WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
NOTWITHSTANDING AB'S ENTERING INTO ANY SUB-DISTRIBUTION AGREEMENT,
AB SHALL REMAIN RESPONSIBLE TO HOEFER FOR ANY AND ALL ACTIONS OR INACTIONS OF
ITS SUB-DISTRIBUTORS IN CONNECTION WITH THE PERFORMANCE OF ANY AB OBLIGATIONS
UNDER THIS AGREEMENT, AND AB SHALL NOT BE RELIEVED FROM RESPONSIBILITY FOR ITS
OBLIGATIONS UNDER THIS AGREEMENT.
HOEFER SHALL NOT BE REQUIRED TO SEEK
FULFILLMENT OF, OR OTHERWISE ENFORCE, SUCH OBLIGATIONS FROM OR AGAINST ANY
SUB-DISTRIBUTOR OR ANY PARTY OTHER THAN AB.
2.4
HOEFER DISTRIBUTION OF EQUIVALENT PRODUCTS.
HOEFER MAY DIRECTLY (E.G., TO
END USERS OR CUSTOMERS), OR INDIRECTLY, THROUGH ONE OR MORE DISTRIBUTORS,
MARKET, SELL AND/OR DISTRIBUTE EQUIVALENT PRODUCTS UNDER ANY TRADEMARKS OTHER
THAN THE AB TRADEMARKS OR NO TRADEMARKS;
4
provided, however, that in light of, among other things, AB's undertakings in
Section 11.1(a) below, Hoefer will not engage or appoint any Restricted
Distributor to market, sell and/or distribute any of the Equivalent Products:
(a) during Contract Year One, Contract Year Two or Contract Year Three; and (b)
thereafter until the earlier of: (i) the termination of this Agreement; and (ii)
such time as the total amount of Products purchased by AB from Hoefer multiplied
by the transfer price for such Products then in effect under this Agreement
(reduced by any credit notes or refunds issued for returns or discounts applied
to any such Products) for each of three (3) consecutive calendar months falls
below [OMITTED MATERIAL].
2.5
AB TRADEMARKS USAGE.
HOEFER SHALL UTILIZE AB TRADEMARKS ONLY IN CONNECTION
WITH THE MANUFACTURING OF PRODUCTS FOR SALE TO AB PURSUANT TO THIS AGREEMENT.
HOEFER AGREES AS FOLLOWS:
(A)
HOEFER SHALL BE RESPONSIBLE FOR THE SAFE AND SUITABLE PACKAGING OF THE
PRODUCTS FOR DELIVERY;
(B)
THE PRODUCTS, PRODUCT LITERATURE AND PACKAGING SHALL, CONSISTENT WITH PAST
PRACTICE, OR AS REASONABLY REQUESTED BY AB AND TO THE EXTENT PRACTICABLE, STATE
THAT THE PRODUCTS ARE MANUFACTURED BY AND/OR FOR HOEFER AND SHALL, CONSISTENT
WITH PAST PRACTICE, OR AS REASONABLY REQUESTED BY AB AND TO THE EXTENT
PRACTICABLE, BEAR AB TRADEMARKS SPECIFIED BY AB TO BE AFFIXED BY AND AT THE
EXPENSE OF HOEFER (EXCEPT AS OTHERWISE CONTEMPLATED IN SECTION 10.1(K)).
HOEFER
SHALL OBTAIN AB'S PRIOR WRITTEN APPROVAL OF ALL SAMPLES OF PRODUCT LITERATURE
AND PACKAGING RELATING TO THE PRODUCTS.
(C)
AB OR ITS AFFILIATES OWN ALL AB TRADEMARKS (OTHER THAN PRODUCT TRADEMARKS)
APPEARING ON OR USED IN RELATION TO THE PRODUCTS AND LITERATURE PURSUANT TO THIS
SECTION 2.5;
(D)
HOEFER MAY ONLY USE AB TRADEMARKS FOR THE PURPOSES SET FORTH IN THIS
AGREEMENT DURING THE TERM OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING
HEREIN SHALL RESTRICT HOEFER'S USE OF ANY OF THE PRODUCT TRADEMARKS AFTER THE
TERMINATION OF THIS AGREEMENT;
(E)
ANY AND ALL USE OF THE AB TRADEMARKS (OTHER THAN PRODUCT TRADEMARKS) BY
HOEFER WILL INURE TO THE BENEFIT OF AB AND ANY RIGHT HOEFER OR ANY OF ITS
AFFILIATES MAY ACQUIRE IN SUCH TRADEMARKS IS HEREBY ASSIGNED TO AB OR ITS
AFFILIATES ABSOLUTELY;
(F)
HOEFER SHALL NOT USE THE AB