THE JCC IN ACCORDANCE WITH SECTION
3.3 HEREOF, (II) THE TERMS OF SUCH CONTRACT AND OTHER ARRANGEMENT SHALL BE
CONSISTENT WITH THE CONTRACTING GUIDELINES ESTABLISHED BY THE JCC IN ACCORDANCE
WITH SECTION 3.3(K) AND REFLECTED IN THE ANNUAL PLAN, AND (III) ANY DEDUCTIONS
FROM GROSS AMOUNTS INVOICED PURSUANT TO ANY SUCH CONTRACT OR ARRANGEMENT SHALL
CORRESPOND TO ONE OR MORE OF THE CATEGORIES OF DEDUCTIONS SET FORTH IN THE
DEFINITION OF "NET SALES" IN ARTICLE I.
THE PARTIES HAVE REVIEWED THE INITIAL
PRICING AND CONTRACTING GUIDELINES APPLICABLE TO THE PRODUCT.
THE PARTIES AGREE
TO DISCUSS AMONG THE JCC AND FINALIZE THE INITIAL PRICING AND CONTRACTING
GUIDELINES WITHIN TWO WEEKS AFTER THE EFFECTIVE DATE.
(B)
KING WILL WORK ON BEHALF OF DEPOMED TO PROVIDE NECESSARY SUPPORT
FOR MANAGED MARKETS AND TRADE CUSTOMER GROUPS WITH RESPECT TO THE PRODUCT TO
ENABLE DEPOMED TO ENTER INTO SUCH CONTRACTS AND OTHER ARRANGEMENTS DESCRIBED
ABOVE.
FOR PURPOSES OF CLARITY, ALL SUCH CONTRACTS AND ARRANGEMENTS SUPPORTED
BY KING MUST BE EXECUTED AND ADMINISTERED BY DEPOMED.
SECTION 6.5
SAMPLES.
(A)
DEPOMED SHALL PROVIDE OR CAUSE TO BE PROVIDED TO KING, FROM TIME
TO TIME AS CONTEMPLATED BY THE ANNUAL PLAN, WITH SAMPLES OF THE PRODUCT THAT ARE
NOT FOR SALE AND WITH NO FEE ASSOCIATED ("SAMPLES") TO BE DISTRIBUTED BY KING
SOLELY IN CONNECTION WITH THE PERFORMANCE OF DETAILS.
DEPOMED SHALL SUPPLY SUCH
SAMPLES FOB DEPOMED'S OR ITS DESIGNEE'S WAREHOUSE, AND THE RISK OF LOSS AND
RESPONSIBILITY FOR HANDLING AND WAREHOUSING OF THE SAMPLES SHALL PASS TO KING
UPON DELIVERY TO A CARRIER DESIGNATED BY KING.
KING SHALL BE RESPONSIBLE FOR
DISTRIBUTING THE SAMPLES TO ITS SALES REPRESENTATIVES IN A TIMELY MANNER.
DEPOMED SHALL INVOICE KING FOR EACH SHIPMENT OF SAMPLES AT ITS STANDARD COST
PAYABLE WITHIN 30 DAYS OF THE INVOICE DATE.
KING SHALL ALSO BE RESPONSIBLE FOR
SECURING THE RETURN AND APPROPRIATE DISPOSAL OF AND RECONCILING EXISTING SAMPLE
INVENTORIES FROM DISCONTINUED SALES REPRESENTATIVES.
(B)
SAMPLES SUPPLIED BY DEPOMED TO KING SHALL BE USED BY KING SOLELY
IN PERFORMING DETAILS TO PROFESSIONALS IN ACCORDANCE WITH THIS AGREEMENT.
UPON
ITS RECEIPT OF SAMPLES, KING SHALL BE SOLELY RESPONSIBLE FOR ACCOUNTABILITY AND
COMPLIANCE WITH THE PDMA FOR THE KING SALES FORCE, AND OTHER APPLICABLE LEGAL
REQUIREMENTS RELATING TO SUCH SAMPLES OR THE DISTRIBUTION OF SAME BY THE KING
SALES FORCE, AND SHALL BE RESPONSIBLE FOR ADHERENCE BY ITS SALES REPRESENTATIVES
TO SUCH LEGAL REQUIREMENTS.
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(C)
SAMPLING VOLUME SHALL BE CONSISTENT WITH KING'S PROMOTIONAL EFFORT
AND CONSIDERED A COMPONENT OF THE ADVERTISING/MARKETING/EDUCATIONAL EXPENSES.
SAMPLING VOLUME WILL BE INCLUDED AS A PART OF EACH ANNUAL PLAN.
SECTION 6.6
INABILITY TO SUPPLY.
IN THE EVENT THAT A DEPOMED SUPPLY
FAILURE OCCURS, NOTWITHSTANDING ITS COMPLIANCE WITH ITS OBLIGATIONS UNDER
SECTION 6.1, TO FULFILL ALL ORDERS FOR THE PRODUCT GENERATED BY KING ACTIVITIES
IN A TIMELY AND EFFICIENT MANNER, UPON WRITTEN NOTICE TO DEPOMED (A "KING
MANUFACTURING NOTICE"), KING SHALL HAVE, AND HEREBY GRANTS KING, EXERCISABLE
ONLY IN ACCORDANCE WITH THE PROVISIONS HEREOF, THE RIGHT, BUT NOT THE
OBLIGATION, TO MANUFACTURE,