NON-EXCLUSIVE DISTRIBUTION AGREEMENT
This Agreement (the "Agreement") effective as of January 1, 1995 is
between NEW DIMENSIONS IN MEDICINE, INC., a Delaware corporation with offices at
3040 East River Road, Dayton, Ohio 45439 ("Supplier") and BAXTER HEALTHCARE
CORPORATION, a Delaware corporation, with offices at One Baxter Parkway,
Deerfield, Illinois 60015 ("Baxter").
WHEREAS, Supplier and Baxter entered into a Distribution Agreement
effective October 31, 1989 (the "Original Agreement"); and
WHEREAS, Supplier and Baxter amended and restated the Original
Agreement in an Amended and Restated Distribution Agreement dated January 1,
1992 (the "Amended Distribution Agreement") which Amended Distribution Agreement
expires December 31, 1994; and
WHEREAS, Supplier and Baxter desire to enter into a new Non-exclusive
Distribution Agreement.
NOW, THEREFORE, Supplier and Baxter agree as follows:
SECTION 1. PRODUCTS
a. The products covered by this Agreement are those products and
accessories manufactured and/or distributed by Supplier set
forth in Schedules A and B (which are incorporated herein),
together with the parts and components necessary for the
repair and replacement thereof, and all modifications and
improvements pertaining to such products, accessories and
components, all of which are hereinafter referred to as
"Products." However, Supplier reserves the right to change,
enhance or discontinue the products it Supplies to Baxter
under this Non-Exclusive Distribution Agreement. "Products"
include, but are not limited to, "Best Value Products."
b. "Best Value Products" are those electrodes, cables and
leadwires sold by Baxter under this Agreement and set forth in
Schedule B. The products identified on Schedule B are a subset
of those identified on Schedule A.
c. "Acute Care Hospitals" means acute care hospitals and
surgicenters whose products are purchased through an acute
care hospital's materials management function.
SECTION 2. GRANT OF DISTRIBUTORSHIP
Supplier hereby grants to Baxter the non-exclusive right to sell and
distribute the Products throughout the Territory and Baxter accepts
such grant for the term and on the conditions stated in this Agreement.
The term "Territory" shall mean the United States of America, but
excluding its territories and possessions.
SECTION 3. EXCLUDED BUSINESS
The following shall be excluded in all respects from this Agreement:
a. Sales by Baxter Custom Steriles packing business to the
hospital market;
b. All sales by Baxter's Specialized Distribution Division.
SECTION 4. TERM AND RENEWAL
The initial term of this Agreement shall be for two (2) years,
beginning January 1, 1995 and ending December 31, 1996. Thereafter,
this Agreement shall be automatically renewed for additional 3
successive terms of one (1) year each, unless and until either party
terminates this Agreement, with or without cause, effective the end of
the initial term or any renewal term upon ninety (90) days prior
written notice.
SECTION 5. PRICING, COMMISSIONS AND REBATE
a. Supplier shall sell the Products described in Schedule A
hereto at the currently existing initial invoice prices in
effect on 1/1/95 (the "Supplier Sale Prices"), provided that
Supplier may, upon ninety (90) days' written notice to Baxter,
adjust the Supplier Sales Prices for such Products, and
provided that such modifications may not be made more than
once in any calendar year and shall be made effective on
January 1 of each year.
b. Supplier shall sell the Best Value Products described in
Schedule B hereto for the currently existing initial invoice
prices. For each Best Value Product the following prices are
listed on Schedule B: 1) the price which Baxter will pay
Supplier for the Best Value Product (the "Initial Invoice
Price"); and 2) the lowest price for resale by Baxter of the
Best Value Product for which Supplier will guaranty Baxter a
gross margin of 10% (the "Floor Price" ) when sold to an Acute
Care Hospital. Under Section 5.d hereof, the Floor Price of a
given Best Value Product may be adjusted. Schedule B(1)
consists of the Supplier's Operating Room products. While not
considered "Best Value Products", these products will be
priced such that Baxter will receive a gross margin of 7% in
the aggregate in a similar manner as described in Section
5b-5g on sales to Acute Care Hospitals.
c. If, because of market conditions or otherwise, Baxter in its
sole discretion sells a Best Value Product to an Acute Care
Hospital customer at a price which, absent a rebate from
Supplier, -- would yield to Baxter less than a 10% margin, but
which is above the Floor Price for that Best Value Product,
then, for such sales, Supplier will rebate to Baxter an amount
equal to: 1) the difference between the Initial Invoice Price
and the price at which the Best Value Product was sold by
Baxter; plus 2) 10% of the price at which the Best Value
Product was sold by Baxter to the customer. If, because of
market conditions or otherwise, Baxter in its sole discretion,
and without prior approval from Supplier, sells a Best Value
Product to a customer at a price which is below the Floor
Price for that Best Value Product, then no rebate will be made
under this Section 5.c by Supplier to Baxter for such sales.
For example, assume a Best Value Product has an Initial
Invoice Price of $1. 35 and a Floor Price of 90(cent) . If the
Best Value Product is sold by Baxter to a customer for $1. 50,
Baxter would realize a 10% margin and no rebate would be due
to Baxter under Section 5.c . ($1.50 - $1.35 = 15(cent);
15(cent) / 1.50 = 10%). However, if the same Best Value
Product is sold by Baxter to a customer for 95(cent), Supplier
would rebate to Baxter: 1) the Initial Invoice Price minus the
price at which the Best Value Product was sold by Baxter
($1.35 - 95(cent) = 40(cent)); plus 2) 10% of the price at
which the Best Value Product was sold by Baxter to the
customer (95(cent) x 10% = 9.5(cent) (40(cent) + 9.5(cent) =
49.5(cent)) . If the same Best Value Product is sold (without
prior approval from Supplier) by Baxter to a customer for
85(cent) (below the Floor Price of 90(cent)), then no rebate
would be due from Supplier to Baxter.
It is also agreed that buying groups asking NDM to quote on a
manufactures net pricing basis will be handled on a case by
case basis between Baxter and NDM.
d. At Baxter's option, because of market conditions or otherwise,
Baxter may petition Supplier for a customer specific
adjustment to the Floor Price of a given Best Value Product.
Supplier may in its discretion adjust such floor price and
shall respond in writing to such petitions within ten (10)
business days.
e. On the 15th day of each month, Baxter will provide Supplier
with a report for the preceding month showing sales of Best
Value Products (and Schedule B1 Products) made during that
month to Acute Care Hospitals at prices which, absent a rebate
from supplier, would yield to Baxter less than a 10% margin
(7% on Schedule B1 Products) and a calculation of the price
rebate due Baxter. Baxter may deduct non-disputed rebates owed
from amounts due Supplier.
f. Schedule C sets forth regional sales targets for Best Value
Products for each Baxter region for each calendar quarter of
1995 and 1996. At the end of each quarter, the total sales of
Best Value Products will be calculated for each region. For
each region that has exceeded its sales target, Supplier will
refund two percent (2%) of the excess over the target net of
rebates. Refunds under this Section 5.f shall be paid 30 days
after the end of each calendar quarter for the calendar
quarter just ended. Baxter may deduct such non-disputed
amounts owed from amounts due Supplier.
g. For Contracts-In-Place, or actual pricing in place (purchase
order) in addition to payment of the Initial Invoice Price,
Baxter will make a payment to Supplier or Supplier will make a
payment to Baxter so that the gross margin to Baxter for the
Best Value Products sold under the Contracts in Place to Acute
Care Hospitals is equal to ten percent (10%). "Contracts in
Place" are defined as:
i. Contracts or purchase orders in place as of January
1, 1995 between Baxter and Acute Care Hospital
customers to sell Best Value Products; and
ii. Renewals after January 1, 1995 of contracts listed in
Section 5.g.i, above.
SECTION 6. CHOICE PLAN AGREEMENTS
Supplier may, at its option, enter into "Choice Plan Agreements
directly with the customers to which Baxter distributes Products under
this Agreement. Under such Choice Plan Agreements with customers,
Supplier may provide customers with capital equipment that is used in
conjunction with some of the Products listed on Schedules A and B
hereto. For a customer with whom Supplier has entered into a Choice
Plan Agreement, Supplier may request that Baxter invoice the customer
for and pay to Supplier amounts that compensate Supplier for supplying
the customer with capital equipment under the Choice Plan Agreement.
The procedure for Baxter's participation in such invoicing and payment
shall be agreed to in writing by Supplier and Baxter on a
customer-by-customer basis.
SECTION 7. PAYMENT TERMS
Baxter shall pay for orders on terms of net forty-five (45) days.
SECTION 8. BAXTER'S DUTIES
During the term of this Agreement, Baxter shall:
a. Include the Products in its computerized order entry system;
b. Each month provide Supplier with a vendor trace sales report
detailing all product sales made during the previous month
including individual customer prices. Additionally, the sales
detail will provide buying group affiliation for each
individual customer, such affiliation to be the buying group
selection by the customer for Baxter invoicing purposes;
c. Include the Best Value Products in the list of products for
which Baxter pays commissions to its Distribution
Representatives;
d. Advertise and promote the Products by such methods which in
Baxter's judgment are best suited for the sale of such
Products; and
e. Provide Supplier with reports and forecasts of Baxter's need
for Products. Until December 31, 1995, such reports shall
include quarterly forecasts for demand of Products and a
monthly inventory of the Products held by Baxter. After
December 31, 1995, Baxter will provide Supplier with the 852
EDI transaction of daily inventory balances.
f. After reasonable written notice to Baxter, Supplier shall have
the right to inspect Baxter's books and records at reasonable
times to confirm Baxter's compliance with and the accuracy of
reports and claims under Sections 5c, 5e, 5f, 5g, and
compliance with Sections 8a-c.
SECTION 9. SUPPLIER'S DUTIES
Supplier shall:
a. Ship promptly Baxter's orders for Products. All Products will
be shipped F.O.B. NDM's Dock, Dayton, Ohio;
b. Package and label the Products;
c. Provide to Baxter's designated personnel, at no cost,
instruction and training in the use of the Products at such
times and places as the parties may agree;
d. Furnish Baxter, at no cost, reasonable quantities of
Supplier's sales literature, customer instruction manuals and
service manuals relating to the Products and furnish Baxter,
upon written request and at no cost, suitable copy and camera
ready art work for use by Baxter in advertising and cataloging
it being recognized, however, that Supplier maintains and
reserves its copyrights to any such materials supplied to
Baxter and any such materials developed by Baxter under this
agreement;
e. Provide Baxter, at no cost, reasonable quantities of sample
Products for the purpose of evaluating the Products;
f. Provide Baxter with or on the Product packages complete
instructions for assembly and use (including line diagrams or
pictures as needed);
g. Provide Baxter copies of all written complaints received from
Baxter's customers; and
h. Maintain a finished goods inventory of Products sufficient to
meet Baxter's forecasted demand as initially determined by
Supplier and Baxter and as revised by them from time to time.
SECTION 10. PRODUCT WARRANTIES
Supplier warrants (1) for a period of one year from the date of each
shipment that all Products shipped are free from defects in workmanship
and materials, are as described in Schedules A and B, are fit for their
intended purposes, and meet Supplier's specifications (or conform to
any samples provided to Baxter), and (2) that the Products are, as of
the date of delivery to Baxter hereunder, in compliance with all
applicable federal, state and local laws, ordinances, regulations, and
rules. THE WARRANTIES SET FORTH IN THIS SECTION 10(b) ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED
AND EXCLUDED BY SUPPLIER, INCLUDING WITH OUT LIMITATION ANY WARRANTY OR
MERCHANTABILITY. Supplier shall have no obligation under this warranty
if:
( i) repair or replacement of the Products is required as a result
of normal wear and tear or necessitated in whole or in part by
catastrophe or causes external to the Products;
( ii) the Products have been altered or modified after delivery; or
(iii) the Products have not been properly used or maintained in
accordance with the applicable operating instructions supplied
with the Products.
Furthermore, Supplier shall not be liable for any incidental or
consequential damages for any breach of this warranty.
SECTION 11. PRODUCT LIABILITY
a. Indemnification. Supplier shall indemnify and hold harmless
Baxter against all claims, liabilities, losses and expenses
(including attorneys' fees) arising out of the use of any
Product or allegedly caused by any Product, except to the
extent such personal injury, death or property damage arose
from any negligence of Baxter in the handling of the Product
or any misrepresentation by Baxter concerning the Product's
characteristics, performance or proper manner of usage;
provided that Baxter gives Supplier prompt notice in writing
of any such product liability claim and permits Supplier
through Supplier's counsel to defend the same and gives
Supplier all reasonably available information, assistance and
authority to enable Supplier to assume such defense. Supplier
shall have control of the defense of any such suit, including
appeals from any judgment therein and any negotiations for the
settlement or compromise thereof with full authority to enter
into a binding settlement or compromise unless such action
would impose cost or any other obligation on Baxter.
b. Insurance. Supplier shall take out and maintain general
comprehensive liability insurance covering each occurrence of
bodily injury and property damage in an amount of not less
than Three Million Dollars ($3,000,000) combined single limit
with endorsements for (i) products and completed operations,
(ii) blanket contractual liability (deleting any exclusion for
products and completed operations liability), and (iii) broad
form vendor's liability. Supplier will promptly furnish to
Baxter a certificate of insurance issued by the carrier
evidencing the foregoing endorsements, coverages and limits,
and stating that such insurance shall not be cancelable
without at least thirty (30) days prior written notice to
Baxter.
SECTION 12. REGULATORY MATTERS
a. Continuing Guaranty. Supplier warrants and guarantees that all
Products shall be in compliance with all federal, state and
local laws, ordinances, regulations, and rules. Supplier
agrees to execute and comply with the provision of the Baxter
Continuing Guaranty, a copy of which is attached hereto as
Schedule D, the terms and conditions of which are made a part
hereof to the extent consistent with the terms set out in the
body of this Agreement.
b. Product Recall. In the event Supplier recalls any of the
Products sold or distributed by Baxter because the Products
are believed to violate any provisions of applicable law,
Supplier shall bear all costs and expenses of such recall,
including, without limitation, expenses or obligations to
third parties, the cost of notifying customers and costs
associated with the shipment of recalled Product from
customers to Baxter or Supplier. Baxter shall maintain
complete and accurate records for such periods as may be
required by applicable law, of all the Products sold by it.
The parties will cooperate fully with each other in effecting
any recall of the Products, including communications with any
purchasers or users.
c. Customer Complaint Reporting. Supplier and Baxter to the
extent it is required by law shall be responsible for
notifying the appropriate federal, state and local authorities
of any customer complaints or other occurrences regarding the
Products which are required to be so reported. However, in all
events, Baxter promptly shall provide Supplier with any
information it receives regarding such complaints or
occurrences.
d. Access. Supplier agrees to permit a duly authorized
representative of Baxter to enter and inspect, during normal
business hours, the establishments in which any of the
Products are manufactured, packaged, labeled or held in order
to determine whether said Products are being manufactured,
packaged, labeled or held in conformity with the terms of this
Agreement, and further agrees to provide Baxter with such
documents as it may reasonably require to determine whether
the Products are being manufactured, packaged, labeled or held
in accordance with the provisions of this Agreement.
SECTION 13. PATENTS AND TRADEMARKS
a. Supplier hereby grants to Baxter a non-exclusive,
non-transferable and royalty-free right and license to use the
Supplier trademarks specified in Schedule E attached hereto,
as such Schedule may be modified from to time during the term
of this Agreement, in connection with the distribution,
promotion, advertising and maintenance of the Products for so
long as such trademarks are used by Baxter in accordance with
Supplier's standards, specifications and instructions, but in
no event beyond the term of this Agreement. Baxter shall
utilize such Supplier trademarks with respect to all of its
activities in connection with the distribution, promotion or
advertising of the Products. Baxter shall afford Supplier
reasonable opportunities during the term hereof to inspect and
monitor the activities of Baxter in order to ensure Baxter's
use of the trademarks in accordance with Supplier's standards
and instructions. Baxter shall acquire no right, title or
interest in such Supplier trademarks other than the foregoing
limited license, and Baxter shall not use any Supplier
trademarks as part of Baxter's corporate or trade name or
permit any third party to do so without the prior written
consent of Supplier.
b. Supplier shall use its best efforts to register the Supplier
trademarks specified in Schedule E, as such Schedule may be
modified during the term of this Agreement, in such
jurisdictions in which Supplier determines that registration
is necessary or useful to the successful distribution of the
Products. In addition, in the event Supplier believes that it
is advisable to effect any filing or obtain any governmental
approval or sanction for the use by Baxter of any of
Supplier's trademarks pursuant to this Agreement, the parties
shall fully cooperate in order to do so. All expenses relating
to the registration of Supplier's trademarks, as well as the
making of any filing or obtaining governmental approval for
the use by Baxter or Supplier's trademarks, shall be borne by
Supplier.
c. Baxter shall promptly notify Supplier of any use by any third
party of Supplier's trademarks or any use by such third
parties of similar marks which may constitute and infringement
or passing off of Supplier's trademarks. Supplier reserves the
right, in its sole discretion, to institute any proceedings
against such third party infringers and Baxter shall refrain
from doing so. Baxter agrees to cooperate fully with Supplier
in any action taken against such third parties, provided that
all expenses of such action shall be borne by Supplier and all
damages which may be awarded or agreed upon in settlement of
such action shall accrue to Supplier.
d. Baxter acknowledges Supplier's proprietary rights in and to
the Supplier trademarks and any trade names regularly applied
by Supplier to the Products, and Baxter hereby waives in favor
of Supplier all rights to any trademarks, trade names and
logotypes now or hereafter originated by Supplier that do not
infringe on existing trademarks, trade names and logotypes.
Baxter shall not adopt, use or register any words, phrases or
symbols which are identical, or confusingly similar, to any of
the Supplier trademarks in any manner. In addition, Baxter
hereby empowers Supplier and agrees to assist Supplier, if
requested, to cancel, revoke or withdraw any governmental
registration or authorization permitting Baxter to use
Supplier trademarks.
e. Supplier shall, at its own expense, defend any suit instituted
against Baxter which is based on an allegation that the use by
Baxter of any Supplier trademark as provided in this Section
13 constitutes an infringement of any trademark of any third
party and shall indemnify Baxter against any award of damage
or costs made against Baxter by a final judgment of a court of
last resort if it is determined therein that any such Supplier
trademark constitutes an infringement of any third party
trademark, or any settlement of such claim, provided that
Baxter gives Supplier prompt notice in writing of any notice
of claims of infringement and permits Supplier through
Supplier's counsel to defend the same and gives Supplier all
reasonably available information, assistance and authority to
enable Supplier to assume such defense. Supplier shall have
control of the defense of any such suit, including appeals
from any judgment therein and any negotiations for the
settlement or compromise thereof with full authority to enter
in a binding settlement or compromise so long as such
settlement or compromise imposes no cost to Baxter. In the
event that the use by Baxter of any Supplier trademark as
provided hereunder is held to infringe and its use is
enjoined, Supplier, shall, at its option and expense, replace
or modify such Supplier trademark so that it no longer
infringes.
f. Notwithstanding the provisions of Section 13.e hereof,
Supplier shall have no liability whatsoever to Baxter with
respect to any trademark infringement claim thereof which is
based upon or arises out of: (i) the use by Baxter of any
Supplier trademark in combination with any other trademark or
trade name, if such combination causes or contributes to the
infringement, (ii) the use by Baxter of any Supplier trademark
in a manner for which it was neither designed nor
contemplated, or (iii) use inconsistent with Supplier's
trademark by Baxter or any third party which causes such
trademark to become infringing. Section 13.e hereof states the
entire liability of Supplier for or arising out of any
trademark infringement or claim thereof with respect to the
Supplier trademarks licensed to Baxter under this Agreement.
g. Supplier shall, at its own expense, defend any suit instituted
against Baxter which is based on an allegation that any
product sold to Baxter hereunder constitutes an infringement
of any United States patent and shall indemnify Baxter against
any award of damage and costs made against Baxter by a final
judgment of court of last resort if it is determined therein
that any such product constitutes an infringement of any
United States patent, provided that Baxter gives Supplier
immediate notice in writing of any notice of claims of
infringement and permits Supplier through Supplier's counsel
to defend the same and gives Supplier all available
information, assistance and authority to enable Supplier to
assume such defense. Supplier shall have control of the
defense of any such suit, including appeals from any judgment
therein and any negotiations for the settlement or compromise
thereof with full authority to enter into a binding settlement
or compromise so long as such settlement or compromise imposes
no cost or any other obligation on Baxter. In the event that
any Product is held to infringe and its sale or use is
enjoined, Supplier shall, at its option and expense, (i)
obtain for Baxter the right to continue providing such Product
consistent with the terms of this Agreement, (ii) replace or
modify such Product so that it no longer infringes but has the
same features and functions, or (iii) grant Baxter a credit
for such Product upon its return to Supplier, allowing for
reasonable use and obsolescence.
h. Notwithstanding the provisions of Section 13.g hereof,
Supplier shall have no liability whatsoever to Baxter with
respect to any patent infringement claim thereof which is
based upon or arises out of (i) the use of any Product in
combination with any other product not supplied by Supplier,
if such combination causes or contributed to the infringement,
(ii) the use of any Product in a manner for which it was
neither designed nor contemplated, or (iii) any modification
of any Product by Baxter or any third party which causes the
Product to become infringing. Section 13.g hereof states the
entire liability of Supplier for or arising out of any patent
infringement or claim thereof with respect to Products
furnished to Baxter under this Agreement.
i. Supplier shall, at its own expense, defend any suit instituted
against Baxter which is based on an allegation that any
product sold to Baxter hereunder constitutes an
misappropriation of any trade secret or other intellectual
property and shall indemnify Baxter against any award of
damage and costs made against Baxter by a final judgment of
court of last resort if it is determined therein that any such
product constitutes a misappropriation of any trade secret or
other intellectual property, provided that Baxter gives
Supplier immediate notice in writing of any notice of claims
of misappropriation and permits Supplier through Supplier's
counsel to defend the same and gives Supplier all available
information, assistance and authority to enable Supplier to
assume such defense. Supplier shall have control of the
defense of any such suit, including appeals from any judgment
therein and any negotiations for the settlement or compromise
thereof with full authority to enter into a binding settlement
or compromise so long as such settlement or compromise imposes
no cost or other obligation on Baxter.
SECTION 14. RETURNS
a. Subject to the limitations of Section 11 hereof, Baxter may
return defective or out-of-specification Products within one
year of delivery to Baxter's customers. such returns may be
made once each calendar quarter. Supplier will replace such
products with conforming Products.
b. Should a Product become Excess or No Move despite Baxter's
good faith efforts to sell inventory, the Supplier agrees to
allow Baxter to return Product, at Baxter's freight expense,
with no restocking charge; provided that any Excess or No Move
inventory must be returned to Supplier within one (1) year of
shipment to Baxter and must be free of damage, except any
manufacturing defect warranted by Supplier under Section 11.
For purposes of this Agreement, "Excess" inventory shall be
defined as stock on hand above a one-year supply as determined
by comparing system-wide on-hand quantity to a rolling
calculation of annualized demand quantity. "No Move" inventory
is defined as all stock on-hand for an item which has not
experienced any demand in the past four (4) months.
SECTION 15. TERMINATION
Either party may terminate this Agreement for any material breach by
the other party, if thirty (30) days after written notice containing
details of the breach, the breach remains uncured. Either party may
terminate this Agreement effective immediately with written notice if
the other party shall file for bankruptcy, shall be adjudicated
bankrupt, shall take advantage of applicable insolvency laws, shall
make an assignment for the benefit of creditors, shall be dissolved or
shall have a receiver appointed for its property. The indemnities
provided in Sections l2.a, 14.e, 14.g, 14.h and 14.i shall survive the
termination of this Agreement.
SECTION 16. PROCEDURES ON TERMINATION
On the termination of this Agreement, for whatever reason, Supplier
shall continue to honor Baxter's orders for Products prior to the
effective date of termination.
SECTION 17. FORCE MAJEURE
Except for the payment of money, the obligations of either party to
perform under this Agreement shall be excused during each period of
delay caused by matters such as strikes, shortages or raw material,
government orders or acts of God, which are reasonably beyond the
control of the party obligated to perform.
SECTION 18. MISCELLANEOUS
a. Notices. All notices required or permitted shall be in writing
and shall be deemed given when delivered personally, by
telefax, telex, or telegram, or if sent, three (3) business
days after being mailed by registered or certified mail,
postage prepaid, or by such other method (including air
courier) which provides for a signed receipt upon delivery,
addressed as follows, or to such other person or address as
may be designated by notice to the other party;
If to Baxter If to Supplier
Distribution Division New Dimensions In Medicine, Inc.
1450 Waukegan Road 3040 East River Road
McGaw Park, Illinois 60085 Dayton, Ohio 45439
Attn.: Vice President, General Mgr. Attn: President
b. Entire Agreement; Continuity of Claims Under Prior Agreement.
As of the date hereof, this Agreement is the entire agreement
between the parties hereto, there being no prior written or
oral promises or representations not incorporated herein.
HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO
RELEASE ANY CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS OR
LIABILITIES FOR DAMAGES ARISING OUT OF THE PERFORMANCE OR
NONPERFORMANCE OF THE RESPECTIVE RESPONSIBILITIES AND
OBLIGATIONS OF BAXTER AND SUPPLIER UNDER THE AMENDED
DISTRIBUTION AGREEMENT DURING THE PERIOD FROM JANUARY 1, 1992
THROUGH DECEMBER 31, 1994.
c. Applicable Law. This Agreement shall be governed by the laws
of the State of Illinois, applicable to contracts made and to
be performed in that state.
d. Amendments. No amendment or modification of the terms of this
Agreement shall be binding on either party unless reduced to
writing and signed by an authorized officer of the party to be
bound.
e. Existing Obligations. Supplier and Baxter represent and
warrant that the terms of this Agreement do not violate any
existing obligations or contracts of Supplier and Baxter.
Supplier and Baxter shall defend, indemnify and hold harmless
each other from and against any and all claims, demands,
actions or causes of action which are hereafter made or
brought against Supplier and Baxter and which allege any such
violations.
SECTION 19. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This
Agreement shall be assignable by either party to an affiliated or
successor corporation if such corporation agrees to be bound hereby,
provided that if assigned by Baxter to an affiliate, such affiliate
shall be Baxter's principal distributor of hospital supplies. This
Agreement shall not otherwise be assignable by either party without the
other's written consent.
SECTION 20. CONFIDENTIALITY
a. "Confidential Information" shall mean all information, other
than information in published form or expressly designated by
the disclosing party as non-confidential, which is directly or
indirectly disclosed to either party hereunder or embodied in
the Products provided hereunder, regardless of the form in
which it is disclosed, relating in any way to the markets,
customers, products, patents, inventions, procedures, methods,
designs, strategies, plans, assets, liabilities, costs,
revenues, profits, organization, employees, agents,
distributors or business in general of the disclosing party.
b. Baxter and Supplier acknowledge and agree that all
Confidential Information is confidential and proprietary to
the disclosing party. Baxter and Supplier agree not to use any
of such Confidential Information for the term of this
Agreement and for a period of four (4) years from the
termination of this Agreement (the "Non-disclosure Period")
for any purpose other than as permitted or required for
performance hereunder. Baxter and Supplier further agree not
to disclose or provide any of such Confidential Information to
any third party and to take all necessary measures to prevent
any such disclosure by their employees, agents, contractors or
consultants during the Non-disclosure Period.
c. Nothing herein shall prevent either party from using,
disclosing or authorizing the disclosure of any information
which is, or hereafter becomes, part of the public domain.
d. At the disclosing party's request, the recipient of any
Confidential Information hereunder shall cooperate fully with
the disclosing party in any and all legal actions taken by the
disclosing party to protect its rights in its Confidential
Information. The disclosing party shall bear all costs and
expenses reasonably incurred by the recipient in the course of
cooperating with the disclosing party in such legal action.
SECTION 21. COUNTERPARTS
For convenience of the parties hereto, this Agreement may be executed
in one or more counterparts, each of which shall be deemed an original
for all purposes.
Baxter Healthcare Corporation New Dimensions in Medicine Inc.
By: ______________________________ By: ___________________________
Title: ______________________________ Title: ___________________________
Date: ______________________________ Date: ___________________________