Exhibit 10.78
SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the
Effective Date (as defined below) by and between ▇▇▇▇▇▇▇▇▇▇
LABORATORIES, INC., a Texas corporation and E-WHA INTERNATIONAL, INC.,
a Korean corporation ("E-Wha").
W I T N E S S E T H :
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ is engaged in the business of developing,
manufacturing, selling and distributing certain pharmaceutical products
and medical devices and is desirous of establishing a competent and
exclusive distribution source for sales of such products in Korea
(defined in Article 1 hereof as the Territory); and
WHEREAS, E-Wha is desirous of distributing such products in the
Territory, represents that it has experience in obtaining registration
of pharmaceutical preparations or products and medical devices in the
Territory, is well introduced on the market, is willing and able to
provide a competent distribution organization in the Territory, and
E-Wha 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 technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable E-Wha 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 E-Wha after the Effective Date and during the term of this
Agreement.
(c) "Parties" shall mean ▇▇▇▇▇▇▇▇▇▇ and E-Wha 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
E-Wha on its intent to add or discontinue Products to Exhibit
A.
(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) "Territory" shall mean the following countries: Korea.
(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 E-Wha as ▇▇▇▇▇▇▇▇▇▇'▇ sales distributor in
the Territory for the sale of Products, and E-Wha hereby accepts such
appointment. As sales distributor in the Territory, E-Wha shall,
subject to the terms and conditions of this Agreement, have the right
to obtain 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 ▇▇▇▇▇▇▇▇▇▇, and at
E-Wha's sole expense, E-Wha 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 the Territory, (c) provide and maintain
a competent and aggressive organization for the promotion, marketing,
sale and 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, and (e)
promptly assign back to ▇▇▇▇▇▇▇▇▇▇ any product Registrations in the
Territory upon termination of Agreement.
2.3 During the term of this Agreement, E-Wha shall be considered
an independent contractor and shall not be considered a partner,
employee, agent or servant of ▇▇▇▇▇▇▇▇▇▇. As such, E-Wha 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.
E-Wha 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 E-Wha
any right to use or otherwise deal with the Know-how for purposes other
than those expressly provided for in this Agreement.
2.5 E-Wha shall promptly inform ▇▇▇▇▇▇▇▇▇▇ of any
misappropriation of the Know-how which comes to its attention. After
having discussed such situation with E-Wha, ▇▇▇▇▇▇▇▇▇▇ shall have sole
and absolute discretion to take such action as it deems appropriate and
E-Wha, at its own cost, shall assist ▇▇▇▇▇▇▇▇▇▇ in taking legal action,
if deemed necessary, against such misappropriation.
2.6 All costs and expenses connected with E-Wha's activities or
performance under this Agreement are to be borne solely by E-Wha.
Article 3. Certain Performance Requirements
3.1 E-Wha agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. E-Wha 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 E-Wha is in compliance
with Article 3.1, E-Wha agrees that:
(a) E-Wha 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, and to whom such Products were sold and/or
distributed during such quarter;
(b) E-Wha will send to ▇▇▇▇▇▇▇▇▇▇ quarterly inventory reports of
the Products; and
(c) ▇▇▇▇▇▇▇▇▇▇ may ▇▇▇▇ for identification all Products sold by
▇▇▇▇▇▇▇▇▇▇ to E-Wha hereunder.
3.3 E-Wha shall promptly provide ▇▇▇▇▇▇▇▇▇▇ with written reports
of any importation or sale of any of the Products in the Territory of
which E-Wha 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 E-Wha shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
E-Wha 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 E-Wha's facilities
shall be subject to inspection by ▇▇▇▇▇▇▇▇▇▇ or its agents upon 72
hours written notice.
3.5 E-Wha 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 E-Wha of Products. Upon
written request from E-Wha, ▇▇▇▇▇▇▇▇▇▇ shall provide E-Wha 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
E-Wha. All Products shall be labeled, advertised, marketed, sold and
distributed by E-Wha 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. E-Wha 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 E-Wha shall not make any alterations or permit any
alterations to be made to the Products without ▇▇▇▇▇▇▇▇▇▇'▇ written
consent.
3.8 E-Wha shall assume all responsibility for and comply with all
applicable laws, regulations and requirements concerning the
Registration, inventory, use, promotion, distribution and sale of the
Products in the Territory and correspondingly for any damage, claim,
liability, loss or expense which ▇▇▇▇▇▇▇▇▇▇ may suffer or incur by
reason of said Registration, inventory, use, promotion, distribution
and sale and shall hold ▇▇▇▇▇▇▇▇▇▇ harmless from any claim resulting
therefrom being directed against ▇▇▇▇▇▇▇▇▇▇ or E-Wha by any third
party.
3.9 E-Wha 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 E-Wha 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 E-Wha will actively and aggressively promote, develop demand
for and maximize the sale of the Products to all customers and
potential customers within the Territory. E-Wha 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.
3.12 E-Wha represents that its books, records and accounts
pertaining to all its operations hereunder are complete and accurate in
all material respects and have been maintained in accordance with sound
and generally accepted accounting principles. E-Wha's auditor shall
deliver to ▇▇▇▇▇▇▇▇▇▇, in accordance 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. ▇▇▇▇▇▇▇▇▇▇ shall have the
right to have such books, records, and accounts examined, at its
expense, by a qualified accountant nominated by ▇▇▇▇▇▇▇▇▇▇.
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 E-Wha, 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 applicable governmental
authorities of the Territory.
4.2 It shall be the responsibility of E-Wha, 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 authorities of the Territory and said
application shall be in the name of ▇▇▇▇▇▇▇▇▇▇, with E-Wha being named
as Products distributor in the Territory. E-Wha expressly acknowledges
and agrees that the absolute and exclusive ownership of the
Registration and all rights originating out of or from the same shall
at all times belong only and exclusively to ▇▇▇▇▇▇▇▇▇▇.
4.3 As soon as E-Wha has received Know-how from ▇▇▇▇▇▇▇▇▇▇, E-Wha
shall prepare, at its sole expense, the Registration dossier and
submission and any translation which may be required by the applicable
authorities of the Territory. E-Wha 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, E-Wha
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 E-Wha shall use its best endeavors to obtain the Registration
within six (6) months from the relevant submission. E-Wha shall notify
▇▇▇▇▇▇▇▇▇▇ in writing at least 3 (three) months before the expiration
of said term of any need for an extension in time to obtain
Registration. The notification shall specify the duration of, and the
reason for, any proposed extension. ▇▇▇▇▇▇▇▇▇▇ shall consider any such
request, evaluating the objective situation and E-Wha's fulfilment of
its obligations in this respect. It is, however, understood that
E-Wha's deadline to obtain Registration is one year from the date of
filing.
4.6 E-Wha shall copy and keep ▇▇▇▇▇▇▇▇▇▇ fully and timely
informed, throughout the term of this Agreement, of all communications
sent to or received from all applicable governmental authorities,
including the health authorities, of the Territory concerning the
Products.
4.7 ▇▇▇▇▇▇▇▇▇▇ makes no warranty that the supplied Know-how will
necessarily result in the grant of the Registration and E-Wha 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 E-Wha
5.1 Subject to the terms and conditions of this Agreement,
including specifically Article 5.7 hereof, ▇▇▇▇▇▇▇▇▇▇ shall sell to
E-Wha the Products at a specified price for each Product (the "Contract
Price"). For orders placed by E-Wha 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) E-Wha 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 appointment as a sales distributor
entitled to a Product discount, E-Wha agrees to purchase from
▇▇▇▇▇▇▇▇▇▇, during each 12-month period of the term of this Agreement,
commencing with the 12-month period beginning December 1, 1999 through
November 30, 2000, 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, there will be no Specified Minimum Purchase
Amount. 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 E-Wha's reasonable, good faith projections of future sales growth
and such other factors as the Parties may deem relevant.
5.3 E-Wha 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 E-Wha upon shipment of the
Products. Unless otherwise agreed, E-Wha shall pay all invoices in
full within ninety (90) days of the date of invoice. E-Wha 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.
5.4 ▇▇▇▇▇▇▇▇▇▇ shall not be obligated to ship Products to E-Wha
at any time when payment of an amount owed by E-Wha is overdue or when
E-Wha 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 dated
the Purchase Order is received and acknowledged in writing by Seller,
unless by mutual consent of the parties Purchase Orders will be non-
cancellable. E-Wha 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 E-Wha. Variation above 20% shall be
discussed between the Parties and ▇▇▇▇▇▇▇▇▇▇ will use its best efforts
to maintain delivery dates requested by E-Wha.
5.6 All shipments of Products to E-Wha 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 E-Wha 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.
5.7 ▇▇▇▇▇▇▇▇▇▇ shall use its reasonable best efforts to ensure
availability of all Products ordered by E-Wha 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 E-Wha, 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 E-Wha 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. E-Wha 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 inconsistent with the policies
or publications of ▇▇▇▇▇▇▇▇▇▇ relating to the Products.
E-Wha'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
E-WHA'S OPTION. ▇▇▇▇▇▇▇▇▇▇ SHALL HAVE NO OTHER OBLIGATION OR LIABILITY
FOR DAMAGES TO E-Wha 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.
E-WHA SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS ▇▇▇▇▇▇▇▇▇▇ AND
CARRINGTON'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS,
FROM AND AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, EXPENSES
AND LOSSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING
OUT OF OR CONNECTED WITH (i) ANY USE, SALE OR OTHER DISPOSITION OF
PRODUCTS, KNOW-HOW OR TRADEMARKS BY E-Wha OR ANY OTHER PARTY, (ii) ANY
BREACH BY E-WHA OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS
UNDER THIS AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF
E-Wha OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND
E-WHA'S AUTHORIZATION GRANTED HEREIN.
5.9 Credits for defective Products to E-Wha 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. ▇▇▇▇▇▇▇▇▇▇ shall provide
E-Wha with a copy of its liability Insurance Certificate and shall
include E-Wha thereunder.
Article 6. Term and Termination
6.1 The term of this Agreement shall be for a period of three (3)
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 6 or as expressly provided elsewhere in
this Agreement.
6.2 ▇▇▇▇▇▇▇▇▇▇ shall have the absolute right to terminate this
Agreement if E-Wha 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 E-Wha, E-Wha 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) E-Wha fails or refuses to pay to ▇▇▇▇▇▇▇▇▇▇ any sum when
due;
(ii) E-Wha breaches any provision of Article 2.2, 3.4, 4,
5.3, 5.8, 7 or 8; or,
(iii) E-Wha 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 against the other Party procedures in
bankruptcy, or under insolvency laws or for reorganization,
receivership or dissolution, or if the other Party loses any franchise
or license to operate its business as presently conducted in any part
of the Territory.
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 E-Wha at the termination
of this Agreement may be sold by E-Wha 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 E-Wha'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 E-Wha,
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 "Trademarks"),
and all patents, technology and other intellectual property (also known
as "Know-how") relating to the Products and of the goodwill 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 E-Wha permission to use
the Trademarks for the limited purpose of performing its obligations
under this Agreement. ▇▇▇▇▇▇▇▇▇▇ may, in its sole discretion after
consultation with E-Wha, modify or discontinue the use of any Trademark
and/or use one or more additional or substitute marks or names, and
E-Wha shall be obligated to do the same.
7.2 ▇▇▇▇▇▇▇▇▇▇'▇ Trademarks shall appear on all Product
packaging, labels, and inserts and other materials which E-Wha 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 E-Wha's actual use thereof.
7.3 It shall be the sole responsibility of E-Wha, 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.
E-Wha 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]". E-Wha
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, E-Wha 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 infringement of, or threatened or
presumed infringement of, or challenge to E-Wha's use of any Trademark
or of any E-Wha trademark, E-Wha is obligated to notify ▇▇▇▇▇▇▇▇▇▇
immediately. E-Wha 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 within the Territory. ▇▇▇▇▇▇▇▇▇▇ 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, E-Wha's right to use the Trademarks shall cease, and E-Wha
shall cease using such Trademarks at such time as E-Wha's inventory of
Products has been sold. E-Wha shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of E-Wha and any of the advertising of E-Wha used in
connection with the Products.
7.6 In the event of a breach or threatened breach by E-Wha 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 E-Wha.
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 E-Wha 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 E-Wha in the Territory.
7.8 Nothing contained in this Agreement shall be construed as
giving E-Wha the right to use the Trademark outside the Territory or
for any other product than the Products.
Article 8. Confidential Information
8.1 E-Wha recognizes and acknowledges that E-Wha 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, E-Wha 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 E-Wha of the provisions of this Article 8, ▇▇▇▇▇▇▇▇▇▇ shall
be entitled to an injunction restraining E-Wha 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 E-Wha. 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 E-Wha.
8.2 E-Wha shall not disclose any of the terms of this Agreement
without the prior written consent of ▇▇▇▇▇▇▇▇▇▇.
Article 9. Force Majeure
9.1 Neither E-Wha 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 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 E-Wha'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 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 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 obligation 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 E-Wha hereunder shall be transferred or assigned by E-Wha without
the prior written consent of ▇▇▇▇▇▇▇▇▇▇, executed by a duly authorized
officer of ▇▇▇▇▇▇▇▇▇▇.
Article 13. Governing Law
13.1 It is expressly agreed that the validity, performance and
construction of this Agreement shall be governed by the laws and
jurisdiction of Texas.
Article 14. Notices
14.1 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 E-Wha. (Fax No. ▇▇▇-▇▇▇-▇▇▇▇)
(b) E-Wha at: ▇▇▇▇-▇ ▇▇▇▇▇ ▇/▇, ▇▇▇▇▇ ▇▇▇, ▇-▇▇, ▇▇▇▇▇-▇▇▇▇,
▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: President, or at such
other address as E-Wha shall have theretofore furnished in
writing to ▇▇▇▇▇▇▇▇▇▇. (Fax No. ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇)
Article 15. Waiver
15.1 Neither E-Wha'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 E-Wha'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 16. Arbitration
16.1 Except as expressly provided otherwise herein, any dispute,
controversy or claim arising out of or in relation to or in connection
with this Agreement, the operations carried out under this Agreement or
the relationship of the Parties created under this Agreement, shall be
exclusively and finally settled by confidential arbitration, and any
Party may submit such a dispute, controversy or claim to arbitration.
The arbitration proceeding shall be held at the location of the non-
instituting Party in the English language and shall be governed by the
rules of the International Chamber of Commerce (the "ICC") as amended
from time to time. Any procedural rule not determined under the rules
of the ICC shall be determined by the laws of 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 17 Interpretation
17.1 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.
17.2 The headings in this Agreement are inserted for convenience
only and shall not affect its construction.
17.3 Where appropriate, the terms defined in Article 1 and
denoting a singular number only shall include the plural and vice
versa.
17.4 References to any law, regulation, statute or statutory
provision includes a reference to the law, regulation, statute or
statutory provision as from time to time amended, extended or re-
enacted.
Article 18. Exhibits
18.1 Any and all exhibits referred to herein shall be considered
an integral part of this Agreement.
Article 19. No Inconsistent Actions
19.1 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 20. Currency of Account
20.1 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 E-Wha 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 21. Binding Effect
21.1 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 as written below.
▇▇▇▇▇▇▇▇▇▇ LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
Date: October 15, 1999
E-WHA INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇, ▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇
Title: President
Date: October 26, 1999