EXHIBIT 4
SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the
Effective Date (as defined below) by and betwen ▇▇▇▇▇▇▇▇▇▇ LABORATORIES,
INC., a Texas corporation and ▇▇▇▇▇▇▇▇▇▇ LABORATORIES BELGIUM N.V., a
Belgium corporation, jointly (together hereinafter referred to as
"▇▇▇▇▇▇▇▇▇▇"), and HEMOPHARM GmbH, a German corporation (" hereinafter
referred to as "HEMOPHARM").
WINTNESSETH:
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ is engaged in the business of developing,
manufacturing, selling and distibuting certain pharmaceutical products
and medical devices and is desirious of establishing a competent and
exclusive distribution source for sales of such products in Federal
Republic of Yugoslavia (defined in Article I herefor as the Territory);
and
WHEREAS, HEMOPHARM is desirous of distributing such products in the
Territory, represents that it has experience in obtaining registration
of pharmaceutical preparations or productsand medical devices in the
Territory, is well introduced on the market, is willing and able to
provide are competent distribution organisation in the Territory, and
HEMOPHARM desires to be ▇▇▇▇▇▇▇▇▇▇'▇ 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) "Effective Date" shall mean the date of last signature of the
Parties hereto.
(b) "Know-how" shall mean secret and substantial tehnical and
scientific information regarding the Products, which may be necessary,
useful or advisable to enable HEMOPHARM 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 HEMOPHARM after the Effective Date and during the term
of this Agreement.
(c) "Parties" shall mean ▇▇▇▇▇▇▇▇▇▇ and HEMOPHARM and "Party"
shall mean either of them as the context indicates.
(d) "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 HEMOPHARM on its
intent to add or discontinue Products to Exhibit A.
(e) " R e g i stration" shall mean any official approval, or
autorization, 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) "Territory" shall mean the following countries: Federal
Republic of Yugoslavia.
(g) "Trademarks" shall mean all 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,
▇▇▇▇▇▇▇▇▇▇ hereby appoints HEMOPHARM as ▇▇▇▇▇▇▇▇▇▇'▇ exclusive sales
distributor in the Territory for the sale of Products, and HEMOPHARM
hereby accepts such appointment. As sales distributor in the Territory,
HEMOPHARM shall, subject to the terms and conditions of the Agreement,
have the right to submit the documentation for the Registration of,
promote, distribute and sell Products in the Territory, but shall have
no right to take any such action outside the Territory.
2.2. In a manner reasonably satisfactory to Carrington, Carrington
agrees to (a) make and maintain all declarations, filings, and
Registratins with, and obtain all approvals and authorization form,
governmental and regulatory authorities required to be made or obtained
in connection with promotion, marketing, sale or distribution of the
Products in the Territory at it's sole expense and HEMOPHARM agrees to
(b) devote its best efforts to the diligent promotion, marketing, sale
and organization of the Products in the Territory, (c) provide and
maintain a competent and aggressive organization for the promotion,
marketing, sale or distribution of the Products in the Territory, (d)
assure competent and prompt handling of inquiries, orders, shipments,
▇▇▇▇▇▇▇▇ and collections, and returns of or with respect to the Products
and careful attention to customers' requirements for all Products at
it's sole expense.
2.3. During the term of this Agreement, HEMOPHARM shall be
considered an agent of ▇▇▇▇▇▇▇▇▇▇.
2.4. Nothing in this Agreement shall be construed as giving
HEMOPHARM any right to use otherwise deal with the Know-how for purposes
other than those expressly provided for in this Agreement.
2.5. HEMOPHARM shall promptly inform ▇▇▇▇▇▇▇▇▇▇ of any
misappropriation of the Know-how which comes to its attention. After
having discussed such situation with HEMOPHARM, ▇▇▇▇▇▇▇▇▇▇ shall have
sole and absolute discretion to take such action as it deems appropriate
and HEMOPHARM shall reasonably assist ▇▇▇▇▇▇▇▇▇▇ in taking legal action,
if deemed necessary, against such misappropriation.
2.6. All costs and expenses connected with HEMOPHARM's activities
or performance under this Agreement are to be borne solely by HEMOPHARM.
Article 3. Certain Performance Requirements
3.1. HEMOPHARM agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within Territory. HEMOPHARM will not, under any
cicumstances, 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, except if otherwise agreed by the Parties.
3.2. In order to assure ▇▇▇▇▇▇▇▇▇▇ that HEMOPHARM is in compliance
with Article 3.1, HEMOPHARM agrees that:
(a) HEMOPHARM will send to ▇▇▇▇▇▇▇▇▇▇ quarterly sales reports
which set forth the number of units and sizes of each Product sold, the
net sales, the number of units of free medical samples distributed;
(b) HEMOPHARM will send to ▇▇▇▇▇▇▇▇▇▇ quarterly inventory reports
of the Products; and
(c) ▇▇▇▇▇▇▇▇▇▇ may ▇▇▇▇ for identification all Products sold by
▇▇▇▇▇▇▇▇▇▇ to HEMOPHARM hereunder.
3.3. HEMOPHARM shall promptly provide ▇▇▇▇▇▇▇▇▇▇ with written
reports of any importation or sale of any of the Products in the
Territory of which HEMOPHARM has knowledge 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. HEMOPHARM shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
HEMOPHARM 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 HEMOPHARM's
facilities shall be subject to inspection by ▇▇▇▇▇▇▇▇▇▇ or its agents
upon 72 hours written notice.
3.5. HEMOPHARM shall be reponsible for and shall collect all
governmental and regulatory sales and other taxes, charges and fess that
may be due and owing upon sales by HEMOPHARM of Products. Upon written
request from HEMOPHARM, ▇▇▇▇▇▇▇▇▇▇ shall provide HEMOPHARM 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
HEMOPHARM's consignement stock. All Products shall be labeled,
advertised, marketed, sold and distributed by HEMOPHARM 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. HEMOPHARM 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. HEMOPHARM shall not make any alterations or permit any to be
made to the Products without ▇▇▇▇▇▇▇▇▇▇'▇ written consent.
3.8. HEMOPHARM shall assume all responsibility for and comply
with all applicable laws, regulations and requirements concering the
Registration, inventory, use, promotion, distribution and sale of the
Products in the Territory and correspondingly, in case HEMOPHARM
operates otherwise, it shall hold ▇▇▇▇▇▇▇▇▇▇ harmels from any claim
resulting therefrom being directed against ▇▇▇▇▇▇▇▇▇▇ or HEMOPHARM by
any third party.
3.9. HEMOPHARM agrees not to make, or permit any of its employees,
agents or representative 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. HEMOPHARM shall not use 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 Carington in writing.
3.11. HEMOPHARM will actively and aggressively promote, develop
demand for and maximize the sale of the Products to all customers and
potential customers within the Territory. HEMOPHARM 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, skin
care, or incontinence care product, except the products already existing
in HEMOPHARM's Production programme and the ones being presently
developed by HEMOPHARM.
3.12. HEMOPHARM represents that its books, records and accounts
pertaining to all its operations hereunder are complete and acurate in
all material respects and have been maintained in accordance with sound
and generally accepted accouting principles. HEMOPHARM's auditor shall
deliver to ▇▇▇▇▇▇▇▇▇▇, in acordance with Article 14, at the end of each
12-month period during the term of the Agreement, a declaration that the
accounts rendered are correct.
Article 4 Registration of Products
4.1. It being understood that Registration is a prerequisite to
the lawful sale of the Products in the Territory, ▇▇▇▇▇▇▇▇▇▇ hereby
agrees to supply HEMOPHARM, promptly after the execution of this
Agreement, with any Know-how or relevant documentation necessary for
preparing the Registration dossier to be submitted to the aplicable
governmental authorities of the Territory.
4.2. It shall be the responsibility of ▇▇▇▇▇▇▇▇▇▇, at its sole
expense to apply for, obtain and maintain in force the Registration of
the Products. Subject to having obtained the prior approval of
▇▇▇▇▇▇▇▇▇▇, the application shall be submitted to all applicable
governmental authorities, including the health authorites of the
Territory and said application shall be in the name of ▇▇▇▇▇▇▇▇▇▇.
HEMOPHARM expressly acknowledges and agrees that the absolute and
exclusive ownership of the Regisrtation and all rights orginating out of
from the same shall at all times belong only and exclusively to
▇▇▇▇▇▇▇▇▇▇
4.3. As soon as HEMOPHARM has received Know-how from ▇▇▇▇▇▇▇▇▇▇,
HEMOPHARM shall prepare, at its sole expense, the Registration dossier
and submission and any shall promptly supply ▇▇▇▇▇▇▇▇▇▇ with a copy of
the said Registration dossier and submission and ▇▇▇▇▇▇▇▇▇▇ shall be
entitled to a free and unrestrained use of the same.
4.4. Subject to having obtained ▇▇▇▇▇▇▇▇▇▇'▇ written approval of
all such documentation and any subsequent amendments thereto, HEMOPHARM
shall, as soon as possible and in any case within sixty (60) days of
▇▇▇▇▇▇▇▇▇▇'▇ approval, submit the Registration application to the
appropriate authorities of the Territory.
4.5. HEMOPHARM shall use its best endeavors to obtain the
Registration as soon as possible.
4.6 HEMOPHARM shall copy and keep ▇▇▇▇▇▇▇▇▇▇ fully and timely
informed, throughout the term of this Agreement, of all communications
sent to or recived from all applicable governmental authorities,
including the health authorities, of the Therritory concerning the
Products.
4.7. ▇▇▇▇▇▇▇▇▇▇ guarantees that the supplied Know-how consists of
accurate and confirmed data posessed by ▇▇▇▇▇▇▇▇▇▇ and that the
Products have the characteristics described therein, but makes no
warranty that the supplied Know-now will necessarily result in the grant
of the Registration and HEMOPHARM shall have no claim against ▇▇▇▇▇▇▇▇▇▇
arising out of any delay or refusal by the authorities to issue the
Registration.
Article 5. Sale of Products by ▇▇▇▇▇▇▇▇▇▇ to HEMOPHARM
5.1. Subject to the terms ond conditions of this Agreement,
including specifically Article 5.7. herefor, ▇▇▇▇▇▇▇▇▇▇ shall sell to
HEMOPHARM the Products at a specified price for each Product (the
"Contract Price"). For orders placed by HEMOPHARM during the first 12-
month period of the term Agreement, the Contract Prices for the Products
listed Exhibit A are set forth on such exibit opposite each Product. At
least ninety (90) days prior to the end of each 12-month period of the
term of this Agreement, (a) HEMOPHARM 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. During any twelve
(12) month period ▇▇▇▇▇▇▇▇▇▇ reserves the right to change its Contract
Price for each Product.
5.2. As consideration for its appoinment as a sales distributor
entited to a Product discount, HEMOPHARM agrees to purchase from
▇▇▇▇▇▇▇▇▇▇, during each 12-month period of the term of this Agreement,
commencing with the 12-month period beginning _ december , 1997 , 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 Amounts shall be $ 200.000,. 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
HEMOPHARM's reasonable, good faith projections of future sales growth
and such other factors at the Parties may deem relevant.
5.2.A When and if ▇▇▇▇▇▇▇▇▇▇ decides to use the rights
stipulated under Articles 1.1/d, 5. or 5.7 of this Agreement in order to
delete or add the Products in the Exhibit A, or change the Contract
Price or doesn't deliver the Products in the ordered quantities,
contractual Parties shall in good faith determine the changes in the
Specified Minimum Purchase Amount from the Article 5.2 of this
Agreement.
5.3. HEMOPHARM shall order Products by submitting a purchase
order to ▇▇▇▇▇▇▇▇▇▇ describing the type and quantity of the Products to
be purchased. All orders are subjected to acceptance by ▇▇▇▇▇▇▇▇▇▇. All
purchases shall be spaced in a reasonable manner. If ▇▇▇▇▇▇▇▇▇▇ accepts
the order, ▇▇▇▇▇▇▇▇▇▇ will invoice HEMOPHARM upon shipment of the
Products. Unless otherwise agreed, HEMOPHARM shall pay all invoices in
full within sixty (60) days of the date of the statement issued by
HEMOPHARM describing the exact quantity and type of Products withdrawn
from the consignement stock. HEMOPHARM shall be solely responsible for
all costs in connection with affecting payments.
5.4. ▇▇▇▇▇▇▇▇▇▇ shall not be obligated to ship Products to
HEMOPHARM at any time when payment of an amount owed by HEMOPHARM is
ovrerdue or when HEMOPHARM is otherwise in breach of this Agreement.
5.5. 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 dates the
Purchase Order is received and acknowledged in writing by Seller, unless
by mutual consent of this parties Purchase Orders will be not-
concellable. HEMOPHARM will issue to ▇▇▇▇▇▇▇▇▇▇ on a monthly basis, a
twelve (12) month rolling forecast so that ▇▇▇▇▇▇▇▇▇▇ may incorporate
said forecasts into its 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 HEMOPHARM. Variation above 20% shall be
discussed between the Parties and ▇▇▇▇▇▇▇▇▇▇ will use its best efforts
to maintain delivery dates requested by HEMOPHARM.
5.6. All shipments of Products to HEMOPHARM's consignement stock
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 the named destination) ▇▇▇▇▇▇▇▇▇▇'▇ facility, Irving,
Texas. Ownership of and title to Products and all risks of loss with
respect thereto shall pass to HEMOPHARM upon delivery of such Products
and all risks of loss with respect thereto shall pass to HEMOPHARM upon
delivery of such Products by Charrington 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 being utilized by ▇▇▇▇▇▇▇▇▇▇ at the time and location of the
particular delivery.
5.7. ▇▇▇▇▇▇▇▇▇▇ shall use its reasonable best efforts to ensure
availability of all Products ordered by HEMOPHARM under this Agreement.
However, necessary in the best judgment of Carrington, Carrington may
allocate its available supply of Products among all its customers,
distributors or other purchasers, including HEMOPHARM , 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.
5.8. ▇▇▇▇▇▇▇▇▇▇ accepts liability for defective Products and agrees
to replace such defective Products should they occur with new Products.
Except as may be expressly stated by ▇▇▇▇▇▇▇▇▇▇ on the Product or on
▇▇▇▇▇▇▇▇▇▇'▇ packaging , or in ▇▇▇▇▇▇▇▇▇▇'▇ information accompanying the
Product, at the time of shipment to HEMOPHARM's consignement stock
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. HEMOPHARM 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 5.8. or that is incosistent with the policies
or publications of ▇▇▇▇▇▇▇▇▇▇ relating to the Products.
HEMOPHARM'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
HEMOPHARM'S OPTION. EXCEPT FOR THE RESPONSIBILITY FOR THE DAMAGES
RESULTING OUT OF HIDDEN DEFECTS OF THE PRODUCTS, ▇▇▇▇▇▇▇▇▇▇ SHALL HAVE
NO OTHER OBLIGATION OR LIABILITY FOR DAMAGES TO HEMOPHARM 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.
EACH CONTRACTUAL PARTY IN DEFAULT SHALL DEFEND, INDEMNIFY AND HOLD
HARMLESS OTHER CONTRACTUAL PARTY AND AFFILIATES, OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS OF OTHER CONTRACTUAL PARTY, 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-NOW OR
TRADEMARKS, (ii) ANY BREACH BY ONE OF THE CONTRACTUAL PARTIES OF ANY ITS
REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS AGREEMENT OR (iii)
ANY ACTS OR OMISSIONS ON THE PART OF ONE OF THE CONTRACTUAL PARTIES OR
ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND ONE OF THE
CONTRACTUAL PARTY'S AUTHORIZATION GRANTED HEREIN.
5.9. Credits for defective Products to HEMOPHARM 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 ar another method. ▇▇▇▇▇▇▇▇▇▇ shall provide
HEMOPHARM with a copy of its liability Insurance Certificate and shall
include HEMOPHARM thereunder.
Article 6. Term and Termination
6.1. The term of this Agreement shall be for a period of five
years from the effective data 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
foreogoing, this Agreement may be terminated earlier in accordance with
the provisions of this Article 6 or as expressly provided elsewhere in
this Agreement.
6.2. ▇▇▇▇▇▇▇▇▇▇ shall have the absolute right to terminate
this Agreement if HEMOPHARM fails to perform or breaches, in any
materials respect, any of the terms or provisions of this Ageerment.
Without limiting the events which shall be deemed to constitute a breach
or material breach of this Agreement by HEMOPHARM, HEMOPHARM 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 6.2., if:
(i) HEMOPHARM fails of refuses to pay to ▇▇▇▇▇▇▇▇▇▇ any sum
when due;
(ii) HEMOPHARM breaches any provision of Article 2.2., 3.4.,
4., 5.3., 5.8., 7. or 8; or,
(iii) HEMOPHARM fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period.
6.3. 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 aginst 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 licence to
operate its business as presently conducted in any part of the
Territory.
6.4. This Agreement shall automatically terminate effective at the
end of any 12-month period of the term of this Agreement referred to in
Articles 5.1. and 5.2. 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.
6.5. During the one-year period following termination of this
Agreement, any inventory of Products held by HEMOPHARM at the
termination of this Agreement may be sold by HEMOPHARM 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 govering HEMOPHARM'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 HEMOPHARM, including importation and shipping.
6.6. 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 5.8., 6.5., 7., 8.
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 7. Trademarks
7.1. All ▇▇▇▇▇▇▇▇▇▇ Trademarks, trade names, service marks, logos
and derivatives thereof relating to the Products (the "Tradenames"), and
all patents, technology and other intellectual property (also known as
"Know-how") relating to the Products and of the good will associated
therewith, are the sole and exclusive property of ▇▇▇▇▇▇▇▇▇▇ and/or its
affiliates. The Products shall be promoted, sold and distributed only
under the Trademarks. ▇▇▇▇▇▇▇▇▇▇ hereby grants HEMOPHARM permission to
use the Trademarks for the limited purpose of performing its obligations
under this Agreement. ▇▇▇▇▇▇▇▇▇▇ may, in its sole discretion after
consultation with HEMOPHARM modify or discontinue the use of any
Trademark and/or use one or more additional or substitute marks or
names, and HEMOPHARM shall be obligated to do the same.
7.2. ▇▇▇▇▇▇▇▇▇▇'▇ Trademarks shall appear on all Product packaging,
labels, and inserts and other materials which HEMOPHARM 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 Trademark in any packaging, inserts, labels, or
promotional or other materials relating to the Products prior to
HEMOPHARM's actual use thereof.
7.3. It shall be the sole responsibility of ▇▇▇▇▇▇▇▇▇▇, 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.
HEMOPHARM 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 "R" or the sign "TM". HEMOPHARM 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,
HEMOPHARM 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 ▇▇▇▇▇▇▇▇▇▇.
7.4. In the event of any infrigement of, or threatened or presumed
infrigement of, or challenge to HEMOPHARM's use of any Trademark or of
any HEMOPHARM trademark, HEMOPHARM is obligated to notify ▇▇▇▇▇▇▇▇▇▇
immediately. ▇▇▇▇▇▇▇▇▇▇ shall have sole and absolute discretion to take
such action as it deems appropriate.
7.5. In the event of the termination of this Agreement for any
reason, HEMOPHARM's right to use the Trademarks shall cease, and
HEMOPHARM shall cease using such Trademarks at such time as HEMOPHARM's
inventory of Products has been sold. HEMOPHARM shall, as soon as it is
reasonably possible, remove all Trademarks which appear on or about the
permises of the office(s) of HEMOPHARM and any of the advertising of
HEMOPHARM used in connection with the Products.
7.6. In the event of a breach or threatened breach by HEMOPHARM of
the provisions of this Article 7., ▇▇▇▇▇▇▇▇▇▇ 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 7.,
including the recovery of damages from HEMOPHARM.
7.7. 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 be also defined as
"Trademark" for purposes of this Agreement) owned by ▇▇▇▇▇▇▇▇▇▇ or to be
transferred from HEMOPHARM 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 HEMOPHARM in the Territory.
7.8. Nothing contained in this Agreement shall be construed as
giving HEMOPHARM the right to use the Trademark outside the Territory or
for any other product than the Products.
Article 8. Confidential Information
8.1. HEMOPHARM recognizes and acknowledges that HEMOPHARM will have
access to confidential information and trade secrets, including "Know-
how", 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, HEMOPHARM 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 ▇▇▇▇▇▇▇▇▇▇. In the event of a breach or threatened
breach by HEMOPHARM of the provisions of this Article 8, ▇▇▇▇▇▇▇▇▇▇
shall be entitled to an injunction restraining HEMOPHARM 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 8, including the recovery of damages from HEMOPHARM. 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 HEMOPHARM.
8.2 Contractual parties shall not disclose any of the terms of
this Agreement without the prior written consent of other contractual
party.
8.3 Mutatis mutandis ▇▇▇▇▇▇▇▇▇▇ has the same obligations towards
HEMOPHARM as HEMOPHARM has towards ▇▇▇▇▇▇▇▇▇▇ according to Article 8.1.
Article 9. Force Majeure
9.1 Neither HEMOPHARM 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, drought, storm,
earthquake, lightning, frost, civil comotion, sabotage, vandalism,
smoke, hail, embargo, act of God or the public enemy, other casuality,
strike or lockout, or interference, prohibition or restriction imposed
by any government or any officer or agent thereof ("Force Majeure"), nor
shall HEMOPHARM's 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 endavor with due dilligence
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, than the other Party shall have the right to cancel this
Agreement and the Parties shall seek an equitable agreement on the
Parties' reward of interests.
9.2 The Parties agree that any obligations to pay money is never
excused by Force Majeure.
Article 10. Amendment
10.1 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 11. Entire Agreement
11.1 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.
11.2 Should any provision of this Agreement be rendered invalid or
unenforceable, it shall not affect the validity or enforceability of the
remainder.
Article 12. Assignment
12.1 Neither this Agreement nor any of the rights or obligations of
HEMOPHARM hereunder shall be transferred or assigned by HEMOPHARM
without the prior written consent of ▇▇▇▇▇▇▇▇▇▇, executed by a duly
authorized officer of ▇▇▇▇▇▇▇▇▇▇, except in case of HEMOPHARM's parent
company in the manner already approved by ▇▇▇▇▇▇▇▇▇▇.
Article 13. Notices
13.1 Any notice required 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
HEMOPHARM. (Fax No. ▇▇▇-▇▇▇-▇▇▇▇)
b) HEMOPHARM at: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ v.d.H.,
Germany; Attention: Mr Pavle **Airi&**. (Fax No. ▇▇▇▇▇ ▇▇▇ ▇▇▇)
Article 14. Waiver
14.1 Neither HEMOPHARM's nor ▇▇▇▇▇▇▇▇▇▇'▇ failure to enforce at any
time any of the provision 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 HEMOPHARM'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 previos action by either Party.
Article 15. Interpretation
15.1 The language of this Agreement is English. No translation into
any other language shall be taken into account in the interpretation of
the Agreement itself.
15.2 The headings of this Agreement are inserted for convenience
only and shall not affect its construction.
15.3 Where appropriate, the terms defined in Article 1. and
denoting the single number only shall include the plural and vice versa.
15.4 References to any law, regulation, statut or statutory
provision includes reference to the law, regulation, statute or
statutory provision as from time to time amended, extended or reenacted.
Article 16. Exhibits
16.1 Any and all exhibits referr to herein shall be considered an
integral part of this Agreement.
Article 17. No Iinconsistent 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 5.7 and 9 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 Thius Agreement evidences a transaction of the sale of goods
in which the specification of US dollars is of the essence and US
dollars shall be the currency of account in all events. All payments to
be made by HEMOPHARM to ▇▇▇▇▇▇▇▇▇▇ hereunder shall be made either (i) in
immediately available funds by confirmed wire transfer to bank account
to be designated by ▇▇▇▇▇▇▇▇▇▇ or (ii) in the form of a bank cashiers
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 of the year.. 1997 first above written.
▇▇▇▇▇▇▇▇▇▇ Laboratories HEMOPHARM GmbH
____________________ __________________
By: By:
Name: Name:
Title: Title:
EXHIBIT A
HEMOPHARM
Products & Contract Price
Product Contract
No. Product Price
HYDROGEL WOUND DRESSINGS
101002 Carrasyn[R] V Hydrogel (1.0 oz. Pouch) (Up $1.61/unit
to 200,000 units)
101002 Carrasyn[R] V Hydrogel (1.0 oz. Pouch) $1.51/unit
(200,001 - 250,000 units)
101002 Carrasyn[R] V Hydrogel (1.0 oz. Pouch) $1.45/unit
(250,001 - 300,000 units)
101002 Carrasyn[R] V Hydrogel (1.0 oz. Pouch) (over $1.36/unit
300,001 units)
101023 Carrasyn[R] V Hydrogel Wound Dressing, 3 oz. $4.25/unit
tube
101017 CarraGauze[R] 2" x 2" Pad (1 pkg., 15 $63.00/case
pkgs/bx., 6 bxs./cs.) ($0.70 per unit)
101015 CarraGauze[R] 4" x 4" Pad (1 pkg., 15 $112.50/case
pkgs/bx., 6 bxs./cs.) (Up to 150,000 units
$1.25 per unit)
WOUND & SKIN CLEANSERS
102060 CarraKlenz[TM] Wound & Skin Cleanser ( 6 $2.97/bottle
oz. Pump)
102062 CarraKlenz[TM] Wound & Skin Cleanser ( 8 $3.97/bottle
oz. Pump)
102160 CarraKlenz[TM] Wound & Skin Cleanser (16 oz. $6.07/bottle
Pump)
CALCIUM ALGINATES
101032 CarraSorb[TM] H Calcium Alginate Wound $125.00/case
Dressing (2 x 2) 10bxs./10ea., 10bxs./case
($1.25/unit)
101033 CarraSorb[TM] H Calcium Alginate Wound $272.00/case
Dressing (4 x 4) 10bxs./10ea., 10bxs./case
($2.72/unit)
FREEZE-DRIED GELS
101035 CarraSorb[TM] M Freeze-Dried Gel Wound $196.20/box
Dressing (4" diameter)
15 ea./bx., 4 bxs./cs. ($3.27/unit)
EXHIBIT A
HEMOPHARM
Products & Contract Price
ORAL TECHNOLOGY
The ▇▇▇▇▇▇▇▇▇▇[TM] Patch (6 per sleeve) $0.75/sleeve
Note: Any volume discounts are based on yearly purchases which
correspond with the specified 12-month period as set forth in Article
5.1 of this Agreement.