EXHIBIT 10.6
MARKETING AND DISTRIBUTION AGREEMENT
between
Diamed Medizintechnik ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (DIAMED)
and
Occulogix, Inc., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Occulogix)
WHEREAS:
DIAMED has developed a device for the therapy of blood-and blood plasma for
various indications. The device is marketed under the trademarks Octo Nova and
Octo Therm which are registered in various countries. DIAMED owns all property
and marketing rights world wide for Octo Nova/Octo Therm and its future
developments. MESYS has engineered and produces Octo Nova/Octo Therm exclusively
on orders from DIAMED. For each Octo Nova/Octo Therm produced, DIAMED receives
compensation for amortization of development cost from MESYS. MESYS is the
manufacturer of Octo Nova/Octo Therm according to the European quality
standards, especially MDD and MPG. Agreements between DIAMED and MESYS provide
that only DIAMED is allowed to decide on production and marketing of the Octo
Nova/Octo Therm.
Occulogix desires to distribute Octo Nova/Octo Therm in its territory.
SECTION 1 PURPOSE OF AGREEMENT
The sole purpose of this agreement is to define the rights of Occulogix to
distribute Octo Nova/Octo Therm in its territory.
SECTION 2 PRODUCT
Product is the Octo Nov/Octo Term and its further developments during the life
of this agreement.
SECTION ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ is: USA, Canada, Mexico, Caribbean.
SECTION 4 DISTRIBUTION RIGHTS, NON-COMPETITION CLAUSE
On the basis of this agreement, DIAMED permits Occulogix to enter into an
agreement with MESYS to purchase the product directly from MESYS and to market
and distribute it in the territory as an independent distributor.
This permission does not include any right for Occulogix to produce the product
or have produced the product by any third party.
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Occulogix commits itself to purchase, market and distribute the product as it is
exclusively produced by MESYS.
With the exception of machine Model PP-04 (ATI) and Plasmatic (Kimal) Occulogix
commits itself to not market and distribute other devices, neither directly nor
indirectly in the territory which compete with the product or have a similar
application.
Occulogix shall enter into an agreement with MESYS for the production and
purchasing of products (hereafter "the Production Contract"). DIAMED is not
responsible whatsoever for the execution of obligations under such agreement,
namely and not limited to deliveries, warranties, product properties and product
liabilities.
SECTION 5 EXCLUSIVITY, TRADEMARKS, PRODUCT CHANGES, OBLIGATIONS OF
DISTRIBUTION, MINIMUM QUANTITIES
1. (a) With this agreement, Occulogix acquires the exclusive rights to
market and distribute the product in the territory. The marketing
and distribution of the product, neither directly or indirectly
outside of the territory is not permitted.
(b) Occulogix has the right and the obligation to distribute the product
under the trademarks Octo Nova/Octo Therm. Any registration of
trademarks in connection with the product in the territory must be
approved by DIAMED in advance. Any cost involved is born by
Occulogix. Upon termination of this marketing agreement, all rights
associated with the product have to be transferred to DIAMED without
compensation.
(c) Occulogix has the right to request product changes by MESYS at his
expense. Any product change however, must be approved by DIAMED in
writing and in advance.
(d) For the duration of this agreement, the rights on such product
changes are passed over to the financing Occulogix with validity for
its territory only. Upon termination of the agreement, all such
rights are to be transferred to DIAMED without compensation. The
rights for all other territories pass over to DIAMED immediately
when developed and without compensation.
2. Occulogix commits itself to undertake all possible and tolerable efforts
to market and distribute the product optimally. Such obligations begin
immediately with this contract coming into effect.
3. Occulogix is obliged to promote the product in its territory with a
reasonable and to the most effective extent by exhibitions,
advertising-and sales activities or similar, appropriate action.
4. In the case that Occulogix falls short of fulfilling the annual minimum
quantities agreed upon in the production agreement with MESYS for two
successive years, DIAMED is entitled to terminate this marketing agreement
with 3 months notice or, upon the sole choice of DIAMED, to revise it to
the effect that Occulogix shall not anymore be entitled
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to the exclusive marketing and distribution of the product in its
territory. Any such termination or alteration has to be performed in
writing by registered mail.
In the case that is agreement does not begin with a calendar year, twelve months
from the date of effectiveness shall be considered as one year.
SECTION 6 LICENSE FEE
Occulogix is obliged to pay to DIAMED an annual license fee for the use of the
exclusive rights in the amount of E3.000,-. It is payable within the first
month of each year in the sense of Section 5.4. In case that it is not paid in
due time and also is not paid within 60 days after receipt of a formal letter of
caution, Section 5.4 will become effective.
SECTION 7 TERM OF AGREEMENT, TERMINATION
1. This agreement has a term of three (3) years from the date of
effectiveness. It will become initially effective upon the effective date
of the Production Contract between Occulogix and MESYS. The agreement
terminates at that time without requiring specific termination. Any
extension of this agreement must be agreed upon expressively in advance
and in writing.
2. This agreement can be terminated anytime by extraordinary termination due
only to important reason. Important reasons are especially:
(a) Breach of essential regulations of this agreement by the other
party, provided that it is not corrected within 60 days after
receipt of a formal letter of caution.
(b) If the other party shall file a petition on bankruptcy, or shall be
adjudicated a bankrupt, or shall become insolvent, or shall make an
assignment for the benefit of creditors, or shall be voluntarily or
involuntarily dissolved or shall have a receiver, trustee or other
court officer appointed for its property.
(c) Termination of the production agreement between DIAMED and MESYS.
(d) Termination of the distribution agreement between MESYS and
Occulogix.
3. Termination of this agreement does not relieve either party from the
execution of obligations entered into including any payment.
SECTION 8 REGISTRATION
1. The Product has been registered and CE-marked within the EU-states for use
according to the written documentation and instructions. The Product may
only be operated in accordance to the instructions.
2. The Product is not registered outside the EU-states. In case that such a
registration or similar authorisation should be required, Occulogix
commits itself to cooperate with MESYS in such a way that a registration
or similar authorisation outside the EU-states
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will be accomplished. Also in this area, DIAMED has no responsibilities.
Any cost occurring are to be born by Occulogix.
SECTION 9 LIABILITY
DIAMED is liable only for its intellectual property rights and its marketing
rights on the product. DIAMED will not be liable whatsoever, neither for the
execution of agreements between Occulogix and MESYS nor for the quality or other
properties of the product. In so far, all and any claims must be dealt with
directly between Occulogix and MESYS.
In particular, DIAMED is not liable that a Production Contract will be entered
into with MESYS. Such agreement shall be negotiated directly among Occulogix and
MESYS.
In the case that a damage to Occulogix should develop by action or omission on
the part of DIAMED and should this case be based on violation of contractual
obligations, DIAMED shall be liable only for actions of intent and gross
negligence. Any further liability is excluded.
SECTION 10 PLACE OF EXECUTION, PLACE OF JURISDICTION, GOVERNING LAW
For any disputes from this agreement, the place of Execution and Place of
Jurisdiction shall be Cologne (Koln), Germany. German Law shall govern.
SECTION 11 MISCELLANEOUS
1. The parties are in agreement that neither verbal nor written supplementary
agreements besides this one have been made. Alterations and additions of
this agreement are only valid if agreed in writing between the parties.
Such requirement cannot be cancelled.
2. In the case that certain regulations of this agreement should be void,
this will not influence the effectiveness of the agreement in total. In
such case, the parties commit themselves to replace the void regulation by
an effective regulation which comes closest to the economic purpose of the
void regulation.
3. This marketing agreement has been drawn up in German and English language.
However, in case of contradictions or differences among these two
versions, only the German version is of binding nature.
Place/Date _______________________
/s/ Hans Stock
___________________________________ _____________________________________
DIAMED Occulogix
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