17. GENERAL PROVISIONS
17.1 Governing Law and Statute of Limitations. This Agreement shall be governed by and construed according to the rules of law and statutes of the State of Minnesota and the United States, excluding the rules of any jurisdiction concerning conflicts of laws. Any rights that either Party may otherwise have under otherwise applicable law are hereby expressly and irrevocably waived. The provisions of the U.N. Convention on Contracts for the International Sale of Goods shall not apply to sales under this Agreement. It is agreed that any and all claims or causes of action that either Party may have against the other Party hereto arising out of this Agreement must be asserted within 365 days following the date of the first event or the date the aggrieved Party became or reasonably should have become aware of such event, whichever is later, of the claim or cause of action. A claim not asserted within this time period is deemed to have been waived.
17.2 Arbitration. PSI and AL-MERRI agree to submit to arbitration, in Minneapolis, Minnesota, any and all disputes and controversies that are connected with or arise out of this Agreement and that are not settled within ninety (90) days after notice of such dispute by one Party to the other. Such arbitration shall be final and binding and the exclusive method of resolution of such disputes. Such arbitration shall be conducted entirely in English, under the auspices of and in accordance with the international arbitration rules of the International Centre for Dispute Resolution, by one arbitrator appointed in accordance with said rules. The Parties shall be entitled to engage in discovery in accordance with the United States Federal Rules of Civil Procedure, and to a full opportunity to present both written and oral evidence. The aforesaid international arbitration rules shall apply to the proceedings to the extent not overridden by the foregoing provisions. If oral hearings are involved, they shall be held at such place or places in the United States as the arbitrators shall designate. The decision of the arbitrators shall be final and binding on both Parties and may be enforced in any court having jurisdiction over either Party. Except as provided below, no legal action may be instituted upon this Agreement until an arbitral award shall have been rendered.
The cost of such arbitration shall be borne in such proportions or amounts as the arbitrator(s) may determine. Notwithstanding the foregoing provisions, all rights of termination of this Agreement which are conferred upon either Party or both of the Parties may be exercised by said Parties without first submitting the matter to arbitration, but subject to a subsequent determination by the arbitrators that such termination was not permitted by the terms and conditions of this Agreement or otherwise justified by good cause.
Notwithstanding the foregoing, Seller may, at its option, proceed directly against AL-MERRI in any court of competent jurisdiction to collect the price of any Products sold to AL-MERRI or any amounts owing PSI hereunder or otherwise.
17.3 Governing Language. Irrespective of any translation of this Agreement, the English version of it shall control, regardless of the jurisdiction in which interpretation of this Agreement is required.
17.4Notices. All notices hereunder shall be in writing and mailed to the following:
If to PSI, to:
Brian Leary, Co-President
Pharmaceutical Specialties, Inc.
P. O. Box 6298
Rochester, MN 55903 USA
Facsimile: +1 507-288-7603
Phone: +1 507-288-8500
If to AL-MERRI, to:
AL-MERRI International EST
With its postal address at
P.O. Box 1211, post code 13013, Safat, Kuwait
And its physical address at:
Shop #62 - First Floor, Almadeenah Building –
Mubarak Alkabeer Street - Block 9 – Alqeblah –
Capital Governorate - Kuwait
Attention: AL-MERRI Bakheet Ali Bakheet
Telephone: +965 99112225/ 51652222
Facsimile: +965 ________
To be effective, such notices must be given by facsimile, by internationally recognized commercial courier service, or by national mail service, airmail postage prepaid. Either Party may at any time modify its address above to another bona fide address for purposes of notice by giving notice to the other Party pursuant to this provision. Any notice shall be effective upon receipt or refusal by the Party to be charged with notice, except that notice of a change in address is effective ten (10) calendar days after such receipt or refusal.
17.5 Waiver. No waiver by either Party of strict compliance with all terms and conditions of this Agreement shall constitute a waiver of any subsequent failure of the other Party to strictly comply with each and every term and condition hereof.
17.6 Severability. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
17.7 Entire Agreement. Each Party acknowledges that no representations or statements have been made to it that would modify any of the Provisions of this Agreement in any way. This Agreement constitutes the entire agreement between PSI and AL-MERRI as to the nature and extent of their business relationship pertaining to the Products, and supersedes any and all prior offers, negotiations, and agreements between the Parties or with any affiliated companies, employees or representatives of either Party, whether written or unwritten. No modification or waiver of this Agreement shall be effective unless such modification or waiver is made in writing and signed by an officer of PSI and an officer of AL-MERRI.
17.8 Headings. The headings in this Agreement are for convenience or reference only and shall not limit or otherwise affect any of the terms or provisions of this Agreement.
17.9Survival. The following provisions, and all others that logically or by their terms call for application or enforceability after the expiration or termination of this Agreement, shall survive such expiration or termination: Sections 1.4, 1.5, 3.4, 5.1, 5.2, 5.8, 9.2, 12, 13, 15.4, 16, and 17.
IN WITNESS WHEREOF, The Parties have duly executed, sealed and delivered this Agreement in duplicate on the day and year first above written.
PHARMACEUTICAL SPECIALTIES, INC.
("PSI")
Attest:by _______________________________________
Printed Name: Brian Leary
_________________________________Its Co-President
AL-MERRI
Attest:by _______________________________________
Printed Name: AL-MERRI Bakheet Ali Bakheet
_________________________________Its Owner and registered representative
SCHEDULE A
to Distributor Agreement
Pharmaceutical Specialties Inc., and AL-MERRI International EST
ProductsSize
Vanicream® Skin CreamAll sizes
Vanicream® Lite LotionAll sizes
Vanicream® Sunscreen SPF 30 All sizes
Vanicream® Sunscreen SPF 35 Sport All sizes
Vanicream® Sunscreen SPF 50+All sizes
Vanicream® Cleansing BarAll sizes
Free & Clear® ShampooAll sizes
Free & Clear® ConditionerAll sizes
Free & Clear® Liquid Cleanser All Sizes
Vaniply® OintmentAll sizes
NOTE: the ® marking does not necessarily mean that the trademark is registered in the Territory; trademarks and Product names may be registered after the Effective Date or not at all. Prior to or in the absence of such registration, PSI does not warrant or represent that its trademarks or Product names belong to PSI in the Territory.
Minimum Annual Purchases
PeriodMinimum Purchase
First year of this AgreementUS$ 0 (no minimum purchase)
(first 12 months from the Effective Date)
Second yearUS$ 40,000
Third and fourth years, subject to renewalAs agreed in writing by the Parties, provided that if they do not agree, the minimum purchase requirement is twenty percent (20%) aboveن previous year’s minimum purchase requirement.
Fifth year and years thereafterAs agreed in writing by the Parties, provided that if they do not so agree, the minimum purchase requirement is fifteen percent (15%) above previous year’s minimum requirement.
TERRITORY
The country of Kuwait
Initials of the parties accepting the above provisions of Schedule A.
PSI_________ AL-MERRI _____________
DOCS-#3936957-v3