Representations and Warranties of Distributor. DISTRIBUTOR represents and warrants to WOLF GUARD, acknowledging that WOLF GUARD is relying upon such representations and warranties in connection with its entering into this Agreement, as follows: DISTRIBUTOR is a valid subsisting corporation incorporated pursuant to the laws of ____; DISTRIBUTOR has all requisite power and authority to execute and deliver this Agreement and has all necessary power and authority to perform the obligations of DISTRIBUTOR as set out herein; the entering into of this Agreement will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which DISTRIBUTOR may be a party; the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of DISTRIBUTOR and this Agreement, when duly executed and delivered by DISTRIBUTOR, will constitute a legal and binding obligation of DISTRIBUTOR enforceable in accordance with its terms; the performance by DISTRIBUTOR of all its obligations hereunder, including the sale of the Product, will be conducted in compliance with all applicable laws in the Territory; and DISTRIBUTOR possesses a readily available and extensive sales network in the Territory. The Product will be marketed and sold by DISTRIBUTOR solely under the Trade-marks. DISTRIBUTOR will not alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any Trade-marks, logos, trade names or trading style of WOLF GUARD) and other indications of origin, which may be placed on Product. DISTRIBUTOR acknowledges that WOLF GUARD is the exclusive owner of the Trade-marks and DISTRIBUTOR has no right, title or interest whatsoever in the Trade-marks and any goodwill association therewith and that all goodwill associated with the Trade-marks is owned by and shall enure exclusively to and for the benefit of WOLF GUARD. Furthermore, DISTRIBUTOR agrees not to represent in any manner that it has acquired any ownership rights in the Trade-marks. Any goodwill enjoyed by DISTRIBUTOR from use of the Trade-marks shall vest in and become the absolute property of WOLF GUARD and DISTRIBUTOR undertakes and agrees, at the request and expense of WOLF GUARD, whether before or after termination of this Agreement, to execute all such instruments and to do all such acts and things as may be necessary and desirable to vest absolutely in WOLF GUARD all such Trade-marks and the goodwill therein. DISTRIBUTOR shall, during the Term of this Agreement and subject to due compliance with the provisions of this Article XII, have the right to use and display WOLF GUARD’s Trade-Marks and copyrighted material in the Territory solely in connection with the marketing, sale, distribution and support of the Product in such Territory in accordance with the terms of this Agreement and, except as may be otherwise permitted in writing by WOLF GUARD, for no other purpose whatsoever. It is the responsibility of DISTRIBUTOR to ensure that the packaging materials for Product are in conformity with all applicable legislation in the Territory. In connection with the foregoing, DISTRIBUTOR covenants and agrees as follows: to market, distribute and support the Product only under the Trade-marks, and not under any other trade-▇▇▇▇ or logo of any other Person; to obtain from WOLF GUARD written approval for all promotional material, alternative product packaging including, without limitation, blister packaging and cartons, and to comply with all instructions issued by WOLF GUARD relating to the form and manner in which WOLF GUARD’s Trade-marks shall be used and to discontinue forthwith, upon notice from WOLF GUARD, any practice relating to the use of WOLF GUARD’s Trade-marks which in WOLF GUARD’s opinion would or might adversely affect the rights or interests of WOLF GUARD in such Trade-marks; to conduct business in a manner that reflects favourably at all times on the Product and reputation of WOLF GUARD in order to develop, promote and maintain same with customers and to protect and preserve the goodwill and image of WOLF GUARD and the Product; not to use or permit any entity controlled by it or affiliated with it to use the Trade-marks or any other trade-marks or trade names or trade dress of WOLF GUARD or any trade-marks, trade dress, words, names, symbols, or designs which could reasonably be expected to be considered confusingly similar thereto, as part of its corporate or trading name or style, or on any of its products; not to infringe WOLF GUARD’s rights in and to any of the Trade-marks and not to dispute, contest, attack or impair the validity or ownership of the Trade-marks or do any act which tends to impair the validity of the Trade-marks or the title of WOLF GUARD to any Trade-marks, trade names, copyrights and registrations used in connection with the Product, nor to effect any applications or registrations thereof without the express written consent of WOLF GUARD, and not to take any action to the detriment of WOLF GUARD’s interest therein or which would or could dilute the value of the goodwill attaching to the Trade-marks; not to effect or permit the removal, renewal or alteration of any Trade-marks, trade names, notices, name plates, or D.I.N.’s or NPN’s or serial numbers affixed to any of the Product or its packaging; to impose similar conditions on any Representatives or affiliated companies of DISTRIBUTOR to those set out in this Article XII and to take such action as WOLF GUARD may require at any time in respect to the use by any other Person of WOLF GUARD’s Trade-marks. DISTRIBUTOR shall provide prompt notice to WOLF GUARD of any claims, allegations, actions and demands that the marketing and/or distribution of the Product infringes or may infringe the intellectual property rights of any other Person and once such notice has been duly given, WOLF GUARD shall have full carriage of any resulting action and DISTRIBUTOR shall extend its full co-operation to WOLF GUARD in the defence by WOLF GUARD of any such claim, action or demand. DISTRIBUTOR shall immediately report to WOLF GUARD any actual or potential infringements of the Trade-marks or any matter which may give rise to any infringement of the Trade-marks, or any imitation of Product of which DISTRIBUTOR is or may become aware, and DISTRIBUTOR shall co-operate with WOLF GUARD in protecting such Trade-marks and Product from any such infringement. DISTRIBUTOR shall not initiate any protective action with respect to the Trade-marks or Product without prior written authorization of WOLF GUARD. Upon termination of this Agreement for any reason whatsoever, DISTRIBUTOR shall discontinue forthwith all use of WOLF GUARD’s Trade-marks and trade names, and DISTRIBUTOR shall return to WOLF GUARD all price lists, catalogues, sales literature, advertising literature and all other materials relating to the Product or Confidential Information in DISTRIBUTOR’s possession or over which it has control. DISTRIBUTOR agrees that the provisions of this Article XII are reasonable having regard to the necessity of WOLF GUARD to protect its ownership rights in the Trade-marks and that any breach of the terms contained in this Article XII shall be deemed a material breach of this Agreement and in addition to any other remedies which may be available to it, WOLF GUARD shall be entitled to enforce its rights hereunder by specific performance or other injunctive or equitable relief so as to protect all its rights in and to its Trade-marks.
Appears in 1 contract
Sources: Distribution Agreement
Representations and Warranties of Distributor. DISTRIBUTOR represents and warrants to WOLF GUARD, acknowledging that WOLF GUARD is relying upon such representations and warranties in connection with 11.1 In performing its entering into obligations under this Agreement, as follows: DISTRIBUTOR is a valid subsisting corporation incorporated pursuant to the laws of ____; DISTRIBUTOR has all requisite power and authority to execute and deliver this Agreement and has all necessary power and authority to perform the obligations of DISTRIBUTOR as set out herein; the entering into of this Agreement will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which DISTRIBUTOR may be a party; the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of DISTRIBUTOR and this Agreement, when duly executed and delivered by DISTRIBUTOR, will constitute a legal and binding obligation of DISTRIBUTOR enforceable in accordance with its terms; the performance by DISTRIBUTOR of all its obligations hereunder, including the sale of the Product, will be conducted in compliance Distributor shall comply with all applicable laws in the Territory; and DISTRIBUTOR possesses a readily available and extensive sales network in the Territory. The Product will be marketed and sold by DISTRIBUTOR solely under the Trade-marks. DISTRIBUTOR will not alterregulations, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any Trade(A) federal and state pharmacy laws and regulations, laws and regulations relating to the dispensing and/or disposal of pharmaceutical products and hazardous wastes (to the extent disposal of Product is Distributor’s responsibility under this Agreement); (B) laws and regulations relating to the prohibition of off-markslabel promotion; and (C) the Social Security Act, logosand as applicable, trade names or trading style of WOLF GUARDthe federal healthcare anti-kickback statute at Section 1128(B)(b) and other indications its implementing regulations (42 C.F.R. Section 1001.952(h)), in furtherance but not limitation of origin, which may be placed on Product. DISTRIBUTOR acknowledges that WOLF GUARD is the exclusive owner of the Trade-marks and DISTRIBUTOR has no right, title or interest whatsoever in the Trade-marks and any goodwill association therewith and that all goodwill associated with the Trade-marks is owned by and shall enure exclusively to and for the benefit of WOLF GUARD. Furthermore, DISTRIBUTOR Distributor agrees not to represent in any manner that it has acquired will fully and accurately account for, and report, any ownership rights in the Trade-marks. Any goodwill enjoyed by DISTRIBUTOR from use of the Trade-marks shall vest in and become the absolute property of WOLF GUARD and DISTRIBUTOR undertakes and agrees, at the request and expense of WOLF GUARD, whether before or after termination of this Agreement, to execute all such instruments and to do all such acts and things as may be necessary and desirable to vest absolutely in WOLF GUARD all such Trade-marks and the goodwill therein. DISTRIBUTOR shall, during the Term of this Agreement and subject to due compliance with the provisions of this Article XII, have the right to use and display WOLF GUARD’s Trade-Marks and copyrighted material in the Territory solely in connection with the marketing, sale, distribution and support of the Product in such Territory discounts received in accordance with the terms of this Agreement andin compliance with all applicable federal, state and local laws and regulations, and Distributor shall comply with all applicable professional and industry standards and good business practices.
11.2 Distributor shall not take any action which would reasonably be anticipated to materially adversely affect its standing or that of Pharmacyclics in the industry or with respect to Product Participant base or which would undermine the image of Product.
11.3 Distributor represents and warrants that it now has and shall maintain in full force during the term of this Agreement all federal and state pharmacy, wholesaler and other licenses or approvals required for Distributor to fulfill its obligations under this Agreement, except that Distributor shall not be required to maintain its licenses in any state which amends its laws and regulations to require an in-state pharmacy presence as may be a requirement for licensing if the new requirement would materially increase the costs incurred by Distributor in performing its obligations under this Agreement.
11.4 Distributor shall not use the trademarks or tradenames of Pharmacyclics except to the extent contained in Product literature provided by Pharmacyclics and on Product labels or as otherwise permitted approved in writing by WOLF GUARD, for no other purpose whatsoever. It is Pharmacyclics.
11.5 Distributor represents that it has the responsibility of DISTRIBUTOR authority to ensure that the packaging materials for Product are in conformity with all applicable legislation in the Territory. In connection with the foregoing, DISTRIBUTOR covenants and agrees as follows: to market, distribute and support the Product only under the Trade-marks, and not under any other trade-▇▇▇▇ or logo of any other Person; to obtain from WOLF GUARD written approval for all promotional material, alternative product packaging including, without limitation, blister packaging and cartons, and to comply with all instructions issued by WOLF GUARD relating to the form and manner in which WOLF GUARD’s Trade-marks shall be used and to discontinue forthwith, upon notice from WOLF GUARD, any practice relating to the use of WOLF GUARD’s Trade-marks which in WOLF GUARD’s opinion would or might adversely affect the rights or interests of WOLF GUARD in such Trade-marks; to conduct business in a manner that reflects favourably at all times on the Product and reputation of WOLF GUARD in order to develop, promote and maintain same with customers and to protect and preserve the goodwill and image of WOLF GUARD and the Product; not to use or permit any entity controlled by it or affiliated with it to use the Trade-marks or any other trade-marks or trade names or trade dress of WOLF GUARD or any trade-marks, trade dress, words, names, symbols, or designs which could reasonably be expected to be considered confusingly similar thereto, as part of its corporate or trading name or style, or on any of its products; not to infringe WOLF GUARD’s rights in and to any of the Trade-marks and not to dispute, contest, attack or impair the validity or ownership of the Trade-marks or do any act which tends to impair the validity of the Trade-marks or the title of WOLF GUARD to any Trade-marks, trade names, copyrights and registrations used in connection with the Product, nor to effect any applications or registrations thereof without the express written consent of WOLF GUARD, and not to take any action to the detriment of WOLF GUARD’s interest therein or which would or could dilute the value of the goodwill attaching to the Trade-marks; not to effect or permit the removal, renewal or alteration of any Trade-marks, trade names, notices, name plates, or D.I.N.’s or NPN’s or serial numbers affixed to any of the Product or its packaging; to impose similar conditions on any Representatives or affiliated companies of DISTRIBUTOR to those set out in this Article XII and to take such action as WOLF GUARD may require at any time in respect to the use by any other Person of WOLF GUARD’s Trade-marks. DISTRIBUTOR shall provide prompt notice to WOLF GUARD of any claims, allegations, actions and demands that the marketing and/or distribution of the Product infringes or may infringe the intellectual property rights of any other Person and once such notice has been duly given, WOLF GUARD shall have full carriage of any resulting action and DISTRIBUTOR shall extend its full co-operation to WOLF GUARD in the defence by WOLF GUARD of any such claim, action or demand. DISTRIBUTOR shall immediately report to WOLF GUARD any actual or potential infringements of the Trade-marks or any matter which may give rise to any infringement of the Trade-marks, or any imitation of Product of which DISTRIBUTOR is or may become aware, and DISTRIBUTOR shall co-operate with WOLF GUARD in protecting such Trade-marks and Product from any such infringement. DISTRIBUTOR shall not initiate any protective action with respect to the Trade-marks or Product without prior written authorization of WOLF GUARD. Upon termination of enter into this Agreement for any reason whatsoever, DISTRIBUTOR shall discontinue forthwith all use of WOLF GUARD’s Trade-marks and trade names, and DISTRIBUTOR shall return to WOLF GUARD all price lists, catalogues, sales literature, advertising literature and all other materials relating to the Product or Confidential Information in DISTRIBUTOR’s possession or over which it has control. DISTRIBUTOR agrees that the provisions of this Article XII are reasonable having regard to the necessity of WOLF GUARD to protect its ownership rights in the Trade-marks and that any breach of the terms contained in this Article XII shall be deemed a material breach its execution of this Agreement and in addition to its performance of its obligations hereunder will not conflict with and is not prohibited by any other remedies agreement to which may be available to it, WOLF GUARD shall be entitled to enforce its rights hereunder by specific performance or other injunctive or equitable relief so as to protect all its rights in and to its Trade-marksDistributor is a party.
Appears in 1 contract
Representations and Warranties of Distributor. DISTRIBUTOR represents and warrants to WOLF GUARDOWNER, acknowledging that WOLF GUARD OWNER is relying upon such representations and warranties in connection with its entering into this Agreement, as follows: DISTRIBUTOR is a valid subsisting corporation incorporated pursuant to the laws of ____; DISTRIBUTOR has all requisite power and authority to execute and deliver this Agreement and has all necessary power and authority to perform the obligations of DISTRIBUTOR as set out herein; the entering into of this Agreement will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which DISTRIBUTOR may be a party; the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of DISTRIBUTOR and this Agreement, when duly executed and delivered by DISTRIBUTOR, will constitute a legal and binding obligation of DISTRIBUTOR enforceable in accordance with its terms; the performance by DISTRIBUTOR of all its obligations hereunder, including the sale of the Product, will be conducted in compliance with all applicable laws in the Territory; and DISTRIBUTOR possesses a readily available and extensive sales network in the Territory. The Product will be marketed and sold by DISTRIBUTOR solely under the Trade-marks. DISTRIBUTOR will not alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any Trade-marks, logos, trade names or trading style of WOLF GUARDOWNER) and other indications of origin, which may be placed on Product. DISTRIBUTOR acknowledges that WOLF GUARD OWNER is the exclusive owner of the Trade-marks and DISTRIBUTOR has no right, title or interest whatsoever in the Trade-marks and any goodwill association therewith and that all goodwill associated with the Trade-marks is owned by and shall enure exclusively to and for the benefit of WOLF GUARDOWNER. Furthermore, DISTRIBUTOR agrees not to represent in any manner that it has acquired any ownership rights in the Trade-marks. Any goodwill enjoyed by DISTRIBUTOR from use of the Trade-marks shall vest in and become the absolute property of WOLF GUARD OWNER and DISTRIBUTOR undertakes and agrees, at the request and expense of WOLF GUARDOWNER, whether before or after termination of this Agreement, to execute all such instruments and to do all such acts and things as may be necessary and desirable to vest absolutely in WOLF GUARD OWNER all such Trade-marks and the goodwill therein. DISTRIBUTOR shall, during the Term of this Agreement and subject to due compliance with the provisions of this Article XII, have the right to use and display WOLF GUARDOWNER’s Trade-Marks and copyrighted material in the Territory solely in connection with the marketing, sale, distribution and support of the Product in such Territory in accordance with the terms of this Agreement and, except as may be otherwise permitted in writing by WOLF GUARDOWNER, for no other purpose whatsoever. It is the responsibility of DISTRIBUTOR to ensure that the packaging materials for Product are in conformity with all applicable legislation in the Territory. In connection with the foregoing, DISTRIBUTOR covenants and agrees as follows: to market, distribute and support the Product only under the Trade-marks, and not under any other trade-▇▇▇▇ or logo of any other Person; to obtain from WOLF GUARD OWNER written approval for all promotional material, alternative product packaging including, without limitation, blister packaging and cartons, and to comply with all instructions issued by WOLF GUARD OWNER relating to the form and manner in which WOLF GUARDOWNER’s Trade-marks shall be used and to discontinue forthwith, upon notice from WOLF GUARDOWNER, any practice relating to the use of WOLF GUARDOWNER’s Trade-marks which in WOLF GUARDOWNER’s opinion would or might adversely affect the rights or interests of WOLF GUARD OWNER in such Trade-marks; to conduct business in a manner that reflects favourably at all times on the Product and reputation of WOLF GUARD OWNER in order to develop, promote and maintain same with customers and to protect and preserve the goodwill and image of WOLF GUARD OWNER and the Product; not to use or permit any entity controlled by it or affiliated with it to use the Trade-marks or any other trade-marks or trade names or trade dress of WOLF GUARD OWNER or any trade-marks, trade dress, words, names, symbols, or designs which could reasonably be expected to be considered confusingly similar thereto, as part of its corporate or trading name or style, or on any of its products; not to infringe WOLF GUARDOWNER’s rights in and to any of the Trade-marks and not to dispute, contest, attack or impair the validity or ownership of the Trade-marks or do any act which tends to impair the validity of the Trade-marks or the title of WOLF GUARD OWNER to any Trade-marks, trade names, copyrights and registrations used in connection with the Product, nor to effect any applications or registrations thereof without the express written consent of WOLF GUARDOWNER, and not to take any action to the detriment of WOLF GUARDOWNER’s interest therein or which would or could dilute the value of the goodwill attaching to the Trade-marks; not to effect or permit the removal, renewal or alteration of any Trade-marks, trade names, notices, name plates, or D.I.N.’s or NPN’s or serial numbers affixed to any of the Product or its packaging; to impose similar conditions on any Representatives or affiliated companies of DISTRIBUTOR to those set out in this Article XII and to take such action as WOLF GUARD OWNER may require at any time in respect to the use by any other Person of WOLF GUARDOWNER’s Trade-marks. DISTRIBUTOR shall provide prompt notice to WOLF GUARD OWNER of any claims, allegations, actions and demands that the marketing and/or distribution of the Product infringes or may infringe the intellectual property rights of any other Person and once such notice has been duly given, WOLF GUARD OWNER shall have full carriage of any resulting action and DISTRIBUTOR shall extend its full co-operation to WOLF GUARD OWNER in the defence by WOLF GUARD OWNER of any such claim, action or demand. DISTRIBUTOR shall immediately report to WOLF GUARD OWNER any actual or potential infringements of the Trade-marks or any matter which may give rise to any infringement of the Trade-marks, or any imitation of Product of which DISTRIBUTOR is or may become aware, and DISTRIBUTOR shall co-operate with WOLF GUARD OWNER in protecting such Trade-marks and Product from any such infringement. DISTRIBUTOR shall not initiate any protective action with respect to the Trade-marks or Product without prior written authorization of WOLF GUARDOWNER. Upon termination of this Agreement for any reason whatsoever, DISTRIBUTOR shall discontinue forthwith all use of WOLF GUARDOWNER’s Trade-marks and trade names, and DISTRIBUTOR shall return to WOLF GUARD OWNER all price lists, catalogues, sales literature, advertising literature and all other materials relating to the Product or Confidential Information in DISTRIBUTOR’s possession or over which it has control. DISTRIBUTOR agrees that the provisions of this Article XII are reasonable having regard to the necessity of WOLF GUARD OWNER to protect its ownership rights in the Trade-marks and that any breach of the terms contained in this Article XII shall be deemed a material breach of this Agreement and in addition to any other remedies which may be available to it, WOLF GUARD OWNER shall be entitled to enforce its rights hereunder by specific performance or other injunctive or equitable relief so as to protect all its rights in and to its Trade-marks.
Appears in 1 contract
Sources: Distribution Agreement