Exhibit 10.56
EXCLUSIVE DISTRIBUTION AGREEMENT
FOR EUROPEAN TERRITORY
This Exclusive Distribution Agreement is entered into as of December 1,
1997 (the "Effective Date") between Pacific Pharmaceuticals, Inc., a Delaware
corporation ("Pacific") and Steri-Oss Inc., a Delaware corporation
("Distributor").
R E C I T A L S
A. Pacific has developed and will manufacture, or will have
manufactured for it, disposable test kits to assist dental practitioners with
the diagnosis and monitoring of the treatment of periodontitis based on the
identification of aspartate aminotransferase, marketed as the Periodontal
Tissue Monitor (the "PTM Kits");
B. Distributor is engaged, among other things, in the distribution of
dental implants and similar devices to dental professionals throughout the
world; and
C. Pacific and Distributor desire to arrange for the purchase of PTM
Kits by Distributor and certain other matters, upon the terms and subject to
the conditions of this Agreement.
D. Pacific and Distributor have executed a five year renewable
agreement dated August 12, 1997 for Distributor to exclusively market and
sell PTM Kits in North America and other countries.
IN CONSIDERATION of the covenants set forth below, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Pacific and Distributor agree as follows:
1. APPOINTMENT AS EXCLUSIVE DISTRIBUTOR. Pacific hereby grants to
Distributor the exclusive right to market, distribute and sell the PTM Kits
in the Territory (as that term is defined herein). Except as may otherwise
be permitted by this Agreement, during the term of this Agreement Pacific
shall not (i) appoint or engage any other distributor, agent or sales
representative in the Territory with rights to sell or distribute the PTM
Kits, or (ii) sell, distribute or otherwise deliver PTM Kits in the Territory
or to customers in the Territory. Pacific shall use its best efforts to
prevent its distributors or sales agents outside the Territory from selling
or distributing PTM Kits to customers in the Territory, directly or
indirectly. Distributor shall not sell the PTM Kits to any person outside the
Territory or to any person who Distributor has reason to believe plans to
re-sell the PTM Kits outside the Territory.
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2. TERRITORY; RIGHT OF FIRST REFUSAL. As used in this Agreement, the
term "Territory" shall mean the countries in Europe, including the former
Comecon countries. The Distributor understands and agrees that Pacific has
entered into distribution arrangements with others for the distribution of
the PTM Kits in Japan. In the event that distribution rights for Japan become
available during the term of this Agreement, Pacific shall, within 30 days of
the date on which such rights become available, offer such distribution
rights to Distributor in writing on substantially the terms set forth in this
Agreement. The offer shall be accompanied by sufficient information, if
available, about sales Japan, including sales volume by quarter, average
sales price, and customer and market information. Distributor shall have 20
days from receipt of the notice to declare its intent to accept the offer; if
Distributor does not accept the offer within that time period, then Pacific
may offer the rights to others, provided such offer is on no more favorable
terms than those rejected by Distributor.
3. MAINTENANCE OF EXCLUSIVITY.
3.1 MINIMUM QUANTITIES. In order to maintain the exclusivity of
the distribution rights granted herein, during each Contract Year (as that
term is defined below) Distributor shall order and take delivery of the
minimum quantities of PTM Kits set forth in the table below, except as
provided in Section 5.2. The quantities set forth are based on ten tray kits,
and will be adjusted accordingly to the extent five tray kits are ordered.
Contract Year Minimum Quantity of PTM Kits
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1 *
2 *
3 *
4 *
5 *
3.2 CALCULATION OF MINIMUM QUANTITIES. In the event that
Distributor does not order and take delivery of the minimum quantity during a
Contract Year, Distributor may nevertheless maintain exclusivity if the PTM
Kits ordered and delivered during any preceding Contract Year that exceeded
the minimum for such Contract Year, when added to the PTM Kits ordered and
delivered during the current year, exceed the minimum quantity for the
current year. With respect to the first two Contract Years only, Distributor
may satisfy the minimum quantity if the average quantity of PTM Kits ordered
during the first two Contract Years exceeds the average minimum quantity
required for such two Contract Years. In the event Distributor fails to order
the minimum quantity during any Contract Year, after applying the foregoing
principles, this Agreement shall remain in full force and effect, but
Distributor's rights hereunder shall become non-exclusive and Pacific shall
have the right to appoint other distributors and sales agents for the sale of
the PTM Kits, so long as the price and terms afforded such additional
distributors or sales agents are no more favorable than the terms specified
herein.
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* This material has been omitted pursuant to a request for confidential
treatment. The material has been filed with the Securities and Exchange
Commission.
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3.3 DEFINITION OF CONTRACT YEAR. As used in this Section, the
term "Contract Year" shall mean the period of twelve months commencing
on the later to occur of (a) December 1, 1997, or (b) the first day of
the calendar month following the Launch Date in any country in Europe
(as that term is defined in Section 6.1 hereof), and each succeeding
twelve month period. If Distributor is unable to market the PTM Kits in
the European Territory for any reason beyond its control, then the
commencement of the first Contract Year shall be delayed until
Distributor is able to market the PTM Kits.
3.4 DISTRIBUTION THROUGHOUT EUROPEAN TERRITORY. Distributor
shall use its best efforts to appoint a sub-distributor and market the
PTM Kits in countries that it presently does not have a distribution
relationship for its other products.
4. REGULATORY MATTERS. Pacific warrants that the PTM Kit is either
available to be marketed or has received regulatory approval in the following
countries in the Territory: Denmark; France; Germany; Greece; Italy;
Portugal; Spain and United Kingdom. Distributor shall be responsible for
obtaining TUV and CE marking in all countries in the Territory.
5. TERMS OF SALE.
5.1 PRICING. Except as provided below, the price for the PTM Kits
during the term of this Agreement shall be $* per ten tray kit and $*
per five tray kit. If, after the first anniversary of the Launch Date,
Pacific determines in good faith that the costs to manufacture the PTM
Kits have increased over the manufacturing costs as of the Launch Date,
Pacific may propose a price increase per kit up to *% over the current
price at which the PTM Kits are sold to Distributor, provided such
proposal is accompanied by a reasonably detailed calculation of the
increased manufacturing costs (on a percentage increase basis.) Price
increases may be proposed by Pacific no more than once in any twelve
month period. Any price increase under this section shall become
effective 60 days after written notice and accompanying documentation.
All payments to Pacific by Distributor shall be in U.S. dollars, by wire
transfer to a bank designated by Pacific, exclusive of any taxes imposed
by or under the authority of any government or public authority, for
which Distributor shall be solely responsible.
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* This material has been omitted pursuant to a request for confidential
treatment. The material has been filed with the Securities and Exchange
Commission.
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5.2 ORDERING AND DELIVERY. Distributor shall place its first
order within 60 days of the Effective Date. Distributor shall place orders
for the PTM Kits on its standard written form of purchase order at least 60
days in advance of expected Delivery (as that term is defined below),
specifying the quantity of five-tray kits and the quantity of ten tray kits.
The minimum order shall be 1000 units of ten tray kits, or 2000 units of five
tray kits, or any equivalent combination of these two configurations. Pacific
shall fill orders by delivery of the PTM Kits within 60 days of receipt of a
valid purchase order. In the event Pacific fails to fill any order within
such 60 day period, Distributor shall not be required to order and take
delivery of specified quantities of PTM Kits in order to maintain exclusivity
as provided in Section 3 or to maintain the right of first refusal as
provided in Section 12. Pacific shall notify Distributor as soon as
practicable of any anticipated delays in scheduled product deliveries.
Payment for all orders shall be made by Distributor to Pacific within 30 days
of the receipt by Distributor of Delivery. If Distributor pays Pacific the
full purchase price for any order at the time it places the order, Pacific
will provide Distributor with additional PTM Kits with a value equal to 5% of
the amount of the purchase order, with no additional payments required in
connection with such additional PTM Kits. Title and risk of loss shall pass
to Distributor upon delivery of the PTM Kits to a common carrier designated
by Distributor (the "Delivery"). All taxes and duties arising from the sale
of the PTM Kits to Distributor shall be for the account of Distributor, and
Distributor shall bear the sole responsibility for the collection and payment
of any sales, use or other taxes payable in connection with the resale of the
PTM Kits. The failure of Pacific to deliver any order or part thereof shall
not be a breach of the entire agreement, and shall not relieve Distributor of
its obligation to pay for any prior or subsequent order.
5.3 FORECASTS. At 90 day intervals during the term of this
Agreement Distributor shall furnish Pacific with a good faith written
estimate of projected purchases during the ensuing 90 days. Such estimates
shall be for the sole purpose of allowing Pacific to schedule manufacturing
and purchases of raw materials, and shall not obligate Distributor in any
way. Pacific shall use its best efforts to meet each order for the PTM Kits
placed by Distributor on or before the requested shipment date.
5.4 PRODUCT REJECTION. Any PTM Kits delivered to Distributor by
Pacific which do not conform to the specifications furnished by Pacific shall
be promptly replaced by Pacific. If replacement cannot be accomplished
within 60 days of the original requested delivery date, any prepayments made
toward the original order will be promptly refunded by Pacific.
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* This material has been omitted pursuant to a request for confidential
treatment. The material has been filed with the Securities and Exchange
Commission.
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5.5 REBATE OF PTM KITS. Distributor shall be entitled to receive
a rebate (in the form of PTM Kits) ("Rebate Kits") based on the number of PTM
Kits ordered and delivered, as described in the table below (which is based
on ten tray kits, and will be adjusted accordingly to the extent five tray
kits are ordered). Pacific shall deliver to Distributor, within 60 days after
the receipt of sales reports referred to in section 6.8, with no payments due
to Pacific by Distributor in respect of such Rebate Kits, a quantity of
additional PTM Kits determined in accordance with the following table:
Rebate Kits
Contract (Percentage of PTM
Year Kits Delivered)
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1 *%
2 *%
3 *%
4 *%
5 *%
6. DUTIES AND COVENANTS OF DISTRIBUTOR.
6.1 PRODUCT LAUNCH AND PROMOTION. Upon the later of (i) December
1, 1997, or (ii) receipt of the initial product order as described in Section
5.2 (the later to occur of (i) and (ii) above being referred to herein as the
"Launch Date"), Distributor shall plan and promote a launch of the product
line, which shall include advertising, trade show participation, publicity,
and the development of educational and marketing materials relating to the
PTM Kits. Distributor shall use its best efforts to actively and diligently
promote the sale of the PTM Kits within the Territory and shall expend
amounts for promotion and marketing of the PTM Kits comparable to amounts
expended by Distributor with respect to its other successful product lines.
6.2 COMPLIANCE. Distributor shall comply in all material respects
with all applicable laws, regulations or orders of any and all governmental
authorities with respect to the marketing and distribution of the PTM Kits.
Distributor agrees that it will not directly or indirectly do any act or
thing which will constitute a violation by Distributor or Pacific of any
applicable laws or regulations, and will hold Pacific harmless from any such
violations caused by Distributor.
6.3 ASSISTANCE. Distributor shall furnish such assistance as
Pacific may reasonably request, at Pacific's expense, to enable Pacific to
defend against any claims of third parties that may be threatened or filed
against Pacific or its affiliates relating to the sale or use of any of the
PTM Kits, or that Pacific or its affiliates may assert against third parties
relating to the sale or use of any of the PTM Kits in the Territory.
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* This material has been omitted pursuant to a request for confidential
treatment. The material has been filed with the Securities and Exchange
Commission.
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6.4 PRODUCT RECALLS. Distributor shall assist Pacific, at
Pacific's request and expense, in recall of any of the PTM Kits sold pursuant
to this Agreement. Pacific shall bear all costs of shipping the recalled PTM
Kits and any replacement or repaired kits resulting from such recall, except
to the extent that such recall is due to any act or omission of Distributor
which materially contributed to the cause of the product recall, in which
case Distributor shall bear the expense in proportion to its relative fault.
If a product recall is initiated, Distributor shall be excused from
compliance with the minimum quantity requirements set forth in Section 3 for
the Contract Year in which the recall occurs, unless the recall was due to an
act or omission of Distributor.
6.5 COMPLAINTS. Distributor shall notify Pacific promptly after
Distributor becomes aware of any customer complaints concerning, or adverse
patient reactions to, the PTM Kits or the associated procedures, and any
liability claims regarding the PTM Kits, in order that Pacific can resolve
the problem and make any required notification to the U.S. Food and Drug
Administration. In the event that any such notification is required by
regulatory agencies in other countries within the Territory, Distributor
shall make any such notifications.
6.6 PACKAGING. Distributor shall design the packaging and label
for the PTM Kits at its expense, and shall bear any additional direct
manufacturing costs that result from the new package and label. The packages
will bear Distributor's private label; provided, however, that all packaging
and labeling shall be approved in advance by Pacific, which approval shall
not be unreasonably withheld, and will also include the phrase "A product of
and manufactured by Pacific Pharmaceuticals, Inc." on the outer package,
instructions for use, individual tray and, if space allows, on the test
strip/pouch label.
6.7 THIRD PARTY REIMBURSEMENT. Distributor shall use its best
efforts to arrange for eligibility for third party reimbursement for the PTM
Kits from major medical insurance carriers, health maintenance organizations
and governmental health plans.
6.8 REPORTS. During the term of this Agreement Distributor shall
provide Pacific with quarterly sales reports, within 45 days of the end of
each calendar quarter, summarizing sales of PTM Kits during such quarter, and
specifying sales by country or sub-distributor.
7. DUTIES AND COVENANTS OF PACIFIC.
7.1 COMPLIANCE. Pacific shall ensure that all PTM Kits are
traceable by lot or batch and that the PTM Kits are manufactured, packaged,
labeled and sold to Distributor in accordance with all applicable laws, rules
and regulations. Pacific shall comply in all material respects with all
laws, regulations or orders of any and all governmental authorities within
the United States and shall use best efforts to comply in all material
respects with all laws, regulations or orders of any governmental authorities
outside the United States. Pacific agrees that it will not directly or
indirectly do any act or thing which will constitute a violation by
Distributor or Pacific of any applicable laws or regulations.
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7.2 OPERATIONS. Pacific shall hold Distributor
harmless for any violation of state or federal law relating to Pacific's
operations.
7.3 WARRANTY. Pacific shall warrant that each PTM Kit
sold to Distributor under this Agreement shall be free from defects in
material and workmanship, and meets specifications set forth in the
current pre-market approval documentation at time of delivery.
7.4 SHELF LIFE; EXPIRATION DATE. The minimum shelf
life and expiration date for PTM Kits shall be 18 months from date of
manufacture and 16 months from date of shipment to Distributor.
7.5 CORRECTIVE ACTION. In the event of any customer complaints or
regulatory action concerning the PTM Kits or the associated procedures,
Pacific shall take such action as is reasonable necessary to correct the
problem or address the regulatory action, and shall promptly furnish
Distributor with copies of any correspondence with customers and regulatory
agencies. In this regard, Distributor understands that Pacific shall have the
right to revise the specifications for the PTM Kit from time to time in order
to obtain acceptable performance or to comply with governmental regulations.
Pacific shall notify Distributor in advance of any changes that will affect
product performance or instructions for use, or that will be noticeable by
customers.
8. REPRESENTATIONS. Pacific and Distributor each represents to the
other as follows:
8.1 CORPORATE STATUS. It is a corporation in good standing
under the laws of Delaware, with all necessary corporate power and
authority to execute, deliver and perform this Agreement.
8.2 APPROVAL. The execution, delivery and performance of
this Agreement have been approved by all necessary corporate action.
9. TERM AND TERMINATION.
9.1 TERM. This Agreement shall commence on the Effective Date and
continue for five Contract Years, unless earlier terminated pursuant to the
terms hereof. The terms of this Agreement shall thereafter remain in force
for successive terms of five years each. The parties agree to negotiate in
good faith toward the determination of minimum purchase quantities, Rebate
Kit percentages and unit prices for any renewal period. After the expiration
of the first five-year term of this Agreement, Pacific shall have the right
to appoint, on a non-exclusive basis, an additional distributor for the PTM
Kits in any country within the Territory in which Distributor does not have
sales activity.
9.1 TERMINATION BY NOTICE. Either party may give the other party
written notice of termination of this Agreement if such other party is in
material breach of any of its obligations under this Agreement. The
termination shall become effective sixty days from the date such notice is
given unless, within such sixty-day period, such breach and any intervening
breaches have been cured to the reasonable satisfaction of the non-breaching
party.
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9.3 AUTOMATIC TERMINATION. Notwithstanding the foregoing, either
party may immediately cancel any order and may immediately terminate this
Agreement, in whole or in part, (i) upon the filing of any petition in
bankruptcy by or against the other party which is not cured or dismissed
within sixty days thereafter, (ii) if the other party is ordered or adjudged
bankrupt, becomes insolvent or goes into liquidation, or generally fails to
pay debts as they become due, (iii) upon appointment of a receiver or
custodian of all or a part of the other party's assets by any judicial or
governmental procedure, (iv) upon admission of the other party to the benefit
of any procedure for the settlement of its debts, or (v) upon seizure of all
or a substantial part of the other party's assets by any judicial or
governmental procedure.
9.4 EFFECT OF TERMINATION. Except as otherwise provided for
herein, termination of this Agreement shall not release either party hereto
from any liability which at the time of termination has already accrued to
the other party hereto or which after termination may accrue in respect of
any act or omission prior to termination from any obligation which is
expressly stated herein to survive termination. Upon the termination or
expiration of this Agreement, Distributor (i) shall return to Pacific all
property of Pacific in Distributor's possession, including, without
limitation, literature, instructions, manuals, brochures, reprints, and
marketing materials, and (ii) shall immediately cease the use of any of
Pacific's trademarks, tradenames, service marks, or brand names incorporated
into the Private Label; provided, however, that Distributor shall be entitled
to sell any PTM Kits in inventory or on order, unless Pacific elects to
purchase the PTM Kits from Distributor at the current purchase price as
determined under Section 5.1. Upon the termination or expiration of this
Agreement, Pacific (i) shall return to Distributor all property of
Distributor in Pacific's possession, including, without limitation,
literature, instructions, manuals, brochures, reprints, and marketing
materials, and (ii) shall immediately cease the use of any of Distributor's
trademarks, tradenames, service marks, or brand names, including, without
limitation, the trade mark "Pocket Watch," and all related logos, designs and
symbols.
10. INDEMNIFICATION
10.1 INDEMNIFICATION BY DISTRIBUTOR. Distributor shall indemnify,
defend and hold harmless Pacific, and Pacific's officers, directors,
employees and agents from and against any and all losses, liabilities,
damages and expenses, including, but not limited to, court costs and actual
attorneys' fees (collectively, "Losses") suffered or incurred by them as a
result of (i) the breach of any of Distributor's duties or covenants under
this Agreement, or (ii) the breach of any of the representations and
warranties of Distributor set forth in this Agreement. The foregoing
indemnity shall not require payment as a condition precedent to recovery and
shall survive termination of this Agreement.
10.2 INDEMNIFICATION BY PACIFIC. Pacific shall indemnify, defend
and hold harmless Distributor, and Distributor's officers, directors,
employees and agents from and against any and all losses, liabilities,
damages and expenses, including, but not limited to, court costs and actual
attorneys' fees (collectively, "Losses") suffered or incurred by them as a
result of (i) the breach of any of Pacific's duties or covenants under this
Agreement, and (ii) the breach of any of
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the representations and warranties of Pacific set forth in this
Agreement, and (iii) any product liability claim relating to the PTM
Kits, except to the extent that such claim was due to an act or omission
of Distributor which contributed to the cause of such claim. The
foregoing indemnity shall not require payment as a condition precedent
to recovery and shall survive termination of this Agreement.
11. PROPRIETARY RIGHTS, CONFIDENTIALITY, LICENSE. Distributor
acknowledges that Pacific is the owner of all trade secrets and intellectual
property rights relating to the design and manufacture of the PTM Kits,
including any improvements or modifications to the PTM Kits. Distributor
shall never contest the exclusive right of Pacific to such trade secrets and
intellectual property rights. The parties acknowledge that any and all trade
secrets, ideas, information, research, methods, improvements, patents,
copyrighted material and all other confidential information, and the good
will associated with them, owned or developed by one party (the "Disclosing
Party") and directly or indirectly revealed to the other party (the
"Receiving Party") are, and shall remain, the sole and exclusive property of
the Disclosing Party, except that any and all improvements to the PTM Kits,
whether or not directly or indirectly caused, suggested, or effected by
Distributor, shall be the property of Pacific. All such information and
knowledge about the Disclosing Party, its products, services, standards,
specifications, procedures and techniques, which are not in the public domain
or generally known in the industry, and such information and material as the
Disclosing Party may designate in writing as confidential, shall be deemed
confidential for purposes of this Agreement. The Receiving Party agrees to
keep all such information confidential and to use it only for the purpose and
in the manner authorized by the Disclosing Party. Each party agrees that
during and after the termination of this Agreement, neither the Receiving
Party nor any of its agents or employees shall copy or disclose to any other
person or entity, or use for any purpose other than as contemplated by this
Agreement, any proprietary or confidential information in contravention of
this Section.
12. ASSIGNMENT. This Agreement may not be assigned or otherwise
transferred by either party, in whole or in part, by operation of law or
otherwise, without the prior written consent of the other party, which
consent shall not be unreasonably withheld and any such assignment or
transfer without such prior written consent shall be null and void and of no
force or effect whatsoever; provided, however, that either party may assign
this Agreement without the other party's consent in connection with the sale
of substantially all of the assets associated with such party's business. A
change in control of either party shall not constitute an assignment under
this Agreement. In the event that Pacific sells or assigns the PTM Kit
Product Line, then this Agreement shall be binding on the purchaser or the
assignee, as the case may be, but nothing shall relieve Pacific from its
liability under this Agreement.
13. ENTIRE AGREEMENT. This Agreement constitutes the complete, final
and exclusive statement of the terms of the understanding between the
parties. This Agreement supersedes all prior agreements and understandings
concerning its subject matter and may not be amended without further written
agreement of both parties. If any provision of this Agreement should be
found to be invalid or unenforceable, all of the other provisions shall
nonetheless remain in full force and effect to the maximum extent permitted
by law.
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14. APPLICABLE LAW. This Agreement shall be construed in accordance
with, and all disputes hereunder shall be governed by, the laws of the State
of California.
15. ATTORNEYS' FEES. In any arbitration or proceeding arising
hereunder, the prevailing party shall be entitled to recover its costs and
reasonable attorneys' fees, as determined by the court.
16. ARBITRATION. All disputes arising in connection with this
Agreement shall be finally settled by final binding arbitration; provided,
however, that nothing contained in this Section shall prevent either party
from seeking temporary restraining orders, injunctions, or other equitable
relief in any court of competent jurisdiction.. The arbitration shall be
held in San Diego County, California, and conducted in accordance with the
Commercial Rules of the American Arbitration Association. Judgment upon the
award rendered 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. The arbitrator's fees and costs shall be borne equally
between the parties participating in the arbitration.
17. RELATIONSHIP OF PARTIES. Each party shall be an independent
contractor in relationship to the other party hereunder, and this Agreement
does not create in any manner or for any purpose whatsoever a principal-agent
relationship between Pacific and Distributor. Neither party is authorized to
enter into agreements for or on behalf of the other party, create any
obligation or responsibility, express or implied, for or on behalf of the
other party, accept payment of any obligation due or owed to the other party,
accept service of process for the other party, or bind the other party in any
manner or thing whatsoever. Neither party shall list, print or display the
other party's name in such a manner as to indicate or imply that there is a
principal-agent relationship between Pacific and Distributor.
18. NOTICES. Any notice required or permitted hereunder shall be given
in writing by hand delivery, by overnight delivery carrier, or by facsimile
or similar electronic means, addressed to the parties at their respective
addresses set forth on the signature page of this Agreement (or such other
addresses as they may from time to time designate) and directed to the
attention of the president of the recipient. Notice by hand delivery shall
be effective upon receipt. Notice by carrier guarantying overnight delivery
shall be effective upon the day following delivery of the notice to such
carrier. Electronic notice shall be effective upon receipt of confirmation of
transmission.
19. FORCE MAJEURE. The obligations of either party to perform under
this Agreement shall be excused if such failure to perform or any delay is
caused by acts of God or the public enemy, strikes, civil commotion, riots,
war, revolution, fire, explosion, flood, compliance with or other action
taken to carry out the intent or purpose of any law or regulation, or any
other cause reasonably beyond the control of the party obligated to perform.
Upon the occurrence of such an event, the duties and obligations of the
parties shall be suspended for the duration of the event preventing proper
performance under this Agreement, provided, however, that if such suspension
shall continue in excess of sixty days, the parties shall meet and attempt to
arrive at a mutually acceptable compromise within the spirit and intent of
this Agreement.
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20. WAIVER. Either party's failure to insist, in one or more
instances, upon the performance of any term or terms of this Agreement shall
not be construed as a waiver or relinquishment of right to such performance
or the future performance of such term or terms, and the other party's
obligation with respect thereto shall continue in full force and effect.
21. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original and, when executed
separately or together, shall constitute a single original instrument,
effective in the same manner as if the parties have executed one and the same
instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
authorized representatives of the parties as of the Effective Date stated
above.
Address: 22895 East Park Drive Steri-Oss Inc.
Yorba Linda, CA 92687
By
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Name:
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Title:
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Address: 6730 Mesa Ridge Road, Suite A Pacific Pharmaceuticals, Inc.
San Diego, CA 92121
By
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Name:
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Title:
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