EXHIBIT 10.17
SALES AGENCY AGREEMENT
BETWEEN
BIOPURE CORPORATION
"BIOPURE"
AND
(ABAZALI BIO VENTURES (PTY) LTD)
"ABAZALI"
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the commission.
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TABLE OF CONTENTS
1 Definitions 2 Appointment
2.1 Appointment 3 Abazali's Duties
3.1 Sales Promotion
3.2 Sales Outside Territory
3.3 Product Registration
3.4 Product Complaints and Product Inquiries
3.5 Safety Surveillance and Adverse Events
3.6 Abazali's Indemnity
3.7 Trademarks and Trade Names
3.8 Promotional Material
3.9 Marketing Plan 4 Biopure's Duties
4.1 Remuneration of Abazali
4.2 Catalogues and Information
4.3 Biopure's Indemnity 5 Term of Agreement
5.1 Term of Agreement
5.2 Breach of Agreement
5.3 Insolvency of a Party
5.4 Change in Abazali's Ownership 6 Miscellaneous
6.1 Force Majeure
6.2 Trade Secrets and Confidential Information
6.3 Relationship Between Parties
6.4 Non-Disclosure of Agreement
6.5 Legal Compliance
6.6 Anti-Bribery Laws
6.7 Books and Records
6.8 English Language Controls
6.9 Assignment
6.10 Waiver
6.11 Severability
6.12 Entire Agreement
6.13 Choice of Law and Jurisdiction
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the commission.
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SALES AGENCY AGREEMENT
AGREEMENT made between Biopure Corporation, 11 Hurley Street, Cambridge, MA 02141 USA, a US corporation, whose principal place of business is 11 Hurley Street, Cambridge, MA 02141 USA ("Biopure"), and Abazali Bio Ventures, a South African company, whose principal place of business is Building E, La Rocca, 321 Main Road, Bryanston 2010, SA ("Abazali").
WITNESSETH
WHEREAS, the Biopure Corporation, is a developer and manufacturer of oxygen therapeutics; and
WHEREAS, Biopure wishes to sell in the territory hereinafter defined certain products and Abazali wishes to market and promote the sale of said products;
NOW, THEREFORE, Biopure and Abazali agree as follows:
1 DEFINITIONS
As used in this Agreement, the following initially capitalized terms, whether used in the singular or plural, shall have the respective meanings set forth below.
TERM DEFINITION Confidential Information the confidential information set forth in Section 6.2
Products the product(s) set forth in Appendix A
Territory the country/countries set forth in Appendix B
2 APPOINTMENT
2.1 APPOINTMENT. Biopure hereby appoints Abazali as its exclusive
Agent to promote and market the Products in the Territory. Abazali
shall not use a third party to perform its activities pursuant to
this Agreement without Biopure's written consent.
3 ABAZALI'S DUTIES
3.1 SALES PROMOTION. Abazali shall at all times use its best efforts
to promote, develop, and increase the sales of the Products
throughout the Territory. For such purposes, Abazali shall:
3.1.1 At its sole expenses, maintain a sales organization and
generally do all such things as may be necessary or useful
for the performance of its duties and obligations
hereunder, including but not limited to hiring
appropriately qualified and trained personnel, traveling,
personal representation etc.
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the commission.
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Abazali shall maintain at all times a minimum of two
qualified and trained sales agents solely
representing the Product and, in addition, necessary
or appropriate operational support.
3.1.2 Survey the market in the Territory and inform Biopure of
all opportunities of selling the Product and more generally
to report on the needs of the local customers, prevailing
prices, products distributed by competitors and on whatever
may be relevant to the development of Biopure's sales
within the Territory.
3.1.3 Create and maintain the best possible relations with the
local customers, participate in negotiations and do its
best to ensure the successful conclusion of each
transaction.
3.1.4 Provide Biopure's staff visiting the Territory with the
necessary assistance in establishing contacts with the
appropriate organizations and customers in the Territory.
3.1.5 Disseminate information provided by Biopure regarding the
Product among the appropriate customers, registration
institutes and governmental agencies in keeping with
national laws and regulations of the Territory.
3.1.6 Give written notice to Biopure of all acts of unfair
competition or counterfeiting and imitations of Biopure's
trade-marks of Products and give reasonable assistance to
Biopure in taking action against imitations, counterfeiting
and unfair competition by others.
3.1.7 Market and sell the product under Biopure's trademarks and
trade names.
3.2 SALES OUTSIDE TERRITORY. Abazali shall not solicit orders for the
Products from any purchaser with a view to their sale outside of
the Territory or within the Territory with a view to their
exportation.
3.3 PRODUCT REGISTRATION. Product shall be registered in the name of
Biopure or its nominee. Abazali understands and agrees as follows:
The Product is registered in South Africa only. No sales shall be
made in any other part of the Territory unless or until the
Product is registered or otherwise may be sold in accordance with
the law of the applicable jurisdiction. Nothing in this Agreement
shall be deemed to require Biopure to obtain marketing approval in
any country in the Territory.
3.4 PRODUCT COMPLAINTS AND PRODUCT INQUIRIES. Abazali shall report in
writing to Biopure or its designee in accordance with the
procedure outlined from time to time by Biopure or its designee in
writing (i) all complaints including product quality complaints
and medical complaints related to the Products; and (ii) all
inquires about the Products, including but not limited to,
relating to the medical description of the Product, medical claims
for the Product, contra-indications of the Product.
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the commission.
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3.5 SAFETY SURVEILLANCE AND ADVERSE EVENTS. The parties agree to use
their best reasonable efforts to establish a process document
regarding compliance with all regulations and obligations related
to safety surveillance and adverse event reporting
responsibilities for the Products promptly upon signing of this
Agreement.
3.6 ABAZALI'S INDEMNITY. Abazali shall hold Biopure harmless with
respect to any claims by other persons who allege injury or loss
as a result of Abazali's activities in violation of its covenants
under this Agreement. Notwithstanding anything to the contrary in
this Agreement, in no event shall Abazali be liable to Biopure for
any incidental, indirect, exemplary, special or consequential
damages whatsoever (including, but not limited to, lost profits,
loss of goodwill, or interruption of business) that may be
suffered or incurred by Biopure as a results of Abazali's
violation of its covenants under this Agreement.
3.7 TRADEMARKS AND TRADE NAMES.
3.7.1 Abazali shall use Biopure's trademarks or trade names only
to identify and advertise the Products and shall not use
said trademarks or trade names as part of Abazali's own
name or trademarks or in any other manner.
3.7.2 It is understood and agreed that this right to use
Biopure's trademarks and trade names is revocable at will
by Biopure and does not constitute, in any manner, a direct
or implied license or assignment of such trademarks or
trade names.
3.7.3 Upon the expiration or termination of the Agreement for any
reason whatsoever, Abazali shall immediately cease using
Biopure's trademarks and trade name and shall return to
Biopure all promotional and advertising material carrying
Biopure's name or trademarks.
3.8 PROMOTIONAL MATERIAL. Abazali shall use solely advertising and
promotional material approved by Biopure. Abazali undertakes that
it will submit to Biopure or its designee for prior written
approval all written materials which Abazali proposes to use for
the purpose of marketing, selling, distributing or advertising the
Products.
3.9 Marketing Plan. The parties shall agree annually upon a marketing
plan for sales of the Product. The marketing plan will take into
account needs in the Territory, past experience, Biopure's
manufacturing capacity and other information deemed relevant. The
first marketing plan shall be for the 6-month period beginning six
months from the effective date of this Agreement. In preparing the
first marketing plan the parties will review the first six months
of experience under this Agreement. At the same time the parties
will prepare a marketing plan for the subsequent six months, i.e.,
the six months beginning on the first anniversary of this
Agreement. (It is understood that all dates may be adjusted for
convenience to begin on the first day of a month.) Thereafter,
prior to the end of the second six-months marketing plan and prior
to the end of each year of this Agr ...
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