SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this
4th day of December, 1996, by and between XXXXXXXXXX LABORATORIES,
INC., a Texas corporation ("Xxxxxxxxxx"), and XXXXXX LABORATORIOS S/A,
a Brazilian corporation ("Xxxxxx").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxx is engaged in the business of manufacturing,
selling and distributing certain medical devices and is desirous of
establishing a competent and exclusive distribution source for sales of
such products in Brazil (defined in Article 1 hereof as the
Territory ); and
WHEREAS, Xxxxxx is desirous of marketing and distributing such
products in the Territory, represents that it has experience in
obtaining registration of medical devices in the Territory, is well
introduced in the market, is willing and able to provide a competent
marketing and distribution organization in the Territory, and Xxxxxx
desires to be Xxxxxxxxxx'x marketer, seller and distributor for such
products in the Territory, as will have the option to locally fill and
pack some of the Xxxxxxxxxx'x products, according to the conditions and
restrictions stipulated in Article 3.7.
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) "Products" shall mean the wound and skin care products
manufactured by or for Xxxxxxxxxx set forth on Exhibit A
hereto. Xxxxxxxxxx will provide a ninety (90) day notice
to Xxxxxx on its intent to add or discontinue Products to
Exhibit A.
(b) "Territory" shall mean the following countries: Brazil and
the limited right of first refusal for specified Products
listed on Exhibit A for the Mercosul countries: Argentina,
Uruguay, Paraguay and Chile. Xxxxxxxxxx shall present any
offer it receives for any particular country and Products,
and Xxxxxx shall have thirty (30) days to meet or exceed
that offer by sending a written acceptance to Xxxxxxxxxx.
If Xxxxxx is unable to respond accordingly, then that
country and Products shall be free from any obligation to
Xxxxxx by Xxxxxxxxxx.
(c) "Parties" shall mean Xxxxxxxxxx and Xxxxxx and Party
shall mean either of them as the context indicates.
(d) "Know-how" shall mean secret and proprietary technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable Xxxxxx to obtain
the Registration of, 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 Xxxxxx prior to execution of this Agreement.
(e) "Registration" shall mean any official approval, or
authorization, or licensing regarding the Products by all
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) "Trademarks" shall mean all Xxxxxxxxxx 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 Xxxxxx as Xxxxxxxxxx'x marketer, sales
distributor in the Territory for the sale of Products, and Xxxxxx
hereby accepts such appointment. As marketer, sales distributor in the
Territory, Xxxxxx 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.
2.2 In a manner reasonably satisfactory to Xxxxxxxxxx, and at
Xxxxxx'x sole expense, Xxxxxx agrees to (a) devote its best efforts to
the diligent promotion, marketing, sale and distribution of the
Products in the Territory, (b) provide and maintain a competent and
aggressive organization for the promotion, marketing, sale and
distribution of the Products in the Territory, (c) assure competent and
prompt handling of inquiries, orders, shipments, xxxxxxxx and
collections, and returns of or with respect to the Products and careful
attention to customers requirements for all Products, and (d) promptly
assign back to Xxxxxxxxxx any product Registrations in the Territory
upon termination of Agreement. Xxxxxxxxxx agrees, at its sole expense,
to direct Xxxxxx to make and maintain all agreed upon 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. Provided,
however, Xxxxxxxxxx at its sole option, has the absolute right to
determine at any time that any such requirements mentioned above are
uneconomic and not justified relative to the benefits Xxxxxxxxxx
anticipates receiving and, therefore, may not be required to accept
further expenses. For the first five years Xxxxxxxxxx agrees to pay up
to $10,000.00 for two products during the first five years for
registration expenses for Products classified as "drugs" and up to
$1,000.00 per product per five year period for products classified as
medical devices.
2.3 During the term of this Agreement, Xxxxxx shall be
considered an independent contractor and shall not be considered a
partner, employee, agent or servant of Xxxxxxxxxx. As such, Xxxxxx 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.
Xxxxxx 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
Xxxxxx any right to use or otherwise deal with the Know-how for
purposes other than those expressly provided for in this Agreement.
2.5 Xxxxxx shall promptly inform Xxxxxxxxxx of any
misappropriation of the Know-how which comes to its attention. After
having dicsussed such situaiton with Xxxxxx, Xxxxxxxxxx shall have sole
and absolute discretion to take such action as it deems appropriate and
Xxxxxx, at its sole expense, shall reasonably assist Xxxxxxxxxx in
taking legal action, if deemed necessary, against such
misappropriation.
2.6 All costs and expenses connected with Xxxxxx'x activities
or performance under this Agreement are to be borne solely by Xxxxxx.
Article 3. Certain Performance Requirements
3.1 Xxxxxx agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. Xxxxxx 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.
3.2 In order to assure Xxxxxxxxxx that Xxxxxx is in compliance
with Article 3.1, Xxxxxx agrees that:
(a) Xxxxxx will send to Xxxxxxxxxx quarterly sales reports
which set forth the number of units 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) Xxxxxx will send to Xxxxxxxxxx quarterly inventory reports
of the Products; and
(c) Xxxxxxxxxx may xxxx for identification all Products sold by
Xxxxxxxxxx to Xxxxxx hereunder.
3.3 Xxxxxx shall promptly provide Xxxxxxxxxx with written
reports of any importation or sale of any of the Products in the
Territory of which Xxxxxx 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 Xxxxxx shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
Xxxxxx shall maintain all its inventory of Products clearly segregated
and meeting all storage and other standards required by applicable
governmental authorities. All such inventory and Xxxxxx'x facilities
shall be subject to inspection by Xxxxxxxxxx or its agents upon 72
hours written notice.
3.5 Xxxxxx 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 Xxxxxx of Products. Upon
written request from Xxxxxx, Xxxxxxxxxx shall provide Xxxxxx 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 delivered by Xxxxxxxxxx
to Xxxxxx for a period of at least six (6) months after the execution
of this Agreement, after which, Xxxxxx may exercise its option to
locally fill and pack some of the Products, subject to the requirements
outlined in Article 3.7 of this Agreement. All Products shall be
labeled, advertised, marketed, sold and distributed by Xxxxxx 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. Xxxxxx shall pay all increased
expenses associated with (i) any requested alterations to the standard
packaging and labeling costs of the Products which deviate from
Carrington's standard packaging materials, designs, methods costs
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 Xxxxxx has the option to fill and pack some of the Products
in its manufacturing plant, provided Xxxxxxxxxx'x process and products
specifications are met, the operation is in compliance with the
required Good Manufacturing Practices and as per Xxxxxxxxxx'x periodic
audits of Xxxxxx'x designated areas for the production, storage and
distribution of such Products, quality systems and pertinent
documentation as well as corroboration of assay and test results of
packaging components and finished goods in periodic basis. This
Article is further limited by the obligations stated in Article 3.9
below.
3.8 Xxxxxx shall not make any alterations or permit any
alterations to be made to the Products except as specifically provided
herein.
3.9 Xxxxxx shall be responsible for complying with all
applicable laws, regulations and requirements contained in the
Registration, or concerning inventory, use, promotion, filling,
packing, distribution and sale of the Products in the Territory while
such Products are in its custody. Xxxxxx shall assume full
responsibility for the Registration, inventory, promotion, filling,
packing, distribution and sale of the Products in the Territory and
correspondingly for any damage, claim, liability, loss or expense which
Xxxxxx may suffer or incur by reason of said Registration, inventory,
promotion, distribution and sale and shall hold Xxxxxxxxxx harmless
from any claim resulting therefrom being directed against Xxxxxxxxxx by
any third party.
3.10 Xxxxxx 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 other than those according to the
registration, unless such claims have received written approval from
Xxxxxxxxxx or from the applicable governmental authorities.
3.11 Xxxxxx 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 except as provided for in Article
3.10 above, such labels, advertisements or marketing materials which
need not be submitted for approval if they are in accordance with all
governmental regulations.
3.12 Xxxxxx will actively and aggressively promote, develop
demand for and maximize the sale of the Products to all customers and
potential customers within the Territory. Xxxxxx agrees not to
manufacture, promote, market, sell or distribute to any customers or
potential customers in the Territory without ninety (90) days written
notice to and approval from Xxxxxxxxxx, any competitive wound care,
skin care, or incontinence care product other than Xxxxxx s existing
products.
3.13 Xxxxxx represents that its books, records and accounts
pertaining to all its operations hereunder are complete and accurate in
all material respects and have been maintained in accordance with sound
and generally accepted accounting principles. Xxxxxx'x auditor shall
deliver to Xxxxxxxxxx, in accordance with Article 13, at the end of
each 12-month period during the term of the Agreement, a declaration
that the accounts rendered are correct. Xxxxxxxxxx shall have the
right to have such books, records, and accounts examined, at its
expense, by a qualified accountant nominated by Xxxxxxxxxx with the
purpose of assuring compliance with the obligations as defined in
Article 3.2.
Article 4. Sale of Products by Xxxxxxxxxx to Xxxxxx
4.1 Subject to the terms and conditions of this Agreement,
including specifically Article 4.6 hereof, Xxxxxxxxxx shall sell to
Xxxxxx the Products at a specified price for each Product (the
"Contract Price"). For orders placed by Xxxxxx 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) Xxxxxx shall provide
in writing to Xxxxxxxxxx both a sales forecast and a purchase forecast
for the following twelve (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 twelve (12)month period of
the term. During any twelve (12) month period Xxxxxxxxxx reserves the
right to change its Contract Price for each Product for the next
(twelve) 12 month period.
4.2 As consideration for its appointment as a marketer, seller
and distributor entitled to a Product discount, Xxxxxx agrees to
purchase from Xxxxxxxxxx, during each twelve (12) month period of the
term of this Agreement following the effective date of each Products
registration acceptance, commencing with the twelve (12) month period
beginning _____________, 19__ through ___________, 19__, 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 twelve (12) month period of the term of this
Agreement, there will be no Specified Minimum Purchase Amount however
Xxxxxx commits to do its best effort to generate purchase from
Xxxxxxxxxx for $200,000 of Products in the first twelve (12) month
period of this Agreement. The Specified Minimum Purchase Amounts for
each subsequent twelve (12) month period shall be determined by mutual
agreement of the Parties no later than 30 days prior to the beginning
of such period based on the Parties reasonable, good faith projections
of future sales growth and such other factors as the Parties may deem
relevant.
4.3 Xxxxxx shall order Products by submitting a purchase order
to Xxxxxxxxxx describing the type and quantity of the Products to be
purchased. All orders exceeding the limits referred to in Articles 4.2
and 4.5 are subject to acceptance by Xxxxxxxxxx. All purchases shall
be spaced in a reasonable manner. If Xxxxxxxxxx accepts the order,
Xxxxxxxxxx will invoice Xxxxxx upon shipment of the Products. Unless
otherwise agreed, Xxxxxx shall pay all invoices in full within ninety
(90) days of the date of invoice. Xxxxxx 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
Xxxxxx at any time when payment of an amount owed by Xxxxxx is overdue
or when Xxxxxx 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 be scheduled prior to ninety (90) days after the date the
Purchase Order is received and acknowledged in writing by Xxxxxxxxxx,
unless by mutual consent of the Parties. Purchase Orders will be non-
cancelable. Xxxxxx will issue to Xxxxxxxxxx on a monthly basis, a
twelve (12) month rolling forecast so that Xxxxxxxxxx may incorporate
said forecasts in to is 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 twenty percent (20%) above the last monthly rolling forecast
issued prior to the Purchase Order placed by Xxxxxx. Variation above
twenty percent (20%) shall be discussed between the Parties and
Xxxxxxxxxx will use its best efforts to maintain delivery dates
requested by Xxxxxx.
4.6 All shipments of Products to Xxxxxx will be packaged in
accordance with Xxxxxxxxxx'x standard packaging procedures and shipped
per Xxxxxxxxxx s 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, Dallas, Texas. Ownership of
and title to Products and all risks of loss with respect thereto shall
pass to Xxxxxx upon delivery of such Products by Xxxxxxxxxx to the
carrier 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 Xxxxxxxxxx shall use its reasonable best efforts to ensure
availability of all Products ordered by Xxxxxx 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 Xxxxxx, 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 Xxxxxxxxxx accepts liability for defective Products and
agrees to replace such defective Products should they occur with new
Products. Xxxxxxxxxx carries liability insurance and is willing to
have Xxxxxx added as a covered Party under this policy. 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 Xxxxxx 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. Xxxxxx 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
Xxxxxxxxxx relating to the Products.
XXXXXX'X 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
XXXXXX'X OPTION. XXXXXXXXXX SHALL HAVE NO OTHER OBLIGATION OR
LIABILITY FOR DAMAGES TO XXXXXX 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.
XXXXXX 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 BY XXXXXX OR ANY OTHER PARTY, (ii) ANY
BREACH BY XXXXXX OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS
UNDER THIS AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF
XXXXXX OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND
XXXXXX'X AUTHORIZATION GRANTED HEREIN.
4.9 Credits for defective Products to Xxxxxx 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.
Article 5. Term and Termination
5.1 The term of this Agreement shall be for a period of ten
(10) 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 5 and as expressly provided
elsewhere in this Agreement.
5.2 Xxxxxxxxxx shall have the absolute right to terminate this
Agreement if Xxxxxx 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 Xxxxxx, Xxxxxx 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) Xxxxxx fails or refuses to pay to Xxxxxxxxxx any sum
when due;
(ii) Xxxxxx breaches any provision of Article 2.2, 3.1,
3.5, 3.7, 3.9, 4.2, 4.8, 6 or 7; or 8
(iii) Xxxxxx 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 twelve (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 twelve (12) month period of the term.
5.5 During the one (1) year period following termination of
this Agreement, any inventory of Products held by Xxxxxx at the
termination of this Agreement may be sold by Xxxxxx 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 Xxxxxx'x 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 Xxxxxx, including importation and shipping plus ten
percent (10%)
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 15 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, are the
sole and exclusive property of Xxxxxxxxxx or its affiliates. The
Products shall be promoted, sold and distributed only under the
Trademarks. Xxxxxxxxxx hereby grants Xxxxxx 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 Xxxxxx, modify or discontinue the use of any
Trademark and/or use one or more additional or substitute marks or
names, and Xxxxxx shall be obligated to do the same.
6.2 Xxxxxxxxxx'x Trademarks should appear on all Products
packaging, labels, and inserts and other materials which Xxxxxx uses
for the marketing of the Products in such form and manner as Xxxxxxxxxx
shall reasonably require. Xxxxxxxxxx retains the right to review and
approve all intended uses of the Trademarks in any packaging
promotional or other materials relating to the Products prior to
Xxxxxx'x actual use thereof.
6.3 It shall be the sole responsibility of Xxxxxxxxxx, at its
sole expense, to keep in force and maintain the Trademarks in the
Territory by paying all necessary fees throughout the term of this
Agreement. Xxxxxx 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 [TM] or the sign
[R]. Xxxxxx 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, Xxxxxx 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 Xxxxxx'x use of any
Trademark or of any Xxxxxx trademark, Xxxxxx is obligated to notify
Xxxxxxxxxx immediately. Xxxxxx 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 with in 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, Xxxxxx 's right to use the Trademarks shall cease, and Xxxxxx
shall cease using such Trademarks at such time as Xxxxxx'x inventory of
Products has been sold. Xxxxxx shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of Xxxxxx and any of the advertising of Xxxxxx used in
connection with the Products.
6.6 In the event of a breach or threatened breach by Xxxxxx 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 Xxxxxx.
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 then be
also defined as Trademark for purposes of this Agreement) owned by
Xxxxxxxxxx or to be transferred from Xxxxxx 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 Xxxxxx in the
Territory.
6.8 Nothing in this Agreement shall be construed as giving
Xxxxxx the right to use the Trademark outside the Territory or for any
other product than the Products.
Article 7. Confidential Information
7.1 Xxxxxx recognizes and acknowledges that Xxxxxx will have
access to confidential information and trade secrets of Xxxxxxxxxx and
other entities doing business with Xxxxxxxxxx relating to research,
development, manufacturing, marketing, financial and other business-
related activities ("Confidential Information"). Such Confidential
Information constitutes valuable, special and unique property of
Xxxxxxxxxx and/or other entities doing business with Xxxxxxxxxx. Other
than as is necessary to perform the terms of this Agreement, Xxxxxx
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 Xxxxxxxxxx. In
the event of a breach or threatened breach by Xxxxxx of the provisions
of this Article 7, Xxxxxxxxxx shall be entitled to an injunction
restraining Xxxxxx from disclosing and/or using, in whole or in part,
such Confidential Information. Nothing herein shall be construed as
prohibiting Xxxxxxxxxx from pursuing other remedies available to it for
such breach or threatened breach of this Article 7, including the
recovery of damages from Xxxxxx. 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 Xxxxxx.
7.2 Xxxxxx shall not disclose the existence of this Agreement
or any of the terms herein without the prior written consent of
Xxxxxxxxxx.
Article 8. Force Majeure
8.1 Neither Xxxxxx 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 Xxxxxx 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 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 Xxxxxx hereunder shall be transferred or assigned by Xxxxxx 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 Xxxxxx. (Fax No. 000-000-0000)
(b) Xxxxxx at: Xxxxxx Laboratorios, S/A; Xxx Xxxxxxx xx Xxxxxx,
00 Botafogo, Rio De Janerio, Brazil RJ CEP 1-040,
Attention: Xxxxxx Xxxxxx Xxxxxx Xxxxxx, or at such other
address as Xxxxxx shall have theretofore furnished in
writing to Xxxxxxxxxx. (Fax No. 00-00-000-0000)
Article 14. Waiver
14.1 Neither Xxxxxx'x 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 Xxxxxx'x
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 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 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
therefore 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. Exhibits
Any and all exhibits referred to herein shall be considered
an integral part of this Agreement.
Article 17. No Inconsistent Actions
17.1 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 and 8 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 18. Currency of Account
18.1 This Agreement evidences a transaction for the sale of
goods in which the specification of U.S. dollars is of primary essence,
and U.S. dollars shall be the currency of account in all events. All
payments to be made by Xxxxxx 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 19. Binding Effect
19.1 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 first above written.
XXXXXXXXXX LABORATORIES, INC.
By:
Name:
Title:
XXXXXX LABORATORIOS S/A
By:
Name:
Title:
EXHIBIT A
XXXXXX LABORATORIES
PRODUCT
NO. PRODUCT NAME PRICE
------- -------------------------------------------- -------
WOUND CARE
101030 XXXXXXXXXX CARRASYN HYDROGEL WOUND $8.23
DRESSING, 3 oz. tube
101080 XXXXXXXXXX CARRASYN HYDROGEL WOUND $21.11
DRESSING, (spray gel),8 oz. bottle
101025 XXXXXXXXXX CARRASYN V (VISCOUS) HYDROGEL $2.99
WOUND DRESSING, 1/2 oz. tube
101023 XXXXXXXXXX CARRASYN V (VISCOUS) HYDROGEL $8.23
WOUND DRESSING, 3 oz. tube
101012 XXXXXXXXXX CARRAGAUZE STRIPS, 1/2" x 5 yds, $5.70
bottle
101009 XXXXXXXXXX CARRAGAUZE STRIPS, 1" x 5 yds, $6.68
bottle
101017 XXXXXXXXXX CARRAGAUZE , 2"x 2" pads $2.02
101015 XXXXXXXXXX CARRAGAUZE , 4"x 4" pads $2.92
102060 XXXXXXXXXX CARRAKLENZ WOUND & SKIN CLEANSER, $3.77
6 oz. pump
102160 XXXXXXXXXX CARRAKLENZ WOUND & SKIN CLEANSER, $8.51
16 oz. spray
101032 XXXXXXXXXX CARRASORB H CALCIUM ALGINATE $1.32
WOUND DRESSING, 2" x 2" pad
101033 XXXXXXXXXX CARRASORB H CALCIUM ALGINATE $2.85
WOUND DRESSING, 4" x 4" pad
101034 XXXXXXXXXX CARRASORB H CALCIUM ALGINATE $2.75
WOUND DRESSING, 12" rope
101035 XXXXXXXXXX CARRASORB M FREEZE-DRIED GEL $3.22
WOUND DRESSING, 4" diameter pad
101036 XXXXXXXXXX CARRAFILM TRANSPARENT FILM $0.91
DRESSING, 4" x 5" 1/2 sheet
101037 XXXXXXXXXX CARRAFILM TRANSPARENT FILM $1.98
DRESSING, 5" x 7" sheet
101038 XXXXXXXXXX CARRAFILM TRANSPARENT FILM $2.07
DRESSING, 6" x 6" sheet
EXHIBIT A
XXXXXX LABORATORIES
PRODUCT
NO. PRODUCT NAME PRICE
-------- -------------------------------------------- -------
101039 XXXXXXXXXX CARRAFILM TRANSPARENT FILM $0.26
DRESSING, 2 3/4" x 2 3/8" sheet
101040 XXXXXXXXXX CARRAFILM TRANSPARENT FILM $2.08
DRESSING, 8" x 10" sheet
101041 XXXXXXXXXX CARRAFILM TRANSPARENT FILM $1.85
DRESSING, 4" x 10" sheet
