SALES DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this
4th day of December, 1996, by and between ▇▇▇▇▇▇▇▇▇▇ LABORATORIES,
INC., a Texas corporation ("▇▇▇▇▇▇▇▇▇▇"), and ▇▇▇▇▇▇ LABORATORIOS S/A,
a Brazilian corporation ("▇▇▇▇▇▇").
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 Brazil (defined in Article 1 hereof as the
Territory ); and
WHEREAS, ▇▇▇▇▇▇ is desirous of marketing and distributing such
products in the Territory, represents that it has experience in
obtaining registration of medical devices in the Territory, is well
introduced in the market, is willing and able to provide a competent
marketing and distribution organization in the Territory, and ▇▇▇▇▇▇
desires to be ▇▇▇▇▇▇▇▇▇▇'▇ marketer, seller and distributor for such
products in the Territory, as will have the option to locally fill and
pack some of the ▇▇▇▇▇▇▇▇▇▇'▇ products, according to the conditions and
restrictions stipulated in Article 3.7.
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 ▇▇▇▇▇▇ on its intent to add or discontinue Products to
Exhibit A.
(b) "Territory" shall mean the following countries: Brazil and
the limited right of first refusal for specified Products
listed on Exhibit A for the Mercosul countries: Argentina,
Uruguay, Paraguay and Chile. ▇▇▇▇▇▇▇▇▇▇ shall present any
offer it receives for any particular country and Products,
and ▇▇▇▇▇▇ shall have thirty (30) days to meet or exceed
that offer by sending a written acceptance to ▇▇▇▇▇▇▇▇▇▇.
If ▇▇▇▇▇▇ is unable to respond accordingly, then that
country and Products shall be free from any obligation to
▇▇▇▇▇▇ by ▇▇▇▇▇▇▇▇▇▇.
(c) "Parties" shall mean ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ and Party
shall mean either of them as the context indicates.
(d) "Know-how" shall mean secret and proprietary technical and
scientific information regarding the Products, which may be
necessary, useful or advisable to enable ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ prior to execution of this Agreement.
(e) "Registration" shall mean any official approval, or
authorization, or licensing regarding the Products by all
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.
Article 2. Appointment
2.1 Subject to the terms and conditions of this Agreement,
▇▇▇▇▇▇▇▇▇▇ hereby appoints ▇▇▇▇▇▇ as ▇▇▇▇▇▇▇▇▇▇'▇ marketer, sales
distributor in the Territory for the sale of Products, and ▇▇▇▇▇▇
hereby accepts such appointment. As marketer, sales distributor in the
Territory, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇, and at
▇▇▇▇▇▇'▇ sole expense, ▇▇▇▇▇▇ agrees to (a) devote its best efforts to
the diligent promotion, marketing, sale and distribution of the
Products in the Territory, (b) provide and maintain a competent and
aggressive organization for the promotion, marketing, sale and
distribution of the Products in the Territory, (c) 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 (d) promptly
assign back to ▇▇▇▇▇▇▇▇▇▇ any product Registrations in the Territory
upon termination of Agreement. ▇▇▇▇▇▇▇▇▇▇ agrees, at its sole expense,
to direct ▇▇▇▇▇▇ to make and maintain all agreed upon 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. Provided,
however, ▇▇▇▇▇▇▇▇▇▇ at its sole option, has the absolute right to
determine at any time that any such requirements mentioned above are
uneconomic and not justified relative to the benefits ▇▇▇▇▇▇▇▇▇▇
anticipates receiving and, therefore, may not be required to accept
further expenses. For the first five years ▇▇▇▇▇▇▇▇▇▇ agrees to pay up
to $10,000.00 for two products during the first five years for
registration expenses for Products classified as "drugs" and up to
$1,000.00 per product per five year period for products classified as
medical devices.
2.3 During the term of this Agreement, ▇▇▇▇▇▇ shall be
considered an independent contractor and shall not be considered a
partner, employee, agent or servant of ▇▇▇▇▇▇▇▇▇▇. As such, ▇▇▇▇▇▇ 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.
▇▇▇▇▇▇ 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
▇▇▇▇▇▇ any right to use or otherwise deal with the Know-how for
purposes other than those expressly provided for in this Agreement.
2.5 ▇▇▇▇▇▇ shall promptly inform ▇▇▇▇▇▇▇▇▇▇ of any
misappropriation of the Know-how which comes to its attention. After
having dicsussed such situaiton with ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ shall have sole
and absolute discretion to take such action as it deems appropriate and
▇▇▇▇▇▇, at its sole expense, shall reasonably assist ▇▇▇▇▇▇▇▇▇▇ in
taking legal action, if deemed necessary, against such
misappropriation.
2.6 All costs and expenses connected with ▇▇▇▇▇▇'▇ activities
or performance under this Agreement are to be borne solely by ▇▇▇▇▇▇.
Article 3. Certain Performance Requirements
3.1 ▇▇▇▇▇▇ agrees to promote, market, sell and distribute the
Products only to customers and potential customers within the Territory
for ultimate use within the Territory. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ is in compliance
with Article 3.1, ▇▇▇▇▇▇ agrees that:
(a) ▇▇▇▇▇▇ will send to ▇▇▇▇▇▇▇▇▇▇ quarterly sales reports
which set forth the number of units 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) ▇▇▇▇▇▇ will send to ▇▇▇▇▇▇▇▇▇▇ quarterly inventory reports
of the Products; and
(c) ▇▇▇▇▇▇▇▇▇▇ may ▇▇▇▇ for identification all Products sold by
▇▇▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇ hereunder.
3.3 ▇▇▇▇▇▇ shall promptly provide ▇▇▇▇▇▇▇▇▇▇ with written
reports of any importation or sale of any of the Products in the
Territory of which ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ shall maintain a sufficient inventory of Products to
assure an adequate supply of Products to serve all its market segments.
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇ facilities
shall be subject to inspection by ▇▇▇▇▇▇▇▇▇▇ or its agents upon 72
hours written notice.
3.5 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ of Products. Upon
written request from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ shall provide ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ for a period of at least six (6) months after the execution
of this Agreement, after which, ▇▇▇▇▇▇ may exercise its option to
locally fill and pack some of the Products, subject to the requirements
outlined in Article 3.7 of this Agreement. All Products shall be
labeled, advertised, marketed, sold and distributed by ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ shall pay all increased
expenses associated with (i) any requested alterations to the standard
packaging and labeling costs of the Products which deviate from
Carrington's standard packaging materials, designs, methods costs
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 ▇▇▇▇▇▇ has the option to fill and pack some of the Products
in its manufacturing plant, provided ▇▇▇▇▇▇▇▇▇▇'▇ process and products
specifications are met, the operation is in compliance with the
required Good Manufacturing Practices and as per ▇▇▇▇▇▇▇▇▇▇'▇ periodic
audits of ▇▇▇▇▇▇'▇ designated areas for the production, storage and
distribution of such Products, quality systems and pertinent
documentation as well as corroboration of assay and test results of
packaging components and finished goods in periodic basis. This
Article is further limited by the obligations stated in Article 3.9
below.
3.8 ▇▇▇▇▇▇ shall not make any alterations or permit any
alterations to be made to the Products except as specifically provided
herein.
3.9 ▇▇▇▇▇▇ shall be responsible for complying with all
applicable laws, regulations and requirements contained in the
Registration, or concerning inventory, use, promotion, filling,
packing, distribution and sale of the Products in the Territory while
such Products are in its custody. ▇▇▇▇▇▇ shall assume full
responsibility for the Registration, inventory, promotion, filling,
packing, 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,
promotion, distribution and sale and shall hold ▇▇▇▇▇▇▇▇▇▇ harmless
from any claim resulting therefrom being directed against ▇▇▇▇▇▇▇▇▇▇ by
any third party.
3.10 ▇▇▇▇▇▇ 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 other than those according to the
registration, unless such claims have received written approval from
▇▇▇▇▇▇▇▇▇▇ or from the applicable governmental authorities.
3.11 ▇▇▇▇▇▇ 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 except as provided for in Article
3.10 above, such labels, advertisements or marketing materials which
need not be submitted for approval if they are in accordance with all
governmental regulations.
3.12 ▇▇▇▇▇▇ will actively and aggressively promote, develop
demand for and maximize the sale of the Products to all customers and
potential customers within the Territory. ▇▇▇▇▇▇ 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 other than ▇▇▇▇▇▇ s existing
products.
3.13 ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇▇▇▇▇ with the
purpose of assuring compliance with the obligations as defined in
Article 3.2.
Article 4. Sale of Products by ▇▇▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇
4.1 Subject to the terms and conditions of this Agreement,
including specifically Article 4.6 hereof, ▇▇▇▇▇▇▇▇▇▇ shall sell to
▇▇▇▇▇▇ the Products at a specified price for each Product (the
"Contract Price"). For orders placed by ▇▇▇▇▇▇ 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) ▇▇▇▇▇▇ shall provide
in writing to ▇▇▇▇▇▇▇▇▇▇ both a sales forecast and a purchase forecast
for the following twelve (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 twelve (12)month period of
the term. During any twelve (12) month period ▇▇▇▇▇▇▇▇▇▇ reserves the
right to change its Contract Price for each Product for the next
(twelve) 12 month period.
4.2 As consideration for its appointment as a marketer, seller
and distributor entitled to a Product discount, ▇▇▇▇▇▇ agrees to
purchase from ▇▇▇▇▇▇▇▇▇▇, during each twelve (12) month period of the
term of this Agreement following the effective date of each Products
registration acceptance, commencing with the twelve (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 twelve (12) month period of the term of this
Agreement, there will be no Specified Minimum Purchase Amount however
▇▇▇▇▇▇ commits to do its best effort to generate purchase from
▇▇▇▇▇▇▇▇▇▇ for $200,000 of Products in the first twelve (12) month
period of this Agreement. The Specified Minimum Purchase Amounts for
each subsequent twelve (12) month period shall be determined by mutual
agreement of the Parties no later than 30 days prior to the beginning
of such period based on the Parties reasonable, good faith projections
of future sales growth and such other factors as the Parties may deem
relevant.
4.3 ▇▇▇▇▇▇ shall order Products by submitting a purchase order
to ▇▇▇▇▇▇▇▇▇▇ describing the type and quantity of the Products to be
purchased. All orders exceeding the limits referred to in Articles 4.2
and 4.5 are subject to acceptance by ▇▇▇▇▇▇▇▇▇▇. All purchases shall
be spaced in a reasonable manner. If ▇▇▇▇▇▇▇▇▇▇ accepts the order,
▇▇▇▇▇▇▇▇▇▇ will invoice ▇▇▇▇▇▇ upon shipment of the Products. Unless
otherwise agreed, ▇▇▇▇▇▇ shall pay all invoices in full within ninety
(90) days of the date of invoice. ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ at any time when payment of an amount owed by ▇▇▇▇▇▇ is overdue
or when ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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 twenty percent (20%) above the last monthly rolling forecast
issued prior to the Purchase Order placed by ▇▇▇▇▇▇. Variation above
twenty percent (20%) shall be discussed between the Parties and
▇▇▇▇▇▇▇▇▇▇ will use its best efforts to maintain delivery dates
requested by ▇▇▇▇▇▇.
4.6 All shipments of Products to ▇▇▇▇▇▇ will be packaged in
accordance with ▇▇▇▇▇▇▇▇▇▇'▇ standard packaging procedures and shipped
per ▇▇▇▇▇▇▇▇▇▇ s existing distribution policy. All Contract Prices are
F.O.B., (invoice price includes seller's expense for delivery to the
named destination) ▇▇▇▇▇▇▇▇▇▇'▇ facility, Dallas, Texas. Ownership of
and title to Products and all risks of loss with respect thereto shall
pass to ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ 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
the time of shipment to ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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.
▇▇▇▇▇▇'▇ 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
▇▇▇▇▇▇'▇ OPTION. ▇▇▇▇▇▇▇▇▇▇ SHALL HAVE NO OTHER OBLIGATION OR
LIABILITY FOR DAMAGES TO ▇▇▇▇▇▇ 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.
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ OR ANY OTHER PARTY, (ii) ANY
BREACH BY ▇▇▇▇▇▇ OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS
UNDER THIS AGREEMENT OR (iii) ANY ACTS OR OMISSIONS ON THE PART OF
▇▇▇▇▇▇ OR ITS AGENTS, SERVANTS OR EMPLOYEES WHICH ARE OUTSIDE OR BEYOND
▇▇▇▇▇▇'▇ AUTHORIZATION GRANTED HEREIN.
4.9 Credits for defective Products to ▇▇▇▇▇▇ 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 ten
(10) 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇ 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) ▇▇▇▇▇▇ fails or refuses to pay to ▇▇▇▇▇▇▇▇▇▇ any sum
when due;
(ii) ▇▇▇▇▇▇ breaches any provision of Article 2.2, 3.1,
3.5, 3.7, 3.9, 4.2, 4.8, 6 or 7; or 8
(iii) ▇▇▇▇▇▇ fails to purchase the Specified Minimum
Purchase Amounts of Product for any required period.
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
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.
5.4 This Agreement shall automatically terminate effective at
the end of any twelve (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 twelve (12) month period of the term.
5.5 During the one (1) year period following termination of
this Agreement, any inventory of Products held by ▇▇▇▇▇▇ at the
termination of this Agreement may be sold by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇, including importation and shipping plus ten
percent (10%)
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
6.1 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, are the
sole and exclusive property of ▇▇▇▇▇▇▇▇▇▇ or its affiliates. The
Products shall be promoted, sold and distributed only under the
Trademarks. ▇▇▇▇▇▇▇▇▇▇ hereby grants ▇▇▇▇▇▇ permission to use the
Trademarks for the limited purpose of performing its obligations under
this Agreement. ▇▇▇▇▇▇▇▇▇▇ may, in its sole discretion after
consultation with ▇▇▇▇▇▇, modify or discontinue the use of any
Trademark and/or use one or more additional or substitute marks or
names, and ▇▇▇▇▇▇ shall be obligated to do the same.
6.2 ▇▇▇▇▇▇▇▇▇▇'▇ Trademarks should appear on all Products
packaging, labels, and inserts and other materials which ▇▇▇▇▇▇ 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
▇▇▇▇▇▇'▇ actual use thereof.
6.3 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. ▇▇▇▇▇▇ 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
[R]. ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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 infringement of, or threatened or
presumed infringement of, or challenge to ▇▇▇▇▇▇'▇ use of any
Trademark or of any ▇▇▇▇▇▇ trademark, ▇▇▇▇▇▇ is obligated to notify
▇▇▇▇▇▇▇▇▇▇ immediately. ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇▇▇ shall
have sole and absolute discretion to take such action as it deems
appropriate.
6.5 In the event of the termination of this Agreement for any
reason, ▇▇▇▇▇▇ 's right to use the Trademarks shall cease, and ▇▇▇▇▇▇
shall cease using such Trademarks at such time as ▇▇▇▇▇▇'▇ inventory of
Products has been sold. ▇▇▇▇▇▇ shall, as soon as it is reasonably
possible, remove all Trademarks which appear on or about the premises
of the office(s) of ▇▇▇▇▇▇ and any of the advertising of ▇▇▇▇▇▇ used in
connection with the Products.
6.6 In the event of a breach or threatened breach by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇.
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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ in the
Territory.
6.8 Nothing in this Agreement shall be construed as giving
▇▇▇▇▇▇ the right to use the Trademark outside the Territory or for any
other product than the Products.
Article 7. Confidential Information
7.1 ▇▇▇▇▇▇ recognizes and acknowledges that ▇▇▇▇▇▇ will 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, ▇▇▇▇▇▇
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 ▇▇▇▇▇▇ of the provisions
of this Article 7, ▇▇▇▇▇▇▇▇▇▇ shall be entitled to an injunction
restraining ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. 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 ▇▇▇▇▇▇.
7.2 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
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.
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 Neither this Agreement nor any of the rights or obligations
of ▇▇▇▇▇▇ hereunder shall be transferred or assigned by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. (Fax No. ▇▇▇-▇▇▇-▇▇▇▇)
(b) ▇▇▇▇▇▇ at: ▇▇▇▇▇▇ Laboratorios, S/A; ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇ Botafogo, Rio De Janerio, Brazil RJ CEP 1-040,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, or at such other
address as ▇▇▇▇▇▇ shall have theretofore furnished in
writing to ▇▇▇▇▇▇▇▇▇▇. (Fax No. ▇▇-▇▇-▇▇▇-▇▇▇▇)
Article 14. Waiver
14.1 Neither ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇'▇
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 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 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
therefore 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
Any 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 primary essence,
and U.S. dollars shall be the currency of account in all events. All
payments to be made by ▇▇▇▇▇▇ 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:
▇▇▇▇▇▇ LABORATORIOS S/A
By:
Name:
Title:
EXHIBIT A
▇▇▇▇▇▇ LABORATORIES
PRODUCT
NO. PRODUCT NAME PRICE
------- -------------------------------------------- -------
WOUND CARE
101030 ▇▇▇▇▇▇▇▇▇▇ CARRASYN HYDROGEL WOUND $8.23
DRESSING, 3 oz. tube
101080 ▇▇▇▇▇▇▇▇▇▇ CARRASYN HYDROGEL WOUND $21.11
DRESSING, (spray gel),8 oz. bottle
101025 ▇▇▇▇▇▇▇▇▇▇ CARRASYN V (VISCOUS) HYDROGEL $2.99
WOUND DRESSING, 1/2 oz. tube
101023 ▇▇▇▇▇▇▇▇▇▇ CARRASYN V (VISCOUS) HYDROGEL $8.23
WOUND DRESSING, 3 oz. tube
101012 ▇▇▇▇▇▇▇▇▇▇ CARRAGAUZE STRIPS, 1/2" x 5 yds, $5.70
bottle
101009 ▇▇▇▇▇▇▇▇▇▇ CARRAGAUZE STRIPS, 1" x 5 yds, $6.68
bottle
101017 ▇▇▇▇▇▇▇▇▇▇ CARRAGAUZE , 2"x 2" pads $2.02
101015 ▇▇▇▇▇▇▇▇▇▇ CARRAGAUZE , 4"x 4" pads $2.92
102060 ▇▇▇▇▇▇▇▇▇▇ CARRAKLENZ WOUND & SKIN CLEANSER, $3.77
6 oz. pump
102160 ▇▇▇▇▇▇▇▇▇▇ CARRAKLENZ WOUND & SKIN CLEANSER, $8.51
16 oz. spray
101032 ▇▇▇▇▇▇▇▇▇▇ CARRASORB H CALCIUM ALGINATE $1.32
WOUND DRESSING, 2" x 2" pad
101033 ▇▇▇▇▇▇▇▇▇▇ CARRASORB H CALCIUM ALGINATE $2.85
WOUND DRESSING, 4" x 4" pad
101034 ▇▇▇▇▇▇▇▇▇▇ CARRASORB H CALCIUM ALGINATE $2.75
WOUND DRESSING, 12" rope
101035 ▇▇▇▇▇▇▇▇▇▇ CARRASORB M FREEZE-DRIED GEL $3.22
WOUND DRESSING, 4" diameter pad
101036 ▇▇▇▇▇▇▇▇▇▇ CARRAFILM TRANSPARENT FILM $0.91
DRESSING, 4" x 5" 1/2 sheet
101037 ▇▇▇▇▇▇▇▇▇▇ CARRAFILM TRANSPARENT FILM $1.98
DRESSING, 5" x 7" sheet
101038 ▇▇▇▇▇▇▇▇▇▇ CARRAFILM TRANSPARENT FILM $2.07
DRESSING, 6" x 6" sheet
EXHIBIT A
▇▇▇▇▇▇ LABORATORIES
PRODUCT
NO. PRODUCT NAME PRICE
-------- -------------------------------------------- -------
101039 ▇▇▇▇▇▇▇▇▇▇ CARRAFILM TRANSPARENT FILM $0.26
DRESSING, 2 3/4" x 2 3/8" sheet
101040 ▇▇▇▇▇▇▇▇▇▇ CARRAFILM TRANSPARENT FILM $2.08
DRESSING, 8" x 10" sheet
101041 ▇▇▇▇▇▇▇▇▇▇ CARRAFILM TRANSPARENT FILM $1.85
DRESSING, 4" x 10" sheet
