Distribution Agreement – Given Imaging Ltd. and Suzuken Co., Ltd.
DISTRIBUTION AGREEMENT
by and between
GIVEN IMAGING K.K.
And
SUZUKEN CO., LTD.
Dated May 9, 2002
DISTRIBUTION AGREEMENT
This Distribution Agreement (the “Agreement“) is entered into as of
May 9, 2002 (the “Execution Date“) by and between Given Imaging K.K.
(“Given Japan“), a Japanese corporation having its principal office at
4-12, Hirakawacho 1-chome, Chiyoda-ku, Tokyo, and Suzuken Co., Ltd.
(“Suzuken“), a Japanese corporation having its principal office at 8
HigashiKataha-machi, Higashi-ku, Nagoya, Aichi. Suzuken and Given Japan are
sometimes referred to individually as a “Party” and together as the
“Parties“.
RECITALS
WHEREAS Given Japan and Given Imaging Ltd. (“Given Imaging“) are
Parties to that certain Amended Supply Agreement (the “Supply
Agreement“) dated of even date herewith for supply by Given Imaging to Given
Japan of the Given Diagnostic Imaging System (the “Given System”) currently
consisting of the M2ATM Capsule, a Data Recorder Kit and the
RAPIDTM Work Station for the diagnosis of the Gastro-Intestinal
Tract, as listed in Schedule A, attached hereto, and any
enhancements, improvements or related product developed by Given Imaging
(collectively the “Product“) for distribution in Japan (the
“Territory“), and
WHEREAS, Suzuken markets, distributes and sells pharmaceutical products and
medical equipment and disposable items throughout the Territory; and
WHEREAS, subject to the terms and conditions of this Agreement, Given Japan
wishes to appoint Suzuken as its distribution representative for the Product in
the Territory; and
WHEREAS, Suzuken wishes to accept such appointment and to act as Given
Japan’s distribution representative in the Territory for the Product pursuant to
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
AGREEMENT
1. Appointment.
1.1 Appointment. Subject to the terms hereof, Given Japan hereby
appoints Suzuken as its exclusive distributor of the Product to Customers in the
Territory, subject to the exceptions and restrictions stated herein, and Suzuken
accepts this appointment. To perform its obligations as exclusive distributor,
Given Japan grants to Suzuken the non-transferable (except as provided in
Section 15) right to market, distribute and sell the Product directly to
Customers in the Territory. “Customers” (each, individually a
“Customer“) means customers who purchase the Product for their own
internal use and not for further marketing, distribution, sale or resale.
1.2 No Resellers. Suzuken shall not appoint any resellers for the
Product without the express prior written consent of Given Japan other than
purchasing agents nominated by hospitals and other healthcare providers for
purchasing medical supplies on their behalf.
1.3 Restrictions. Such appointment as set forth in Section 1.1 is
subject to any law and directives applicable in the Territory. Suzuken shall not
use the Product for any purpose other than the purposes of this Agreement, and
Suzuken shall not sell, market or distribute the Product, or conduct any
marketing activity with respect to the Product outside the Territory, without
the express, prior, written approval of Given Japan. Suzuken shall have no
distribution rights pursuant to this Agreement for any Given Imaging products
other than the Product. Suzuken shall not distribute the Product, as such, in
integration with other products or technologies or other than as a stand-alone
product, and shall not attempt to separate the Product’s components or to use a
component separately and not as part of the Product, without first obtaining
Given Japan’s prior written consent.
1.4 Language. Any and all correspondence between the Parties hereto,
including training and technical or other documents or notices exchanged between
the Parties and with any third Party relating to this Agreement, shall be in the
Japanese; provided that at Given Japan’s reasonable request, Suzuken shall
provide English translation of its correspondence but shall not bear
responsibility for the accuracy of any translation prepared by a reasonably
selected outside translation service.
1.5 Performance Standard. Suzuken shall and shall cause its employees,
agents and independent contractors to exercise reasonable care in the
performance of any and all of its duties under this Agreement and in taking any
other action(s) related thereto, including without limitation, the handling,
installation, demonstration or servicing of any Product. Further, Suzuken shall
not engage in any illegal, unfair, or deceptive business practices in connection
with its performance under this Agreement. Suzuken acknowledges that breach of
this provision shall be a material breach of this Agreement.
2. Trademarks and Domain Names.
2.1 Sublicense. (a) Given Japan hereby grants Suzuken a limited
sublicense to use and display the trademarks GivenTM ,
M2ATM and RAPIDTM owned by Given Imaging (collectively,
the “Given Marks“) and licensed to Given Japan pursuant to the Supply
Agreement solely for marketing purposes in publications, articles,
advertisements and other promotional materials in the Territory only in
connection with the Product during the Term.
(b) All advertising and other materials in which the Given Marks are used
shall be subject to Given Japan’s prior written consent, which may be withheld
in its reasonable discretion. Suzuken acknowledges that such advertising and
other materials may be subject to review and approval by Given Imaging under the
Supply Agreement. Upon termination of this Agreement, this limited license shall
immediately terminate and Suzuken shall cease all use of the Given Marks other
than reasonably necessary to fulfill pending purchase order for Products.
2
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(c) Without limiting the forgoing, all use by Suzuken of the Given Marks
(including any Japanese language translation thereof into katakana or
otherwise) or domain name shall inure to the benefit of Given Imaging, and
Suzuken shall not obtain any rights with respect to the Given Marks or domain
names, other than any rights expressly set forth herein. Suzuken hereby
irrevocably assigns to Given Imaging in perpetuity all worldwide right, title
and interest, if any, that are owned or obtained by Suzuken in any of the Given
Marks (including any Japanese language translation thereof into
katakana or otherwise) or domain names.
2.2 Limitations. Suzuken agrees not to attach or apply to the Product
any other materials (including packaging) of whatever media, any label, marking
or other information that has not been approved by Given Japan in writing in
advance. Suzuken acknowledges that all rights in the Given Marks and domain
names are and shall remain the sole property of Given Imaging. Given Japan
reserves the right to add to, change, or discontinue the use of the Given Marks
or domain names, on a selective or general basis, at any time. Suzuken shall not
remove, obscure or obliterate any Given Imaging patent, trademark or any other
proprietary notices incorporated in, marked on or affixed to the Product, and
shall include such notices in marketing materials in accordance with Given
Japan’s instructions.
3. Regulatory and Marketing Approvals. Given Japan shall use its best
efforts to obtain and maintain all regulatory and governmental approvals
necessary for the marketing of the Products throughout the Territory, as well as
for health insurance reimbursement. Upon request by Given Japan, Suzuken shall,
to the extent reasonable, assist Given Japan in preparing and filing any such
requests or applications as well as taking other actions necessary for obtaining
such approvals. Such assistance shall include, but is not necessarily limited to
allocating appropriate professional manpower, whose costs shall be borne by
Suzuken. The approvals will be in Given Japan’s name, and costs for procuring
such approvals shall be borne by Given Japan. The above shall apply to the
existing Product items as well as to new Product items, as may be announced by
Given Imaging from time to time.
4. Given Japan’s Responsibilities. Given Japan shall:
(a) subject to delivery from Given Imaging pursuant to the Supply Agreement,
ship Product within [***Redacted***] of receipt of Product
purchase order from Suzuken and sell the Products to Suzuken, pursuant to
purchase orders to be placed by Suzuken and at the prices, delivery dates and
otherwise in accordance with this Agreement; provided that (i) Given Japan shall
cause Given Imaging to ship M2A capsules within
[***Redacted***] and (ii) to assist Suzuken in meeting initial
unexpected demand, [***Redacted***] period commencing upon
receipt of [***Redacted***] prior written notice from Suzuken,
once [***Redacted***] (but not before
[***Redacted***] from previous Emergency Order (defined below))
Suzuken may submit an emergency order for up to
[***Redacted***] M2A capsules (an “Emergency Order“) and
Given Japan shall cause Given Imaging to deliver such capsules within
[***Redacted***] of receipt of such order in accordance with
the Supply Agreement; provided further that Given Japan shall place a purchase
order with Given Imaging for the Products within
[***Redacted***] of receipt of such order from Suzuken;
3
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(b) provide Suzuken with, at no cost, (i) Japanese language Product manuals
printed by Given Imaging and inserted in the Product package (ii) introductory
Japanese language Product catalogs/brochures printed by Given Japan and (iii)
the content and graphic design for promotional materials and literature to be
printed by Suzuken;
(c) provide the personnel of Suzuken assigned for the sales and service of
the Product with adequate training as to the operation, installation,
maintenance and troubleshooting of the Product (training of technical personnel
for repairs of Product parts shall be provided by Given Imaging in Israel).
Suzuken shall not be charged for such training other than reimbursement by
Suzuken of reasonable hotel and travel expenses of personnel of Given Imaging or
Given Japan, as the case may be, who travel to Japan in accommodating Suzuken’s
request for training pursuant to this Section 4(c);
(d) assist Suzuken in its promotion efforts by sending representatives to
attend and lecture in medical meetings, as requested by Suzuken, offer
explanations and answer questions regarding the Product and its use and join
conventions and, trade shows etc., all if coordinated in advance, subject to
personnel availability reimbursement by Suzuken of reasonable hotel and travel
expenses of personnel of Given Imaging or Given Japan, as the case may be, who
travel to Japan at in accommodating Suzuken’s request pursuant to this Section
4(d);
(e) refer to Suzuken inquiries coming from the Territory through other
international promotion channels (international advertisements, trade shows
etc.) for purchasing Products for use within the Territory;
(f) subject to receipt of a prior written notice to such effect from Given
Imaging under the Supply Agreement, give Suzuken a ninety (90) days minimum
prior notice of any modifications and improvements in the Products (including
specifications, options, features, software upgrades or updates configuration,
etc.);
(g) provide Suzuken, at not cost, with all the leads and relevant information
received by Given Japan from Given Imaging coming from the Territory through its
Webcentric marketing and sales system, as soon as practicable after the system
is operational;
(h) at its own expense, monitor Suzuken’s performance; and
(i) [***Redacted***];
(j) [***Redacted***], participate in
[***Redacted***] international gastroenterology congress or
convention in the Territory;
(k) [***Redacted***];
(l) during the Term, not exercise by itself nor grant to or authorize
exercises by any other person or entity in the Territory any of the rights
granted to Suzuken under Sections 1.1 or 1.2; and
4
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(m) during the Term, not grant to or authorize exercise by any other person
or entity in the Territory any of the rights granted to Suzuken under Section
2.1.
5. Suzuken ‘s Responsibilities. Suzuken shall:
(a) use its best efforts to market and sell the Product in the Territory, in
accordance with a sales plan (which includes marketing and staffing) that is to
be agreed upon by Given Japan and Suzuken;
(b) [***Redacted***];
(c) [***Redacted***];
(d) maintain adequate inventory of the Product to meet the market demand and
needs of Customers in the Territory and provide a high level of service to
Customers. (“high level” shall mean [***Redacted***]);
(e) [***Redacted***];
(f) [***Redacted***];
(g) make minor repairs to equipment and provide on-site service and in doing
so, Suzuken shall follow given Japan’s reasonable instructions and utilize only
such Product components or spare and service parts, as applicable, for the
Product as approved by or obtained from Given Japan. Accordingly, Suzuken shall
maintain a stock of Product and spare units in quantity sufficient to provide
such services;
(h) provide Customers with basic training and education in the use of the
Product, in accordance with Given Japan’s guidance;
(i) provide first level customer and technical support;
(j) handle warranty claims (subject to reimbursement by Given Japan for
defective Products). [***Redacted***];
(k) [***Redacted***];
(l) print promotional materials and literature as provided by Given Japan
under Section 4(b);
(m) participate in [***Redacted***] gastroenterology
congress/convention/exhibit held in the Territory;
(n) [***Redacted***];
(o) notify Given Japan’s designated medical vigilance personnel in writing
[***Redacted***] from the date that Suzuken becomes aware of
the incident or near incident of any incident or near incident associated with
the Product [***Redacted***], provide Given Japan all data and
information required in order to prepare a medical device agency vigilance
report or to comply with applicable law or requirements of the Ministry of
Health Labor and Welfare of Japan (“MOH”) and otherwise cooperate fully with
Given Japan in a timely manner. [***Redacted***]. In this sub
section, “incident” shall include, but is not limited to,
[***Redacted***]. A “serious deterioration in the state of
health” shall include, but is not limited to,
[***Redacted***];
5
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(p) (i) appoint a representative for implementation of this Agreement, who
shall serve as a point of contact (ii) [***Redacted***] and
(iii) cause all its staff directly involved in the marketing and sales of the
Product, from the level of regional sales manager and up, to attend a meeting
with representatives of Given Japan [***Redacted***];
(q) not make any representations or give any warranties concerning the
Product or its capabilities which are false or misleading in any way
[***Redacted***];
(r) notify Given Japan of all matters of importance coming to its attention,
relating to the Product and their service, legislative changes, governmental or
local policies, new products and market trends;
(s) refrain from making any change in the Product (including any part,
component or feature thereof), unless specifically approved by Given Japan in
writing;
(t) subject to any applicable law or directive, refrain from selling Product
to any entity outside the Territory or to any entity who Suzuken reasonably
believes may resell, export or use the Product outside the Territory and refer
to Given Japan any inquiries regarding the Product coming from outside the
Territory;
(u) reasonably cooperate with Given Japan on all matters of medical vigilance
and report all Product problems;
(v) [***Redacted***];
(w) sell the Product only under Given Japan’s limited warranty, as set forth
in this Agreement;
(x) [***Redacted***] and provide Customers with basic
training and education in the use of the Products, in accordance with Given
Japan’s guidance; and
(y) ensure that all its personnel involved in the marketing and service and
distribution of the Product are adequately trained.
6
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
6. Terms and Conditions of Sale. All purchases of Products by Suzuken
from Given Japan during the term of this Agreement shall be subject to the terms
and conditions attached hereto as Schedule B. The prices
in Schedule B relate only to currently marketable parts
and components of the Product, not to future parts and components of the
Product.
7. Proprietary Rights.
7.1 Reporting of Third Party Infringement. Suzuken undertakes to
promptly inform Given Japan in writing of any possible infringement by third
parties in Japan of Given Imaging’s proprietary rights including any duplication
of the Product (including any part, component or feature thereof) or the Given
Marks that Suzuken becomes aware of, [***Redacted***].
7.2 Handling of Infringement Claims.
(a) Suzuken undertakes to promptly inform Given Japan in writing of any
actual or threatened claim that the Product or part thereof purchased by Suzuken
hereunder may infringe a third party’s proprietary rights in the Territory that
Suzuken becomes aware of. In the event that Suzuken notifies Given Japan as
aforesaid, then Given Japan agrees to defend (subject to reasonable assistance
by Suzuken provided that Given Japan shall reimburse all of Suzuken’s
pre-approved expenses) and may, in its sole discretion,
[***Redacted***].
(b) If it is determined by the court of first instance
[***Redacted***] that the Product or a part thereof purchased
by Suzuken hereunder infringes a third party’s proprietary rights in the
Territory, Given Japan shall indemnify and hold harmless Suzuken as well as its
shareholders, employees, directors, representatives, Customers and agents (each
an “Indemnified Party“) from and against their direct losses, costs and
expenses set by such court to the extent based on such Infringement Claim (as
defined below), except to the extent such losses, costs and expenses result from
the Indemnified Party’s breach of this Agreement, bad faith, willful misconduct
or gross negligence. “Infringement Claim” means any third party claim
that the Product or a part thereof infringes a third party’s proprietary rights
in the Territory.
7.3 [***Redacted***].
7.4 Assignment of Inventions.
(a) Suzuken shall inform Given Japan of any Invention (as defined below)
relating to the Product and, at Given Japan’s request and expense, Suzuken
hereby expressly assigns all right, titles and interests in and to any
Inventions (defined below) to Given Imaging and shall execute any necessary
assignment, patents forms, trade marks, and the like and will assist in the
drafting of any description or specification of the Invention as may be required
for Given Imaging’s records and in connection with any application for patents.
Suzuken shall treat all information relating to any Invention as Confidential
Information. While, where relevant, the name of the Inventor on the Patent
Applications will be that of the inventor, Given Imaging shall be the exclusive
owner of any invention, trademark, copyright, improvement know-how or other
intellectual property which shall be developed by Suzuken using any Confidential
Information (defined below) of Given Japan or Given Imaging or with the
involvement of any personnel of Given Japan or Given Imaging
(“Inventions“), and of any patent, patent application, trademark,
copyright and such other rights therein, without any additional compensation to
Suzuken. It is understood that Given Japan shall pay Suzuken any expense
incurred by it in assisting it, at its request, in obtaining patent, trademark,
copyright or other protection hereunder. Given Imaging’s rights shall be
world-wide and shall attach to any such Invention notwithstanding that it is
perfected or reduced to specific form after Suzuken has ceased its services
hereunder, provided that its conception during the term hereof.
7
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(b) Without derogating from section 7.4(a), Given Imaging shall have sole and
exclusive ownership rights in any results and information relating to, arising
out of or resulting from the performance of this Agreement by either Party if
(i) developed by Suzuken using any Confidential Information (defined below) of
Given Japan or Given Imaging or jointly with the involvement of any personnel of
Given Japan or Given Imaging or in performing its obligations hereunder and (ii)
related to the Product, including, but not limited to all copyrights, and
marketing information and material.
8. Defects Warranty.
8.1 Limited Customer Warranty. Given Japan shall provide a warranty to
Suzuken and Customers warranting that the Product shall be free from defects in
material or workmanship for a period as described below:
(i) for [***Redacted***] in the case of the
RAPIDTM Workstation, Data Recorder Kit carrying case,
DataRecorderTM, RecorderBeltTM and Battery Charger;
(ii) [***Redacted***] in the case of the M2ATM
10-Pak; and
(iii) for [***Redacted***] in the case of the Rechargeable
Battery Packs and SensorArrayTM.
Suzuken shall make available to Customers a copy of Given Japan’s warranty to
Customers.
8.2 Limitation of Warranty Liability. The liability of Given Japan
under this warranty is limited to [***Redacted***].
8.3 Exclusions. This warranty shall not apply to a Product which has
been repaired or altered other than in accordance with Given Japan’s
instructions, nor shall it apply to a Product which has been subject to misuse,
unauthorized use, negligence, accident, (including fire, water, explosion,
smoke, vandalism, etc.) or which has been operated contrary to Given Japan’s
instructions or any other cause beyond Given Japan’s control. Without derogating
from the above, the warranty is void, if at any time:
8
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(i) anyone other than Given Japan’s authorized personnel removes a Product
casing and/or attempts to make or makes any internal changes, removals,
attachments or additions to the Product or components thereof; or
(ii) anyone installs unauthorized software on to the Product.
8.4 Return/Replacement of Products Under Warranty. Products or parts
thereof may be returned for repair, replacement or adjustment to Given Japan. No
credit allowances will be given or replacements shipped unless defects are
verified by Given Japan or Given Japan’s authorized personnel.
8.5 Exclusive Remedy. THE FOREGOING WARRANTY IS SUZUKEN’S SOLE AND
EXCLUSIVE REMEDY AGAINST GWEN JAPAN HEREUNDER, AND IS IN LIEU OF ANY AND ALL
OTHER WARRANTIES, GUARANTEES, PROMISES, OR REPRESENTATIONS WHETHER WRITTEN, ORAL
OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORINESS OR FITNESS
FOR ANY PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL GIVEN JAPAN BE LIABLE FOR
LOSS OF USE, LOSS OF PROFITS, OR OTHER COLLATERAL, SPECIAL OR CONSEQUENTIAL
DAMAGES. EXCEPT AS SET FORTH IN SECTION 7 (Proprietary Rights) AND SECTION
9.1(ii) and 9.2 (Indemnification), EACH PARTY’S TOTAL LIABILITY ARISING UNDER
THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY SUZUKEN HEREUNDER IN THE
[***Redacted***] PERIOD PRECEDING THE DATE OF THE CLAIM UNDER
THIS AGREEMENT.
8.6 Response to Warranty Claims. Suzuken shall handle all Customer
warranty claims under the warranty set out in Section 8.2 at its expense subject
to reimbursement by Given Japan for defective Products.
9. Indemnification.
9.1 Mutual Indemnification. Each Party shall be liable for and shall
indemnify, defend, and hold the other harmless against any liability, damages,
or loss from any claims, actions, suits, judgments, proceedings, demands,
recoveries or expenses, including, but not limited to, reasonable attorneys’
fees, arising out of, based on, or caused by (i) any breach of this Agreement or
any of its obligations hereunder or (ii) violation of any applicable Japanese
law, statute, ordinance, rule or regulation with regard to the Product by the
indemnifying Party or any of its respective employees, agents or independent
contractors, except to the extent such damages arise from the bad faith, willful
misconduct or gross negligence of the indemnified Party or its their respective
employees or representatives (whether authorized or not).
9.2 Indemnification by Given Japan.
(a) Notwithstanding anything herein to the contrary, Given Japan shall
defend, indemnify and hold harmless Suzuken, its officers, agents, employees and
representatives and any of its Customers (each referred to in this Section 9.2
as an “Indemnified Party“) from and against any and all direct costs,
expenses, losses, damages or liabilities awarded by a court of first instance
(provided that Suzuken will first appeal such determination if (i) requested by
Given Japan and (ii) Given Japan timely funds the bond necessary to stay
execution of such determination) to the extent based on any Product Liability
Claim (defined below), except to the extent such damages arise from the bad
faith, willful misconduct or gross negligence of such Indemnified Party or their
respective employees or representatives (whether authorized or not). Given Japan
agrees that, if the Products in the inventory of Suzuken, become or are subject
of such a determination, Suzuken will be entitled to return such Products for a
refund of the purchase price.
9
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(b) The foregoing rights of indemnification shall be conditioned on the
Indemnified Party (i) furnishing prompt notification to Given Japan as soon as
it becomes aware of such claim or action being made, threatened or reasonably
expected (this obligation shall not apply to Customers; provided that Customers
shall be required to provide such notice to Suzuken), (ii) permitting Given
Japan or its designee to control defense and settlement of any such third-party
claim or action, and (iii) cooperating in the defense by Given Japan or its
designee at Given Japan’s expense.
(c) “Product Liability Claim” means a third party claim based on any
death, bodily injury or property damages occurring out of the Given System,
including, without limitation, a claim based on the Product Liability Act of
Japan, Law No. 85 promulgated on July 1, 1994 as it may be amended.
10. Regulatory Inspections. Suzuken shall allow representatives of
regulatory agencies or authorities with jurisdiction over the manufacture,
marketing and distribution of the Product to tour and inspect all facilities
utilized by Suzuken in the marketing, distribution, or storage, of Product sold
under this Agreement, and shall co-operate with such representatives in every
reasonable manner. Suzuken shall provide Given Japan with a copy of any notices
of adverse findings, regulatory letters or similar notifications it receives
from any other governmental authority setting forth adverse findings or non
compliance with any applicable laws, regulations or standards relating to the
items supplied by it hereunder. Suzuken shall also provide Given Japan with a
copy of its proposed written response to such governmental authority before
submission and shall incorporate all changes thereto which Given Japan requests.
11. Term and Termination.
11.1 Term. Subject to the terms and conditions set forth herein, and
unless terminated earlier in accordance with Section 11.3, the term of this
Agreement shall be as set forth in Schedule B (the
“Term“).
11.2 Continuation. The Term shall be automatically renewed for
consecutive periods of one (1) year each so long as Suzuken
[***Redacted***] and (ii) perform all of its obligations under
this Agreement.
11.3 Termination by Either Party. This Agreement and Suzuken ‘s
distribution rights hereunder shall immediately terminate upon the occurrence of
any one of the following:
10
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
(a) a material breach by either Party of its obligations under this Agreement
that has not been cured (when curable, otherwise this cure period shall not
apply) within ninety (90) days from receipt of written notice of thereof from
the non-breaching Party.
(b) either Party voluntarily files a petition in bankruptcy or liquidation,
or has such a petition involuntarily filed against it, which is not discharged
within 45 days after filing, or is placed in receivership, or in the hands of a
trustee for the benefit of creditors or enters into any analogous situation or
position under the law of any relevant jurisdiction or ceases doing business in
the marketing, distribution, manufacture, sale or lease of Products.
11.4 Termination by Given Japan. Given Japan may, at its sole
discretion, upon [***Redacted***] prior written notice (unless
a shorter time is indicated below), terminate this Agreement (or make the
distribution rights hereunder non-exclusive in the event that: (i)
[***Redacted***]; or (ii) [***Redacted***]; or
(iii) upon [***Redacted***] prior written notice, in the event
that [***Redacted***].
11.5 Sale after Termination. If the term of this Agreement expires or
this Agreement is terminated by Suzuken due to a breach by Given Japan, Suzuken
shall at its option, (i) have the rights to sell the Products in its inventory
or (ii) cause Given Japan to purchase the Products in good and salable condition
in its inventory at the purchase price. Without prejudice to the foregoing, in
the event that this Agreement expires or is terminated by Suzuken due to a
breach by Given Japan, Suzuken may continue to sell the Products to its existing
Customers until Given Japan or its newly appointed distributor becomes able to
provide such Customers with the Products. In the event this Agreement is
terminated by Given Japan due to breach by Suzuken or under Section 11.4, the
Parties, together with Marubeni and Given Imaging, shall discuss transfer of
Suzuken’s Customer accounts to Given Japan or its newly appointed distributor to
effect continuous sale of the Products to Suzuken’s existing Customers.
12. Non-Compete. During the Term and,
[***Redacted***], (the “Restriction Period“), Suzuken
shall not without Given Japan’s prior written consent:
(i) directly or indirectly engage, participate or invest in any business
whose primary business is the Restricted Business (defined below) in the
Territory, or assist any business organization or person whose primary business
engages in, or otherwise assist any division or unit of a business organization
or person if the primary business of such division or unit is in the Restricted
Business;
(ii) directly or indirectly, on behalf of itself or any other person or
entity, approach, contact or solicit Given Japan’s customers in connection with
any Restricted Business; or
(iii) directly or indirectly, on behalf of itself or any other person or
entity, solicit the services of, employ or agree to employ, engage or otherwise
retain the services of any person who is or was an employee of Given Japan for
the purposes of the Restricted Business.
11
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
The “Restricted Business” shall mean
[***Redacted***].
13. Confidentiality.
13.1 Confidentiality Obligation. (a) Each Party shall hold in trust
and confidence for the other Party all Confidential Information (as defined
below) disclosed to the receiving Party at any time during the Term and neither
Party shall disclose such Confidential Information to any person outside of the
other Party. Each Party agrees to indemnify the other Party for any loss
resulting from a breach of its duty to maintain such confidentiality.
(b) “Confidential Information” means any non-public information, data,
trade secrets or know-how, or business or technical information of a Party or
other information of a Party related to the Product or any Invention, including,
but not limited to, ideas, concepts, strategies, business and marketing plans,
financial and operational information, investment opportunities and investments,
research, product plans, customer and client lists and names, business contact
lists and names, prices and costs, markets, developments, inventions, processes,
marketing, licenses or other business information of a Party; provided that to
be treated as Confidential Information, the information (whether disclosed in
writing or orally) must be either (i) marked “Confidential” prior to its
disclosure or if any of the foregoing is not so marked or which is disclosed
orally or observed accidentally, it must be identified in writing as
confidential within thirty (30) days of disclosure or (ii) clearly confidential
in nature; provided that if there is any doubt as to whether or not the
information is clearly confidential in nature, the receiving Party shall confirm
its nature with the disclosing Party.
(c) Confidential Information shall not include any information disclosed by a
Party hereunder which (i) is already known to the receiving Party and which the
receiving Party had in its rightful possession in written or physical embodiment
prior to the Execution Date, unless such Confidential Information was previously
disclosed by the receiving Party, (ii) is rightfully received by the receiving
Party in the routine course of business from a third party who acquired such
Confidential Information and the right to disclose same from the disclosing
Party; (iii) is approved for release or publication by written authorization of
the disclosing Party; or (iv) has become generally available to the public
through no act of the receiving Party.
13.2 Limitations on Use; Return of Information. Confidential
Information of the other Party shall not be used by either Party for any
purposes except those for which the information was disclosed by or derived from
the disclosing Party. All Confidential Information disclosed to a Party
hereunder is, and shall remain, the sole property of the disclosing Party. Upon
termination or expiration of this Agreement, the receiving Party shall cease use
of all Confidential Information, and shall promptly destroy or return to the
disclosing Party, all such Confidential Information.
13.3 Need to Know Basis. Each Party agrees that the Confidential
Information received from the other Party shall be disclosed only to such of its
respective employees and sales or service representatives that have a need to
know about such Confidential Information for a use authorized by this Agreement.
Each Party undertakes to bind its respective employees, officers, sales,
technical, maintenance and service representatives, and other third parties to
12
13.4 whom Confidential Information is disclosed as permitted hereunder, to
the terms and conditions contained herein.
13.5 Ongoing Confidentiality Obligations. The obligations respecting
Confidential Information imposed on each Party respectively shall continue
during the term of this Agreement and for as long as such Party continues to
hold any such Confidential Information of the other Party.
13.6 Limitation of Rights. Unless otherwise specifically stated
herein, this Agreement does not grant Suzuken any manufacturing, assembly,
production, modification or licensing rights, or any rights in any patents,
patent applications, trademarks, and trade names, copyrights or know-how of
Given Japan.
13.7 Injunctive Relief. Each party hereby acknowledges and agrees that
in the event of its violation hereof the other Party shall be authorized and
entitled to obtain from any court of competent jurisdiction, preliminary and
permanent injunctive relief, which rights and remedies shall be cumulative and
in addition to any other rights or remedies to which each Party shall be
entitled under law or under this Agreement.
14. Independent Contractors. The Parties are independent contractors.
Nothing in this Agreement shall be construed to constitute the Parties as
principal and agent, employer and employee, franchiser and franchisee, partners,
joint venturers, corporate affiliates, co-owners or otherwise as participants in
a joint undertaking.
15. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either Party without the
prior written consent of the other Party; provided that it is expressly agreed
that Suzuken may assign this Agreement to its wholly-owned subsidiary, provided
that (i) Suzuken shall remain jointly and severally liable for satisfaction of
its obligations set forth in this Agreement and (ii) this Agreement shall
automatically terminate in the event such subsidiary ceases to be a 100% owned
and controlled by Suzuken.
16. Disputes.
16.1 Resolution of Disputes. The Parties will attempt to resolve all
disputes arising out of or in connection with this Agreement (including any
disagreement concerning the validity, enforceability or interpretation of this
Agreement) through amicable and good faith discussions. If a dispute arises
among the Parties then the senior management of each of the Parties shall engage
in amicable and good faith discussions to attempt to resolve such dispute.
16.2 Arbitration. In the event the Parties are unable within thirty
(30) days to settle any dispute amicably as provided in Section 16.1, then, such
dispute shall be finally determined under the Rules of Arbitration of the
International Chamber of Commerce by a single arbitrator fluent in English. The
place of such arbitration shall be London, England unless the claim as
submitted, or subsequently amended, if accepted by the arbitrator shall have no
direct or indirect effect on Given Imaging, other than in its capacity as a
shareholder of Given Japan, in which case the arbitration may be in Tokyo,
Japan. The language of the arbitration shall be English. Judgment upon an
arbitral award rendered by the arbitrator may be entered in any court having
jurisdiction.
13
17. Miscellaneous.
17.1 Governing Law and Language. This Agreement shall be governed by
and construed in accordance with the laws of Japan, without regard to its
conflict of laws rules. The English language text of this Agreement shall be the
only binding version. Any translation hereof shall have no legal effect.
17.2 Publication, Press releases. Both Parties may release press
releases that refer to the existence of an agreement between the Parties,
without divulging the commercial details of the agreement, and subject to their
respective confidentiality obligations to each other. Both Parties shall send
the other Party a copy of any draft press release that refers to the other
Party, for advance approval before release. Approvals will not be unreasonably
withheld, and shall be provided on a timely basis.
17.3 Recitals and Schedules. All Recitals and all Schedules attached
to this Agreement constitute an integral part of this Agreement. The definitions
of this Agreement shall apply to all Schedules.
17.4 Headings. The headings of sections and subsections of this
Agreement are inserted only for the purposes of convenience and they shall not
be construed as to affect the scope, meaning or intent of the provisions of this
Agreement or any part or portion thereof, nor shall they otherwise be given any
legal effect.
17.5 Notices. Any and all notices, requests, demands and other
communications required or otherwise contemplated to be made under this
Agreement shall be in writing and in English and Japanese and shall be provided
by one or more of the following means and shall be deemed to have been duly
given (i) if delivered personally, when received; (ii) if transmitted by
facsimile, on the date of transmission with receipt of a transmittal
confirmation; or (c) if by international courier service, on the fourth Business
Day following the date of deposit with such courier service, or such earlier
delivery date as may be confirmed in writing to the sender by such courier
service. Unless otherwise instructed, all such notices, requests, demands and
other communications shall be addressed to Parties at their addresses as
follows:
|
(a) |
if to the Suzuken, to |
Suzuken Co., Ltd.
8 HigashiKataha : machi
Higashi-ku
Nagoya, Aichi
JAPAN.
Facsimile: (81-52) 951-6696
Attention: Senior General Manager, Business Development Department
14
|
(b) |
if to the Company, to: |
Given Imaging K.K.
4-12, Hirakawacho 1-chome
Chiyoda-ku, Tokyo
JAPAN.
Facsimile: (81-3) 5215-8765
Attention: Representative Director
with copy to:
Given Imaging Ltd.
New Industrial Park
PO Box 258
Yoqueam 20692, Israel
Fax: 972-4959-2466
Attention: Yoram Ashery, Vice President – Business Development and Pablo
Halpern, Vice President – Global Sales and Marketing
17.6 No Waiver. Failure by either Party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement of that or any
other provision.
17.7 Force Majeure. Neither Party shall be responsible for any failure
to perform due to unforeseen circumstances or to causes beyond the Party’s
reasonable control, including but not limited to acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods, accidents,
strikes, or shortages of transportation, facilities, fuel, energy, labor, or
materials. In event of any such delay in delivery or payment, the Party in delay
may defer the performance date for a period equal to the time of such delay,
provided that the lack of liquidity by one Party shall not constitute a Force
Majeure.
17.8 Severability. If any provision of this Agreement is determined to
be invalid or unenforceable, the provision shall be deemed to be severable from
the remainder of this Agreement and shall not cause the invalidity or
unenforceability of the remainder of this Agreement. The Parties shall make
their best efforts in order to render effective such provisions of this
Agreement not affected thereby and this Agreement will continue in full force
and effect.
17.9 Entire Agreement. This Agreement, including all supplements and
Schedules constitutes the entire agreement between the Parties with respect to
the subject matter hereof and supersedes all prior agreements, understanding or
representations, oral or written between the Parties hereto regarding such
matter.
17.10 Amendments. This Agreement may be modified or amended only in
writing, signed by duly authorized representatives of both Parties.
17.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15
17.12 Interpretation. (i) In this Agreement, unless the context
requires otherwise, the singular shall include the plural and vice versa, and a
reference to one gender shall include all genders; (ii) A “Section” is a
reference to a Section of this Agreement; (iii) The words “including”,
“includes” and “include” shall be deemed to be followed by the words “without
limitation” or “but not limited to” or words of similar import; (iv) The words
“hereof”, “herein” and “hereunder” and other words of similar import used in
this Agreement refer to this Agreement as a whole and not to any particular part
of this Agreement; (v) References to agreements (including, without limitation,
this Agreement) and other contractual instruments shall be deemed to include all
appendices, schedules, exhibits, annexes and attachments attached thereto and
all subsequent amendments and other modifications to such agreements; (vi)
References to Parties include their respective successors and permitted assigns;
and (vii) Reference to a given applicable law is a reference to that law as
amended or modified as of the date on which the reference is made.
[Signature Page Follows]
16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of
the Execution Date.
|
GIVEN IMAGING K.K. |
SUZUKEN CO., LTD. |
|||
|
By: |
/s/ Hidemi Suzuki |
By: |
/s/ Masami Kamiya |
|
|
Name: |
Hidemi Suzuki |
Name: |
Masami Kamiya |
|
|
Title: |
Representative Director |
Title: |
Director & Senior General Manager Headquarters of Corporate Planning |
|
|
Acknowledged: |
Acknowledged: |
|||
|
GIVEN IMAGING LTD. |
MARUBENI CORPORATION |
|||
|
By: |
/s/ Dr. Gavriel D. Meron |
By: |
/a/ Hitoshi Sakamoto |
|
|
Name: |
Dr. Gavriel D. Meron |
Name: |
Hitoshi Sakamoto |
|
|
Title: |
President and Chief Executive Officer |
Title: |
Corporate Vice President, Executive Corporate Officer, Business Incubation |
|
|
By: |
/s/ Pablo Halpern |
|||
|
Name: |
Pablo Halpern |
|||
|
Title: |
Vice President, Global Sales and Marketing |
|||
[Signature Page to Distribution Agreement]
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
Schedule A
[***Redacted***]
Portions of this agreement have been omitted pursuant
to a request for confidential treatment filed with the
Securities and Exchange Commission. The omissions have
been indicated by “[***Redacted***]”, and the
omitted text has been filed separately with the
Securities and Exchange Commission.
Schedule B
[***Redacted***]
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