Exhibit 10.37
CRYOLIFE INTERNATIONAL, INC.
International Distribution Agreement
This Agreement (the "Agreement") consists of this page and the
Schedules identified below which together constitute your complete agreement
with CryoLife International, Inc. (the "Company") relating to the Products
listed on Schedule A. This Agreement will become effective as of the date
of its signing (the "Effective Date"). This Agreement replaces any prior oral or
written communications regarding the subject matter hereof between you (the
"Distributor") and Company. The schedules included in this Agreement are:
Schedule A Products and Territory
Schedule B Inventory and Minimum Purchase Requirements
Schedule C Non-Company Products Carried and Not Carried by
Distributor
Schedule D Distributor's Duties
Schedule E Terms and Conditions
Schedule F Marks
By signing below and in consideration of the mutual covenants contained in
this Agreement, Company and Distributor agree to the terms of this Agreement.
Agree to:
Distributor: Century Medical, Inc. Company: CryoLife International, Inc.
/s/ Mitsunari Suzuki /s/ Gerald B. Seery
- ---------------------------------- -----------------------------------
Mitsunari Suzuki Gerald B. Seery
President/CEO Senior Vice President, Marketing
Century Medical, Inc. CryoLife International, Inc.
Type of Organization (circle one): ----------------------------------
corporation, partnership, LLC, Steven G. Anderson
proprietor, individual President and CEO
CryoLife, Inc.
Date: September 17, 1998
Address: 1655 Roberts Boulevard, N.W., Kennesaw, GA 30144
Schedule A
PRODUCTS AND TERRITORY
DISTRIBUTOR NAME: Century Medical, Inc.
Products:
BioGlue Surgical Adhesive, including any line extensions, modifications
and improvements thereto.
Territory:
The country of Japan (the "Territory").
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SCHEDULE B
INVENTORY AND MINIMUM PURCHASE REQUIREMENTS
DISTRIBUTOR NAME: Century Medical, Inc.
Product Stocking Requirements:
Minimum 2 months inventory maintained at all times.
Minimum Purchase Requirements, subject to Product reimbursement existing in the
Territory for the Indications (as defined in Schedule E, subsection 6(c)), by
Contract Year:
PRODUCT LINE YEAR 1 YEAR 2 YEAR 3
------ ------ ------
BioGlue Surgical Adhesive $350,000 $600,000 $750,000
Ninety (90) days prior to the beginning of Contract Year 4 and ninety (90) days
prior to the beginning of each Contract Year thereafter, Distributor and Company
will negotiate Minimum Purchase Requirements for the immediately following
Contract Year taking into consideration such factors as the previous Contract
Year's sales of Products in the Territory, Distributor's inventory level of the
Products, competition and competitive trends and other such factors which
pertain to the market and marketability of the Products. In the event that the
parties are unable to agree upon a Minimum Purchase Requirement for Contract
Year 4 or any Contract Year thereafter, the Minimum Purchase Requirement for
Contract Year 4 or any subsequent Contract Year shall be the greater of the
product of (a) 1.15 times the Minimum Purchase Requirement for the immediately
preceding Contract Year, or (b) 1.15 times Distributor's actual purchase of
Product for the immediately preceding Contract Year.
For purposes of this Agreement, the term "Contract Year" shall mean the twelve
(12) month period commencing on the first day of the first full month following
the date that all medical registrations required for distribution of Products in
the Territory are approved, and all import permits required for the importation
of Products into the Territory are issued by the appropriate government
authorities.
If, at the time of reimbursement of the Product is established, the Product
price, as provided in Section 3(a) of Schedule E is greater than an amount equal
to thirty-five percent (35%) of the reimbursement amount, then the parties shall
meet and in good faith review pricing levels and the Minimum Purchase
Requirements. Nothing in the foregoing sentence, however, shall require Company
to supply any Product to Distributor at a price that would result in Company
achieving an unacceptable profit margin, as determined by Company.
Product Prices:
As provided in Section 3(a) of Schedule E.
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SCHEDULE C
NON-COMPANY PRODUCTS
CARRIED AND NOT CARRIED BY DISTRIBUTOR
DISTRIBUTOR NAME: Century Medical, Inc.
I. Competitive products Distributor may continue to represent within the
Territory:
In addition to Products, Distributor may represent, sell and distribute the
products listed below which are or may be competitive with Products (describe
fully the manufacturer's name, product name and applications of all products and
services):
- ----------------------------------- ---------------------------------------------------------
Manufacturer Products
- ----------------------------------- ---------------------------------------------------------
Radiology & Imaging Products
Parker Laboratories Ultrasound Gels and Electrode Creams
Graphic Controls ECG & EEG Electrodes
CIVCO Medical Instruments Ultrasound Accessories, Biopsy needle guides
- ----------------------------------- ---------------------------------------------------------
Critical Care Products
Ballad Medical Closed Tracheal Suctioning Tube
Diametrics Medical Point of Care Blood Gas Analysis System
Integra LifeSciences Integra(R)Artificial Skin, Helistat & Helitene
- ----------------------------------- ---------------------------------------------------------
Cardiovascular Products
Millar Instruments Pressure Transducer, Catheter Doppler system
ATS Medical Open Pivot Bi-leaflet Heart Valve
Cordis-Webster Electrophysiology Catheters
EP Medsystems EP Workmate(TM)Recording System & EP-3(TM)
B. Braun Medical Cardiac Stimulator
Vena Cava Filter
- ----------------------------------- ---------------------------------------------------------
Interventional Neurology
Phoenix Biomedical NeuroSurgery and Hunter(TM)Tendon Implants
Integra LifeSciences DuraGen dura Regeneration Template
- ----------------------------------- ---------------------------------------------------------
Orthopedics Products
Wright Medical Technologies Artificial Joint prosthetics, Trauma, Sports Medicine,
Bone Growth Substitutes
Cross Medical Products Synergy(TM)Universal Spinal Fixation Devices
Encore Orthopedics Tru-Flex(TM)Intermedular Nail Products
- ----------------------------------- ---------------------------------------------------------
Surgical Products
Hemostatix Medical Devices Shaw(TM) Scalpel
Aaron Medical Industries Electrodes
Genzyme Aortic Punch Gabbay-Frator Suture Guide
- ----------------------------------- ---------------------------------------------------------
Urology/Women's Healthcare
VIDAMed International TUNA(TM)Transurethral RF Ablation for BPH
- ----------------------------------- ---------------------------------------------------------
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II. Specific Non Company products Distributor agrees not to distribute within
the Territory:
In addition to the general prohibition against carrying competitive products
within the Territory contained in Section 12(a) of the Terms and Conditions set
forth in Schedule E Distributor agrees not to represent the following specific
products and services:
1. Any product or services by Shelheigh.
2. Any products or services by Tissuemed.
3. Any bioadhesives (excluding synthetic adhesives).
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SCHEDULE D
DISTRIBUTOR'S DUTIES
DISTRIBUTOR NAME: Century Medical, Inc.
Distributor shall, at its sole expense, use its best efforts to develop and
expand the sale of Products within the Territory. In addition, Distributor shall
be responsible for the following, at its own expense:
1. Payment Terms. As provided in Section 3(e) of Schedule E.
2. Facilities and Personnel. Distributor will appoint a product specialist
in BioGlue Surgical Adhesive within sixty (60) days after the expected date of
import license approvals for the Products. Distributor shall maintain office
space and facilities, and hire and train such other professional and competent
personnel, as may be required to carry out its obligations under this Agreement.
As requested by Company, Distributor will participate in any training courses
which Company may conduct for Distributor's benefit; will attend special
meetings; and will attend local trade shows which Distributor deems appropriate.
3. Visits. When Company desires to conduct field work in the Territory,
Distributor will plan an effective schedule of appointments and otherwise
provide reasonable assistance to Company personnel for the duration of the
visit.
4. Reports and Forecasts. Distributor will make accurate quarterly sales
reports to Company, in a form acceptable to Company, which details Distributor's
sales of Products within the Territory. Distributor will make such reports
within fifteen (15) days following the end of each quarter. As periodically
required by Company, Distributor will provide to Company other reports and
forecasts and such other information as Company may reasonably request. Company
has the right to verify the information in such reports and it, or its agents,
shall be given access to Distributor's books and records for such purpose upon
reasonable notice during normal business hours.
5. Product Stocking Requirements. Distributor must meet or exceed all
Product stocking requirements and Minimum Purchase Requirements identified or
determined in the manner provided in Schedule B.
6. Maintenance of Inventory. Within thirty (30) days following the date of
approval for import licenses for the Products, subject to Company's supply to
Distributor of adequate Promotional Materials (as defined below), and continuing
until the termination of this Agreement, Distributor will maintain
representative and adequate stocks of Products in locations commensurate with
the market and Distributor's sales, in order to ensure adequate and timely and
prompt delivery of "off the shelf" Products to customers at all times.
7. Promotional Materials. Distributor must maintain an adequate inventory
of Company's current sales material and samples ("Promotional Materials") and
must use the Promotional Materials in an efficient and effective manner to
promote the sale of Products in the Territory. Distributor must obtain Company's
written approval for the use of materials other than the Promotional Materials
to promote Products. Distributor will prepare accurate translations of Company's
Promotional Materials into the languages utilized in the Territory and will make
such translations available to Company. Unless otherwise agreed, Distributor
will use the trademarks or tradenames identified on Schedule F (the "Marks") on
all Promotional Materials. This Agreement grants no right to use the Company
name or any of the Marks as part of Distributor's corporate or tradename or for
any purpose other than as authorized by Company for use with Promotional
Materials, accurate translations of promotional Materials, and substitute
Promotional Material which has been approved by Company. Distributor will use no
other trademarks, servicemarks, tradenames or identifying markings to describe
or identify any Products without the prior written consent of Company.
8. Aftermarket Support. Distributor will provide full and complete service
incident to the sale of Products in the Territory in accordance with Company's
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commercially reasonable instructions. As instructed by Company, Distributor will
assist Company in fulfilling warranty obligations, if any, relating to the
Products for all customers located in the Territory and Company will reimburse
Distributor for any out of pocket expenses incurred in connection therewith.
9. Performance and Changes. Distributor will communicate promptly to
Company ongoing information regarding the performance of Products and any and
all modifications, design changes or improvements of Products suggested by any
customer or employee or agent of Distributor, and Distributor hereby agrees that
Company will be and will remain the exclusive owner of such improvements and
information.
10. Compliance with Company Policies. Distributor, to the extent informed
and instructed by Company, must comply, and must cause its employees and agents
to comply, with all policies established by Company from time to time, as well
as with Company's educational, commercial, and engineering instructions
respecting Products.
11. General. Distributor must maintain an overall credit rating
satisfactory to Company; conduct its business in an ethical manner; make payment
for Products in a timely fashion; accurately represent Products in terms of
function and performance; and promptly report in writing to Company any
suspected Product defects or safety problems, or any customer complaints
concerning Products.
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SCHEDULE E
TERMS AND CONDITIONS
1. Appointments. (a) Appointments. Distributor shall act as the exclusive
importer and distributor of Company's Products within the Territory. Distributor
will use its best efforts to promote the sale of Products within the Territory.
Company agrees that it will not: (i) grant the same rights to another party
during the term of this Agreement; (ii) directly or indirectly make sales of
Products in the Territory, except through Distributor; or (iii) make sales of
Products outside of the Territory to any party whom Company knows intends to
resell Products into the Territory.
(b) Conditions. Distributor shall maintain an office in the Territory and
shall conduct all of its business in its own name. Distributor may appoint
subdistributors to make sales of Products within the Territory on such terms and
conditions as Distributor determines to be necessary to fulfill its obligations
under this Agreement; provided that no such appointment or delegation shall
relieve Distributor from any obligations hereunder.
(c) Relationship. Nothing contained in this Agreement shall constitute or
create a relationship of employer/employee, principal/agent, joint venture,
partnership, or any other relationship between Company and Distributor other
than that of independent contractor.
2. Activity Outside the Territory. Distributor will restrict its promotion,
marketing and sale of Products to the Territory in order to ensure that
appropriate attention is being devoted to customers in the Territory and to meet
the Minimum Purchase Requirements (defined in Section 5). To ensure the
foregoing, Distributor shall not solicit, accept or fulfill orders for Products
from any person or entity located outside the Territory, or establish or
maintain either a branch or distribution depot for the purpose of distribution
of any Product outside the Territory.
3. Product Purchases. (a) Prices. Distributor's purchase price for all
Products shall be the prices set out in the export price schedule of Company for
Products sold to unaffiliated third parties in effect as of the time of shipment
of Products. Company shall have the right to change the export price schedule
for Products sold to unaffiliated third parties in its sole discretion, but any
accepted orders shall be filled at the prices stated in the export price
schedule effective at the date of the acceptance of such order. Company shall
provide Distributor with sixty (60) days' prior notice of any price change, and
Distributor will have sixty (60) days following the date of such notice to order
at the existing price.
(b) Purchase Orders. Distributor shall issue to Company a purchase order,
in English, which shall specify: (i) the Product, including item numbers and
part numbers if shown for that item in the export price schedule; (ii) the
price; (iii) requested delivery schedule; and (iv) exact "ship to" and "invoice
to" place of business. Company, in its sole discretion, shall confirm such
purchase order in writing by transmitting to Distributor an order confirmation
or by notifying Distributor of its decision to reject such purchase order. If
Distributor does not receive a valid order confirmation, the purchase order
shall be deemed rejected. The terms contained in this Agreement, the purchase
order, and any order confirmation given by Company, together with any written
amendments signed by both parties, shall govern the sale of Products; provided,
however, that the terms of this Agreement shall supersede all inconsistent terms
in the purchase order. No purchase order or order confirmation shall serve to
amend this agreement, regardless of whether or not such document was signed by
an employee of Company. Orders placed by telephone, facsimile, or in person are
to be confirmed through a written purchase order to Company by Distributor
within the shortest practicable time thereafter. Company shall have the sole
right to accept or reject at Company's home office any and all orders of
Products. Notwithstanding the foregoing, in the event that Company rejects any
bona fide purchase order submitted by Distributor in compliance with the
provisions set forth herein, any Minimum Purchase Requirement then in effect
pursuant to Section 5(a) will be adjusted accordingly.
(c) Shipment. Products shall be shipped F.O.B. Kennesaw. Company shall
endeavor to ship Distributor's orders of any Product within a reasonable time,
subject to the limitations of the prevailing laws and regulations of Company's
or Distributor's governments and to forces outside the control of Company.
Company must deliver Products meeting the Company's specifications and quality
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standards in effect at the time of shipment and with a minimum shelf life of
twenty four (24) months. Distributor acknowledges that Company may appoint any
wholly owned subsidiary or Company's parent corporation to make sales of
Products to Distributor, subject to the terms and conditions of this Agreement;
provided, however, that no such appointment or delegation shall relieve Company
from any of its obligations hereunder.
(d) Returns. Company does not guarantee the sale of any Product in the
Territory and shall not accept any returns of any Product except under the
following conditions:
(i) Distributor has notified Company in writing of any alleged defects
rendering any Product unsalable not later than fourteen (14) days from the date
of arrival of such Product at Distributor's warehouse in the Territory.
(ii) At Company's request, Distributor promptly returns the allegedly
defective Product to Company or provides such other evidence of the deficiency
of the Product to Company, all as Company shall specify. Credit for any
defective Product shall issue only if, and only to the extent, that Company's
examination shall confirm that the Product is defective and that such defect is
not the result of any mishandling of the Product after the Product is delivered
Free Carrier Company's point of shipment.
(iii) Company reserves the right, at its discretion, to replace free of
charge any Product found to be defective with the same quantity of Product in
good, saleable condition, transferring the replacement to Distributor's
facilities at Company's point of shipment which shall be the Company's expense.
Distributor will advise Company of any information in its possession regarding
mishandling, damage, deterioration, alteration, or modification of any Product
or its packaging. Distributor will follow Company's instructions to return
Products or to otherwise dispose of them, and will not ship Products until
receiving such instructions.
(e) Payment. All payments due by Distributor hereunder shall be made by
Distributor net sixty (60) days from the later of date of invoice or date of
delivery of the Products Free Carrier Company's point of shipment which shall be
the Company's plant or warehouse in the United States. All such payments shall
be made in U.S. Dollars by wire transfer to an account or accounts designated by
the Company. This provision shall survive any termination or expiration of this
Agreement.
4. Changes and Recalls. (a) Changes. The Company reserves the right to make
changes or to discontinue manufacture or sale of the Product.
(b) Recalls. Only Company shall be permitted to determine whether or when
to make a recall of a Product. Company will notify Distributor of the "recall"
and Distributor, at Company's sole expense, agrees to cooperate with Company in
all reasonable ways to accomplish the "recall" and to remove such recalled
Products from the market. This cooperation shall include but not be limited to
the obligation to pick up all recalled Products from customers. Company reserves
the right to replace "recalled" Products with equivalent Products.
5. Minimum Purchase Requirement. (a) For any Contract Year (as hereinafter
defined), in which Distributor fails to purchase at least the minimum purchase
requirement for Products set forth in Schedule B hereto for such Contract Year
(each, a "Minimum Purchase Requirement" and, collectively, the "Minimum Purchase
Requirements"), Company shall have the right to terminate this Agreement for
cause upon written notice to Distributor; provided that Company shall have
provided notice of such failure to Distributor within one (1) month after the
end of such Contract Year and Distributor shall not have made sufficient
additional purchases of Product from the Company during the three (3) month
period immediately after the end of such Contract Year (the "Catch Up Period")
to fulfill such Minimum Purchase Requirement had such purchases been made during
the prior Contract Year (the "Catch Up Purchases"). The parties agree that in
order to prevent double counting of purchases, any Catch Up Purchases counted,
pursuant to the preceding sentence, toward meeting a Minimum Purchase
Requirement for the Contract Year prior to the Contract Year in which they were
actually purchased will not be counted toward meeting the Minimum Purchase
Requirement for the Contract Year in which they are actually made. Company
agrees to engage in reasonable discussions with Distributor during the Catch Up
Period regarding whether Company will accept any remedy other than those
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identified above for Distributor's failure to make the Minimum Purchase
Requirements, and in such discussions Company agrees to consider such factors as
Distributor's previous Contract Year's sales, inventory level, competition,
competitive trends and other factors which impact the marketability of the
Products. Nothing in this paragraph shall require Company or Distributor to
accept an alternative remedy.
(b) For purposes of this Agreement, the term "Contract Year" shall mean the
twelve (12) month period commencing on the first day of the first full month
following the date that all medical registrations required for distribution of
Products in the Territory are approved, and all import permits required for the
importation of Products into the Territory are issued by the appropriate
government authorities.
(c) Company recognizes that a substantial lead time is required to obtain
import license approvals for Product specification changes and Company will
endeavor to its best ability to give Distributor as much advance notification as
is reasonably possible of Product specification changes. In the event Company
discontinues the manufacture or sale of Products or in the event of a Product
specification change or Product recall, Distributor's Minimum Purchase
Requirements under Schedule B hereto shall be amended and adjusted accordingly.
6. Compliance with Laws. (a) Local Law. Distributor will at all times
during the term of this Agreement comply with all laws and regulations
applicable to its business in the Territory. Distributor represents that it
knows of no provision of law or regulations in the Territory applicable to this
Agreement which would render any provision of this Agreement void or
unenforceable or which would entitle Distributor to any right to compensation
which is not specified herein.
(b) Import Licenses and Other Approvals. Distributor shall, at its expense,
obtain any and all import licenses and governmental approvals that may be
necessary to permit the sale by Company and the purchase by Distributor of
Products for resale into the Territory. Distributor will comply with all
registration requirements in the Territory, and will obtain such approvals from
the governmental authorities of the Territory as may be necessary to comply with
any and all governmental laws, regulations, and orders that may be applicable to
Distributor by reason of its execution of or performance under this Agreement,
including any requirement to be registered as Company's independent distributor
or representative with any governmental authority, and including any and all
laws, regulations, or orders that govern or affect the ordering, export,
shipment, import, sale (including government procurement), delivery, or
redelivery of Products in the Territory.
(c) Conduct of Trials, Etc. The parties anticipate that obtaining
governmental approval within the Territory for the importation of the Products
by Company to Distributor for resale in the Territory will require the conduct
of clinical trials (the "Clinical Trials") within the Territory. Distributor and
Company shall jointly establish the guidelines, parameters and procedures for
the Clinical Trials, and such Clinical Trials will be conducted at Distributor's
expense and under Distributor's supervision. Distributor's application to the
Japanese Ministry of Health and Welfare to begin the Clinical Trials shall
include requests for the indications (the "Indications") of vascular repair
(including dissecting Aortic aneurysm, suture of Aortic incision, anastomosis
between Aorta and artificial graft, and anastomosis of Aorta-Coronary bypass
graft), adjunctive air leak elimination during lung volume reduction surgery,
bronchial plural fistula, cancer and adjunctive suture repair for trachea
anastomosis and other thoracic applications, and liver repair, subject to
confirmation of the efficacy for use on the liver. Distributor agrees to provide
Company with periodic English language progress reports on the conduct and
results of the Clinical Trials as well as copies of all test results, reports,
correspondence and filings made in connection with the Clinical Trials
(collectively, the "Reports"). Whenever possible, Distributor will provide
Company with English language copies of the Reports.
(d) Questionable Payments. Distributor certifies that neither it, nor any
of its directors, officers, employees, or agents is an official, agent, or
employee of any government or governmental agency or political party or a
candidate for any political office on the Effective Date of this Agreement.
Distributor shall not, directly or indirectly, in the name of, on behalf of, or
for the benefit of Company offer, promise, or authorize to pay, or pay any
compensation, or give anything of value to, any official, agent, or employee of
any government or governmental agency, or to any political party or officer,
employee, or agent thereof. Distributor shall require each of its directors,
officers, employees, and agents to comply with the provisions of this subsection
6(d). Any breach of the provisions of this subsection 6(d) shall entitle Company
to terminate this Agreement for cause effective immediately on notice to
Distributor. Distributor shall promptly notify Company of the occurrence of any
event that would or may result in an exception to the representations contained
in this subsection 6(d).
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(e) Health, Safety, and Environmental Standards; Labeling. Distributor
agrees to advise Company fully with respect to all health, safety,
environmental, and other standards, specifications, and other requirements
imposed by law, regulation, or order in the Territory and applicable to
Products. Distributor shall also advise Company of all instructions, warnings,
and labels applicable to Products that are necessary or desirable under laws,
regulations, or practices in the Territory. Company shall be entitled to
increase the prices charged to Distributor for Products immediately by the
amount of any increase in Company's cost of manufacturing attributable to
compliance with any such safety standards, specifications, labels, or
requirements.
(f) Documentation and Assurances. Distributor shall furnish Company with
such documentation as Company may request to confirm Distributor's compliance
with this Section 6 and Distributor agrees that it shall not engage in any
course of conduct that, in Company's reasonable belief, would cause Company to
be in violation of the laws of any jurisdiction.
7. Warranty, Insurance and Assistance in Litigation.
(a) Limited Company Warranty. Company warrants that any Product supplied to
Distributor will be manufactured in compliance with the Product specifications
and, in all material respects, manufactured in compliance with all applicable
rules, regulations, statutes and ordinances of the country of manufacture and of
the Territory. In addition, to the best of its ability, Company will supply all
Products to Distributor free from defects in material, design, workmanship,
manufacture, treatment, packaging, instruction manuals, and labels, warning or
otherwise. Company will provide, when requested by Distributor, certification
that, to the best of its knowledge, it is in compliance with U.S. and Japanese
laws, statutes, rules, and regulations and relevant orders relating to the
manufacturing, use, distribution and sale of the Products. All Products sold to
Distributor will be sold free from security interests, liens or other
encumbrances. COMPANY MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WHATSOEVER.
(b) Company Insurance. Company shall, at its own expense, maintain the
product liability insurance identified below with respect to the Products sold
hereunder to cover any and all losses, damages (actual, consequential or
indirect), liabilities, penalties, claims, demands, suits or actions, and
related costs and expenses of any kind (including, without limitation, expenses
of investigation, counsel fees, judgments and settlements) for injury to, or
death of, any person or property damage or any other loss suffered or allegedly
suffered by any person or entity and arising out of or otherwise in connection
with the Products sold by Company to Distributor under this Agreement. Company
shall maintain insurance with a Five Million U.S. Dollars ($5,000,000.00)
combined single limit for bodily injury and property damage per occurrence in
the aggregate. Company shall add Distributor as an additional named insured and
furnish Distributor with copies of all applicable insurance policies, which
insurance shall not be canceled, modified or reduced without the prior written
consent of Distributor.
(c) Assistance in Litigation. If any claim is made or any suit or action is
instituted against Distributor arising out of or otherwise in connection with
any defect or alleged defect of the Products sold by Company to Distributor
under this Agreement, Company shall, without limiting the general indemnity
provided by Section 9, at its own expense and upon request by Distributor: (i)
investigate or research the causes of accidents, occurrences, injuries or losses
affecting any person or property as a result of the manner in which the Products
are designed, manufactured, treated, packaged, labeled, delivered, sold or used,
and use its best efforts to correct or eliminate such causes within a reasonable
period; and (ii) provide to Distributor any and all assistance (including,
without limitation, technical and other information, documents, data, materials
and witnesses) which are, in the opinion of Distributor or its counsel,
necessary or useful for Distributor's defense of such claim, suit or action in
relation to Products sold by Company to Distributor hereunder. This Section 7
shall survive any termination or expiration of this Agreement.
8. Limitations of Liability. COMPANY'S LIABILITY IN RESPECT OF PRODUCTS IS
LIMITED TO THAT SET FORTH IN SECTIONS 7 AND 9 AND IN ANY OTHER WRITTEN
WARRANTIES ISSUED IN WRITING BY COMPANY. COMPANY MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS. DISTRIBUTOR AGREES NOT TO MAKE ANY
REPRESENTATIONS AND/OR WARRANTIES IN RESPECT OF PRODUCTS EXCEPT AS EXPRESSLY
STATED IN THE APPLICABLE WRITTEN WARRANTY ISSUED BY COMPANY.
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NO REPRESENTATION OR WARRANTY IS MADE AS TO FITNESS FOR ANY PURPOSE OR
MERCHANTABILITY.
9. Indemnifications. (a) Indemnity by Company. Company agrees to indemnify
Distributor against any liability resulting from (i) an act, omission, or
negligence of Company in the manufacture, processing, handling, promoting,
marketing, representing, or delivering of Products pursuant to this Agreement or
(ii) any default of Company under this Agreement.
(b) Indemnity by Distributor. Distributor agrees to indemnify Company
against any liability resulting from (i) an act, omission, or negligence of
Distributor in the storage, handling, promoting, marketing, representing, or
delivering of Products pursuant to this Agreement or (ii) any default of
Distributor under this Agreement.
(c) Notice and Defense of Indemnified Claims. In each case, the party
receiving the indemnity (the "Indemnified Party") will notify the party
providing the indemnity (the "Indemnifying Party") promptly of any claim against
Indemnified Party to which any such indemnity may apply and, if Indemnifying
Party chooses an adequate provision to compensate Indemnified Party in the event
of an adverse result, Indemnified Party will allow Indemnifying Party to have
control of the defense of any action relating thereto and negotiations for its
settlement, provided Indemnified Party is allowed to participate at its own
expense. Indemnifying Party will maintain adequate liability insurance for
claims it provides indemnification for hereunder.
(d) Survival. The provisions of this Section 9 shall survive any expiration
or termination of this Agreement.
10. No Lost Profits or Consequential Damages. NOTWITHSTANDING ANY
REPRESENTATION, WARRANTY, UNDERTAKING OR OTHER PROVISION, TERM OR CONDITION OF
THIS AGREEMENT, EXPRESS OR IMPLIED, COMPANY WILL NOT BE LIABLE TO DISTRIBUTOR
FOR ANY LOSS OF PROFITS OR CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE ARISING OUT
OF OR IN CONNECTION WITH THE INABILITY OF COMPANY TO SUPPLY ITS PRODUCTS OR THE
SUPPLY OF DEFECTIVE PRODUCTS.
11. Protection of Intellectual Property and Confidentiality Agreement. (a)
Protection of Company's Intellectual Property/Information and Ideas. Distributor
acknowledges Company's exclusive right, title and interest in Company's patents,
trademarks, trade names, emblem, designs, models and methods of presentation
relating to Products in the Territory or elsewhere (the "Intellectual
Property"). Distributor acknowledges Company has certain ideas and information
concerning financial matters and trade secrets and corporate proprietary
information, written and unwritten (the "Information and Ideas") which Company
is willing to disclose to Distributor from time to time as it becomes necessary
to promote the purposes of this Agreement. Distributor will not at any time do
or cause to be done any act or thing which directly or indirectly challenges or
impairs the Intellectual Property or the Information and Ideas. Distributor
agrees, during the term and following termination of this Agreement, that it
will not disclose any Intellectual Property or Information and Ideas, nor will
it make or cause to be made any use of the Intellectual Property or Information
and Ideas, except in the proper performance of its duties under this Agreement.
Distributor is not prohibited hereby from disclosing or using any Intellectual
Property or Information and Ideas which subsequently become part of the public
domain through no breach of this Agreement and through no fault of Distributor.
Distributor agrees to take all reasonable steps, including the insertion of
relevant clauses in contracts of employment, to prevent disclosure of the
Intellectual Property and Information and Ideas by sub-representatives, agents
and/or employees of Distributor, and to safeguard and protect all Intellectual
Property and Information and Ideas from damage, theft or loss or from perusal by
unauthorized persons, except as may be required by law. Company warrants to
Distributor that it possesses all necessary rights and title to use the
Intellectual Property in connection with the Products.
(b) No Rights Vest in Distributor. Distributor will not acquire any right,
title or interest in the Intellectual Property or Information and Ideas by
virtue of the execution or performance of this Agreement, nor at any time
describe or represent itself to others as having such right, title or interest.
Should any Territory law or regulation vest Distributor with any rights in or to
12
any of the Intellectual Property or Information and Ideas, Distributor hereby
assigns and agrees to assign to Company all such rights contemporaneously with
their vesting. Distributor shall promptly notify Company of any and all
infringements of the Intellectual Property or Information and Ideas of which
Distributor becomes aware within the Territory, and will assist Company in
taking action against any such infringements at Company's expense. Subject to
the limited rights of Distributor under Section 16(d) below, Distributor shall
cease using the Intellectual Property or Information and Ideas upon any
expiration or termination of this Agreement. Distributor shall not remove or
alter any labeling on the Products.
(c) Mutual Duty to Preserve Confidentiality of Other Confidential
Information. Without the prior written consent of the supplying party, no
receiving party, its officers, agents, or employees shall, in any manner
whatsoever for use in any way for its own account or for any third party
disclose or communicate to any third party, any technical, engineering,
manufacturing, business, financial, or other information and know how, but
excluding any Intellectual Property or Information and Ideas already covered
under subsection (a) above (hereinafter referred to as the "Confidential
Information") generated by any party hereto and acquired directly or indirectly
by any other party. Nothing in this subsection (b) shall prevent disclosure or
use of information (i) already known to any receiving party; (ii) which is or
becomes public knowledge without the fault of the receiving party; (iii) which
is properly acquired by the receiving party from a third party having the legal
right to such information; (iv) is required to be disclosed by a proper
governmental or judicial authority; or (iv) as required or as may be desirable
in connection with a financing of Company or Distributor. No receiving party
shall, in any manner whatsoever for use in any way for its own account or for
the account of any third party, disclose or communicate to any third party, any
Confidential Information for any purpose except for the purpose for which such
Confidential Information was supplied, and such receiving party will take every
reasonable precaution to protect the confidentiality of such information.
(d) Other Obligations. Each party acknowledges that any breach of any
obligation under this Section is likely to cause or threaten irreparable harm to
the other party, and accordingly, each party agrees that in such event the
non-breaching party shall be entitled to equitable relief to protect its
interests, including, but not limited to, preliminary and permanent injunctive
relief. Upon expiration or termination of this Agreement, each party shall
return to the other party all Confidential Information, Intellectual Property
and Information and Ideas in the receiving party's possession and control. This
Section 11 shall survive any expiration or termination of this Agreement.
12. Other Obligations and Activities of Distributor. In addition to any and
all obligations and/or permitted activities recited elsewhere in this Agreement:
(a) Representation of Other Products. During the term of this Agreement,
Distributor will not represent or distribute, directly or indirectly, the
products of any other manufacturer or producer which in the opinion of Company
compete with any Products promoted by Distributor hereunder (collectively,
"Competitive Products"), nor shall Distributor manufacture any Competitive
Products, directly or indirectly. Competitive Products, include, without
limitation, those Products identified on Part II of Schedule C. Notwithstanding
the foregoing, Distributor may represent, sell and distribute the competitive
products listed on Part I of Schedule C. It is acknowledged and agreed, however,
that Distributor may represent, promote and sell other lines of health related
services and devices. Distributor shall furnish Company before execution of this
Agreement or at time of execution a list of all products currently handled by
Distributor and shall update the list from time to time as Distributor adds
products to its distribution business.
(b) Duties of the Distributor. Distributor understands and agrees to
perform each and all of the activities listed and described in Schedule D
(Distributor's Duties).
13. Other Obligations and Activities of Company. In addition to any and all
obligations and/or permitted activities recited elsewhere in this Agreement:
(a) Provision of Information. Company may provide without charge to
Distributor, reasonable information concerning the technical aspects of
Products, their use, and the like, in writing and/or oral presentations.
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(b) Seminar Cooperation. Company will cooperate with Distributor to a
reasonable extent in the sponsorship and planning of technical seminars in the
Territory on Products.
(c) Market Surveys. Company may furnish, without charge to Distributor,
market surveys and related information prepared by Company or by third parties
pertaining to the market for Products in the Territory. Distributor will treat
same as Information and Ideas in accordance with the provisions of Section 11.
(d) Advertisement Assistance. From time to time, Company may advertise
Products in publications circulated in the Territory, and may refer to
Distributor by name in such advertisements. Distributor hereby consents to the
use of its name in such advertisements and for similar purposes. Such
advertising shall in all events use Company's logo and trade name(s) or
trademarks in such manner as to protect same. In no event shall Distributor
modify or change Company's name or trade name(s) and or trademarks.
(e) Access to Company Personnel. Company shall provide Distributor with
reasonable access to and assistance from its technical, sales, and service
personnel, as Company deems appropriate. Such assistance shall be without charge
to Distributor except as may be otherwise mutually agreed.
(f) Regulatory Updates. Company will provide Distributor with prompt
updates on all regulatory issues known to Company which could reasonably be
expected to adversely affect the sale and marketing of Products by Distributor
in the Territory.
(g) Technical Information. Company will provide Distributor with such
information, technical descriptions, drawings, data, specifications, service and
instructions for use manuals, quality control audits, facility inspection
reports issued by government regulators or recognized international quality
control auditors, and so forth, relating to the Products in Company's possession
and control as may be reasonably required by Distributor to obtain and to
maintain import permits or continuing approval from the appropriate governmental
authorities in order to distribute the Products in the Territory.
(h) Related Regulatory Actions. Company will promptly notify Distributor of
any of the following adverse types of actions taken with respect to Company or
the Products by regulators in other jurisdictions which Company believes could
reasonably be expected to adversely affect the sale or marketing of Products by
Distributor in the Territory: (i) any facility inspection resulting in any
notice of infraction, warning or other action, (ii) voluntary or mandatory
recalls or withdrawal of Products, (iii) administrative or court proceedings,
(iv) any changes of factory location, (v) changes in method of sterilization,
packaging, materials, design or other specifications of Products and (vi) any
similar matters.
(i) Trademark Registration. Subject to Section 6 hereof, Company will
register and maintain in the Territory all trademarks used in connection with
the Products.
(j) Referrals. Company will promptly refer to Distributor all orders and
inquiries for the Products in the Territory received by Company.
(k) Non-Competition. During the term of this Agreement and for a period of
twelve (12) months after the termination or expiration of this Agreement,
neither party, their affiliates, successors and assigns shall solicit for
employment any personnel employed by the other party.
14. Products Modification. Subject to Section 5(c), Company may, at any
time and from time to time and without recourse on Distributor's part, add to,
delete from, or modify any or all of the Products.
15. Force Majeure. Neither Company nor Distributor will have any liability
for any failure or delay in performing any obligation under this Agreement
(except the obligation to make payments promptly when and as due) if the failure
or delay results from force majeure, understood as a cause which is beyond the
control of either party and one which could not have been avoided with the
exercise of due care. The party claiming force majeure will give the other party
written notice of the cause within fifteen (15) days after occurrence thereof,
and will exercise reasonable diligence to remove the cause and resume
performance. If Company is the affected party, it may equitably allocate
production and delivery of affected Products among its Distributors and
customers.
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16. Term of Agreement; Termination. (a) Term. The term of this Agreement
shall be for an initial period commencing on the Effective Date of this
Agreement and expiring on the date five (5) years after the first date of the
first Contract Year (the "Initial Period"). This Agreement may be automatically
extended by the parties for additional five (5) year period(s) (each, an
"Extension Period") upon mutual written agreement that the parties have agreed
on Minimum Purchase Requirements for the Products for such Extension Period.
Notice of requested extension shall be made by either party to the other not
less than ninety (90) days prior to the end of the Initial Period or any
Extension Period. For purposes of this Agreement, the term "Term" shall refer to
the Initial Period and any and all Extension Periods thereof in accordance with
this Section. This Agreement may be earlier terminated at any time as follows:
(i) in the manner provided in Section 5(a); or
(ii) by either party for cause upon the giving of not less than 30 days
prior written notice of intent to terminate to the other party, and failure of
the party receiving such notice to cure the cause stated in such notice to the
reasonable satisfaction of the notifying party by the end of such 30 day period;
provided, however, that the foregoing right to cure shall not apply to a
material breach that has been notified to the breaching party on two or more
prior occasions or to any material breach after the breaching party has been
notified of any three prior material breaches. For purposes of this Section,
"cause" means the other party's material breach of a duty or obligation under
this Agreement, other than as provided in Section 5(a). For the avoidance of
doubt and without prejudice to whether other acts might constitute material
breach, the parties agree that the violation of any of the provisions contained
in Sections 2, 3(c), 6(a), 6(b), 6(d), 6(e), 11 and 12(a) shall constitute a
material breach; or
(iii) by either party forthwith on written notice of termination to the
other party for the other party's voluntary or involuntary petition of
bankruptcy, or insolvency, or winding up of its operations; or in the event of
nationalization, in whole or part, of the other party; or in the event of
acquisition of all or part of the assets of Distributor by a competitor of
Company in respect of Products; or in the event of Distributor's assignment or
attempted assignment of this Agreement or any of its rights, duties or
obligations hereunder without Company's prior written consent, except as set
forth in Section 17(c); or in the event of introduction or passage of any
legislation in the Territory which would grant to Distributor greater rights
upon termination of this Agreement than Distributor would presently have; or
(iv) immediately by written notice from Company following notice from
Distributor pursuant to sub-paragraphs (i), (ii) or (iii) above, or after a
breach by Distributor of the provisions of Section 6 or Section 11 above.
(b) Effect of Termination. During the period of notice of termination under
Subsection 16(a)(i), (ii) or (iii), the party giving notice may withhold its own
performance (except in respect of the payment of any amount then due and owing
to the other party) unless the other party cures or acts with due diligence to
cure the breach or failure, but such cure or due diligence shall not in and of
itself operate to cancel the notice of termination which must be affirmatively
canceled by the party originally giving notice. During the period of notice of
termination without cause, each party shall diligently perform all of its duties
and obligations under this Agreement.
(c) Rights of Company. Upon expiration or termination of this Agreement,
Company may (at any time thereafter) appoint a new Distributor of Products in
the Territory. The following obligations of Distributor will survive and
continue after any expiration or termination of this Agreement, subject to the
rights of Distributor under 16(d):
(i) to immediately return to Company all documents, or other informational
and advertising materials in tangible form relating to the Intellectual Property
or Information and Ideas, supplied to Distributor by Company;
(ii) to continue to make any payments owed to Company promptly when due;
(iii) to thereafter abstain from using or disclosing to third parties the
Intellectual Property or Information and Ideas for so long as the same is not in
the public domain or for so long as the same is in the public domain due only to
the default of Distributor, whichever period is longer;
15
(iv) to cease promoting Products and give appropriate notice to all
sub-distributors and agents in the Territory of such fact;
(v) to diligently and expediently take all necessary steps to transfer the
medical registrations and import permits (the "Shonin(s)") for the Products to
the Company or to any third party located in the Territory, as notified by
Company, that is authorized and legally entitled to hold the Shonin(s). Company
agrees to reimburse Distributor for all of Distributor's out of pocket expenses
related to Distributor [obtaining and maintaining] [transferring] the Shonin(s).
[For purposes of this section, "out of pocket expenses" shall include, without
limitation, Product costs, documentation and Product testing fees, patient fees
paid to the institution performing the clinical trial, fees paid to the
institutions to perform and conduct the clinical trial including issuance of
final reports, meeting expenses, clinical trial product liability insurance,
post marketing surveillance fees, etc. Specifically excluded from reimbursable
"out of pocket expenses" are Distributor overhead, salary and travel expenses in
the Territory.] Any such reimbursable out of pocket expenses owed to Distributor
upon termination or expiration of this Agreement shall become immediately due
and payable.
During the period that the Shonin(s) is in the process of being
transferred, Distributor agrees to otherwise cooperate with Company by importing
and reselling the Products to Company's next authorized and designated
distributor at Distributor's fully landed cost for the Products plus a mark-up
of ten percent (10%). The general purchase and sales terms of this Agreement
will govern the sale of Products to such distributor during this transfer
period. Company expressly agrees to indemnify Distributor for any non-payment by
Company's next distributor for Products so resold by Distributor or for any
non-performance of Distributor out of Distributor's immediate control during
this transfer period.
(vi) to continue to indemnify Company in respect to all matters as to which
indemnification by Distributor is required by this Agreement; and
(vii) to continue to observe any obligation otherwise expressly provided in
this Agreement to survive expiration or termination.
(d) Rights of Distributor. The following obligations of the Company will
survive and continue after any expiration and termination of this Agreement,
subject to the rights of the Company under 16(c):
(i) to thereafter abstain from using or disclosing to third parties any
Confidential Information of Distributor for so long as the same is not in the
public domain or for so long as the same is in the public domain due only to the
default of the Company, whichever is longer;
(ii) to make any payments to Distributor required by Section 16(c)(v) or
Section 16(e);
(iii) to continue to indemnify Distributor in respect to all matters to
which indemnification by company is required by this Agreement; and
(iv) to continue to observe any obligations otherwise expressly provided in
this Agreement to survive expiration or termination.
(e) Inventory Repurchases. Upon termination or expiration of this
Agreement, Company and Distributor each have the option of causing Distributor
to return for refund of the original purchase price paid by Distributor all of
Distributor's remaining inventory of Products which are in saleable condition.
If neither party elects the option in the preceding sentence, Distributor may
continue to sell such remaining inventory in the Territory for a period which
shall not exceed six (6) months following the date of termination or expiration
of this Agreement, at which date Distributor's remaining saleable inventory of
the Products shall be returned to Company for full refund of the original
purchase price of the Products. Company shall refund Distributor's purchase
price for returned Product within sixty (60) days after Company's receipt of any
Product returned by Distributor pursuant to this Section 16(e). The refund shall
be effected by wire transfer to an account designated by Distributor at such
time. Regardless of the option elected, Distributor must return to Company a
complete set of traceability reports within thirty (30) days of termination or
16
expiration of this Agreement. For purposes of this provision, "saleable
condition" means the Product must be in the original factory packaging,
undamaged, currently sterile and with a remaining shelf life of at least six (6)
months.
This provision shall survive any expiration or termination of this
Agreement.
(f) Limitation of Post Termination Liability. Without limiting any remedy a
party may have at law or at equity in connection with the breach of this
Agreement by the other party neither party to this Agreement shall be liable to
the other by reason of the termination or expiration of this Agreement for
compensation, reimbursement, or damages on account of any loss of prospective
profits, or anticipated sales or on account of expenditures, investments,
leases, or other commitments relating to the business or goodwill of either
party.
17. General.
(a) Notice. Any notice or other communication required or permitted by this
Agreement must be given in writing and must be delivered by personal delivery
(including personal delivery by internationally recognized and reputable
overnight courier, such as Federal Express, DHL, or similar overnight courier),
first class mail (registered or certified), or telecopy (with a copy sent by
personal delivery or first class mail), at the postal address of the party as
set forth herein or such other changed address of the party as to which notice
has been given, and will be deemed as having been given when received or
delivered.
(b) Set Off. Company reserves the right to set off any amounts Distributor
owes to Company against any amount Company owes to Distributor to the extent
acceptable to regulators in the Territory.
(c) Binding; Assignment. This Agreement shall be binding on Distributor,
Company, and their respective successors and assigns; provided, however, that,
subject to Section 1(b), any assignment of this Agreement by Distributor,
whether by operation of law or otherwise, without the prior written consent of
Company is void. Any assignment of this Agreement by Company, whether by
operation of law or otherwise, without the prior written consent of Distributor,
is void: provided, that Company may assign this Agreement without consent in the
event of a sale or transfer of all or substantially all of the stock or Product
device assets of Company, to the purchaser of such stock or assets.
Notwithstanding anything in this Agreement to the contrary, Company hereby
agrees that any direct or indirect sale, assignment or transfer of Company's
rights to manufacture Products to any third party in a manner that prevents the
Company from fulfilling its obligations to Distributor under this Agreement
shall be subject to such third party becoming obliged through such sale,
assignment or transfer to the terms of this Agreement to the same extent, and
subject to the same duties and obligations, as Company.
(d) Entire Agreement; Modification; Waiver. This Agreement contains the
entire agreement between the parties with respect to the subject matter of the
Agreement and shall supersede and terminate all prior agreements, commitments,
or understandings, whether oral or written, related to the Products. No waiver
or modification of any of the provisions of this Agreement shall be binding
unless it is in writing and signed by the parties. Any waiver of any condition
on any one occasion shall not constitute a waiver on any subsequent occasion.
(e) Arbitration. All disputes, controversies, claims or differences which
may arise between the parties hereto arising out of or in relation to or in
connection with this Agreement or any breach thereof shall be settled by
arbitration conducted in accordance with the Commercial Arbitration Rules (the
"Rules") and supplementary Procedures for International Commercial Arbitration
(the "Supplementary Procedures") of the American Arbitration Association, in
effect on July 1, 1996. Whenever any dispute, controversy, claim or difference
which may be submitted to arbitration under this subsection arises between the
parties hereto, either party hereby may give to the other party hereto notice of
its intention to submit such dispute, controversy, claim or difference to
arbitration. Such arbitration shall take place in New York City, New York,
United States of America, before a single arbitrator agreed upon by the parties
to the arbitration. In the event the parties to the arbitration cannot agree
upon an arbitrator within twenty (20) days after either party's notice to
arbitrate, such arbitration shall take place in Atlanta, Georgia, United States
of America, if initiated and brought by Distributor, or Tokyo, Japan if
initiated and brought by Company, before a single arbitrator appointed by the
American Arbitration Association in accordance with the Rules and Supplementary
Procedures.
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The parties hereto agree that each party to the arbitration is to pay an
equal part of the deposit fixed by the American Arbitration Association or the
arbitrator. The determinations of such arbitrator will be final and binding upon
the parties to the arbitration, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction, 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. The arbitrator shall set forth the grounds for
his decision in the award. The parties acknowledge and agree that this Agreement
and any award rendered pursuant to it shall be governed by the 1958 United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.
The arbitrator shall apply the law of the State of Georgia, United States
of America, as to both substantive and procedural questions, but excepting any
State of Georgia rule which would result in judicial failure to enforce this
arbitration provision or any portion thereof.
All proceedings before the arbitrator shall be conducted in the English
language. All documents and papers submitted to the arbitrator shall be in the
English language or accompanied by a competent English language translation
thereof.
(g) Controlling Language. This Agreement has been written, and all
discussions leading up to this Agreement have been conducted, in the English
language which both parties thoroughly understand. Each party represents that it
has read and fully understands this Agreement, and further agrees that all
notices and other correspondence or communications between the parties relating
to or under this Agreement will be made solely in the English language.
(h) Independent Contractor. Distributor shall operate as an independent
contractor and nothing contained in this Agreement shall be deemed or construed
to recreate an employer/employee, principal/agent, joint venture, partnership,
or fiduciary relationship between the parties.
(i) Taxes. Distributor shall be responsible for paying all sales, use,
transactional, importation, or other value added taxes (other than taxes
measured by the net income of Company) resulting from the completion of the
transactions in the Territory contemplated by this Agreement.
(j) Authority. EACH OF THE SIGNATORIES INDIVIDUALLY REPRESENTS AND WARRANTS
THAT HE HAS THE REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON
BEHALF OF THE PARTY FOR WHICH HE SIGNS AND THAT THE PARTY HAS THE FULL POWER AND
AUTHORITY TO FULLY PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
(k) Waivers. Either party's delay or failure to enforce any right or remedy
available to it under this Agreement or at law for Distributor's material breach
of or repeated failure to perform a duty or an obligation hereunder will not
constitute a waiver of such right or remedy in respect of the same or any
subsequent breach of failure.
(l) Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, such provision will be
severed from this Agreement without affecting the validity or enforceability of
any of the remaining provisions.
(m) Heading and Captions. Headings and captions used herein are for
convenience only and are not to be deemed part of this Agreement.
(n) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original, and all of which together shall constitute
one and the same instrument.
(o) Further Assurances. The parties agree to execute any and all such
further agreements, instruments or documents, and to take any and all such
further action as may be necessary or desirable to carry out the provisions
hereof and to effectuate the proposes of this Agreement. Company hereby agrees
that any direct or indirect sale, assignment or transfer of Company's rights to
manufacture Products to any third party in manner that prevents the Company from
fulfilling its obligations to Distributor under this Agreement shall be subject
to such third party becoming obliged through such sale, assignment or transfer
to the terms of this Agreement to the same extent and subject to the same duties
and obligations as Company.
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SCHEDULE F
MARKS
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1343979v1