SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ( Agreement ) is made and entered into as of this
1st day of December, 1996, by and between ▇▇▇▇▇▇▇▇▇▇ LABORATORIES,
INC., a Texas corporation ("▇▇▇▇▇▇▇▇▇▇"), and SUCO INTERNATIONAL
CORP., a Florida corporation ("Suco").
W I T N E S S E T H :
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ 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 the listed countries in Latin America (defined in
Article 1 hereof as the Territory ); and
WHEREAS, Suco is desirous of distributing such products in the
Territory and is willing and able to provide a competent distribution
organization in each country in the Territory, and Suco desires to be
▇▇▇▇▇▇▇▇▇▇'▇ exclusive sales distributor for such products in the
Territory;
NOW, THEREFORE, the Parties hereto, in consideration of the
premises and mutual covenants and undertakings herein contained, agree
as follows:
Article 1. Definitions
1.1 As used in this Agreement, the following terms shall have
the meanings specified in this Article 1.1:
(a) "Products" shall mean the wound and skin care products
manufactured by or for ▇▇▇▇▇▇▇▇▇▇ set forth on Exhibit A
hereto. ▇▇▇▇▇▇▇▇▇▇ will provide a ninety (90) day notice
to Suco on its intent to add or discontinue Products to
Exhibit A. Suco shall be granted a ninety (90) day right
of first refusal for new products ▇▇▇▇▇▇▇▇▇▇ may develop
or license from third parties. If the ▇▇▇▇▇▇▇▇▇▇ and Suco
cannot agree on terms and conditions for such products
within that time, ▇▇▇▇▇▇▇▇▇▇ shall be free to distribute
or sell said products to anyone in the Territory,
provided, however, ▇▇▇▇▇▇▇▇▇▇ shall not accept terms less
favorable than offered by Suco.
(b) "Territory" shall mean the following countries: Dominican
Republic, Haiti, Colombia, Venezuela, Uruguay, Bolivia,
Peru, Paraguay, Ecuador.
(c) Parties shall mean ▇▇▇▇▇▇▇▇▇▇ and Suco and Party shall
mean either of them as the context indicates.
(d) Know-how shall mean secret and substantial technical and
scientific information regarding the Products, which may
be necessary, useful or advisable to enable Suco 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 ▇▇▇▇▇▇▇▇▇▇ has delivered or will
deliver to Suco after execution of this Agreement.
(e) Registration shall mean any official approval, or
authorization, or licensing regarding the Products by the
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 ▇▇▇▇▇▇▇▇▇▇ Trademarks, trade
names, service marks, logos and derivatives thereof
relating to the Products. Said Trademarks and other
required Registrations shall be obtained by Suco at
▇▇▇▇▇▇▇▇▇▇ s sole expense with ownership exclusively
retained by ▇▇▇▇▇▇▇▇▇▇.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
▇▇▇▇▇▇▇▇▇▇ hereby appoints Suco as ▇▇▇▇▇▇▇▇▇▇'▇ exclusive sales
distributor in the Territory for the sale of Products, and Suco hereby
accepts such appointment. As sales distributor in the Territory, Suco
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 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
agrees to (a) make and maintain all declarations, filings, and
Registrations with, and obtain all approvals and authorizations from,
governmental and regulatory authorities required to be made or
obtained in connection with the promotion, marketing, sale or
distribution of the Products in the Territory, (b) devote its best
efforts to the diligent promotion, marketing, sale and distribution of
the Products in each country in the Territory, (c) provide and
maintain a competent and aggressive organization for the promotion,
marketing, sale and distribution of the Products in each country in
the Territory, (d) assure competent and prompt handling of inquiries,
orders, shipments, ▇▇▇▇▇▇▇▇ and collections, and returns of or with
r e s p ect to the Products and careful attention to customers
requirements for all Products, and (e) promptly assign back to
▇▇▇▇▇▇▇▇▇▇ any product Registrations in the Territory upon termination
of Agreement.
2.3 D u ring the term of this Agreement, Suco shall be
considered an independent contractor and shall not be considered a
partner, employee, agent or servant of ▇▇▇▇▇▇▇▇▇▇. As such, Suco has
no authority of any nature whatsoever to bind ▇▇▇▇▇▇▇▇▇▇ or incur any
liability for or on behalf of ▇▇▇▇▇▇▇▇▇▇ or to represent itself as
anything other than a sales distributor and independent contractor.
Suco 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 ▇▇▇▇▇▇▇▇▇▇.
2.4 Nothing in this Agreement shall be construed as giving
Suco any right to use or otherwise deal with the Know-how for purposes
other than those expressly provided for in this Agreement.
2.5 S u co shall promptly inform ▇▇▇▇▇▇▇▇▇▇ of any
misappropriation of the Know-how which comes to its attention. After
having dicsussed such situaiton with Suco, ▇▇▇▇▇▇▇▇▇▇ shall have sole
and absolute discretion to take such action as it deems appropriate.
Suco, at its sole expense, if Suco has intentionally or negligently
allowed such Know-how to be disclosed or misappropriated shall assist
▇▇▇▇▇▇▇▇▇▇ in taking legal action, if deemed necessary, against such
misappropriation.
2.6 All costs and expenses connected with Suco's activities or
performance under this Agreement are to be borne solely by Suco.
Article 3. Certain Performance Requirements
3.1 Suco agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the
Territory for ultimate use within the Territory. Suco 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 ▇▇▇▇▇▇▇▇▇▇ that Suco is in compliance
with Article 3.1, Suco agrees that:
(a) Suco will send to ▇▇▇▇▇▇▇▇▇▇ monthly sales reports in a
mutually agreed upon format which set forth mutually
agreed upon items such as the number of units of each
Product sold;
(b) Suco will send to ▇▇▇▇▇▇▇▇▇▇ quarterly inventory reports
of the Products; and
(c) ▇▇▇▇▇▇▇▇▇▇ may ▇▇▇▇ for identification all Products sold
by ▇▇▇▇▇▇▇▇▇▇ to Suco hereunder.
3.3 Suco shall promptly provide ▇▇▇▇▇▇▇▇▇▇ with written
reports of any importation or sale of any of the Products in the
Territory if Suco has knowledge thereof from any source other than
▇▇▇▇▇▇▇▇▇▇, as well as with any other information which ▇▇▇▇▇▇▇▇▇▇ may
reasonably request in order to be updated on the market conditions in
the Territory.
3.4 Suco shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market
segments. Suco 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 Suco's
facilities shall be subject to inspection by ▇▇▇▇▇▇▇▇▇▇ or its agents
upon 72 hours written notice.
3.5 Suco 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 Suco of Products. Upon
written request from Suco, ▇▇▇▇▇▇▇▇▇▇ shall provide Suco 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 ▇▇▇▇▇▇▇▇▇▇
to Suco. All Products shall be labeled, advertised, marketed, sold
and distributed by Suco 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. Suco shall
pay all expenses associated with (i) any alterations to the packaging
and labeling of the Products which deviate from Carrington's standard
packaging materials, designs, methods 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 Suco shall not make any alterations or permit any
alterations to be made to the Products, except as mutually agreed to
in Section 3.6 above..
3.8 S u c o shall be responsible for complying with all
a p p l icable laws, regulations and requirements concerning the
Registration, inventory, use, promotion, distribution and sale of the
Products in the Territory. Suco shall assume full responsibility for
the Registration filing, inventory, use, promotion, distribution and
sale of the Products in the Territory and correspondingly for any
damage, claim, liability, loss or expense which Suco may suffer or
i n cur by reason of said Registration filing, inventory, use,
promotion, distribution and sale and shall hold ▇▇▇▇▇▇▇▇▇▇ harmless
from any claim resulting therefrom being directed against ▇▇▇▇▇▇▇▇▇▇
by any third party. Provided, however, ▇▇▇▇▇▇▇▇▇▇ warrants and
represents that the products supplied by ▇▇▇▇▇▇▇▇▇▇ to Suco shall
conform to ▇▇▇▇▇▇▇▇▇▇'▇ standards and specifications and that if any
claim or demand is made for damages or liability resulting from the
product, raw material and active ingredients, if any, contained
therein, or industrial property rights pertaining thereto, except as
hereinbelow stated, ▇▇▇▇▇▇▇▇▇▇ shall be solely responsible for such
claims or demands and shall hold Suco harmless therefore.
In the event that, following delivery of the Product to Suco, the
Product is improperly transported or stored, is mishandled, becomes
contaminated or is otherwise damaged through no fault of ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ shall be solely responsible for any claim or demand made in
regard to the Product.
3.9 Suco agrees not to make, or permit any of its employees,
agents or representatives to make, any claims of any properties or
results relating to any Product, unless such claims have received
written approval from ▇▇▇▇▇▇▇▇▇▇ or from the applicable governmental
authorities.
3.10 Suco shall not use any label, advertisement or marketing
material on or with respect to or relating to any Product unless such
label, advertisement or marketing material has first been submitted to
and approved by ▇▇▇▇▇▇▇▇▇▇ in writing.
3.11 Suco will actively and aggressively promote, develop
demand for and maximize the sale of the Products to all customers and
potential customers within the Territory. Suco 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 ▇▇▇▇▇▇▇▇▇▇, any competitive wound care, or
incontinence care product.
3.12 Suco represents that its books, records and accounts
pertaining to all its operations hereunder associated with ▇▇▇▇▇▇▇▇▇▇
products or sales are complete and accurate in all material respects
and have been maintained in accordance with sound and generally
accepted accounting principles. Suco's auditor shall deliver to
▇▇▇▇▇▇▇▇▇▇, 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. ▇▇▇▇▇▇▇▇▇▇ shall have the right to
have such books, records, and accounts examined, at its expense, by a
qualified accountant nominated by ▇▇▇▇▇▇▇▇▇▇.
Article 4. Sale of Products by ▇▇▇▇▇▇▇▇▇▇ to Suco
4.1 Subject to the terms and conditions of this Agreement,
including specifically Article 4.6 hereof, ▇▇▇▇▇▇▇▇▇▇ shall sell to
Suco the Products at a specified price for each Product (the "Contract
Price"). For orders placed by Suco 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) Suco shall provide in
writing to ▇▇▇▇▇▇▇▇▇▇ both a sales forecast and a purchase forecast
for the following 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 12-month period of the term.
4.2 A s c onsideration for its appointment as a sales
distributor entitled to a Product discount, Suco agrees to purchase
from ▇▇▇▇▇▇▇▇▇▇, during each 12-month period of the term of this
Agreement, commencing with the 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 12-
month period of the term of this Agreement, the Specified Minimum
Purchase Amount for each country shall be waived. The Specified
Minimum Purchase Amounts for each subsequent 12-month period shall be
determined by mutual agreement of the Parties no later than thirty
(30) days prior to the beginning of such period based on Suco's
reasonable, good faith projections of future sales growth and such
other factors as the Parties may deem relevant.
4.3 Suco shall order Products by submitting a purchase order
to ▇▇▇▇▇▇▇▇▇▇ describing the type and quantity of the Products to be
purchased. All orders are subject to acceptance by ▇▇▇▇▇▇▇▇▇▇. All
purchases shall be spaced in a reasonable manner. If ▇▇▇▇▇▇▇▇▇▇
accepts the order, ▇▇▇▇▇▇▇▇▇▇ will invoice Suco upon shipment of the
Products. Unless otherwise agreed, Suco shall pay all invoices in
full within 120 days of the date of invoice. Suco 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 ▇▇▇▇▇▇▇▇▇▇ shall not be obligated to ship Products to Suco
at any time when payment of an amount owed by Suco is overdue or when
Suco 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
▇▇▇▇▇▇▇▇▇▇, unless by mutual consent of the Parties. Purchase Orders
will be non-cancelable. Suco will issue to ▇▇▇▇▇▇▇▇▇▇ on a monthly
basis, a twelve (12) month rolling forecast so that ▇▇▇▇▇▇▇▇▇▇ may
incorporate said forecasts in to is planning system. The triggering
document for production activities is, however, the Purchase Order, as
stated above. ▇▇▇▇▇▇▇▇▇▇ will guarantee delivery dates for Product
quantities that vary up to 20% above the last monthly rolling forecast
issued prior to the Purchase Order placed by Suco. Variation above
twenty percent (20%) shall be discussed between the Parties and
▇▇▇▇▇▇▇▇▇▇ will use reasonable best efforts to maintain delivery dates
requested by Suco.
4.6 All shipments of Products to Suco will be packaged in
accordance with ▇▇▇▇▇▇▇▇▇▇'▇ standard packaging procedures and shipped
per ▇▇▇▇▇▇▇▇▇▇'▇ existing distribution policy. All Contract Prices
are F.O.B., (invoice price includes seller's expense for delivery to
Miami or any other named destination) ▇▇▇▇▇▇▇▇▇▇'▇ facility, Dallas,
Texas. Ownership of and title to Products and all risks of loss with
respect thereto shall pass to Suco upon delivery of such Products by
▇▇▇▇▇▇▇▇▇▇ to the carrier at the designated delivery (F.O.B.) point.
Deliveries of Products shall be made by ▇▇▇▇▇▇▇▇▇▇ under normal trade
conditions in the usual and customary manner being utilized by
▇▇▇▇▇▇▇▇▇▇ at the time and location of the particular delivery.
4.7 ▇▇▇▇▇▇▇▇▇▇ shall use its reasonable best efforts to ensure
availability of all Products ordered by Suco 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 Suco, 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 ▇▇▇▇▇▇▇▇▇▇ accepts liability for defective Products and
agrees to replace such defective Products should they occur with new
Products. ▇▇▇▇▇▇▇▇▇▇ carries liability insurance and is willing to
have Suco added as a covered Party under this policy. Except as may
be expressly stated by ▇▇▇▇▇▇▇▇▇▇ on the Product or on ▇▇▇▇▇▇▇▇▇▇'▇
packaging, or in ▇▇▇▇▇▇▇▇▇▇'▇ information accompanying the Product, at
t h e time of shipment to Suco hereunder, ▇▇▇▇▇▇▇▇▇▇ MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE
PRODUCTS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ▇▇▇▇▇▇▇▇▇▇
NEITHER ASSUMES NOR AUTHORIZES ANYONE TO ASSUME FOR IT ANY OBLIGATION
OR LIABILITY IN CONNECTION WITH THE PRODUCTS. Suco shall not make any
representation or warranty with respect to the Products that is more
extensive than, or inconsistent with, the limited warranty set forth
in this Article 4.8 or that is inconsistent with the policies or
publications of ▇▇▇▇▇▇▇▇▇▇ relating to the Products.
SUCO'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER IS
THE DELIVERY BY ▇▇▇▇▇▇▇▇▇▇ OF ADDITIONAL QUANTITIES OF THE PRODUCTS IN
REPLACEMENT OF THE NON-CONFORMING PRODUCTS OR THE REFUND OF THE
CONTRACT PRICE FOR THE PRODUCTS THAT ARE COVERED BY THE WARRANTY, AT
SUCO'S OPTION. ▇▇▇▇▇▇▇▇▇▇ SHALL HAVE NO OTHER OBLIGATION OR LIABILITY
FOR DAMAGES TO SUCO 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.
SUCO SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS ▇▇▇▇▇▇▇▇▇▇ AND
▇▇▇▇▇▇▇▇▇▇ 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 SUCO OR ANY OTHER PARTY, (ii) ANY
BREACH BY SUCO OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS
UNDER THIS AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF
SUCO OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND
SUCO S AUTHORIZATION GRANTED HEREIN.
4.9 Credits for defective Products to Suco shall include
importation and shipment expenses and will be calculated by ▇▇▇▇▇▇▇▇▇▇
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 five
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 ▇▇▇▇▇▇▇▇▇▇ shall have the absolute right to terminate this
Agreement if Suco 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 Suco, Suco understands and agrees
that it shall be in material breach of this Agreement, and ▇▇▇▇▇▇▇▇▇▇
shall have the right to terminate this Agreement under this Article
5.2, if:
(i) Suco fails or refuses to pay to ▇▇▇▇▇▇▇▇▇▇ any sum
when due;
(ii) Suco breaches any provision of Article 2.2, 3.1,
3.5, 3.7, 3.9, 4.2, 4.8, 6 or 7; or
(iii) S u co fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period provided,
however, if governmental actions such as public price changes or
similar limitations prevent the Specified Minimum Purchase
Amount from being achieved for that particular country the
Specified Minimum Purchase Amounts shall be revised on mutually
agreeable terms.
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
b a n k ruptcy, 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 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
12-month period of the term for the particular country under
discussion.
5.5 During the one-year period following termination of this
Agreement, any inventory of Products held by Suco at the termination
of this Agreement may be sold by Suco 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 Suco's performance obligations and ▇▇▇▇▇▇▇▇▇▇'▇ rights shall
remain in effect. In order to accelerate the liquidation of any such
inventory, ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ to Suco,
including importation and shipping.
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/Registration
6.1 All ▇▇▇▇▇▇▇▇▇▇ Trademarks, Registrations (Sanitary or
otherwise) 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
▇▇▇▇▇▇▇▇▇▇ or its affiliates. The Products shall be promoted, sold
and distributed only under the Trademarks. ▇▇▇▇▇▇▇▇▇▇ hereby grants
Suco permission to use the Trademarks for the limited purpose of
performing its obligations under this Agreement. ▇▇▇▇▇▇▇▇▇▇ may, in
i t s sole discretion after consultation with Suco, modify or
discontinue the use of any Trademark and/or use one or more additional
or substitute marks or names, and Suco shall be obligated to do the
same.
6.2 ▇▇▇▇▇▇▇▇▇▇'▇ Trademarks should appear on all Products
packaging, labels, and inserts and other materials which Suco uses for
the marketing of the Products in such form and manner as ▇▇▇▇▇▇▇▇▇▇
shall reasonably require. ▇▇▇▇▇▇▇▇▇▇ 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
Suco's actual use thereof.
6.3 Suco agrees to use the Trademarks in full compliance with
the rules prescribed from time to time by ▇▇▇▇▇▇▇▇▇▇. The Trademarks
shall always be used together with the sign[TM] or the sign TM. Suco
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, Suco may not use any Trademark in connection with the sale
of any unauthorized product or service or in any other manner not
explicitly authorized in writing by ▇▇▇▇▇▇▇▇▇▇.
6.4 In the event of any known infringement of, or threatened
or presumed infringement of, or challenge to Suco's use of any
Trademark or of any Suco trademark, Suco is obligated to notify
▇▇▇▇▇▇▇▇▇▇ immediately. Suco 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. In its own name
and at its expense, ▇▇▇▇▇▇▇▇▇▇ shall have sole and absolute discretion
to take such action relative to its Trademark as it deems appropriate.
6.5 In the event of the termination of this Agreement for any
reason, Suco's right to use the Trademarks shall cease, and Suco shall
cease using such Trademarks at such time as Suco's inventory of
Products has been sold. Suco shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of Suco and any of the advertising of Suco used in
connection with the Products.
6.6 In the event of a breach or threatened breach by Suco of
the provisions of this Article 6, ▇▇▇▇▇▇▇▇▇▇ shall be entitled to an
injunction or injunctions to prevent such breaches. Nothing herein
shall be construed as prohibiting ▇▇▇▇▇▇▇▇▇▇ from pursuing other
remedies available to it for such breach or threatened breach of this
Article 6, including the recovery of damages from Suco.
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 ▇▇▇▇▇▇▇▇▇▇ or to be transferred from Suco to ▇▇▇▇▇▇▇▇▇▇ for use in
connection with the marketing and sale of the Products; it being
agreed, however, that ▇▇▇▇▇▇▇▇▇▇ retains the right to ultimately
determine what such alternative Trademark shall be used. provided it
is not confusingly similar to a Trademark owned by Suco in the
Territory.
6.8 Nothing in this Agreement shall be construed as giving
Suco the right to use the Trademark outside the Territory or for any
other product than the Products.
Article 7. Confidential Information
7.1 Suco recognizes and acknowledges that Suco might have
access to confidential information and trade secrets of ▇▇▇▇▇▇▇▇▇▇ and
other entities doing business with ▇▇▇▇▇▇▇▇▇▇ relating to research,
development, manufacturing, marketing, financial and other business-
related activities ("Confidential Information"). Such Confidential
Information constitutes valuable, special and unique property of
▇▇▇▇▇▇▇▇▇▇ and/or other entities doing business with ▇▇▇▇▇▇▇▇▇▇.
Other than as is necessary to perform the terms of this Agreement,
Suco shall not, during and after the term of this Agreement, make any
use of such Confidential Information, or disclose any of such
C o n fidential Information to any person or firm, corporation,
association or other entity, for any reason or purpose whatsoever,
e x c e pt as specifically allowed in writing by an authorized
representative of ▇▇▇▇▇▇▇▇▇▇. In the event of a breach or threatened
breach by Suco of the provisions of this Article 7, ▇▇▇▇▇▇▇▇▇▇ shall
be entitled to an injunction restraining Suco from disclosing and/or
using, in whole or in part, such Confidential Information. Nothing
herein shall be construed as prohibiting ▇▇▇▇▇▇▇▇▇▇ from pursuing
other remedies available to it for such breach or threatened breach of
this Article 7, including the recovery of damages from Suco. For
purposes of this paragraph the term "confidential information" shall
include and be limited to, information disclosed by ▇▇▇▇▇▇▇▇▇▇ to Suco
that was not:
1) know to Suco at the time of such disclosure acquired
from a source other than ▇▇▇▇▇▇▇▇▇▇,
2) at the time of disclosure or thereafter known to or
available to the public, or
3) disclosed to Suco in good faith by another party
legally entitled to disclose such information who does not, in
turn, require Suco to keep the information confidential.
7.2 Suco shall not disclose the existence of this Agreement or
any of the terms herein without the prior written consent of
▇▇▇▇▇▇▇▇▇▇.
Article 8. Force Majeure
8.1 Neither Suco nor ▇▇▇▇▇▇▇▇▇▇ 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,
d r ought, 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 Suco or ▇▇▇▇▇▇▇▇▇▇'▇ 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
P a r t i es 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 N e i ther this Agreement nor any of the rights or
obligations of Suco hereunder shall be transferred or assigned by Suco
without the prior written consent of ▇▇▇▇▇▇▇▇▇▇, executed by a duly
authorized officer of ▇▇▇▇▇▇▇▇▇▇.
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) ▇▇▇▇▇▇▇▇▇▇ at: ▇▇▇▇▇▇▇▇▇▇ Laboratories, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; Attention: President, or
at such other address as ▇▇▇▇▇▇▇▇▇▇ shall have theretofore
furnished in writing to Suco. (Fax No. ▇▇▇-▇▇▇-▇▇▇▇)
(b) Suco at: Suco International Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: President,
or at such other address as Suco shall have theretofore
furnished in writing to ▇▇▇▇▇▇▇▇▇▇. (Fax No. 954-927-
8822)
Article 14. Waiver
14.1 Neither Suco's nor ▇▇▇▇▇▇▇▇▇▇'▇ 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 Suco s nor
▇▇▇▇▇▇▇▇▇▇'▇ 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 E x cept 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
therefor in writing within six months after the conclusion of the
presentation of evidence and oral or written argument, or within such
longer period as the Parties may agree upon in writing. The decision
of the arbitrators shall be final and binding upon the Parties.
Judgment upon the award rendered may be entered in any court having
jurisdiction over the person or the assets of the Party owing the
judgment or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the case may
be. Unless otherwise determined by the arbitrator, each Party
involved in the arbitration shall bear the expense of its own counsel,
experts and presentation of proof, and the expense of the arbitrator
and the ICC (if any) shall be divided equally among the Parties to the
arbitration.
Article 16. Exhibits
A n y 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 the essence,
and U.S. dollars shall be the currency of account in all events. All
payments to be made by Suco to ▇▇▇▇▇▇▇▇▇▇ hereunder shall be made
either (i) in immediately available funds by confirmed wire transfer
to a bank account to be designated by ▇▇▇▇▇▇▇▇▇▇ or (ii) in the form
of a bank cashier's check payable to the order of ▇▇▇▇▇▇▇▇▇▇.
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.
▇▇▇▇▇▇▇▇▇▇ LABORATORIES, INC.
By:
Name:
Title:
SUCO INTERNATIONAL CORP.
By:
Name:
Title:
EXHIBIT A
SUCO INTERNATIONAL CORP.
PRODUCT
NO. PRODUCT NAME PRICE
-------- ----------------------------------------- -------
WOUND CARE
101005 ▇▇▇▇▇▇▇▇▇▇ CARRASYN HYDROGEL WOUND $2.40
DRESSING, 1/2 oz. tube
101010 ▇▇▇▇▇▇▇▇▇▇ CARRASYN HYDROGEL WOUND $5.34
DRESSING, 1 oz. tube
101030 ▇▇▇▇▇▇▇▇▇▇ CARRASYN HYDROGEL WOUND $6.80
DRESSING, 3 oz. tube
101080 ▇▇▇▇▇▇▇▇▇▇ CARRASYN HYDROGEL WOUND $20.00
DRESSING, (spray gel),8 oz. bottle
101025 ▇▇▇▇▇▇▇▇▇▇ CARRASYN V (VISCOUS) $3.16
HYDROGEL WOUND DRESSING, 1/2 oz. tube
101002 ▇▇▇▇▇▇▇▇▇▇ CARRASYN V (VISCOUS) $1.78
HYDROGEL WOUND DRESSING, 1 oz. sachet
101023 ▇▇▇▇▇▇▇▇▇▇ CARRASYN V (VISCOUS) $4.25
HYDROGEL WOUND DRESSING, 3 oz. tube
101017 ▇▇▇▇▇▇▇▇▇▇ CARRAGAUZE , 2"x 2" pads $1.40
101015 ▇▇▇▇▇▇▇▇▇▇ CARRAGAUZE , 4"x 4" pads $2.40
102060 ▇▇▇▇▇▇▇▇▇▇ CARRAKLENZ WOUND & SKIN $4.05
CLEANSER, 6 oz. pump
102062 ▇▇▇▇▇▇▇▇▇▇ CARRAKLENZ WOUND & SKIN $5.62
CLEANSER, 8 oz. spray
102160 ▇▇▇▇▇▇▇▇▇▇ CARRAKLENZ WOUND & SKIN $7.40
CLEANSER, 16 oz. spray
INCONTINENCE CARE PRODUCTS
104004 ▇▇▇▇▇▇▇▇▇▇ MOISTURE BARRIER CREAM, $0.40
0.4 oz. packet
104040 ▇▇▇▇▇▇▇▇▇▇ MOISTURE BARRIER CREAM, $3.06
3.5 oz. tube
ENVIRONMENTAL PRODUCTS
107010 ▇▇▇▇▇▇▇▇▇▇ CARRASCENT Odor $1.58
Eliminator, 1 oz. bottle
*Introductory Price Only - Subject to Change