DICADIA

DISTRIBUTION AGREEMENT

This Distribution Agreement (hereinafter referred to as «Agreement» or «Agreement») is made and entered into as of the date indicated at the end by and between DICADIA, a company of Spain, with its registered office at …. (hereinafter referred to as «Principal», Dicadia or «Party», which terms shall include any and all affiliates and subsidiaries), and BUY2SELL SINGAPORE, a company incorporated in Vietnam with limited liability, having its registered office in Singapore (hereinafter referred to as the «Distributor» or the «Party») (collectively, the «Parties»).

WHEREAS the corporate purpose of DICADIA is the processing, manufacture, marketing, sale, research and development of all kinds of chemical, pharmaceutical, food, perfumery, cosmetic, biological and biotechnological products, including Class I- II A-B Medical Devices.

WHEREAS DICADIA has specialised in the study of the therapeutic activity of essential oils, plant oils and plant extracts and the manufacture of products with these active ingredients.

WHEREAS Dicadia is the owner, manufacturer and developer of such Products;

WHEREAS the Distributor, as a platform based in Vietnam and Singapore engaged in the commercialisation of different market lines, is interested in the commercialisation of the products developed, manufactured and marketed by Dicadia, based on essential oils, plant extracts and other organic actives, for marketing through its platform and franchises in the Territory;

WHEREAS, Distributor desires to be appointed as a non-exclusive distributor of the Products under the terms and conditions of this Agreement; and

WHEREAS, Dicadia desires to appoint Distributor as Dicadia’s exclusive distributor of the Product for Distributor’s Customers in the Territory and Distributor desires to accept such appointment, all in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements set forth below, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
As used in this Agreement and the Exhibits hereto, each of the following terms shall have the meanings set forth below:
1.1 «Law» means the applicable legislation on medicines and cosmetics , as amended.
1. 2 «Adverse Event» means any adverse event APPLICABLE TO DICADIA’S CURRENT PRODUCTS NOT CONSIDERED TO BE MEDICINAL PRODUCTS associated with the use of the Product in humans, whether or not considered to be drug related, including an adverse event occurring in the course of the use of the Product in professional practice, studies, in research or testing or an adverse event arising from overdose of the Product (whether accidental or intentional), from abuse of the Product, or from withdrawal of the Product, as well as any toxicity, sensitivity, failure of expected pharmacological action, or laboratory abnormality that is, or is considered by the reporter to be, serious or that is associated with relevant clinical signs or symptoms.
1.3 «Adverse Determination» means any judicial determination, whether by settlement, summary judgment or judicial decision in any court, or as a result of any appeal, subsequent review or reconsideration of such summary judgment or judicial decision, that prevents, prohibits, materially restricts or imposes sales royalties or otherwise makes commercially unreasonable the manufacture, use, sale or offer for sale of the Product to Distributor Customers in the Territory.
1.4 «Affiliate» of a party means any Person directly or indirectly controlled by, controlling or under common control with such party. «Control» means the legal power to direct or cause the direction of the general management or policies of a Person through more than fifty per cent (50%) ownership of voting securities, by contract or otherwise.
1.5 «ANDA» or «Anda» means an Abbreviated New Drug Application filed with the FDA and any amendment or supplement thereto.
1.6 «Applicable Laws» means all laws, rules and regulations applicable to the development, manufacture, supply, marketing, sale or distribution of the Product in the Territory, or to the performance of either party’s obligations under this Agreement, including any applicable regulations promulgated by any governmental agency.
1.7 «cGMP» means the FDA’s Good Manufacturing Practice regulations (as in effect from time to time) at 21 C.F.R. pts. 210 and 211.
1.8 «Commercially Reasonable Efforts» means, with respect to each party, the efforts and resources normally expended by such party to, in the case of Dicadia, develop, manufacture, package and supply or, in the case of Distributor, among other obligations, market, sell and distribute, Dicadia’s pharmaceutical products, taking into account, among other things, market competitiveness, product ownership position, product profitability and other relevant factors. The parties acknowledge that the level of effort and resources may change at different times during the life cycle of the Product.
1.9 «Effective Date» means the date of this Agreement.
1.10 «Favorable Ruling» means a judicial determination, whether by settlement, summary judgment, trial court decision, or otherwise, that does not prevent, materially restrict or impose royalties on sales or otherwise render commercially unreasonable the manufacture, use, sale or offer for sale of the Product in the Territory, in each case regardless of any right of subsequent appeal, review or reconsideration of the determination or the outcome of such appeal, review or reconsideration.
1.11 «FDA» means the United States Food and Drug Administration, and any successor or replacement agency thereof.
1.12 «Final Favorable Determination» means a Favorable Determination that is not subject to any right of appeal, further review or reconsideration by the applicable governmental authority having competent jurisdiction over a lawsuit within the scope of this Agreement.
1.13 «Label», «Labelling» or «Labelling» means all labels and other written, printed or graphic materials on (i) any packaging, container or wrapping used with the Product, or (ii) any written materials accompanying the Product, including package inserts; or, as the context requires, the act of applying and/or using the same.
1.14 «Minimum Annual Product Units» shall have the meaning set out in clause 8.4.
1.15 «Net Sales» means, in respect of the Product, the gross revenue derived from the sale of the Product by the Distributor, and their respective Affiliates, licensees and assignees to independent third parties, less normal and customary incentives as may be agreed.
1.16 «Default Interest Amount» means the base rate of interest quoted as such in The Wall Street Journal on the first business day of each month during which an amount is overdue under this Agreement, plus 5%, calculated on an annual basis, not to exceed the maximum rate permitted by Applicable Law.
1.17 «Packaging» means all primary and/or bulk packaging (as the case may be), labels, shipping cartons or any other similar material used in packaging or accompanying the Product; or as the context may require, the act of applying and/or using the same.
1.18 «Person» means an individual, corporation, partnership, limited liability company or other entity.
1.19 «Product» means Dicadia’s products, in accordance with this Agreement.
1.20 «Product Liability Claims» means any claim, action or proceeding based on personal injury, death or other similar adverse effect to persons caused by (or alleged to be caused by) the use of the Product.

1. 21 «Distributor Customers» means, in each case and to the extent located in the Territory, (a) chain pharmacies and retail shops, (b) independent retail pharmacies, (c) grocery and food shops, (d) mail order pharmacies, (e) certain other types of customers, (f) certain other types of customers, (g) certain other types of customers, (h) certain other types of customers, (i) certain other types of customers, (j) certain other types of customers, and (k) certain other types of customers, (e) certain other types of customers not included in (a)-(d) that are pre-approved in writing by Dicadia pursuant to an amendment to this Agreement, and (f) drug wholesalers (solely to the extent they are allocated for resale to customers included in (a)-(e) above). Notwithstanding anything to the contrary, Dicadia expressly retains all rights to all current and future customers and markets for the Product, other than the customers expressly listed in (a)-(f) above; and, without limiting the foregoing and by way of clarification, Dicadia’s retained rights shall expressly include the right to sell the Product to drug wholesalers so long as Dicadia does not supply, sell or distribute the Product to drug wholesalers for resale to any customer listed in (a)-(e) above.
1.22 «Specifications» (TDS) means the specifications for the composition, manufacture, packaging and/or quality control of the Product as described in the ANDA for the Product, as the same may be supplemented from time to time as expressly set out in this Agreement.
1.23 «Territory» means Vietnam, Singapore and Hong Kong.
SECTION 2
APPOINTMENT AND PURCHASE OF PRODUCT
2.1 Appointment; Supply Agreement; Development.
2.1.1 Subject to the terms and conditions of this Agreement, Dicadia appoints Distributor as its distributor of the Product for online and offline sale and distribution in the Territory, and Distributor hereby accepts such appointment. This may extend to the Distributor’s Customers.
Subject to the terms of this Agreement, Dicadia shall use its commercially reasonable efforts to manufacture and supply to the Distributor its requirements of the Product for sale and distribution in the Territory in accordance with the Distributor’s Purchase Orders as set out herein. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that Dicadia retains all rights to develop, manufacture, supply, supply, sell, distribute, market, market, promote and otherwise market, directly or through Dicadia’s Affiliates or third parties, the Product to customers other than (from Distributor’s Customers? ??) in the Territory; and without limiting the foregoing and by way of clarification, Dicadia’s retained rights shall expressly include the right to sell the Product to drug wholesalers or any other Person in the Territory.
2.1.2 Distributor hereby declares that it will assist in submitting to the FDA the ANDA (IF APPLICABLE) for the Product. Distributor shall, at its expense, use commercially reasonable efforts to process the ANDA (IF PROCEEDEDED) and obtain FDA approval of the ANDA (IF PROCEEDEDED) Dicadia shall, upon receipt thereof, provide Distributor with written notice certifying that Dicadia has received final approval of the ANDA (IF PROCEEDEDED) for the Product from the FDA. The ANDA (IF APPLICABLE) and all other regulatory approvals relating to the manufacture and supply of the Product shall be in Dicadia’s name and shall be the sole property of Dicadia. In addition, Distributor shall, at its own expense, use commercially reasonable efforts to obtain a favourable resolution to allow FDA ANDA approval of the Product and launch of the Product in the Territory. Notwithstanding the foregoing, nothing herein shall constitute a warranty by Dicadia that the ANDA for the Product will be approved by the FDA, or, if the ANDA (IF APPLICABLE) for the Product is approved, that any market exclusivity will be granted, or that any other regulatory approval will be obtained by Dicadia or that a Favourable Determination will be obtained. Nothing herein shall limit Distributor’s right to terminate this Agreement in accordance with its terms.
2.2 Purchase Agreement.
2.2.1 Subject to the terms of this Agreement, Distributor shall purchase exclusively from Dicadia all of Distributor’s requirements for the Product for marketing, sale and distribution in the Territory. Distributor shall use commercially reasonable efforts to market, sell and distribute the Product throughout the Territory, both online and offline. Subject to the foregoing, the Distributor does not guarantee any minimum level of Gross Profits or Net Sales. Nothing herein shall limit either party’s right to terminate this Agreement in accordance with its terms. Unless Dicadia consents otherwise in writing, Distributor shall not offer the Product as a loss leader, either alone or in connection with any other product, or sell the Product in combination or otherwise bundle the Product with other products in any manner that diminishes the revenue that would otherwise be attributable to the Product if it had not been sold as a loss leader or in combination or otherwise bundled. Subject to the foregoing and the Distributor’s compliance with its obligations hereunder (including its obligation to use commercially reasonable efforts to sell and distribute the Product), the launch timing, pricing, marketing, sales and distribution and strategy relating to the Product for sale and distribution to the Distributor’s Customers in the Territory shall be the sole responsibility of the Distributor and shall be controlled solely by the Distributor.

2.2.2 The Distributor shall, and shall cause its Affiliates to, sell and distribute the Product only in the Territory and only in accordance with Applicable Law and the Product specifications. The Distributor is prohibited from re-exporting the Product, and shall reasonably cooperate with Dicadia in the investigation and monitoring of any sales of the Product outside the Territory or to any Person in the Territory who is not a customer of the Distributor, arising from the Distributor’s sales hereunder, where more than x (money or units) to the same customer located outside the Territory is involved.
2.2.3 The Distributor agrees to carry out a minimum annual guaranteed sales of USD 40,000 to 90,000 based on its FOB prices.
2.2.4 During the term of this Agreement and, in the event that Distributor terminates this Agreement pursuant to Section 8.4, for a period of 12 months after such termination, neither Distributor nor its Affiliates shall sell or distribute in the Territory any product that is or purports to be a generic equivalent (i.e. bioequivalent and legally substitutable) of the Product, other than the Product supplied by Dicadia hereunder.
2.3 Commercial Launch of the Product.
2.3.1 Launch Notice. At any time after Dicadia receives both (i) a Favorable Determination (which may, but is not required to, be a Final Favorable Determination) and (ii) FDA approval of the ANDA of the Product and confirmation by the FDA that Dicadia has been granted 180 days of «first to file» market exclusivity pursuant to Section 505(j)(5)(B)(iv) of the Act, Dicadia shall be entitled to deliver to Distributor a written notice setting forth Dicadia’s intention to commence commercial sale of the Product in the Territory. Such written notice shall be referred to herein as the «Notice of Launch at Risk», unless it is based on a Final Favorable Determination, in which case such written notice shall be referred to herein as the «Notice of Launch at Risk». As used herein, a «Notice of Launch» may refer generally to a Notice of Launch at Risk and/or a Notice of Launch without Risk. Notwithstanding the foregoing, in the event Dicadia receives ANDA approval of the Product from the FDA, Dicadia, at its option, may notify Distributor of Dicadia’s desire to have this information noted in the commercial sale of the Product in the Territory.

SECTION 2b. SUPPLY OF THE PRODUCT

2.1. Supply. Dicadia, in its sole discretion, will determine whether to manufacture the Product or to have the Product manufactured by a Dicadia Affiliate or Third Party.

2.2. Forecasting and Ordering.
(a) Distributor acknowledges and agrees that all forecasts and firm Orders shall be subject to the monthly minimum and maximum quantities of the Full Lot set forth in Exhibit C attached hereto. Minimum quantities per product will depend on the product and packaging.
(b) At least 90 days prior to the first day of each Calendar Quarter during the Term, beginning with the Calendar Quarter in which the expected Launch Date occurs, Distributor shall deliver to Dicadia a written good faith forecast estimating the quantities of Product that Distributor expects to purchase from Dicadia during such Calendar Quarter and the following three (3) Calendar Quarters, broken down on a monthly basis (each a «Forecast»). The first Calendar Quarter of each Forecast shall be a «Firm Forecast». Except as otherwise provided, each Forecast shall be non-binding and shall be used by Dicadia for planning purposes only.
(c) At least 30 days prior to the first day of each Calendar Quarter during the Term, commencing with the Calendar Quarter in which the expected Launch Date occurs, Distributor shall submit to Dicadia a written purchase order in such form as is reasonably acceptable to Dicadia (a «Firm Order») for the quantity of Product to be delivered to Distributor during such Calendar Quarter, which Purchase Order shall specify the required delivery date for such Product.

Once the distributor submits the final order to dicadia. The quantities and products will be reviewed. And dicadia will send a proforma invoice for distributor’s approval. The delivery time may vary depending on the type of packaging. In the proforma, once accepted, the delivery time will be informed. In the event that Dicadia fails to timely deliver the Product ordered hereunder, Distributor may revise its Forecasts, including any Firm Forecasts, to address the shortfall in supply and/or the impact such late delivery may have had on the trading of the Product, and Dicadia shall use commercially reasonable efforts to accommodate such forecasts.

2.3. Firm Orders. Distributor shall be obligated to purchase, and Dicadia shall be obligated to deliver on the required delivery date set forth therein, the quantities set forth in each Purchase Order. In the event that the terms of any Purchase Order are inconsistent with or in addition to the terms of this Agreement, the terms of this Agreement shall prevail.
2.4 Wholesale Sales. Subject to the terms and conditions of this Agreement, Distributor shall have non-exclusive rights to sell the Product to wholesalers or any other Person for resale and distribution to customers in the Territory identified in items (a)-(e) of Section 1.46. Dicadia retains all rights to all other current and future customers and markets for the Product, including the right to sell the Product to wholesalers or any other Person so long as Dicadia does not supply, sell or distribute the Product to wholesalers or any other Person for resale to any customer identified in items (a)-(e) of Section 1.46. As permitted by Applicable Law, Distributor and Dicadia shall cooperate in entering into agreements with their respective wholesalers and other customers in the Territory necessary to implement the foregoing. From time to time, upon request, each party shall provide the other with reasonable access to all information in its possession and control (or reasonably obtainable by it) to confirm the ultimate customer of the Products sold by it to wholesalers or other Persons in the Territory. In addition, without limiting either party’s indemnification obligations under this Agreement, if either party intentionally breaches this Section, the breaching party shall indemnify the other party in accordance with this Agreement for all Damages caused thereby.

2.5 Terms and Conditions. All orders for the Product shall be initiated by written purchase orders. No order shall be binding unless consistent with this Agreement. Dicadia’s acceptance of Distributor’s purchase orders is expressly limited and conditioned upon, and only upon, Distributor’s acceptance of the terms and conditions set forth in this Agreement, which may not be modified or waived except in a writing signed by the parties. Distributor’s purchase orders submitted to Dicadia shall be governed by the terms of this Agreement and Dicadia’s published Standard Terms and Conditions of Sale as in effect at the time of such purchase; however, in the event of any conflict between the terms of this Agreement and Dicadia’s Standard Terms and Conditions of Sale, this Agreement shall prevail and any additional, inconsistent or different terms and conditions contained in any purchase order, acknowledgement, confirmation, acceptance, invoice or other documents provided by Distributor or Dicadia shall be expressly rejected. A copy of Dicadia’s Standard Terms and Conditions of Sale is attached hereto as an Exhibit and incorporated herein by reference. Dicadia shall give Distributor at least thirty (30) days prior written notice of any proposed material modification to the Standard Terms and Conditions.

SECTION 3
PAYMENTS
3.1 Payments.
3.2 Terms of Payment; Reimbursement.
3.2.1 Any payment not made within the time specified for payment shall incur an interest charge at the rate of late interest on such overdue amounts, excluding any amounts that are subject to a bona fide dispute between the parties. All payments shall be made in US dollars by electronic funds transfer or other electronic transfers.
3.2.2 Except as expressly provided in this Section, no payment shall be refundable in whole or in part under any circumstances, including termination of this Agreement.
SECTION 4
PRICING
4.1 Transfer Price.
4.1.1 The transfer price («Transfer Price») payable by Distributor for Product delivered by Dicadia shall be a payment equal to the product of (a) the number of units of Product delivered by Dicadia to Distributor pursuant to the applicable Purchase Order, multiplied by (b) («Unit Price»). Notwithstanding the foregoing, from the First Commercial Sale, Dicadia may increase the Unit Price during each twelve-month period (commencing on one anniversary of the First Commercial Sale), effective upon 30 days prior written notice to Distributor, by (i) the actual per unit increase in Dicadia’s raw material costs (the «Raw Material Costs») for the Product (including production costs, packaging and other ingredients and materials), (ii) the actual per unit increase in Dicadia’s raw material costs (the «Raw Material Costs») for the Product (including production costs, packaging and other ingredients and materials), and (iii) the actual per unit increase in Dicadia’s raw material costs (the «Raw Material Costs») for the Product (including production costs, packaging and other ingredients and materials), Packaging and other ingredients and materials used to manufacture and process the Product) during the 12 month period prior to the date of Dicadia’s notification of such price increase and (ii) the actual per unit increase in Dicadia’s direct labour costs («Labour Costs») for the Product during the 12 month period prior to the date of Dicadia’s notification of such price increase.
4.2. Product Price
4.2.1 Resale Prices. Distributor may offer the Product to its customers at such prices as it, in its sole discretion, determines, provided that Distributor shall set the selling price of the Product in accordance with the principles of good sales practice and the maximization of Net Sales, based on price sensitivity studies and market research conducted by Distributor in accordance with this Agreement. Dicadia shall have no right to determine the prices at which Distributor may offer the Product for resale.
4.2.2 Minimum Sales. For each Calendar Year other than the first Calendar Year, distributor shall sell the Product in quantities equal to or greater than 20% of the quantities detailed in the Forecast for such Calendar Year. Notwithstanding the foregoing, if Distributor fails to sell at least 20% of the quantities detailed in the Forecast for such Calendar Year, Distributor shall be in breach of this Clause and, in addition to and without limiting any legal remedies Dicadia may have for such breach, Dicadia shall have the right to terminate this Agreement at any time, or terminate this Agreement, at its sole discretion, and to enter into alternative distribution arrangements in the Territory.

4.3 Shipping Conditions. The prices charged by Dicadia to the Distributor shall be FOB (Incoterms 2000), designated by Dicadia.
4.4 Payment Conditions.
4.4.1 Payment will be made by bank transfer once the proforma invoice has been accepted.
4.4.3 Any payment which is not made within the period specified for payment will entail a charge for interest at the rate of late payment interest on such overdue amounts, excluding any amount which is the subject of a bona fide dispute between the parties. In addition, Dicadia may withhold shipment of Product to Distributor if Distributor has not made any payment required under this Agreement (other than amounts which are the subject of a bona fide dispute) after the due date for such payment. All payments shall be made in U.S. dollars by electronic funds transfer or other wire transfer.

SECTION 5
LAUNCH QUANTITIES, FORECASTS, ORDERS
5.1 Initial Purchase Order; Launch Quantities. Within 30 days of the date of this Agreement, Distributor shall deliver to Dicadia an initial binding order (the «Initial Purchase Order») for the quantity of Product necessary for Distributor’s commercial launch of the Product in accordance with Distributor’s then current Forecast; provided that such quantity shall not exceed (without Dicadia’s prior written consent, which may be withheld in its sole discretion) [***] units of Product.
In addition to setting forth a minimum annual Purchase Order in the Schedule to this Agreement, Distributor shall also indicate a quarterly and annual purchase forecast each quarter.
Subject to the terms of this Agreement, Dicadia shall use commercially reasonable efforts to supply the Product to Distributor in the Release Quantities no later than the delivery dates stated in the Initial Purchase Order, which shall be no earlier than 90 days after the date of the Initial Purchase Order, unless Dicadia consents thereto. Thereafter, Dicadia shall use commercially reasonable efforts to supply Distributor with the additional quantities of Product ordered by Distributor under this Agreement.
5.2 Forecasts. Distributor shall provide Dicadia with a rolling 3 month and 12 month forecast (each a «Forecast») of the quantities of Product to be purchased by Distributor on a monthly basis. The Forecasts shall be bona fide and non-binding, provided that (a) upon Distributor’s delivery of its Initial Purchase Order to Dicadia, the first three months of each Forecast shall be binding on Distributor and shall constitute Distributor’s firm order for the quantity of Product set forth in such Forecast; and (b) the forecast quantities of Product for the fourth, fifth and sixth months provided for therein shall not increase by more than 25% over the quantities provided for such months in the previous Forecast without Dicadia’s prior written consent (which shall not be unreasonably withheld or delayed).
5.3 Orders. Except in the case of Distributor’s Initial Order, Distributor shall deliver to Dicadia purchase orders («Purchase Orders») for the Product no later than 90 days prior to the date on which the Products corresponding to such Purchase Order are to be delivered to Distributor and provided that such Purchase Orders are for the binding portion (i.e. the first three months) of the then current Forecast under this Agreement and exceed the minimum threshold set forth in the Schedule to this Agreement, Dicadia shall accept such Purchase Orders. Notwithstanding anything elsewhere in this Agreement, Dicadia shall use commercially reasonable efforts to satisfy Purchase Orders for amounts in excess of those provided for the binding portion of the then-current Forecast, provided that in no event shall Dicadia be required to increase the existing manufacturing capacity of its facility(ies) for the Product in order to satisfy Distributor’s Purchase Orders. Each such Purchase Order shall be firm and shall specify the quantity of Product ordered, the date on which such Product is to be delivered and the delivery address. The Distributor shall order Product in at least full lot increments.
5.4 Shipping Reports. On or immediately following the date of each shipment of Product, Dicadia will submit to Distributor, via email, a shipment report containing the shipment date, trailer number, contents and quantities of each shipment and the invoice for the Transfer Price.
5.5 Standard Forms; disputes. In ordering and delivering the Product hereunder, Dicadia and Distributor may use its standard forms (including purchase orders, invoices, sales acknowledgements, etc.), which shall be in English and/or Spanish, but nothing in such forms shall be construed to modify, amend or supplement the terms of this Agreement and, in the event of a conflict, the terms of this Agreement shall control, and any additional or modified terms contained in such purchase order or other form shall be void and shall not be binding on the receiving party.
5.6 Capacity Allocation.
5.6.1 Notwithstanding anything to the contrary contained herein or in any Purchase Order or Forecast, Dicadia shall not be obligated to supply to Distributor (regardless of the quantities ordered by Distributor), more than the then applicable Annual Maximum Product Units during any twelve month period. Notwithstanding the foregoing, any Purchase Order or Forecast submitted by the Distributor hereunder for more than the then applicable Maximum Annual Product Units shall be deemed to be rejected by Dicadia, to the extent of the excess, unless expressly accepted by Dicadia in writing. As used herein, the term «Maximum Annual Product Units» shall mean, for the period ending twelve full calendar months from the First Commercial Sale and for each twelve month period thereafter, … of the total Product Units ….. For each twelve month period commencing after the First Commercial Sale, the Maximum Annual Product Units shall be established by Dicadia, by email to the Distributor. The above process would be repeated once every twelve month period thereafter to establish the Maximum Annual Product Units for the current twelve month period. At the Distributor’s request, from time to time, the parties will discuss increasing the then existing Maximum Annual Product Units based on the then prevailing market conditions, Dicadia’s manufacturing capacity and other relevant factors. Dicadia will reasonably consider the Distributor’s request and its reasons for an increase in the then existing Maximum Annual Product Units; however, Dicadia shall have no obligation to accept (and may reject in its sole discretion and without liability) any increase requested by the Distributor in the then existing Maximum Annual Product Units.
5.6. 2 In the event that Dicadia’s inability (including any inability as a result of a Force Majeure Event) to satisfy any Purchase Order accepted pursuant to this Agreement, in whole or in part, is due to a shortage of production capacity or raw materials, or logistical problems, then, subject to the terms and conditions of this Agreement, Dicadia will endeavour to give priority to Distributor’s Purchase Orders, and will satisfy deliveries of the quantities ordered before fulfilling orders for Product from any other Person located in the Territory, for up to …. units of Product to be delivered to the Distributor pursuant to its Purchase Orders during each six-month period thereafter.
SECTION 6
SPECIFICATIONS
6.1 Specifications. The Specifications for the Product shall be as described in the REGULATIONS that are approved by the European Medicines Agency (EMA) for the Product. The Specifications for the Product shall not be modified except as expressly permitted under this Agreement.
6.2 Change Management.
6.2.1 Changes Required. With respect to any changes to the Specifications or to any process involved in the manufacture, Packaging, Labeling, storage, transportation, delivery or testing of the Product that are required by Applicable Laws or mandated by an applicable governmental authority (including the EMA), the parties shall reasonably cooperate in making such changes promptly, and Dicadia shall, subject to this Agreement and unless the parties mutually agree otherwise in writing, bear the costs of implementing such changes, including the cost of disposal of materials (including raw materials, in-process materials, inventory and packaging material) associated with such changes.
6.2.2 Discretionary Changes. With respect to changes to the Specifications or to any process involved in the manufacture, Packaging, Labelling, storage, transportation, delivery or testing of the Product that are not required by Applicable Laws or mandated by an applicable governmental authority (including the EMA and FDA), the parties shall cooperate in good faith to reach a mutually agreeable solution with respect to such changes, but Dicadia shall not be obligated to make any changes requested by Distributor. Dicadia reserves the right to make such changes unilaterally. The cost of making a discretionary change shall be borne solely by the party initiating the change or as mutually agreed in writing by the parties. In the event that any such changes initiated by the Distributor increase Dicadia’s costs to manufacture and supply the Product to the Distributor, upon Dicadia’s request, the parties shall discuss and agree in good faith on an equitable adjustment of the Unit Price to account for such increased costs.
6.2.3 Labelling of the Product. 4.5 Packaging and Labelling. Dicadia shall manufacture, label and package, or cause its contract manufacturer(s) to manufacture, label and package the Product in its final form, as determined by Dicadia in its sole discretion, for distribution by distributor with distributor labeling and applicable codes. In addition to all applicable legal requirements, labels shall (i) comply with the requirements set forth in Section 4.5 below, (ii) prominently and clearly display «Dicadia™» or «Dicadia®», as applicable, and (iii) prominently and clearly identify Dicadia (or its Contract Manufacturer(s), if requested by Dicadia) as the manufacturer of the Product. Distributor shall not repackage or label any Product and shall not alter any Product or any packaging or label used in connection with any Product, unless expressly authorized in writing by Dicadia. In the event that Dicadia authorises or requires repackaging or relabelling, Distributor shall comply in all respects with Dicadia’s instructions at Dicadia’s expense.
Products supplied to the Distributor shall include the Distributor’s … number and shall be packaged with the Distributor’s approved labelling and artwork. If agreed between the parties, this material may indicate that the Distributor is a distributor of the Product. So that, if consented to by Dicadia, the Distributor may include on the product label the Distributor’s trademarks or similar changes indicating the Distributor as a distributor of the Product; (a) upon Distributor’s request, Dicadia shall provide Distributor with the artwork and text of the Label in electronic format, (b) Distributor may update such artwork and text to include Distributor’s trademarks and other similar changes as Distributor desires to indicate Distributor as a distributor of the Product, and (c) Distributor’s costs in connection with the foregoing shall be borne by Distributor. Thereafter, dicadia shall take all necessary steps, at its expense (except as provided in the preceding section), to have the modified Labels or Labelling printed and shall provide the printing proofs to the Distributor for the Distributor’s review. Distributor shall, within two (2) weeks after receipt of such proofs, notify Dicadia in writing of Distributor’s approval of such proofs in the form submitted by Dicadia (which approval shall not be conditioned, unreasonably withheld or delayed) or with the corrections thereto (in Distributor’s reasonable judgment) included in Distributor’s notice. Dicadia shall thereafter incorporate into such labels and labeling the corrections requested by Distributor, if any, and shall provide Distributor with examples of such labels and product labeling for Distributor’s regulatory filings; provided, however, that if Dicadia does not agree to the corrections requested by Distributor, Distributor and Dicadia shall consult in good faith to reach a resolution mutually acceptable to Distributor and Dicadia.
6.3 Trademarks and Trade Names. Effective as of the Approval Date, Dicadia grants Distributor the non-transferable, non-exclusive right to use in the Territory the trademarks and trade names listed in the Exhibit, attached hereto and incorporated herein by reference, and any other trademarks owned or licensed by Dicadia that it may designate in writing for use by Distributor (collectively, the «Marks») in connection with the marketing and sale of the Product during the term of this Agreement. The Product shall be marketed and sold only under the Trademarks and the name «Dicadia». In the event that the distributor wishes to label with its brand name, it must state on the labels that it has been manufactured by Dicadia Laboratories under a distribution licence, as required by this contract. The distributor acknowledges that it does not have and will not obtain any proprietary interest in the Trademarks and agrees not to use them as part of its corporate or trade name. Distributor’s right to use any Trademarks or other Dicadia property shall terminate immediately upon termination of this Agreement. Distributor shall use the Trademarks only in the manner prescribed by Dicadia. The Product is offered for sale and sold by Dicadia on the condition that such sale does not convey any license, express or implied, to manufacture, duplicate or otherwise copy or reproduce any Product. In the event of termination of this Agreement, Distributor shall not manufacture or cause to be manufactured any Product using any information belonging to Dicadia.
All trademarks, trade names and packaging graphics used by Distributor in connection with its sale and distribution of the Product to Distributor’s Customers in the Territory (collectively, the «Distributor Trademarks») shall be chosen, from among those proposed by Dicadia, by Distributor in its sole discretion, subject to the terms and conditions of this Agreement. The Distributor shall be responsible for any and all liabilities that may arise from the Distributor’s use of the Distributor Trademarks (including any allegations of intellectual property infringement relating thereto and any liability relating to prescription errors in connection with such trademark use). Unless consented to in writing by Dicadia, Distributor shall not use any trademark, trade name, company name or copyright of Dicadia in connection with the distribution, marketing or sale of the Product, other than as permitted under this Agreement.
6.4 Certificate of Analysis. Each shipment of Product to Distributor shall be accompanied by a copy of a certificate of analysis prepared by an authorized representative of Dicadia certifying that the Product in the shipment has been tested in accordance with the EMA for such Product, complies with the Specifications and has been manufactured in material compliance with the applicable standards. Dicadia may deliver such certificate by email.
6.5 Expiry Date. Unless otherwise agreed in writing by Distributor, all Product shipped to Distributor, on the date of shipment by Dicadia, shall have a shelf life of at least the approved date of the Product (as per the Product Specifications).
6.6 Stability Testing. Dicadia shall maintain a stability testing program for the Product and shall provide Distributor with an annual review of the Product. At least one annual batch of Product shall be included in the stability programme.
6.7 Annual Report. Upon Dicadia’s written request, Distributor shall provide distribution information and other information reasonably requested by Dicadia for inclusion in Dicadia’s Annual Report to the appropriate agencies (EMA, etc.).

SECTION 7 MARKETING
Marketing and support activities. Performance requirements.
7. 1 DISTRIBUTOR shall use commercially reasonable and diligent efforts to launch the marketing and sale of the Product within ninety (90) days of the Approval Date and shall promote the sale of the Product in accordance with any marketing plan, which shall require, but not be limited to, the expenditure of efforts and resources no less than would reasonably be expected to be applied consistent with generally prevailing industry standards and practices in the Territory, taking into account competition, the properties of the Product, the approved claim structure for the Product, the sales and profit potential of the Products (and competing or similar products), and the nature and extent of market exclusivity of the Product. the distributor shall maintain standards with respect to the quantity and quality of, and expenditures on, marketing and promotion of the Product, including the dedication of its sales force efforts with respect thereto, at least at a level equivalent to the standards then employed by the distributor with respect to its other products that have substantially similar market exclusivity and/or regulatory approvals (i.e., private label products). The Distributor’s promotional efforts shall include, but not be limited to, the preparation and distribution of promotional materials for use in the Territory by the Distributor, active and regular participation in and/or sponsorship of appropriate trade shows and conferences, advertising in trade or consumer publications applicable to the Territory, direct solicitation of health care providers and customers within the Territory by the Distributor’s sales force, and the distribution of free samples of Product to such providers and/or customers in quantities equal to or in excess of the minimum quantities described in the Exhibit attached hereto and incorporated herein by reference, provided that the distribution of such samples is consistent with the principles of prompt and diligent marketing and sale of Product in the Territory, good pharmaceutical sales practices, maximization of Net Sales and all applicable laws, rules and regulations.

7. 2 DISTRIBUTOR shall expend reasonably sufficient financial resources to fund the marketing and commercial efforts described in this Agreement, and shall allocate such expenditures among its marketing activities, including, but not limited to, the preparation and distribution of promotional materials, active and regular participation in and/or sponsorship of appropriate trade shows and conferences, and advertising in trade or consumer publications, in a commercially reasonable manner consistent with the principles of prompt and diligent marketing and sale of the Product in the Territory, good pharmaceutical sales practices and the maximisation of Net Sales.

7.3 DISTRIBUTOR shall have a sales force of at least ten (10) sales representatives employed, reasonably trained and fully active in the field at least six (6) months prior to the Approval Date. distributor shall train all such sales representatives to sell the Product at a level that is commercially reasonable, customary and competitive with respect to the industry and the market for the Product and products similar to the Product. the distributor shall devote a commercially reasonable portion of the efforts of such sales force to the promotion and sale of the Product in accordance with the principles of prompt and diligent marketing and selling of the Product in the Territory, good pharmaceutical sales practices and maximization of Net Sales, provided that (i) the number of its sales representatives so engaged shall equal or exceed the minimum numbers described in Exhibit C during the specified time periods and (ii) the Product shall occupy the «first position» with respect to all products of «…» marketed by the sales force. «products marketed by the dedicated sales force (i.e. products for …), having the highest priority in terms of sales and marketing efforts of each such representative as compared to all other similar products sold and marketed by such representatives, for the first 12 months following approval of the Product and which positioning shall be reviewed annually.
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7.4 Distributor shall place Dicadia’s Product on the first results page of its website for the categories to which such Product belongs. For this purpose, Dicadia will send an email in which it will relate its Products with the categories to which it belongs.

7.5 THE DISTRIBUTOR shall comply with the Law and all other applicable legal, health and safety requirements, laws and regulations in all marketing and sales activities. The Distributor shall not promote the Product for any use not approved for the Product by applicable regulations in the Territory.

7.6 Marketing Reports. Within thirty (30) days after the end of each Quarter, Distributor shall provide Dicadia with a sales report, a market share report, all information available to Distributor regarding the Product and its ability to compete with other products for related uses and to meet customer needs, detailed information regarding sales of the Product, such as pricing trends by geographic region, sales information indicating sales by geographic region and sales by medical or optional specialty and other sub-components of the market, price sensitivity studies or tests, and any other market analysis produced or acquired in the normal course of Distributor’s business that Dicadia may reasonably require or deem properly advisable or necessary in the interest of its business to which this Agreement relates.

7.7 Promotional Material. Distributor shall prepare promotional brochures and advertisements for the Product, copies of which shall be submitted to Dicadia in advance of their use or distribution, and Distributor shall use such materials in its marketing efforts, provided that the use of any such materials shall require Dicadia’s prior written approval, which approval shall not be unreasonably withheld. Dicadia will also provide Distributor with copies of promotional literature and advertisements, if any, that it prepares for the Product that it wishes Distributor to use. Dicadia and Distributor shall comply with all requirements of the Act and applicable federal, state and local laws, rules and regulations in its advertising and other promotional activities. Distributor shall cease and desist from using any such materials to the extent Dicadia notifies Distributor that it believes in good faith that any such materials violate any such laws, rules or regulations.

7.8 Distributor’s Distribution Obligations:

Distributor shall be responsible for the entire import process.
Given the existence of many small and medium sized buyers in the Territory, the Distributor will group the orders it receives into one large order to Dicadia, to follow Dicadia’s MOQ.
The Distributor will launch a branding campaign that will be offline and online. The offline campaign will consist of a 12-month display of the Product in its franchised retail shops and showroom, and exposure in the B2B magazine with its advertising, all at no cost to Dicadia. There will also be a presentation of the Product during the conference organised by the distributor, at no cost to Dicadia. The online campaign will consist of digital marketing actions.
The distributor works weekly with more than 25,000 B2B buyers and deals with shopping malls, supermarkets, department stores, pet shops, pharmacies, baby shops, health and beauty shops, grocery shops, concept shops, organic retailers, gourmet shops, specialty shops in various growth niches and HoReCa channels.
The distributor has physical showrooms in major cities in Vietnam and we work with more than 200 retail shops. It also has its own franchise retail chain «Buy2sellshop».

7.9 Support. Dicadia will use reasonable efforts to support the sale of the Product by the Distributor upon request. Such support will be provided at Dicadia’s sole discretion and at Distributor’s expense, on an order-by-order basis.

7.10 Product Warranty. Distributor shall make no representations or warranties about the Product, either in writing or orally, except as contained in written materials authorized or delivered to Distributor by Dicadia expressly for use in promoting the sale of the Product or as otherwise agreed by Dicadia in writing.

SECTION 8
TERMINATION AND TERMINATION

8.0 Termination for Cause – Either Party. Without prejudice to any other rights it may have under this Agreement or at law or in equity, either party may terminate this Agreement immediately upon written notice to the other party upon the occurrence of any of the following events
(a) an exemption order is made against the other party under any insolvency or bankruptcy law or any law of similar import;
(b) the other party makes an assignment for the benefit of its creditors or a receiver or custodian is appointed for it or its business becomes subject to attachment, garnishment or other process affecting a significant part of its business; or
(c) after ninety (90) days’ written notice by the terminating party, without the other party having cured any material breach of the contract by the other party that does not involve sales or minimum payments.
In addition to the termination rights provided elsewhere in this Agreement, and without prejudice to any other rights it may have under this Agreement or at law or equity, Dicadia may terminate this Agreement at any time by written notice to Distributor in the event that Distributor fails to make payments to Dicadia when due as required by the terms of this Agreement.
8.1 Default. Either party may terminate this Agreement, prior to the expiration of its term, by giving written notice of its intention to terminate and stating reasons, if the other party has materially breached or failed to perform any representation, warranty, covenant or obligation under this Agreement. The party receiving the notice of breach shall have 30 days from the date of receipt thereof to cure the breach or default, except in the case of a breach of an obligation to pay money, in which case such cure period shall be 10 days; provided, however, that failure to pay in connection with a bona fide dispute over the amount in dispute shall not be deemed a breach hereunder, provided that, upon resolution of such dispute, payment of any amount due shall be made within 5 days of such resolution. If a default (other than a breach of an obligation to pay money) is not curable within such 30 day period, then the defaulting party shall have an additional 30 days to cure such default provided that the defaulting party is working diligently to cure such default. In the event that such breach or default is cured in accordance with the provisions of this Section, the notice of default shall lapse. In the event that such breach or default is not cured in accordance with the provisions of this Section, this Agreement shall terminate immediately upon written notice to the defaulting party.
8.2 Insolvency, etc. This Agreement may be terminated, prior to the expiration of its term, immediately upon written notice by either party (a) in the event that the other party (i) requests or consents to the appointment or taking possession by a receiver, custodian, trustee or liquidator of itself or all or substantially all of its assets, (ii) makes a general assignment for the benefit of its creditors, (iii) commences a voluntary case under the bankruptcy or insolvency laws of any country, (iv) makes a general assignment for the benefit of its creditors, (v) commences a voluntary case under the bankruptcy or insolvency laws of any country, (vi) makes a general assignment for the benefit of its creditors, (vii) makes a general assignment for the benefit of its creditors, (viii) commences a voluntary case under the bankruptcy or insolvency laws of any country, in its present or future form, (iv) file a petition for the benefit of any law relating to bankruptcy, insolvency, reorganisation, liquidation or composition with creditors or the readjustment of debts, (v) fail to timely and properly contest, or accept in writing, any petition filed against it in any involuntary case under the bankruptcy or insolvency laws of any country, or (vi) take any corporate action for the purpose of effecting any of the foregoing; or (b) if a proceeding or case is commenced against the other party hereto in any court of competent jurisdiction seeking (i) its liquidation, reorganisation, dissolution or winding up, or the composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, (iii) a similar measure under any law relating to bankruptcy, insolvency, reorganisation, winding-up, liquidation, composition or adjustment of debts, or an order, judgment or decree approving any of the foregoing, and which continues unsuspended for a period of 60 days; or an exemption order is made against the other party in an involuntary case under any country’s bankruptcy or insolvency laws.
8.3 Termination for Change of Circumstances. Upon Distributor’s First Commercial Sale, either Distributor or Dicadia may terminate this Agreement upon 90 days prior written notice to the other party if Distributor purchases fewer than the Minimum Annual Units of Product during any consecutive twelve-month period commencing after the First Commercial Sale, provided that such notice of termination is provided to the non-terminating party within 90 days after the end of the twelve-month period on which the termination is based. Notwithstanding the foregoing (unless Distributor has not ordered at least the Minimum Annual Product Units), Dicadia’s right to terminate this Agreement under this Section is conditioned upon Dicadia fulfilling all of Distributor’s Product Orders in a timely manner during the twelve month period upon which Dicadia’s exercise of its termination rights under this Section is based. As used herein, the term «Minimum Annual Product Units» shall mean … units of Product during any twelve-month period commencing after the First Commercial Sale; provided that, in the event of any adjustment of the Minimum Annual Product Units during any rolling twelve-month period, the Minimum Annual Product Units existing immediately before and after such adjustment shall be prorated as of the effective date of such adjustment for the purpose of calculating the Minimum Annual Product Units for such twelve-month period.
8.4 Termination for Third Party Infringement Claim. Upon Distributor’s First Commercial Sale, Distributor may terminate this Agreement upon 30 days prior written notice to Dicadia in the event that a Third Party Infringement Claim (other than with respect to the use of Distributor’s Trademark) is filed against Distributor or its Affiliates, provided that such notice of termination is provided to Dicadia within 15 days of Distributor’s receipt of written notice of such Third Party Infringement Claim.
8.5 Supply Obligations on Termination. Upon expiration of this Agreement or termination of this Agreement after Dealer’s First Commercial Sale, Dicadia shall supply and ship, and Dealer shall purchase from Dicadia in accordance with the terms and conditions of this Agreement and shall be entitled to distribute to Dealer’s Customers in the Territory, any and all quantities of Products ordered by Dealer pursuant to this Agreement prior to the effective date of such expiration or termination.
8.6 Effect of Termination. The sections of this Agreement shall survive termination of this Agreement which relate to confidentiality, intellectual property rights and indemnification, or which by their nature cannot be performed or fulfilled prior to termination or which relate to obligations of the parties accrued prior to termination.
Thus, the expiration or termination of this Agreement for any reason shall not relieve either party from any liability which had then already accrued, or which subsequently accrues for a breach or default, prior to the effective date of such expiration or termination, nor shall it in any way affect the survival of any other right, duty or obligation of either party which is expressly provided elsewhere in this Agreement to survive such expiration or termination. In addition, termination or expiration of this Agreement shall in no event relieve Distributor of its payment obligations, regardless of whether such Product is sold before or after the date of such termination or expiration. Except as otherwise provided herein, either party may pursue any remedy available at law or in equity with respect to any breach of this Agreement.
SECTION 9
STORAGE; SHIPMENT
9.1 Delivery. The FOB Incoterm shall apply. All shipments shall be accompanied by a packing slip describing the goods, indicating the Purchase Order number and showing the destination of the shipment. Dicadia will use commercially reasonable efforts to deliver the Product in accordance with the delivery schedule set forth in the initial Purchase Order or Purchase Orders provided pursuant to, and subject to the limitations of, this Agreement.
9.2 Shipping. Risk of loss in respect of the Product shall be in accordance with the FOB (Incoterms 2000) clause, Dicadia’s designated place of manufacture. Distributor shall notify Dicadia within 24 hours of discovery of any lost or stolen goods.

SECTION 10
DEFECTIVE PRODUCT/INSPECTIONS/TESTING

10.1 Rejection. Distributor shall notify Dicadia of obvious damage related to the manufacture or packaging of the Product (other than damage associated solely with the shipment of the Product) within ten (10) days of receipt of such Product, stating in such notification in detail the reason for such rejection. Any Product that is not rejected for obvious damage within ten (10) days of receipt by the distributor(s) (the «Rejection Period») shall be deemed accepted. Dicadia will replace, with the next shipment, any rejected Product. After the Expiry of the Rejection Period, the distributor may not return any Product which is obviously damaged for any reason, and Dicadia shall have no liability in respect of such damaged Product, without Dicadia’s prior written consent.

10.2 Disposal of Defective Product. Distributor shall use commercially reasonable efforts, within 20 days after receipt of any shipment of Product, to notify Dicadia in writing of the existence and nature of any breach of the Product Warranty that can be observed upon visual inspection. If such notification is not made within such 20 day period, then all Product shall be deemed accepted by Dealer; provided, however, that such acceptance or deemed acceptance shall not adversely affect any applicable Product Warranty or indemnification rights. If Distributor notifies Dicadia of a defective Product, then Dicadia shall have a reasonable opportunity to inspect such defective Product and provide Distributor with detailed written instructions for returning or disposing of such defective Product at Dicadia’s expense. Whether or not Dicadia agrees with the basis for Distributor’s rejection, Dicadia will, at Distributor’s request, use commercially reasonable efforts to promptly replace the rejected Product. Distributor shall pay the Transfer Price and, to the extent Distributor’s Net Sales are derived from the sale of such Product, the applicable Gross Profit Sharing, for any Product shipped by Dicadia that replaces the Product rejected by Distributor hereunder. In accordance with the Section below, Distributor shall not be obligated to pay for any properly rejected Product and any such payment shall be immediately returned to Distributor if Dicadia agrees with Distributor’s notice of default with respect to such rejected Product or if such Product is deemed by the independent third party laboratory not to comply with the Product Warranty. Distributor shall not destroy, return or otherwise dispose of the rejected Product until it receives written notice from Dicadia.
10.3 Independent Testing. If Dicadia does not agree with Distributor’s notice of non-compliance with the Product testing specifications with respect to the Product Warranty, the Product shall be sent to an independent third party laboratory, mutually and reasonably acceptable to both parties, for analytical testing to determine the degree of compliance or non-compliance of the Product with respect to the Product Warranty. All costs associated with such third party laboratory testing shall be borne by Distributor, and Distributor shall pay the Transfer Price, unless Dicadia agrees to Distributor’s notice of non-compliance or the Product tested is deemed by such third party laboratory to be non-compliant with the Product Warranty, in which case all costs associated with such third party laboratory testing, including reimbursement of transportation and disposal costs, shall be immediately reimbursed by Dicadia to Distributor and Distributor shall not be obligated to pay for such rejected Product and any payment shall be immediately refunded to Distributor.
10.4 Short Shipments. Distributor shall notify Dicadia within 30 days of receipt of any claim of short shipment with respect to the Product and Dicadia shall use commercially reasonable efforts to promptly address such claim to Distributor’s reasonable satisfaction.
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SECTION 11
REGULATORY MATTERS

11.1 Records. Distributor shall have the responsibility in the Territory to comply with all regulatory registrations, reporting requirements and other matters that relate solely to Distributor’s performance as a distributor of the Product to Distributor’s Customers in the Territory and Dicadia shall cooperate with Distributor to the extent reasonably necessary to comply with the foregoing.

11.1.1 Dicadia shall use commercially reasonable efforts to maintain regulatory approvals and requirements in order to sell the Product in the Territory. Dicadia shall have the sole discretion to decide on the commercial reasonableness of any act required on its part to maintain any regulatory approvals or requirements.
11.1.2 Dicadia shall promptly provide Distributor with copies of all required notifications and records of the Product to regulatory bodies in the Territory, including copies of all letters received from health authorities.
11.1.3 Notification of Adverse Events
Distributor shall notify Dicadia of any report of an Adverse Event relating to the Product within five (5) calendar days of receipt of the report and shall provide Dicadia with such information as is required by Applicable Law or as Dicadia may reasonably request. Distributor shall cooperate with Dicadia to the extent necessary to report such Adverse Event where required by Applicable Laws. The Distributor shall also notify Dicadia within 10 days of any Product-related complaints of which it becomes aware relating to problems with the Product other than those associated with Adverse Events, and Dicadia shall meet and consult periodically with the Distributor regarding Dicadia’s responses to such complaints and the indication of any corrective action by the Distributor as necessary or appropriate for the pattern of complaints, which actions shall be borne by the party to the extent that its improper acts or omissions have caused such complaints.

11.2 Reporting Obligations. Distributor shall maintain, or cause to be maintained, all complaint files and other records required by regulatory agencies with respect to Product purchased by Distributor from Dicadia. Dicadia will promptly provide Distributor with copies of any and all complaints or other reports of any significant adverse event, side effect, injury, toxicity or sensitivity reaction associated with the Product of which Dicadia becomes aware, whether or not such effect is attributable to the Product, as well as responses submitted, if any. Distributor shall promptly provide Dicadia with copies of any and all complaints or other reports of any significant adverse event, side effect, injury, toxicity or sensitivity reaction associated with the Product of which Distributor becomes aware, in a manner that enables Dicadia to comply with all applicable laws, rules and regulations.

11.3 Product Recalls.

11.3.1 Product Recalls, Recall and Field Corrective Actions. In the event that (i) any governmental authority issues a directive or order for a Product to be recalled, or for field corrective action to be taken with respect to any Product, (ii) a court of competent jurisdiction orders such recall, or (iii) Dicadia determines, in its sole discretion, that a Recall should be undertaken with respect to a Product, the parties shall promptly take all appropriate remedial action, as determined by Dicadia in its sole discretion, in accordance with applicable legal requirements, guidelines, directives, orders, or court orders. Distributor shall, upon Dicadia’s prior written approval, promptly notify customers in writing of the Product recall. Dicadia shall be responsible for the reasonable and documented costs of notifying end users and determining the corrective action to be taken, as well as the reasonable and documented costs incurred in taking such action, unless the recall of the Product is the direct result of an act or omission of Distributor, in which case all costs shall be borne by Distributor. Dicadia and Distributor shall cooperate fully with each other and shall provide all reasonable assistance in carrying out any Recall under this Section. Distributor shall maintain detailed records of all sales of Product sufficient to effect a Withdrawal with respect to Product purchased under the Agreement. Distributor shall not be entitled to make any Withdrawal with respect to the Product without Dicadia’s prior written consent, provided, however, that notwithstanding the foregoing, Distributor may immediately make any Withdrawal that is required to comply with any statutory or regulatory requirement, guideline, directive, order or court order. For the purposes of this Agreement, a «Recall» shall mean a recall or field corrective action.

11.3.2 In the event of any recall or seizure of any Product, other than a Distributor Recall (as defined below), Dicadia shall, at Distributor’s written option and at Dicadia’s sole cost,:
(a) use commercially reasonable efforts to replace the quantity of recalled or forfeited Product; or
(b) credit Distributor against Distributor’s outstanding accounts receivable in an amount equal to the amount paid by Distributor for the Product (including any Gross Profit Sharing paid to Dicadia for such Product) recalled or seized or otherwise owed by Distributor hereunder;
in addition to reimburse (or, at Distributor’s written election, credit) Distributor for Distributor’s full and reasonable transportation costs, taxes, transportation insurance, handling and reasonable and verifiable out-of-pocket expenses incurred by Distributor in respect of such recalled or impounded Product.
11.3. 3 In the event of any recall or seizure of any Product which occurs primarily as a result of any breach of this Agreement by the Distributor or its Affiliates, or the negligent acts or omissions or willful misconduct thereof (a «Distributor Recall»), the Distributor shall be liable for such recalled or seized Product and shall bear all costs of such recall or seizure, including reimbursing Dicadia for any reasonable and verifiable costs incurred by Dicadia in connection with the recall or seizure of such Product.
11.3.4 For purposes of this Section, «recall» shall mean (i) any action by Dicadia, Distributor or any Affiliate of either of them to regain title to or possession of any Product sold or shipped and/or (ii) any decision by Distributor not to sell or ship Product to third parties that would have been subject to recall or seizure had it been sold or shipped, in each case taken in good faith in the belief that such action was appropriate or necessary under the circumstances. For purposes of this Section 11.3, «seizure» shall mean any action by any governmental agency to retain or destroy any Product. Notwithstanding anything to the contrary in this Section, Dicadia shall have final authority with respect to any recall of Product and neither Distributor nor its Affiliates shall initiate any recall of Product without Dicadia’s prior written approval (such approval not to be unreasonably conditioned, withheld or delayed).
11.3.5 Dicadia and the Distributor shall keep the other party fully informed of any notice or other information, whether received directly or indirectly, which may affect the marketability, safety or efficacy of the Product, or which may give rise to liability issues or require action by either party, or which may result in the recall or seizure of any Product. The Distributor shall maintain records of all Product and customer sales reasonably sufficient to properly administer a recall or seizure for the longer of three years after termination or expiration of this Agreement or the period required by Applicable Law.
11.4 Sales and Marketing Activities. Distributor shall be responsible for establishing a formal written regulatory compliant program in the Territory for all applicable activities of Distributor and its Affiliates relating to the Product that are subject to such regulations.
Upon Dicadia’s request, Distributor shall provide Dicadia with reasonable evidence of its compliance with this Section.
11.5 Cooperation. Dicadia shall provide reasonable assistance to Distributor in the preparation and filing with the appropriate regulatory agencies (both federal and state related to reimbursement and health care insurance) of filings necessary for Distributor’s marketing and distribution of the Product to Distributor’s Customers in the Territory. Dicadia and Distributor shall cooperate in good faith to develop the necessary regulatory strategies that may be required for the purposes of this Agreement, and to permit the Product to be included in applicable formularies and other drug listings as reasonably requested by Distributor, and to make any applicable filings or registrations that would permit the Product to be included in such formularies or listings.
11.6 Taxes; Duties. Distributor shall pay the actual amount of sales, use, excise, value added, value added and other similar taxes applicable to the transfer of the Product to Distributor. Distributor shall pay all duties, tariffs, surcharges and other customs and governmental fees applicable in connection with any shipment of the Product.
SECTION 12
FORCE MAJEURE
12.1 Force Majeure. If either party is prevented from performing any of its obligations under this contract (except for any monetary payment due hereunder) due directly or indirectly to fire, flood, accident, explosion, breakdown of equipment or machinery, sabotage, strike or any labour disturbance, civil commotion, riot, invasion, war (present or future); acts, restrictions, requisitions, regulations, regulations or instructions or orders of any governmental entity; compliance with any request of any governmental entity; compliance with any request for material which is represented to be for the purpose of producing (directly or indirectly) articles for national defence or national defence installations; shortages of labour, fuel, energy or raw materials; inability to obtain raw materials or supplies; failures in normal sources of supplies; inability to obtain or delays in transportation facilities; any act of God; any act of the other party or other causes (whether similar or dissimilar to the foregoing); in each case, provided that such cause is beyond the reasonable control of such party (a «Force Majeure Event»), such non-performing party shall not be liable for breach of this Contract in respect of such breach if and to the extent that such breach is due to a Force Majeure Event. Such non-performance shall be excused for so long as such event continues; provided, however, that the non-performing party shall promptly notify the other party in writing of the Force Majeure Event.
Such non-performing party shall use all reasonable efforts to eliminate the Force Majeure Event and resume performance of its affected obligations as soon as possible. In the event that, as a result of such Force Majeure Event, a party fails to perform all of its obligations hereunder for a period totaling 120 days within a 360-day period, the other party may terminate this Agreement upon 30 days written notice to the defaulting party.
SECTION 13
13.1 Term. Subject to Section 8, the term of this Agreement shall commence on the Effective Date and shall remain in effect for a period of 3 years from the date of the Distributor’s First Commercial Sale. Notwithstanding the foregoing, the Distributor shall have the option to renew this Agreement for an additional 3-year term commencing on the date of expiration of the initial term by providing Dicadia’s Distributor with irrevocable written notice thereof 12 months prior to the end of the initial term.
SECTION 14
CONFIDENTIALITY
14.1 Confidentiality. As used herein, «Confidential Information» shall include all confidential or proprietary information delivered by the other party to a party, or otherwise acquired by such party in connection with the performance of this Agreement, relating to such party or any of its Affiliates, including information relating to any of such party’s or any of its Affiliates’ products, information relating to its advertising, distribution, marketing or strategic plans or information relating to its cost, productivity or technological advances, specifications, data, know-how, formulations, product concepts, sample materials, manufacturing processes and other manufacturing information, business and technical information, pricing and other terms of the Agreement, whether in written form or disclosed orally, visually and/or in other tangible form. Neither party shall use, exploit or disclose to any third party any Confidential Information of the other and each party shall ensure that its employees, officers, representatives and agents and those of its Affiliates do not use or disclose to any third party any Confidential Information and shall, upon termination of this Agreement, return to the other or destroy all Confidential Information in written form. Confidential Information shall not include information that (i) was already legally known to the receiving party at the time of receipt, (ii) is disclosed to the receiving party after receipt by a third party entitled to make such disclosure without breach of any obligation of confidentiality, (iii) is or becomes generally available to the public through no fault of the receiving party or (iv) is independently developed by the receiving party as evidenced by such party’s contemporaneous written records. The confidentiality obligations set forth above shall survive termination or expiration of this Agreement for a period of 10 years. Notwithstanding the foregoing, in the event that either party is required by applicable law, the rules or regulations of any stock exchange or listing body on which the shares of either party or the parent company of either party may then be traded, or by any governmental agency or court of competent jurisdiction, to disclose the Confidential Information of the other party, such party shall promptly notify the other party in writing of all details of the required disclosure and allow the other party a reasonable opportunity to intervene to oppose, limit or condition such disclosure prior to making such disclosure, and such party shall make any required disclosure ultimately in the most restrictive manner, in its reasonable judgment, consistent with the applicable requirement requiring such disclosure.
14.2 In particular, with respect to confidentiality:
14.2.1 Non-Disclosure. During the term of this Agreement and thereafter, neither party shall disclose to any third party or use for its own benefit, in whole or in part, any Inside Information received from the other party, except to the extent necessary to comply with its obligations under this Agreement or under the Act or other laws. Each party shall take all reasonable steps to minimise the risk of disclosure of the Inside Information, including, without limitation by
(a) ensuring that only its employees whose duties require them to possess such information have access to such information;
(b) ensuring that such employees are contractually obligated to maintain the confidentiality of such information on terms substantially similar to those of this Agreement; and
(c) exercise at least the same degree of care as it uses for its own Inside Information, which shall not be less than reasonable.

14.2.2 Termination Obligations. Except as otherwise permitted under this Agreement, upon request of the disclosing party following expiration or termination of this Agreement, the other party shall return all of such disclosing party’s Proprietary Information (including data, memoranda, drawings and other writings and tapes, and all copies thereof) received or prepared by it, or destroy it and, in either case, make no further use of such Inside Information, provided that counsel for the receiving party may retain a copy of the Inside Information for purposes of determining the receiving party’s obligations under this Section.
14.2.3 Use of Inside Information. During the term of this Agreement and thereafter, neither party shall use the other party’s Proprietary Information for any purpose other than to perform its obligations under this Agreement or to verify the other party’s compliance with the terms of this Agreement.
14.2.4 Precautionary Measures. Each party acknowledges that the other party would not have an adequate remedy at law for breach of any of the covenants contained in this Section and hereby consents to the enforcement of the same by the other party through a temporary or permanent injunction issued by any court having jurisdiction thereof and further agrees that the other party shall be entitled to assert any claim it may have for damages arising from the breach of such covenants in addition to seeking injunctive or other relief.
SECTION 15
PUBLIC ANNOUNCEMENTS; ETC.
15.1 Public Announcements. No public announcement, press release, statement, publication or presentation relating to the existence of this Agreement, the subject matter hereof or the performance of either party hereunder shall be made without the prior written approval of the other party, which approval shall not be unreasonably conditioned, withheld or delayed. Notwithstanding the foregoing, and subject to the provisions of SECTION 14 with respect to Confidential Information, either party may make any public disclosure concerning the existence of this Agreement, the subject matter hereof and its terms, or the performance of either party hereunder, which is deemed necessary, in the reasonable judgment of a party, to comply with Applicable Law or the rules or regulations of any stock exchange or listing agency on which the securities of a party or of a party’s parent company may be or are intended to be traded or of any governmental agency regulating such securities (including the filing of a copy of this Agreement with such governmental agency); provided that the party making such disclosure shall provide the non-disclosing party with a copy of the intended disclosure reasonably, and to the extent practicable, prior to its public dissemination.
15.2 Non-use of other party’s name. Neither party shall use the name of the other party or any of its Affiliates for advertising, promotional or other purposes without the prior written consent of the other party.
SECTION 16
REPRESENTATIONS AND WARRANTIES
16.1 Product Warranty.
16.1.1 Dicadia represents and warrants to Distributor that all Product supplied in connection with this Agreement (i) will be manufactured, packaged, tested, stored and handled in compliance in all material respects with the Laws; and (ii) will comply with the Product Specifications and will not be adulterated or misbranded within the meaning of the Law (each of clauses (i) and (ii) being collectively referred to herein as the «Product Warranty»). The foregoing Product Warranty shall not apply to the extent that the failure of any such Product to comply with the requirements of this Section is caused by the negligent acts or omissions or willful misconduct of the Distributor, its Affiliates, wholesalers or other customers (including modification or misuse or improper storage or transportation of the Product after shipment to the Distributor, whether by the Distributor, its Affiliates or any other Person).
16.1.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 16.1.1 ABOVE, DICADIA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCT OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT THE PRODUCT IS FREE FROM THE LEGITIMATE CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR OTHERWISE.
16.2 Warranties with respect to condition.
16.2.1 Distributor hereby represents and warrants to Dicadia that neither it nor any of its Affiliates is prohibited from selling and distributing the Product within the Territory and that neither Distributor nor any of its Affiliates is a person listed by any public agency or entity as debarred, suspended, proposed for debarment or otherwise ineligible for programmes in the Territory.
16.2.2 Dicadia hereby represents and warrants to Distributor that neither it nor any of its Affiliates is prohibited under Applicable Laws from manufacturing, selling and distributing the Territory, and that neither Dicadia nor any of its Affiliates is a person listed by any public agency or entity as debarred, suspended, proposed for debarment or otherwise ineligible for programmes in the Territory.
16.3 Distributor Warranties. The Distributor hereby warrants and agrees that:
(a) the Distributor’s Trademarks may be lawfully used as directed by the Distributor; and
(b) the Product Label, if labelled in accordance with the specifications provided by the Distributor, will comply with the specifications for the Product and Applicable Laws.
16.4 Execution and Performance of the Agreement. Dicadia and the Distributor represent and warrant to each other that they have full right, power and authority to enter into and perform their obligations under this Agreement. Dicadia and the Distributor further represent and warrant to the other that the performance of its obligations under this Agreement shall not result in a breach or default of, or conflict with or constitute a breach of, any agreement, contract, undertaking or obligation to which such party or any of its Affiliates is a party or by which it is otherwise bound or of any Applicable Law.
16.5 LIMITATION OF LIABILITY OF THE PARTIES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THIS AGREEMENT.
16.6 Standard Limited Warranty. Dicadia warrants that the Product, at the time of shipment, (a) will comply with the requirements of the Act, if applicable, and until its expiry date will conform to the labeling and package inserts; (b) will not be an adulterated or misbranded product within the meaning of the Act.
This limited warranty is contingent upon proper use of the Product in the application(s) for which the Product was intended and does not cover any Product that has been modified without Dicadia’s written approval, that has expired, or that has been improperly stored or handled.
16.7 No Other Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THE PRECEDING SECTION, DICADIA MAKES NO WARRANTY FOR THE PRODUCT, EXPRESS OR IMPLIED, WHETHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND DICADIA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF QUALITY, WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF NON-INFRINGEMENT.

16.8 Remedy and Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, DICADIA’S LIABILITY, DISTRIBUTOR’S AND ITS CUSTOMERS’ SOLE REMEDY, AND THE LIMITED WARRANTY HEREUNDER WITH RESPECT TO THE PRODUCT SHALL BE LIMITED TO REIMBURSEMENT OF THE COST OF THE PRODUCT BY DISTRIBUTOR OR REPLACEMENT OF THE PRODUCT, AT DICADIA’S OPTION. IN NO EVENT SHALL DICADIA BE LIABLE FOR THE COST OF PROCUREMENT OF A SUBSTITUTE PRODUCT OR FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES FOR BREACH OF WARRANTY OR OTHERWISE.

SECTION 17
INDEMNIFICATION
17.1 Indemnification by Dicadia. Dicadia shall indemnify, defend and hold Distributor (and its Affiliates) harmless from and against any and all damages, liabilities, claims, costs, charges, judgments and expenses (including reasonable attorneys’ fees) (collectively «Damages») it may suffer suffered or incurred by Distributor (or its Affiliates) arising out of or in connection with any claim, (a) the actual or alleged breach by Dicadia of any warranty, representation, covenant or agreement made by Dicadia in this Agreement; (b) the negligent acts or omissions or willful misconduct of Dicadia or its Affiliates; unless such Damages arise from the negligent acts or omissions or wilful misconduct of the Distributor or its Affiliates, wholesalers or other customers (including modification or misuse or improper storage or transportation of the Product after shipment to the Distributor, whether by the Distributor, its Affiliates or any other Person) or from other actions or inactions for which the Distributor is required to indemnify Dicadia under the Section below.
17.2 Indemnification of Distributor. Distributor shall indemnify, defend and hold Dicadia (and its Affiliates) harmless from and against any damages that Dicadia (or its Affiliates) may suffer, suffer or incur arising out of or in connection with any claim, action or proceeding made or brought by any third party against Dicadia (or its Affiliates) to the extent arising out of (a) Distributor’s actual or alleged breach of any warranty, representation, covenant or agreement made by Distributor in this Agreement; (b) improper marketing, sales or distribution activities of the Product by the Distributor or its Affiliates, including any commercial agreements entered into by the Distributor with its customers or other third parties; (c) the negligent acts or omissions or willful misconduct of the Distributor or its Affiliates (including modification or misuse or improper storage or transportation of the Product by the Distributor, its Affiliates or other Person acting on behalf of the Distributor or its Affiliates, excluding wholesalers and customers); (d) any Product Liability Claim to the extent arising out of the Distributor’s breach hereunder or the negligent acts or omissions or willful misconduct of the Distributor and its Affiliates (including modification or misuse or improper storage or transportation of the Product by the Distributor, its Affiliates or other Person acting on behalf of the Distributor or its Affiliates, excluding wholesalers and customers); or (e) any Withdrawal by Distributor (except as otherwise provided in this Agreement); provided that, in each of the foregoing cases, Distributor shall not be liable to Dicadia to the extent that such Damages arise from the negligent acts or omissions or willful misconduct of Dicadia or its Affiliates or from other actions or inactions for which Dicadia is obligated to indemnify Distributor under the foregoing Section.
17.3 Claims. Each indemnified party agrees to give prompt written notice to the indemnifying party of any matter upon which such indemnified party intends to base a claim for indemnification under this Article; provided, however, that failure to give such prompt notice shall not affect indemnification hereunder except to the extent that the indemnifying party has actually been prejudiced as a result of such failure. The indemnified party shall permit, and shall cause its employees and agents to permit, the indemnifying party to defend or settle any action, claim or liability, and agrees that the indemnifying party shall fully control such defence or settlement; provided that such settlement shall not impose any obligation or burden on the indemnified party without the prior written consent of the indemnified party. The indemnified party shall not settle any such action, claim or liability without the prior written consent of the indemnifying party (which consent shall not be conditioned, withheld or unreasonably delayed) and the indemnifying party shall not be liable for any fees or other costs incurred other than as provided in this Article. The indemnified party, its employees, agents and affiliates shall reasonably cooperate with the indemnifying party and its legal representatives in the investigation and defence of any action, claim or liability covered by this indemnity, at the indemnifying party’s sole expense. The indemnified party shall have the right, but not the obligation, to be represented by counsel of its own choice and at its own expense. By way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse or improper storage or transportation of the Product by wholesalers or customers of either party.
17.4 Third Party Infringement Claims. In the event that any third party files or brings any claim or action for infringement of any patent, trademark or other intellectual property right against Dicadia, Distributor or any of their respective affiliates due to, or in anticipation of, Dicadia’s manufacture and supply of the Product to Distributor hereunder, or the marketing, sale or distribution of such Product to Distributor’s Customers in the Territory by Distributor hereunder (a «Third Party Infringement Claim»), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Dicadia and Distributor hereby agree that all Damages arising out of or related to the Third Party Infringement Claim (including legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or after judgment) shall be apportioned as follows:
(a) Except as provided in clause (b) below, Dicadia shall be 100% liable for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or after judgment in the Judgment or otherwise; and
(b) The Distributor shall be 100% liable for all Damages arising from any Third Party Infringement Claim in respect of the use of the Distributor Marks.
Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless the parties agree otherwise, Dicadia shall control the defence of any Third Party Infringement Claim described in clause (a) above and the Distributor shall control the defence of any Third Party Infringement Claim described in clause (b) above. The party controlling the defence of any Third Party Infringement Claim shall have the exclusive right to defend or settle such Third Party Infringement Claim; provided that such settlement shall not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defence of any Third Party Infringement Claim shall, upon request, keep the other party materially informed of the status and progress of the defence of the Third Party Infringement Claim. The party not controlling the defence of such Third Party Infringement Claim may not settle any Third Party Infringement Claim without the prior written consent of the party controlling such defence. The non-controlling party, its employees, agents and affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defence of any Third Party Infringement Claim in the investigation and defence of such Third Party Infringement Claim. Notwithstanding the foregoing, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by either party’s wholesalers or customers. The provisions of this Section
shall apply notwithstanding anything to the contrary set forth in this Agreement.
17.5 No right to compensation. The Distributor shall have no right to set-off or withhold any amount payable to Dicadia under Articles 3 or 4 of this Agreement, including any amount payable to satisfy any indemnity claim the Distributor may have hereunder.
17.6 Indemnification by Dicadia. Subject to Distributor’s compliance with its obligations set forth in this Section, Dicadia shall indemnify, defend and hold harmless Distributor and its sub-Distributors, its shareholders, directors, officers, employees and agents from any losses, damages, liabilities, claims, demands, judgments, settlements, costs and expenses (including, without limitation, reasonable attorneys’ fees and other defense costs) (collectively «Losses») attributable to or arising out of a breach by Dicadia of any of Dicadia’s warranties, representations, covenants or obligations of Dicadia under this Agreement or from any claim, suit or other action by any third party for breach of contract, personal injury or property damage to the extent caused by Dicadia’s breach of this Agreement, or relating to the use or sale of the Product to the extent caused directly by fault, negligence or breach of any of its obligations under this Agreement in connection with the use or sale of the Product.

17.7 Indemnification by Distributor. Subject to Dicadia’s performance of its obligations set forth in this Section, Distributor shall indemnify, defend and hold Dicadia, its Contract Manufacturers, shareholders, directors, officers, employees and agents harmless from any loss attributable to or arising out of a breach by Distributor of any of the warranties, representations, covenants or obligations of Distributor hereunder, or any claim, claim or other action by any third party for breach of contract, personal injury or property damage to the extent caused by distributor’s breach of this Agreement, or out of or in connection with the use or sale of the Product to the extent caused directly by distributor’s fault, negligence or breach of any of distributor’s obligations in connection with the use or sale of the Product.

17.8 Notice and Assistance. The party (the «Indemnitee») seeking indemnification under this Section shall promptly notify the other party (the «Indemnitor») in writing of any action, claim or other matter in respect of which the Indemnitee or any of its employees or agents intends to claim such indemnification. The Indemnitee shall permit, and shall cause its employees and agents to permit, the Indemnitor, in its discretion, to settle any such action, claim or other matter and agrees to full control of such defence or settlement by the Indemnitor; provided that such agreement shall not adversely affect the Indemnitee’s rights hereunder or impose any obligations on the Indemnitee, in addition to those set forth herein, to exercise such rights. No action, claim or other matter shall be settled without the prior written consent of the indemnitor and the indemnitor shall not be liable for any legal fees or other costs incurred other than as provided herein. At the indemnitor’s expense, the indemnified party shall provide the indemnitor with all assistance reasonably necessary to defend against such claim, suit or action. The indemnified party shall have the right, at its expense, to retain other counsel to act in an advisory capacity in connection with any matter involving a claim for indemnification, and the indemnitor shall cooperate with such counsel.
SECTION 18
MISCELLANEOUS
18.1 Governing Law. This Agreement and all acts and transactions hereunder, including all purchase orders, and the rights and obligations of the parties hereto, shall be governed by, construed and interpreted in accordance with the laws of Spain, without regard to its conflict or choice of law rules.
18.2 Relationship of the Parties. The relationship of Distributor and Dicadia established by this Agreement is that of independent contractors, and nothing contained herein shall be construed to (i) give either party any right or authority to create or assume any obligation of any kind on behalf of the other or (ii) constitute the parties as partners, joint venturers, joint owners or otherwise as participants in a joint or common enterprise.
18.3 Third Party Rights. Nothing in this Agreement shall be deemed to create any third party beneficiary rights in or on behalf of any other person.
18.4 Entire Agreement. It is the desire and intent of the parties to provide certainty as to their respective future rights and remedies against each other by defining the scope of their mutual commitments as provided herein. The parties have incorporated into this Agreement all representations, warranties, covenants, undertakings and understandings relied upon in entering into this Agreement and, except as provided herein, neither party makes any covenant or commitment to the other regarding its future performance. Accordingly, this Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and there are no promises, representations, conditions, provisions or terms relating thereto other than those set forth in this Agreement and (ii) supersedes all prior understandings, agreements and representations between the parties, written or oral. No modification, change or amendment to this Agreement shall be effective unless made in writing and signed by each party.
18.5 Interpretation. Whenever this Agreement refers to a number of days, unless otherwise specified, such number shall refer to calendar days. The headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
18.6 Notices. All notices and other communications under this Agreement shall be in writing and sent by email. All notices to be given under this Agreement regarding a claim for indemnification, an event of force majeure, a breach or default hereunder or, as the case may be, the termination or renewal of the term hereof, or any other notice of any event or occurrence material to this Agreement as a whole, shall be delivered personally, or sent by email. The notice shall be addressed:
If to Dicadia: (email)

If to the Distributor: (email)

or to such other place as either party may designate by written notice to the other in accordance with the terms of this Section 18.6.
18.7 No waiver. The failure of either party to enforce at any time and for any period any provision hereof shall not be construed as a waiver of such provision or of such party’s right to subsequently enforce each such provision, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise or enforcement of any other right or remedy. Notwithstanding anything expressly to the contrary contained herein, the remedies provided herein are cumulative and not exclusive of any remedies provided by law.
18.8 Assignment. This Agreement may not be assigned or delegated by either party without the prior written consent of the other, except that either party may assign or delegate its rights and/or obligations hereunder to any of its Affiliates, to a successor to all of its business, or to a successor to that portion of its business relating to the Product. Subject to the foregoing and the other terms of this Agreement, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
18.9 Severability. In the event that any one or more of the terms or provisions (or any part thereof) contained in this Agreement or any other instrument referred to herein shall for any reason be held to be invalid, illegal or unenforceable in any respect by virtue of a final and non-appealable decision, then, to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or any such other instrument. Any term or provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall not, to the extent that the economic benefits conferred by this Agreement on both parties remain substantially intact, affect the validity, legality or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
18.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument.
18.11 Expenses. Each party shall pay its own fees and expenses (including all legal, accounting and advisory fees) incurred in connection with the negotiation and execution of this Agreement and the agreements contemplated hereby.
18.12. Jurisdiction. All disputes relating to this Agreement shall be brought in the Spanish courts located in Catalonia. The parties to this Agreement consent to the in personam jurisdiction and venue of such courts.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorised representatives on the day and year aforesaid.