distributor for the registration (other than in
the European Territory), promotion, marketing, sale and distribution within the
Territory of the Agreement Product and any Improved Agreement Product(s)
supplied by Biomatrix or an Affiliate of Biomatrix to the Distributor pursuant
to this Agreement. Such appointment does not include the right to sublicense or
appoint subdistirbutors except to an Affiliate of Distributor or a
Subdistributor of Distributor set forth on Exhibit E hereto (each a
"Subdistributor") without the approval of Biomatrix; (and only for such time as
such an Affiliate remains an Affiliate or Subdistributor of Distributor).
(b)
Except as specifically provided to the contrary herein, the
foregoing appointment shall not be construed, by implication or otherwise,
(i) to effect any sale of proprietary Biomatrix
3
technology, (ii) to grant any license relating to Biomatrix's proprietary
methods of formulating, fabricating and manufacturing the Agreement Product or
any Improved Agreement Product(s), or (iii) to grant the Distributor any rights
in or to any proprietary technology or Patents or Trademarks of Biomatrix.
(c)
During the term of this Agreement the Distributor shall neither
seek customers for the Agreement Product or any Improved Agreement Product(s)
outside the Territory nor establish any branch or maintain any distribution
facilities outside the Territory for the registration, promotion, marketing,
sale or distribution of the Agreement Product or any Improved Agreement
Product(s).
(d)
[***]to enter into subdistribution arrangements shall be limited to
arrangements [***] hereto and no Subdistributor shall have any further right to
sublicense any rights or appoint additional subdistributors. The rights of
Subdistributors to maintain a sublicense hereunder shall be subject to the
following:
(i)Each Subdistributor shall agree with Distributor that its rights to sell the
Agreement Product and Improved Agreement Product(s) are subject to the terms of
this Agreement, including without limitation Distributor's or Biomatrix's rights
to terminate or convert this Agreement into a non-exclusive arrangement;
(ii)[***];
(iii)[***];
(iv)Without the prior written consent of Biomatrix, Distributor shall not waive
any default or breach of any Subdistributor which would adversely affect
Biomatrix; and
(v)Upon any termination of this Agreement (or with respect to any country), all
subdistributor arrangements shall automatically terminate; provided that
Biomatrix may, in its sole discretion, negotiate a license directly with any
terminated Subdistributor.
2.2.
Acceptance of Obligations; Best Efforts.
The Distributor
hereby accepts the appointment described in Section 2.1 and hereby agrees to use
its best efforts at all times during the term hereof to register, promote,
market, sell and distribute the Agreement Product and any Improved Agreement
Product(s) in the Territory. [***].
2.3.
Conversion to Non-Exclusive Distributorship.
In the event
that (i) in any Agreement Year after and including the third Agreement Year or
(ii) from, after and including the first year of the Distributor acquiring
and/or commercializing a New Product pursuant to Section 10.1(b) (and so long as
(i) no force majeure condition of the Distributor exists at such time pursuant
to Section 20, (ii) Biomatrix has met its supply obligations under Section 7.4
and (iii) Distributor is able to lawfully