COMVITA NEW ZEALAND LIMITED DERMA SCIENCES, INC MEDICAL HONEY SUPPLY AGREEMENT
Exhibit
10.04
COMVITA
NEW ZEALAND LIMITED
DERMA
SCIENCES, INC
_______________________________________________
_______________________________________________
AGREEMENT dated February 23,
2010
PARTIES
COMVITA NEW ZEALAND LIMITED,
of Paengaroa, New Zealand (“Comvita”)
DERMA SCIENCES, INC, of
Princeton, New Jersey, United States of America (“Derma Sciences”)
INTRODUCTION
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A.
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Comvita
supplies Medical Honey.
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B.
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Derma
Sciences wishes Comvita to supply Medical Honey to Derma
Sciences.
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C.
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Comvita
has agreed to supply Medical Honey to Derma Sciences on the terms and
conditions set out below.
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AGREEMENT
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions: In
this Agreement, including the Introduction, unless the context otherwise
requires, the following terms will have the following
meanings:
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“Agreement” means this
agreement and the attached Schedule;
“Business Day” means a day,
excluding Saturdays, Sundays, statutory public holidays or any day in the period
starting on 24 December and ending on 5 January, on which banks are open for
ordinary over-the-counter business in either Tauranga, New Zealand or New
Jersey, United States of America;
“Commencement Date” means the
date of signing of this Agreement by both parties;
“Confidentiality Agreement”
means the agreement entered into between the parties and entitled
“Confidentiality Agreement” and dated on or about the Commencement
Date;
“Confidential Information”
means all information of any kind, whether in tangible or documentary form, and
whether marked or identified as being confidential, relating to the Disclosing
Party or its business affairs and includes information relating to any
of:
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(a)
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the
business operations, business strategies, marketing plans and technologies
of the Disclosing Party; or
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(b)
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the
terms of this Agreement;
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“Cost of Production” means the
cost of direct materials, direct labour and any other expenses directly related
(and fairly allocated based on actual value added or percentage contribution
(whichever is lower)) to the manufacturing cost of the relevant product, along
with a reasonable and systematic allocation of fixed and variable production
overheads;
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exhibit
10.04 -supply agmt
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1
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“Disclosing Party” means the
party to whom or to whose business affairs the Confidential Information
relates;
“FOB” means Free on Board, and
has the meaning given to that term as set out in Incoterms 2000;
“Force Majeure” has the
meaning given to that term in clause 11.1;
“Incoterms 2000” means the
International Chamber of Commerce official rules for the interpretation of trade
terms, which came into force on 1 January 2000, as amended or revised from time
to time;
“Licence Agreement” means the
agreement entered into between the parties and entitled “Licence Agreement” and
dated on or about the date of this Agreement;
“Licensed Products” has the
meaning given to that term in the Licence Agreement;
“Manufacturing Agreement”
means the agreement entered into between the parties and entitled
“Manufacturing Agreement” and dated on or about the date of this
Agreement;
“Medical Honey” means honey
being to the specifications set out in the Schedule, or such other
specifications as the parties may agree in writing;
“Notice” has the meaning given
to that term in clause 11.7(a);
“OTC Products” has the meaning
given to that term in the Manufacturing Agreement;
“OTC Store” has the meaning
given to that term in the Manufacturing Agreement;
“Recipient” means the party
receiving Confidential Information under this Agreement; and
“Restraint Agreement” means
the agreement entered into between the parties and entitled “Restraint
Agreement” and dated on or about the date of this Agreement.
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1.2
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Interpretation: In
this Agreement:
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(a)
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headings
are used for convenience only and will not affect its
interpretation;
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(b)
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references
to the singular include the plural and vice
versa;
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(c)
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references
to a party include that party’s successors, executors, administrators and
permitted assignees (as the case may
be);
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(d)
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references
to clauses and the Schedule are to those clauses and the Schedule in this
Agreement;
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(e)
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where
a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
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(f)
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references
to a gender includes all genders;
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(g)
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references
to a “person” include:
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(i)
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an
individual, firm, company, corporation or unincorporated body of
persons;
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(ii)
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any
public, territorial or regional
authority;
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exhibit
10.04 -supply agmt
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2
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(iii)
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any
government; and
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(iv)
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any
agency of any government or authority;
and
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(h)
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any
obligation not to do anything includes an obligation not to suffer, permit
or cause that thing to be done.
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2.
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MEDICAL
HONEY SUPPLY
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2.1
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Supply:
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(a)
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Comvita
agrees to supply Medical Honey to Derma Sciences solely for use by Derma
Sciences in the manufacture of Licensed Products under the Licence
Agreement and manufacture of OTC Products under the Manufacturing
Agreement.
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(b)
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For
so long as the rights granted under clauses 2.1(a) and 2.1(c) of the
Licence Agreement remain exclusive with respect to each of the United
States of America and the European Union, Comvita will not supply Medical
Honey to any other person for use in the manufacture of Licensed Products
that are not also OTC Products.
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2.2
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Restriction: Subject
to clause 2.5, Derma Sciences agrees that, for a period of five years
following the Commencement Date, it will not obtain supplies of Medical
Honey from any person other than Comvita. This five year
restriction may be renewed for further five year periods by mutual written
agreement.
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2.3
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Meet
orders: Comvita will use reasonable endeavours to meet
all orders for Medical Honey from Derma Sciences, subject to availability
of product. Derma Sciences will receive priority from Comvita
(after Comvita’s needs for Medical Honey have first been met) as to each
year’s supply of Medical Honey consistent with Derma Sciences’ forecasted
demand over other potential uses for Medical Honey that fall outside of
the definition of Licensed
Products.
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2.4
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Representations: Comvita
represents that:
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(a)
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as
at the Commencement Date, it has the ability to supply to Derma Sciences
30,000kg of Medical Honey on an annual basis;
and
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(b)
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it
will have the ability (subject to receipt of accurate and timely forecasts
from Derma Sciences pursuant to clause 4) to expand its ability to supply
to Derma Sciences 100,000kg of Medical Honey on an annual basis within
five years following the Commencement
Date.
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Derma
Sciences acknowledges that the ability of Comvita to supply Medical Honey will
be subject to variables beyond Comvita’s control inherent in growing crops, such
as weather, disease, and pests, each of which may affect the crop in a given
year but which will not necessarily constitute an event of Force Majeure, and
the occurrence of such factors will not result in the breach of these
representations.
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2.5
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Right to obtain Medical Honey
elsewhere: Despite clause 2.2, Derma Sciences may
purchase Medical Honey for use in the manufacture of Licensed Products
under the Licence Agreement or manufacture of OTC Products under the
Manufacturing Agreement from a third party (provided that the Medical
Honey is to the standard set out in the specifications in the Schedule, or
such other specifications as the parties may agree in writing) where
either:
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exhibit
10.04 -supply agmt
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3
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(a)
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Comvita
is unable to supply Derma Sciences with Derma Sciences’ demand for Medical
Honey. In such event, Derma Sciences may only purchase from a
third party such amount of Medical Honey that Comvita is actually unable
to supply and only for so long as Comvita remains unable to supply Derma
Sciences’ demand for Medical Honey;
or
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(b)
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Derma
Sciences has identified a third party who is willing to supply Medical
Honey to it on a long term basis on similar trading terms to those offered
by Comvita at a price at least 10% lower than the price charged by
Comvita, and provided that:
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(i)
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Derma
Sciences has first given Comvita notice in writing of the third party
price and given Comvita the opportunity to match the price offered by such
third party; and
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(ii)
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Comvita
has not agreed to match such price in writing within 20 Business Days
following receipt of Derma Sciences’
notice.
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In such
event, Derma Sciences may purchase Medical Honey from such third party only for
so long as Comvita remains unwilling to supply Derma Sciences’ demand for
Medical Honey at the price being offered by such third
party. Accordingly, Derma Sciences will immediately advise Comvita of
any changes to the price being offered by such third party at any time for the
supply of Medical Honey to Derma Sciences.
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3.
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ORDERING
PROCEDURE
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3.1
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Placement of
orders:
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(a)
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Derma
Sciences will place orders for Medical Honey with Comvita. Each
order will be in writing, will be sent by facsimile, email or other
electronic means approved by Comvita, and will
specify:
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(i)
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the
date of the order;
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(ii)
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the
volume of Medical Honey ordered;
and
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(iii)
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a
delivery date for the Medical
Honey.
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(b)
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The
minimum order quantity will be 1,800
kg.
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(c)
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Unless
otherwise agreed by the parties, Derma Sciences will place all orders for
Medical Honey at least twelve (12) weeks in advance of the date that Derma
Sciences wishes such Medical Honey to arrive at its
premises.
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3.2
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Acknowledgement and acceptance
of order:
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(a)
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Comvita
will acknowledge to Derma Sciences in writing all orders received by it
under clause 3.1. Comvita’s acknowledgement will confirm
whether or not Comvita accepts the
order.
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(b)
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Upon
Comvita accepting the order:
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(i)
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a
binding contract to supply Medical Honey on the terms and conditions of
this Agreement will exist; and
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exhibit
10.04 -supply agmt
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4
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(ii)
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neither
party will be permitted to cancel or vary such order without the other
party’s written consent, unless otherwise expressly permitted under this
Agreement.
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(c)
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For
the avoidance of doubt, each order will constitute a separate contract and
any default by Comvita in relation to any one order will not entitle Derma
Sciences to treat this Agreement as
terminated.
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4.
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FORECASTS
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4.1
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Annual
forecasts: Derma Sciences will supply to Comvita on or
before 30 June of each year a three-year rolling forecast of Derma
Sciences’ anticipated requirements for Medical Honey for the sales years
starting 1 April of the following year. Derma Sciences will
prepare such forecasts in good
faith.
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4.2
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Confirmation of
demand: Derma Sciences will provide confirmation of
demand at least three months prior to the required delivery
date.
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4.3
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Reasonably
accurate: The parties agree that the forecasts given
under this clause 4 will not be binding on the parties, but Derma Sciences
will use reasonable endeavours to ensure such forecasts are reasonably
accurate based on information known to Derma Sciences at the time they are
given.
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5.
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PRICE
AND PAYMENT
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5.1
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Price:
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(a)
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The
parties agree that the price for Medical Honey will be Comvita’s Cost of
Production plus a margin of 25%. Such price for Medical Honey
will be:
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(i)
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calculated
on an annual basis at the start of each calendar
year;
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(ii)
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fixed
for such calendar year; and
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(iii)
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immediately
notified by Comvita to Derma Sciences in
writing.
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(b)
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The
price for the Medical Honey will be expressed in United States
dollars and will be exclusive of any goods and services tax or other value
added or sales taxes, which, if applicable, will be payable in
addition.
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(c)
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Comvita
will provide to Derma Sciences on request full and complete details on an
“open book” basis of the Cost of Production. For the avoidance of doubt,
such details will be regarded as the Confidential Information of
Comvita.
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(d)
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Comvita
will use reasonable endeavours to manufacture the Medical Honey
efficiently and in the most cost effective manner, and to keep the Cost of
Production to a minimum.
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5.2
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Invoicing and
payment:
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(a)
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Comvita
will invoice Derma Sciences for the price for Medical Honey ordered by
Derma Sciences upon dispatch.
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exhibit
10.04 -supply agmt
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5
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(b)
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Derma
Sciences will pay all invoices in United States dollars within 60 days
following the date of the invoice, subject to clause
5.2(c).
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(c)
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If
Derma Sciences disputes in good faith the whole or any portion of any
invoice issued under clause 5.2(a), Derma Sciences will pay the portion of
the invoice that is not in dispute, but may withhold payment of the
disputed portion until the dispute is
resolved.
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5.3
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Late
payment: If Derma Sciences fails to pay any amount
payable under this Agreement by the due date for payment, then subject to
clause 5.2(c), Comvita may charge interest on the outstanding amount at
the rate of 12% per annum. Interest will be calculated on a daily basis
from the due date until the date of actual
payment.
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6.
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DELIVERY
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6.1
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FOB:
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(a)
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Comvita
will deliver the Medical Honey to Derma Sciences via sea freight, FOB New
Zealand.
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(b)
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The
FOB provisions of Incoterms 2000 will govern all matters relating to
delivery, including (without
limitation):
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(i)
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who
is responsible for arranging shipping and delivery of the Medical
Honey;
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(ii)
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who
is to pay any costs related to shipping and delivery, including
carriage, insurance and customs clearance charges;
and
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(iii)
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at
what point risk in the Medical Honey passes to Derma
Sciences,
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except to
the extent those provisions are inconsistent with the terms of this
Agreement.
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(c)
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Comvita
will use reasonable endeavours to meet any agreed delivery
dates.
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(d)
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Any
additional freight charges incurred in the supply of Medical Honey to
Derma Sciences as a consequence of failure by a party to meet its ordering
or supply obligations under this Agreement (including Derma Sciences’
failure to comply with clause 3.1(c) and Comvita’s failure to deliver the
Medical Honey by the delivery date pursuant to clause 3.1(a)) will be met
by the party responsible for the
failure.
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6.2
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Shortfalls: In
the event of an alleged shortfall in delivery, Derma Sciences will submit
a written claim to Comvita within 10 Business
Days following the date of receipt of the relevant order for Medical Honey
by Derma Sciences. In the absence of such a written claim from
Derma Sciences, the Medical Honey will be deemed to have been supplied in
accordance with this Agreement. In no event will Derma Sciences
be entitled to refuse to accept any order by reason only of a
shortfall.
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7.
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TITLE
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7.1
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Title
in any Medical Honey sold to Derma Sciences will pass to Derma Sciences at
such time as the Medical Honey has been received by Derma Sciences at its
shipping destination.
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exhibit
10.04 -supply agmt
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6
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8.
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WARRANTIES
AND LIABILITY
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8.1
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Warranty:
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(a)
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Comvita
warrants that, for a period of 12 months following the date of delivery,
the Medical Honey will comply with Comvita’s manufacturing specifications
for the Medical Honey.
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(b)
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If
any Medical Honey does not comply with the warranty in clause 8.1(a),
Comvita will provide to Derma Sciences replacement Medical Honey that does
comply at no extra cost to Derma Sciences. In such case, Derma
Sciences will return all non-complying Medical Honey to Comvita at
Comvita’s cost.
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(c)
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No
warranty is given for failure by Derma Sciences or its permitted
sub-licensees to comply with any recommendations made by Comvita as to
storage and handling of the Medical
Honey.
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8.2
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No implied
warranties: Derma Sciences acknowledges
that:
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(a)
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it
does not enter into this Agreement in reliance on any representation,
warranty, term or condition, except as expressly provided in this
Agreement; and
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(b)
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all
conditions, warranties or other terms implied by statute or common law are
excluded by Comvita from this Agreement to the fullest extent permitted by
law.
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8.3
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Exclusion of
liability: In no event will Comvita be liable (whether
in contract, tort, negligence or in any other way) to Derma Sciences
for:
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(a)
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loss
of revenue or profit, loss of anticipated savings, loss of goodwill or
opportunity, loss of production, loss or corruption of data or wasted
management or staff time; or
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(b)
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loss,
damage, cost or expense of any kind whatsoever that is indirect,
consequential, or of a special
nature,
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arising
directly or indirectly out of this Agreement, even if Comvita had been advised
of the possibility of such loss, damage, cost or expense, and even if such loss,
damage, cost or expense was reasonably foreseeable by Comvita.
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8.4
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Insurance:
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(a)
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During
the term of this Agreement and for three years afterwards, Comvita will
maintain insurance coverage in amounts and against risks that are normal
for businesses similar to that of
Comvita.
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(b)
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Comvita
will, upon request, provide to Derma Sciences a certificate from the
insurer confirming the terms of such
insurance.
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9.
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TERM
AND TERMINATION
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9.1
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Commencement and
term: This Agreement will come into effect on the
Commencement Date and will continue in full force and effect for so long
as the Licence Agreement remains in full force and effect, unless earlier
terminated pursuant to clauses 9.2 or
9.3.
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exhibit
10.04 -supply agmt
|
7
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9.2
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Early
termination: Without prejudice to any other right or
remedy it may have, either party may immediately terminate this Agreement
at any time by giving to the other party notice in writing
if:
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(a)
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the
other party is in material breach of this Agreement and the material
breach is not remedied within 20 Business Days of the other party
receiving notice specifying the material breach and requiring its remedy,
provided that for non-payment defaults, if it is not commercially
reasonable for a material breach to be fully cured within 20 Business
Days, then the cure period shall be extended for an additional period of
no greater than six months provided the party in material breach has
commenced remedying the default and has clearly demonstrated in writing
that it is diligently pursuing and continues to diligently pursue such
cure;
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(b)
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the
other party ceases or threatens to cease to carry on all or substantially
all of its business or operations, is declared or becomes bankrupt or
insolvent, is unable to pay its debts as they fall due, enters into a
general assignment of its indebtedness or a scheme of arrangement or
composition with its creditors, or takes or suffers any similar or
analogous action in consequence of
debt;
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(c)
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a
trustee, manager, administrator, administrative receiver, receiver,
inspector under any legislation or similar officer is appointed in respect
of the whole or any part of the other party’s assets or business;
or
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(d)
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an
order is made or a resolution is passed for the liquidation of the other
party (other than voluntarily for the purpose of a solvent amalgamation or
reconstruction).
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9.3
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Termination of Restraint
Agreement or Licence Agreement: This Agreement will immediately
terminate in the event of termination of the Restraint Agreement or the
Licence Agreement for any reason.
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9.4
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Consequences of
termination: On termination or expiration of this
Agreement for any reason
whatsoever:
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(a)
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Comvita
will be entitled (but is not obliged) to complete any order for Medical
Honey confirmed by it before the date of termination or expiration, and
the provisions of this Agreement will continue to apply to any such
order;
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(b)
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Derma
Sciences will remain liable to pay to Comvita the price for Medical Honey
delivered under this Agreement;
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(c)
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the
Recipient will, upon receipt of a written request from the Disclosing
Party, return or destroy (at the Disclosing Party’s option), all
Confidential Information in the Recipient’s possession or under the
Recipient’s control. Upon the return or destruction (as the
case may be) of all such Confidential Information, the Recipient will
provide to the Disclosing Party a certificate stating that the
Confidential Information returned or destroyed comprises all the
Confidential Information in the Recipient’s possession or under the
Recipient’s control;
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(d)
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the
provisions of clauses 5, 8, 9.4, 11 and any other clauses intended to
survive termination, together with those other provisions of this
Agreement that are incidental to, and required in order to give effect to
those clauses, will remain in full force and effect;
and
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exhibit
10.04 -supply agmt
|
8
|
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(e)
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subject
to this clause 9.4, and except for any rights and remedies of the parties
that have accrued before termination or expiration, including for any
prior breach of this Agreement, neither party will be under any further
obligation to the other party.
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10.
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DISPUTES
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10.1
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Mediation: In
the event of a dispute arising out of or relating to this Agreement,
including any question regarding its existence, validity or termination,
the parties will first seek settlement of that dispute by mediation in
accordance with the LCIA Mediation Procedure, which Procedure is deemed to
be incorporated by reference into this clause
10.
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10.2
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Arbitration: If
the dispute is not settled by mediation within five days of the
commencement of the mediation, or such further period as the parties may
agree in writing, the dispute will be referred to and finally resolved by
arbitration under the LCIA Rules, which Rules are deemed to be
incorporated by reference into this clause
10.
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10.3
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Language: The
language to be used in the mediation and in the arbitration will be
English.
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10.4
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Governing
law: The governing law of this Agreement will be the
substantive law of New Zealand.
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10.5
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Arbitration
procedure: In any arbitration commenced pursuant to this
clause 10:
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(a)
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the
number of arbitrators will be three;
and
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(b)
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the
seat, or legal place, of arbitration will be London,
England.
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10.6
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Interlocutory
relief: Nothing in this clause 10 will prevent either
party, at any time, from seeking any urgent interlocutory relief from a
court of competent jurisdiction in relation to any matter that arises
under this Agreement.
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11.
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GENERAL
|
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11.1
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Force
majeure:
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(a)
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Neither
party will be liable to the other party for any breach or failure to
perform any of its obligations under this Agreement where such breach or
failure is caused by anything beyond that party’s reasonable control,
including (without limitation) war, civil commotion, hostility, act of
terrorism, strike, lockout, other industrial act, weather phenomena or
other act of God, or governmental regulation or direction (“Force Majeure”),
provided that the party seeking to rely on this clause 11.1
has:
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(i)
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notified
the other party as soon as reasonably practicable upon becoming aware of
an actual or potential event of Force
Majeure;
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(ii)
|
used
all reasonable endeavours to avoid, overcome or mitigate the effects of
the event of Force Majeure as quickly as practicable;
and
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(iii)
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consulted
with the other party on its efforts under clause
11.1(a)(ii).
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(b)
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If:
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(i)
|
as
a result of a Force Majeure a party is unable to perform any of its
material obligations under this Agreement;
and
|
|
exhibit
10.04 -supply agmt
|
9
|
|
|
(ii)
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the
ability of such party to perform any such material obligation has been
permanently affected by such Force
Majeure,
|
then the
party not subject to the event of Force Majeure may terminate this Agreement on
giving the other party 10 Business Days’ written notice.
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(c)
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Nothing
in this clause 11.1 will excuse a party from any obligation to make a
payment when due under this
Agreement.
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11.2
|
Variations: No
amendment, variation or modification to this Agreement will be effective
unless it is in writing and signed by duly authorised representatives of
both parties.
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11.3
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Assignment:
|
|
|
(a)
|
Derma
Sciences may assign any or all of its rights and obligations under this
Agreement, provided it first obtains the written consent of Comvita, such
consent not to be unreasonably
withheld.
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|
|
(b)
|
Comvita
may assign any or all of its obligations under this Agreement, provided it
first obtains the written consent of Derma Sciences, such consent not to
be unreasonably withheld.
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|
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(c)
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Comvita
may assign any or all of its rights under this Agreement at any time,
without requiring the consent of Derma
Sciences.
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11.4
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No
waiver:
|
|
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(a)
|
A
delay, neglect or forbearance by a party in enforcing any provision of
this Agreement against the other will not waive or limit any right of that
party.
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|
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(b)
|
No
provision of this Agreement will be considered waived by a party unless
that party waives the provision in
writing.
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|
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(c)
|
The
parties will not treat a waiver by a party of any breach as a waiver of
any continuing or re-occurring breach, unless the parties have expressly
agreed to do so in writing.
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11.5
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Invalid
clauses: If any part of this Agreement is held to be
invalid, unenforceable or illegal for any reason, this Agreement will be
deemed to be amended by the addition or deletion of wording necessary to
remove the invalid, unenforceable or illegal part, but otherwise to retain
the provisions of this Agreement to the maximum extent permissible under
applicable law.
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|
11.6
|
Relationship:
|
|
|
(a)
|
The
parties will perform their obligations under this Agreement as independent
contractors to each other.
|
|
|
(b)
|
Nothing
in this Agreement will create, constitute or evidence any partnership,
joint venture, agency, trust or employer/employee relationship between the
parties, unless it expressly states otherwise. Neither party
may represent, or allow anyone to represent, that any such relationship
exists between the parties.
|
|
|
(c)
|
Neither
party will have the authority to act for, or incur any obligation on
behalf of, the other party, except as expressly provided for in this
Agreement.
|
|
exhibit
10.04 -supply agmt
|
Medical
Honey Supply Agreement
|
10
|
|
11.7
|
Notices:
|
|
|
(a)
|
Each
notice or other communication to be given under this Agreement (“Notice”) must be in
writing and must be:
|
|
|
(i)
|
in
the English language and clearly
legible;
|
|
|
(ii)
|
sent
by pre-paid post, facsimile (confirmed by pre-paid post) or personal
delivery to the addressee at the facsimile number, physical address, or
postal address specified in clause 11.7(b);
and
|
|
|
(iii)
|
marked
for the attention of the person or office holder (if any) specified in
clause 11.7(b).
|
|
|
(b)
|
The
initial facsimile number, address, and relevant person or office holder of
each party are, unless otherwise notified by the relevant party in writing
to the other party, as set out
below:
|
|
Comvita:
|
Comvita
New Zealand Limited
|
|
|
▇▇▇▇▇▇
Road South
|
||
|
Paengaroa
|
||
|
NEW
ZEALAND
|
||
|
Facsimile:
|
▇▇▇
▇ ▇▇▇ ▇▇▇▇
|
|
|
Attention:
|
Chief
Executive Officer
|
|
|
Derma
Sciences:
|
||
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
▇▇▇▇▇
▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇▇ of America
|
||
|
Facsimile:
|
▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
|
|
|
Attention:
|
Chief
Executive Officer
|
|
|
|
(c)
|
No
Notice will be effective until received. A Notice is, however,
deemed to be received:
|
|
|
(i)
|
in
the case of posting, on the third Business Day following the date of
posting;
|
|
|
(ii)
|
in
the case of personal delivery, when received;
and
|
|
|
(iii)
|
in
the case of a facsimile, following receipt of a report from the machine on
which the facsimile was sent confirming that all pages were successfully
transmitted,
|
but any
Notice personally delivered or received by facsimile either after 5.00 pm on a
Business Day, or on any day that is not a Business Day, will be deemed to have
been received on the next Business Day.
|
|
(d)
|
Despite
clauses 11.7(a) and (c)(i), if the Notice is posted from a country other
than the country of the addressee, the method of posting must be pre-paid
airmail, and the Notice will be deemed to be received on the seventh
Business Day following the date of
posting.
|
|
exhibit
10.04 -supply agmt
|
Medical
Honey Supply Agreement
|
11
|
|
11.8
|
Further
action: Each party agrees to execute, acknowledge and
deliver all instruments, make all applications and do all things, as may
be necessary or appropriate to carry out the purposes and intent of this
Agreement.
|
|
11.9
|
Announcements: Neither
party may:
|
|
|
(a)
|
make
any press or other public announcement about any aspect of this Agreement;
or
|
|
|
(b)
|
use
the name of the other party in connection with or as a result of this
Agreement,
|
without
the other party’s prior written consent.
|
11.10
|
Entire
agreement:
|
|
|
(a)
|
This
Agreement and the Confidentiality Agreement contains the whole of the
contract and understanding between the parties relating to the matters
covered by it.
|
|
|
(b)
|
This
Agreement supersedes all prior representations, agreements, statements and
understandings between the parties relating to those matters, whether
verbal or in writing.
|
|
|
(c)
|
The
parties acknowledge that they do not rely on any representation,
agreement, term or condition that is not set out in this
Agreement.
|
|
|
(d)
|
To
the extent that there is any inconsistency or conflict between the terms
set out in a purchase order or invoice and the terms set out in this
Agreement, the terms set out in this Agreement will
prevail.
|
|
11.11
|
Counterparts:
|
|
|
(a)
|
The
parties may sign this Agreement in any number of counterparts (including
facsimile or PDF copies), and a party may enter into this Agreement by
signing any counterpart.
|
|
|
(b)
|
The
parties confirm that their signing of this Agreement by such means will be
valid and sufficient. All counterparts, when taken together,
will constitute one and the same
agreement.
|
|
11.12
|
Costs: Each
party will bear its own legal costs and expenses incurred in connection
with the preparation, negotiation and execution of this
Agreement.
|
|
11.13
|
Remedies
cumulative:
|
|
|
(a)
|
The
rights of the parties under this Agreement are
cumulative.
|
|
|
(b)
|
The
parties do not exclude any rights provided by law, unless otherwise
expressly stated in this Agreement.
|
|
11.14
|
UN Convention not to
apply: It is specifically agreed between the parties
that the United Nations Convention on the International Sale of Goods will
not apply to this Agreement.
|
|
exhibit
10.04 -supply agmt
|
Medical
Honey Supply Agreement
|
12
|
SIGNED
|
COMVITA NEW ZEALAND
LIMITED
|
by: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Signature
of Authorised Signatory
|
||
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
||
|
Name
of Authorised
Signatory
|
|
DERMA SCIENCES, INC
|
by: |
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
Signature
of Authorised Signatory
|
||
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name
of Authorised
Signatory
|
|
exhibit
10.04 -supply agmt
|
Medical
Honey Supply Agreement
|
13
|
SCHEDULE
MEDICAL
HONEY SPECIFICATIONS
The
specifications that Medical Honey must comply with in terms of content, quality
and essential features are those specifications set out in Comvita’s Product
Specifications numbered 4460A-002, 3980A-001, 4040A-001 and 4124A-001 and
Comvita’s Product Information Sheet for Medical Honey 12+ (Code 743), copies of
which are attached as an exhibit hereto, as may be updated or revised by Comvita
from time to time after consultation with Derma Sciences.
|
exhibit
10.04 -supply agmt
|
Medical
Honey Supply Agreement
|
14
|