the trial thereof and upon any appeal
therefrom.
10.3 Amendments
All amendments and modifications of this Agreement must be in writing and
signed by both parties.
10.4 Assignments
This Agreement shall be binding upon the parties and their respective
successors and assigns. Neither party shall have the right to transfer or
assign this Agreement or any interest in this Agreement without the prior
written authorization of the other party. Notwithstanding the foregoing,
either party may assign this Agreement to its parent , subsidiary or
affiliate (under ownership or control) corporations.
10.5 Entire Agreement
This Agreement, including all exhibits attached and all agreements of the
parties referred to in this document, including the Confidentiality Agreement
referred in Paragraph 5.1, represent the entire Agreement between the parties.
10.6 Force Majeure
The obligations by either party to perform under this Agreement shall be
excused when caused by uncontrollable factors, such as strikes, shortages of
raw materials, or acts of God, which are beyond the control of the parties.
10.7 Notices
Notices required by this Agreement shall be sent certified mail, return
receipt requested, postage prepaid to the address of either party, as set
forth in the initial paragraph of this Agreement or at such subsequent
address for either party pursuant to notification of change of address made
in accordance with this Paragraph 9.9.
Notices to AyurCore shall be sent to the attention of either: President,
International Operations or Chief Financial Officer. Notices to MD shall be
sent to the attention of: Managing Director.
10.8 Product Quality
AyurCore will replace, at no cost to MD, or, at AyurCore's option, refund the
purchase price of, any Products that are shipped to MD by AyurCore that, when
shipped, did not meet the specifications for such Products set forth in the
Exhibit II hereto.
10.9 Status of Parties
The relationship of MD to AyurCore and AyurCore to MD is that of an
independent contractor. Nothing in this Agreement shall be deemed to
authorize or empower MD or AyurCore, their agents or employees, to act as
agent for AyurCore or MD or conduct business in the name, or for the account,
of AyurCore or MD.
IN WITNESS WHEREOF this Distribution Agreement has been executed as of the
date hereinabove first specified by the representative of each such Corporate
entity thereunto duly authorized.
AyurCore, Inc. MD Pharmaceuticals Laboratories Ltd.
By: s/Xxxxx Xxxx By: s/Xxxxxx Xxxxx
Print: Xxxxx Xxxx Print: Xxxxxx Xxxxx
Title: President, International Title: Managing Director
Operations
EXHIBIT I
ADDENDUM
MD DISTRIBUTION AGREEMENT PRODUCT AND PRICE LIST
Trademark Package Size Price Shipped To/By
--------- ------------ ----- -------------
ARTREX TM Blisters of 10 capsules [*****] Singapore Airport
packed 10 blisters in Air
labeled carton
PERIBAN-TM- 200 ml HDPE labeled bottle [*****] Singapore Port/Sea
500 ml HDPE labeled bottle [*****] Singapore Port/Sea
* Confidential provisions omitted and filed separately with the Commission.
EXHIBIT II
ADDENDUM
PRODUCT SPECIFICATIONS
ARTREX: Green and white capsules packaged in blisters of tens (10s) and
ten blister packs of ten (10) to a carton. Each pack is identified with the
imprint of ARTREX and each carton is labeled for recommended indications,
dosage and storage information.
PERIBAN: Packaged in 200ml and 500ml HDPE bottles with leak proof stoppers.
Each bottle is labeled for recommended uses and storage information.
