EXCLUSIVE DISTRIBUTION AGREEMENT
THIS AGREEMENT is made the 18th day of December, 2001
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BETWEEN
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THE FEMALE HEALTH COMPANY, a company organized under the
laws of the State of Wisconsin, having its place of business
at 000 Xxxxx Xxxxxxxx Xxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000 (hereinafter referred to as "FHC"); and
TOTAL ACCESS GROUP, INC., a company organized under the laws
of the State of California, having its principal offices at
00000 Xxxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as "TAG")
WITNESSETH:
WHEREAS, FHC and TAG wish to enter into an Agreement whereby TAG gains the
exclusive right to market and sell FHC's product listed in Appendix A (the
"Product") to the Public Sector within the fifteen (15) States listed in
Appendix B (the "Territory");
WHEREAS, TAG possesses an organization to market and sell and distribute the
Product in the Territory.
NOW THEREFORE, in consideration of the mutual covenants and obligations set
forth herein, the parties hereto have agreed and do hereby agree as follows:
IT IS HEREBY AGREED
-- -- ------ ------
1. APPOINTMENT
-----------
1.01 Effective as of December 18, 2001 (the "Effective Date") and subject to the
terms and conditions of this Agreement, FHC appoints TAG as its sole and
exclusive distributor of the Product, labeled as fc female condom(R), in
the Territory, for sales to the Public Sector in the Territory, including
city, county and state agencies, not-for-profit agencies and community
based organizations receiving public funding based within the Territory
(the "Distributed Product"), but excluding sales to drug, food, grocery,
natural products, adult market, retail military, electronic/internet
commerce, and mass merchandisers, and TAG accepts this appointment. TAG
acknowledges that Xxxxx Laboratories, Inc. is FHC's current appointed
exclusive distributor for the Product outside the Public Sector, and TAG
represents that it shall not engage in any activities that would infringe
on such appointment.
1.02 Subject to Section 1.01, FHC agrees to refer to TAG all inquiries, original
correspondence and orders received by FHC during the period of this
Agreement, directly or indirectly, pertaining to sales or the possible
distribution of Distributed Product in the Territory so long as TAG remains
sole and exclusive distributor of the Product in the Territory.
1.03 Subject to Section 9.01, TAG shall purchase all its requirements of the
Distributed Product from FHC or its designated Affiliate. "Affiliate(s)",
as to either party, means any legal entity directly or indirectly
controlling, controlled by or under common control with a party to this
Agreement, and for purposes of this definition, "control" shall mean the
power to direct or cause direction of the management and policies of an
entity.
1.04 TAG shall commence actual sale and distribution of the Product as of the
Effective Date.
3. TERM
----
3.01 This Agreement shall be for an initial period of three (3) years following
the Effective Date and shall continue thereafter (subject to earlier
termination under Sections 6.01(b) and 20.01 below) for an additional one
(1) year period (during which time the parties shall negotiate in good
faith an additional renewal term(s) and applicable purchase price for the
Product), unless and until terminated (i) by either party giving to the
other not less than ninety (90) days written notice prior to the end of the
initial term or any renewal or (ii) by a successor to substantially all of
the assets of FHC or the conduct of the business of FHC in the Territory.
4. MARKETING SUPPORT
--------- -------
4.01 TAG shall at its own expense and at all times during the term of this
Agreement actively promote and endeavor to increase sales of the
Distributed Product throughout the Territory to all agencies and
organizations potentially relevant to the Distributed Product, including
the activities described in the Plan Summary for the Marketing and Sale of
the Product attached as Appendix D.
4.02 TAG shall:
(a) In addition to its obligations in Section 15.01 below, submit to FHC a
monthly and quarterly sales reports;
(b) employ such numbers of staff having such qualifications and experience
as may be necessary to enable TAG to carry out its obligations under
this Agreement; and
(c) establish and maintain adequate sales, education and marketing
systems.
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5. ADVERTISING & PROMOTION
-------------------------
5.01 Without affecting TAG's freedom to select the prices at which and other
terms on which the Product is sold, TAG shall consult with FHC before
publishing advertising or promotional material of the Product which has not
already been reviewed by FHC.
5.02 TAG shall provide FHC with five copies of each item of promotional material
referred to in Section 5.01 above upon its production.
5.03 In the event of any action either on the part of governmental or other
authorities, "activists", consumer groups, lawyers, competitors, members of
the public, physicians or institutions - alleging inappropriate, unlawful
or unsubstantiated statements in any text prepared or suggested by FHC in
relation to the Product, either in leaflets, sales manuals, promotional or
packaging material or the like, TAG shall refrain from entering into any
correspondence, defense, polemics, discussion or admission, except for
acknowledging receipt and reporting to FHC within 7 days for negotiation,
unless in the reasonable opinion of TAG it is necessary for it to take
immediate action in order to prevent damage being done to the reputation of
the Product in the Territory and in such circumstances FHC shall be
immediately informed of the allegations raised and the manner in which they
have been dealt with by TAG.
6. STOCK & MINIMUM PURCHASES
----------------------------
6.01 Following the Effective Date:
(a) TAG shall maintain a minimum stock of Distributed Product, which will
be no less than an amount sufficient in TAG's reasonable judgement to
meet customer requirements.
(b) To maintain this Exclusive Distribution Agreement, during the initial
thirty-six (36) month term, TAG shall purchase from FHC two million
one hundred ninety thousand (2,190,000) Units (a "Unit" consisting of
one (1) Product, regardless of packaging). The minimum commitment
utilizes 2001 fiscal year Unit sales in the Territory of five hundred
two thousand Units (502,000) as a basis. Minimum purchases in each of
the first two twelve-month periods are five hundred two thousand Units
(502,000). The third twelve-month period will be sufficient quantity
to reach a total of two million one hundred ninety thousand Units
(2,190,000) during the initial thirty-six month term.
(c) FHC shall deliver Distributed Product to, and TAG shall take receipt
of Distributed Product at, TAG's facility at the address first set
forth above, upon the terms contained in Section 9 below.
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(d) On and after the Effective Date, TAG shall be responsible for handling
and accept returns of Distributed Product from customers within the
Territory.
7. COMPETING PRODUCTS
-------------------
7.01 During the term of this Agreement and any renewal thereof, neither TAG nor
any of its Affiliates shall market or sell in the Territory any products
that compete with the Product, which in this context is defined as: any
other female condom.
7.02 TAG represents that its present product range does not include any products
that may compete with the Distributed Product in terms of the above
definition.
8. FORECASTS AND ORDERS
--------- --- ------
8.01 TAG shall submit in writing to FHC:
(a) firm orders for the Distributed Product to be supplied within the
three months following the month in which the order is submitted which
order shall specify the date on which delivery of such order is
required; and
(b) forecasts of its requirements for the Distributed Product to be
supplied during the six months periods thereafter.
8.02 All orders for the sale of the Distributed Product to TAG shall be subject
to the terms of this Agreement and to FHC's standard terms and conditions
of sale from time to time in force, and no terms of TAG shall apply or have
any effect, whether such terms appear on a written order or otherwise. In
the case of any inconsistency between FHC's standard terms and conditions
and this Agreement, the terms of this Agreement shall prevail.
9. PRICES
------
9.01 During the term of this Agreement and any renewal thereof, TAG shall
purchase its requirements of the Distributed Product from FHC. The
Distributed Product supplied by FHC shall bear FHC's trademark, fc female
condom or any future trademark approved by the parties, and shall be
supplied to TAG at the price between eighty-five cents ($0.85) and
eighty-eight cents ($0.88) per Unit. The price range is based on:
(a) 2% discount for payments made within 10 days of shipment ($0.88).
(b) Accepting 1,000 loose bulk packs and 2% discount or purchasing at the
rate of a half container (270,000 Units) and a 2% discount ($0.8655).
4
(c) Purchasing at the rate of at least a half container (270,000 Units)
directly from FHC's manufacturing facility, 2% discount, 1000 loose
bulk packs ($0.85).
9.02 Subject to Section 9.01, TAG shall provide payment no later than 30-days
from the date of invoice.
10. DELIVERY
--------
10.01 Delivery of the Distributed Product must be acknowledged by TAG by signing
the receipt of FHC, its Affiliate or the carrier, as the case may be.
10.02 TAG must notify FHC, within 30 days:
(a) of the date of delivery of any short delivery or any other apparent
loss or damage to the Distributed Product; and
(b) if delivery is delayed beyond the expected date of delivery.
In the absence of such notice, the Distributed Product shall be
conclusively deemed to have been delivered.
10.03 TAG shall not be entitled to refuse to accept a delivery by reason only of
short or excess delivery unless the delivery is less than 90% of or
exceeds 110% of the volume of the Distributed Product ordered.
11. RISK AND PROPERTY
-------------------
11.01 Risk shall pass to TAG upon receipt of the Distributed Product in
accordance with Section 6.01(c) of this Agreement.
11.02 Title to the Distributed shall remain with FHC or its Affiliate, as the
case may be, until such time as payment in full has been made by TAG for
the Distributed Product together with any other sums payable in respect of
the Distributed Product. TAG acknowledges that until such time, it is in
possession of the Product solely as bailee and that the Distributed
Product is held at TAG's risk.
11.03 At all times during which the Distributed Product is held at TAG's risk
TAG, shall keep all such Distributed Product fully insured in its own name
and at its own cost against all risk. Such insurance shall be for the full
replacement value of the Distributed Product free from any restriction or
excess.
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12. STORAGE AND OUT OF CONDITION PRODUCTS
------------------------------------------
12.01 TAG shall store and transport the Distributed Product in conditions which
will preserve the Distributed Product in good condition, including
(a) warehousing and product shipment operations for all Distributed
Product;
(b) generate periodic reports in compliance with Section 15, report
formats to be developed to the specifications of FHC in cooperation
with TAG, together with such additional reports as may be reasonably
requested by FHC; and
(c) maintain complete records of all Product lots and shipped/destination
of Product by lot number;
12.02 TAG shall not sell any of the Distributed Product which is out of
condition, or beyond the expiration date, for any reason. For this purpose
"out of condition" means Product (including packaging) which:-
(a) FHC or FHC has informed TAG it would not regard as being saleable; or
(b) has been damaged or has deteriorated.
12.03 If Distributed Product in the possession of, under the control of, or sold
by TAG is or becomes out of condition, TAG shall, if requested by FHC,
give all reasonable assistance to FHC in locating and recovering the out
of condition Product and preventing its sale to third parties. TAG shall
comply with any Product hold or Product recall requirements practiced by
FHC and FHC(UK). With regard to the foregoing, the Distributed Product
supplied by FHC or its Affiliate shall include the batch number and expiry
date, or such similar designations for Distributed Product identification
as may be appropriate.
12.04 All action by TAG pursuant to this Section 12 shall be taken at its own
expense except in relation to Distributed Product that has been recalled
by FHC, and except for any and all shipping costs incurred by TAG in
relation to Distributed Product which is defective under the rules and
regulations of the US Food and Drug Administration.
13. COMPLIANCE WITH LAWS
---------- ---- ----
13.01 TAG shall comply with (and keep FHC fully informed of) all applicable
laws, regulations (including but not limited to the regulations of the US
Food and Drug Administration), industry standards, Codes of Practice, and
other voluntary controls, concerning the Distributed Product in the
Territory and any changes therein, including, but without affecting the
general nature of this provision, obtaining at its own expense any
license, permission or registration of whatever nature relating to the
importation, marketing, sale and use of the Distributed Product by TAG.
6
13.02 FHC shall have the right, upon reasonable notice and during normal
business hours, to inspect the facilities and records of TAG relating to
the Distributed Product to assure compliance with the terms and conditions
of this Agreement.
14. PRODUCT LIABILITY AND PRODUCT REPLACEMENT
------- --------- --- ------- -----------
14.01 FHC(UK) shall replace any Distributed Product that is delivered to TAG
that:
(a) is not in a saleable condition or
(b) is out of condition (in accordance with the meaning given thereto in
Section 12.02 above) or beyond expiration date,
and is so notified by TAG to FHC(UK) within ninety (90) days following the
date of delivery, or
(c) is defective Product under the rules and regulations of the US Food
and Drug Administration, and such defect is not the result of any
action or negligence on the part of TAG.
14.02 TAG agrees to indemnify and hold harmless FHC, its associated companies
and its respective directors, officers and employees against any and all
claims, demands, proceedings, losses, costs and expenses which may be
brought against, suffered or incurred by FHC or its or their respective
directors, officers and employees, in consequence of any error, mistake,
negligence, or breach under this Agreement, on the part of TAG or any of
its employees or agents.
14.03 FHC agrees to indemnify and hold harmless TAG, its associated companies
and its respective directors, officers and employees against any and all
claims, demands, proceedings, losses, costs and expenses which may be
brought against, suffered or incurred by TAG or its respective directors,
officers and employees in consequence of any error, mistake, negligence,
or breach under this Agreement, on the part of FHC or any of its employees
or agents.
14.04 Without prejudice to Sections 14.01 and 14.03 above, FHC's obligation to
replace Distributed Product as described in Section 14.01 above shall
constitute the full extent of FHC's or its Affiliate's liability in
respect of any loss or damage sustained by TAG for defective Product
except for direct costs incurred by TAG caused by FHC's negligence. FHC
and its Affiliates shall not be liable for any consequential loss or
damages, including but not limited to any loss of business or profit,
arising out of or in connection with any act or omission of FHC.
7
14.05 FHC and TAG agree that these provisions are fair and reasonable and that
the most suitable method of dealing with any greater loss or damage which
may be incurred by them is by taking out, in their names and at their
expense, such insurance policies as they consider appropriate the
particulars of which shall be notified in writing to the other for
inclusion as Appendix E hereto but in any event without further recourse.
Such insurance shall be in form and substance satisfactory to the other
party.
14.06 In the event of a claim or demand being brought against either party, such
party shall immediately notify the other party thereof and the party
responsibility hereunder shall forthwith at its own cost handle such
claim. The party giving notice hereunder shall provide the responsible
party with such assistance as it may reasonably require.
15. RECORDS, REPORTING AND ACCESS WITH RESPECT TO THE TERRITORY
-------- --------- --- ------ ---- ------- -- --- ---------
15.01 TAG shall provide FHC within the first fifteen days following each
semi-annual period following the Effective Date with such records and any
other information as FHC may reasonably require concerning its activities
during the previous six months and for the six months thereafter,
including a brief description of the general market conditions within the
Territory and of TAG's advertising, educational outreach and promotional
activities for the forthcoming six months period.
15.02 TAG shall provide FHC with the following records with respect to the
Territory:
(a) A quarterly and annual physical inventory report (by the fifth (5th)
day following the end of each calendar quarter and year;
(b) detailed monthly sales report by number of Units; and
(c) semi-annual report of returned Product;
15.03 TAG and FHC shall report to the other (attention President) within
forty-eight (48) hours of receipt any serious adverse reactions (as
defined by the US Food and Drug Administration) from consumers or medical
professionals regarding the Product in order that FHC TAG may determine
how to deal with the matter. TAG and FHC shall report to the other any
other medical device reactions or adverse drug reactions within fourteen
(14) days of receipt thereof , whether occurring within or outside the
Territory. TAG shall maintain record keeping in compliance with US Food
and Drug Administration regulations and definitions. FHC shall oversee and
provide reporting and communications as required by the US Food and Drug
Administration.
8
15.04 FHC shall provide TAG with educational outreach and marketing information
regarding the Product outside the Territory that it may receive from third
parties from time to time and which FHC believes may be relevant or
helpful to TAG.
16. CONFIDENTIALITY
---------------
16.01 FHC and TAG agree that any and all information emanating from the other or
any of their respective associated companies and not publicly known
(including public information in a compilation which is not publicly
known) but not including,
(a) information that, at the time of disclosure, is publicly known,
(b) information that, after disclosure, becomes publicly known other than
as a result of a breach of this Agreement,
(c) information that the recipient can show was known to it prior to the
disclosure, and
(d) information that the recipient can show was made known to it by a
third party who was entitled to do so and who did not impose any
obligation of confidentiality or restricted use,
is confidential and proprietary to the party from whom it has emanated or
its associated companies, as the case may be.
16.02 FHC and TAG agree that they will not during or after the termination of
this Agreement use or disclose for any unauthorized purpose any such
confidential information. FHC and TAG each accept full responsibility for
any unauthorized use or disclosure of the other's confidential information
by it or persons to whom it has disclosed the information, however caused.
17. TRADEMARK
---------
17.01 FHC is the proprietor of the trademark described in Appendix C to this
Agreement and/or its substitutes (the "Trademark") under which the
Distributed Product is to be marketed by TAG.
17.02 TAG shall not sell the Distributed Product under any other name or xxxx
than the marks used or approved by FHC in relation to the Product nor
remove or obliterate those names or marks from the Product nor make any
other alteration to the Product, its packaging or its labeling.
17.03 FHC reserves all its rights in the Trademark but hereby grants to TAG the
exclusive right during the term of this Agreement to use the Trademark, or
any future trademark agreed by the parties, in the Territory in connection
with the promotion and marketing of the Distributed Product under Sections
4 and 5 of this Agreement.
9
17.04 The use of the Trademark by TAG shall at all times be in keeping with and
maintain its distinctiveness and reputation as determined by FHC and TAG
shall immediately cease any use not consistent therewith upon the
reasonable direction of FHC in that respect.
17.05 TAG shall not use any xxxx which can be reasonably expected to cause
confusion with the Trademark in its own corporate name or trading style on
any product whatsoever. This obligation shall survive the termination or
expiry of this Agreement and any extensions thereof.
18. INTELLECTUAL PROPERTY
------------ --------
18.01 Nothing in this Agreement shall entitle TAG to any rights in (other than
the rights contained in Sections 17.03 of this Agreement) or to any
Intellectual Property Right (as defined below) owned, controlled or used
by FHC or any of its associated companies. All such rights, together with
all associated goodwill, are and shall remain the sole property of FHC or
its associated companies as the case may be.
18.02 TAG shall take all steps which FHC may from time to time consider to be
necessary to perfect or protect FHC's Intellectual Property Rights
including (but without limitation) carrying out any act FHC requires in
connection with any registration and FHC shall reimburse TAG with any
disbursements in connection herewith reasonably incurred by it with FHC's
prior written approval.
18.03 TAG shall inform FHC promptly of any potential or actual infringement of
any of FHC's Intellectual Property Rights and shall provide all assistance
and information required by FHC in connection with any such infringement
and shall, if FHC so requests, join in any court or other proceedings
relating to such infringement. FHC shall reimburse any disbursements
reasonably incurred by TAG in connection herewith with FHC's prior written
approval.
18.04 In this Agreement, "Intellectual Property Rights" include, but are not
limited to, any copyright, patent, registered design, unregistered design,
logo, know-how, the Trademark and any other trademark, trade name or other
designation, or get-up and any similar rights in any part of the world
owned or used by FHC or any of its associated companies. Nothing contained
in this Agreement shall in any manner be deemed to require FHC or any of
its associated companies to take any action with respect to, defend, or
maintain, any Intellectual Property Rights.
19. FORCE MAJEURE
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19.01 Neither party shall be liable for any failure to fulfill or delay in
fulfilling any of its obligations under this Agreement (other than an
obligation to pay monies) caused by any circumstances beyond its
reasonable control, including but not limited to war, riot, civil
commotion, accident, fire, flood, Act of God, strike, lock-out or
10
other industrial dispute (whether affecting FHC's own employees or those
of TAG), legislative or administrative interference, inability to obtain
raw materials, provided that if the period of default continues for more
than 6 months the other party shall be entitled to terminate the Agreement
forthwith by notice in writing.
20. TERMINATION
-----------
20.01 In addition to Section 3.01, this Agreement may be terminated:
(a) by FHC or TAG if the other is in material breach of any term of this
Agreement, or of an individual contract for the purchase of the
Product, and the defaulting party fails to remedy such breach within
30 days of receipt of written notification requiring it to do so; or
(b) by FHC if TAG enters into or proposes voluntary arrangement or
composition with its creditors or reconstruction of its debts or if
its directors make a declaration of insolvency for the purpose of a
members voluntary winding up, or if notice is given of a creditors
winding up, or if a special resolution is passed that TAG be wound up
by the court, or if an administrative or other receiver is appointed,
or if the court makes an administration order or order that TAG be
wound up by the court, or if TAG ceases to carry on its business or is
unable to pay its debt, or.
(c) by FHC if there is any material change in the beneficial ownership of
TAG which FHC considers to be detrimental to its interests, or by TAG
if there is any material change in the beneficial ownership of FHC
which TAG considers to be detrimental to its interests.
20.03 Termination of this Agreement shall not affect the continuing validity and
enforceability of Sections 14, 16, 17, 18 and 21.
21. CONSEQUENCES OF TERMINATION
------------ -- -----------
21.01 Upon termination of this Agreement for whatever reason or its expiry:
(a) TAG's authority to sell Distributed Product which have not been paid
for, if applicable, shall cease, and all such Product and other
property of FHC or its associated companies in TAG's possession or
control shall, at FHC's request (upon which FHC shall be responsible
for any applicable shipping costs), be immediately delivered to FHC or
its designee (or at FHC's option, made available for collection by it,
for which purpose FHC's representatives are granted access to any
place where such Product may be) and all monies owed by TAG to FHC or
its Affiliates, as the case may be, in respect of those of the
Distributed Product not paid for, if applicable, but sold or supplied
by TAG prior to the withdrawal of TAG's authority shall immediately be
paid to FHC;
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(b) any or all stocks of Product or advertising material in saleable
condition owned by TAG may at FHC's option (exercisable by written
notice) be repurchased by FHC or its nominee within 30 days of notice
of termination at landed cost price, failing which TAG shall be at
liberty to sell the same;
(c) TAG shall cease to represent in any way that it is an authorized
distributor of the Product and shall return to FHC all advertising
material, customer records and all other documents as well as
demonstration equipment belonging to FHC and shall not make any
further use of any of FHC's or its associated companies' Intellectual
Property Rights;
(d) TAG shall use its best endeavors to provide FHC with the historical
data of those customers provided to TAG by FHC (including such other
customers within the Territory to whom TAG has sold the Product, if
TAG shall have caused the termination of this Agreement) and will
inform all of their female condom customers of the termination of this
Agreement howsoever occasioned;
(e) TAG shall assign to FHC within 30 days of notice of termination free
of charge all approvals, consents, registrations and licenses (if any)
relating to the marketing and sale of the Product and execute all
documents and do all things necessary to ensure that FHC shall have
the benefit of such approvals, consents, registrations and licenses;
and
(f) Within 15 days following notice of termination, TAG and FHC will meet
to agree upon all procedures, options and obligations outlined in
Section 21. At such meeting the parties shall determine guidelines
regarding the release and content of communication relating to the
termination and the effects hereof to any third person. From the time
of such meeting, FHC shall be free to contact any customer of TAG and
TAG shall use its best endeavors to assist FHC in arranging contacts
with any such person concerned.
22. RELATIONSHIP OF THE PARTIES
------------ -- --- -------
22.01 FHC and TAG agree that the relationship between them shall be that of
independent contractor. TAG shall not assume any obligations, nor make any
representations, on behalf of FHC or its associated companies nor bind
them in any manner whatsoever. TAG is not the agent or partner of FHC or
its associated companies. Nothing in this Agreement shall affect TAG's
freedom to select the prices at, and terms on which, it resells the
Distributed Product.
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23. ASSIGNMENT
----------
23.01 TAG may not assign in whole or in part any of its rights under this
Agreement or any rights arising from any individual contract for the
purchase of the Distributed Product.
23.02 FHC shall be entitled to assign its rights under this Agreement to a
successor to substantially all of the assets of FHC or the conduct of the
business of FHC in the Territory without the prior consent of TAG.
Any assignment by FHC shall be subject to the terms and conditions of this
Agreement.
24. NOTICES
-------
24.01 Notices shall be in writing sent to FHC and TAG at their respective
addresses first set forth above, or to such other address as may from time
to time (by notice to the other party) be designated, and notices shall be
deemed to have been duly given;
(a) on the date of delivery if delivered by hand;
(b) by facsimile transmission, (FHC at 000-000-0000 and TAG at
949-855-0810) provided that confirmed copy is mailed within 48 hours
following transmission as provided herein; or
(c) 10 days after the date of posting if sent by registered mail.
In proving service by post, it shall be sufficient to prove the envelope
containing the notice was properly addressed, stamped and posted.
25. ENTIRE AGREEMENT
------ ---------
25.01 This Agreement contains all the terms of the Agreement between FHC and TAG
in respect of the Product, and supersedes all previous representations,
negotiations, arrangements and agreements. The headings in this Agreement
are for convenience of reference only.
25.02 Any variation of this Agreement shall be effective only if agreed or
confirmed in writing and signed by both parties to this Agreement and the
intention to amend this Agreement is clearly expressed.
25.03 The invalidity of any provision in this Agreement shall not effect the
continuing enforceability of the remaining provisions.
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25.04 All rights and remedies expressly granted to the parties are cumulative
and do not affect any other rights or remedies which the respective
parties may otherwise have at law.
26. WAIVER
------
26.01 The waiver of any right by either party shall not be construed as a waiver
of the same right at a future date or as waiver of any other right.
27. APPLICABLE LAW
---------------
27.01 This Agreement shall be governed by and interpreted under the laws of the
State of Illinois. The parties hereby submit to the exclusive jurisdiction
of the courts for the State of Illinois, including federal courts, the
determination of any question or dispute arising in connection with this
Agreement or any contract for the sale of the Product.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by its duly authorized officer as of the day and year first above written.
THE FEMALE HEALTH COMPANY TOTAL ACCESS GROUP, INC.
By ____________________________ By _________________________
Name: Xxxx Xxx Xxxxxx, Ph.D. Name:
Title: President Title:
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APPENDIX A
Definition of Product(s):
Tubular prophylactic plastic barrier device for protection against transfer of
infectious matter and against pregnancy during sexual intercourse.
15
APPENDIX B
Territory:
Alaska
Arizona
California
Colorado
Hawaii
Idaho
Montana
Nevada
New Mexico
Oklahoma
Oregon
Texas
Utah
Washington
Wyoming
00
XXXXXXXX X
Xxxxx Xxxx:
Class Registration No.
----- -----------------
fc female condom 10 Serial No. 76040657
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APPENDIX D
PLAN SUMMARY FOR THE MARKETING AND SALE OF THE FEMALE CONDOM
Summary:
The market for The Female Condom can be successfully increased through meeting
goals in the following areas:
1) Servicing the customer
2) Effective Communication
3) Custom Packaging
4) Pricing
5) Marketing which incorporates Education and Program Development
Goals:
1) Service Goal: TAG's number one priority is the quality of service to
customers.
a) Inventory: To meet sales and service goals, TAG must maintain sufficient
quantities of inventory to support customer's
orders.
b) All orders received by 1pm are shipped the same day.
c) All calls from customer or product inquiries are returned the same day.
2) Communication Goal: Create emphasis in all marketing and communication that
educates the users of the benefits of
the Female Condom.
a) Maintain inventory of relevant educational materials to make available to
customers.
b) Look for and identify opportunities for FHC to train and educate new buyers
about the Female Condom including
conferences, presentations, educational video, other venues and possible
press releases.
c) Create "educational" marketing focus with emphasis on advantages of using the
Female Condom as an alternative
choice for women.
3) Custom Packaging Goal: Maintain inventory in bulk case sizes that make Female
Condoms accessible to all public
sector customers
a) Case of 1000
b) Bag of 100
c) Smaller quantities of condoms to be made available as requested by any
customer.
d) Safer sex kit. TAG has a standard Safe Sex kit that customers can purchase
preassembled that has (3) Female
Condoms (3) lubricants, and (1) Female Condom information flyer, all packed
into a 4x6 clear plastic resealable bag.
This is a premade kit for Non-profit customers that allows customers to have
them delivered ready to pass out.
Fourteen different kits of various condom/lubricant configurations exist.
4) Pricing Goal: Maintain public sector pricing levels without substantial
discounting.
a) State and County Contracts: Add Female Condoms to each of the West region's
state and local health department
contracts.
b) Mid size orders: rather than a formal bid, many organizations often negotiate
prices when they are making
a purchase of 5,000 units or more.
c) Small orders: TAG's customers order off their price list.
5) Marketing Goal: Execute marketing plan and strategy to support expansion in
the various public sector market
segments. This will be accomplished by aggressively marketing the Female
Condom to all public sector organizations
in the Western U.S. involved in family planning and STD/HIV prevention work.
Public Sector Market Segments for The Female Condom include the following
categories:
1) State, County, and Local Health Departments
2) Family Planning Clinics
3) Women's Health Programs
4) Education and Prevention Programs
5) HIV Counseling and Testing Sites
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6) Aids Case Management Programs
a) Telemarketing campaign: Push sales through telemarketing. Ensure we have
correct buyer identified and cultivate as
many personal relationships as possible. This aspect of marketing will be
utilized to sell strengths of the Female
Condom and find out what needs to be done to compete. This is to be executed
in concert with a mail campaign.
b) Mail campaign: TAG will provide all public sector entities in the Western
Region with Female Condom information (and
samples as appropriate) by the end of calendar year 2002. This will be done
in a focused state by state process.
c) Trade Show/Conference campaign: TAG to participate as a sponsor, exhibitor,
or in other capacities that are productive
to establish relationships with the public sector organizations. This is a
good forum to build awareness of female
condoms and spend face to face time with a large number of potential
customers. Many states do not
purchase directly but instead allocate funds to CBO's who in turn purchase
directly. Conferences are an effective
method of educating these grass root CBO's and Family Planning Buyers.
d) Education campaign: An educational component will be included in all Female
Condom marketing materials to educate
customers on the features and the benefits of choosing the Female Condom.
e) Internet campaign: TAG will utilize the Internet as a means to expand Female
Condom sales.
Provide customers with access to information on Female Condoms.
Allow for ease of accepting orders from bulk customers that are web savvy
and prefer this method of ordering.
Provide safer-sex and prevention information via documents posted or hot
link to other educational sites.
Register with national/federal and other agencies where possible as a source
for Female Condoms.
Additionally, FHC's website, email, telephone, fax and address will be
listed.
00
XXXXXXXX X
Details of FHC's and TAG's product liability insurances:
(to be provided)
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APPENDIX F
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