Certain confidential information contained in this document has been omitted pursuant to
Item 601(b)(10)(iv) of Regulation S-K.
This Marketing Agreement (this “Agreement”), effective as of August 1, 2022 (the “Effective Date”), is by and between CytoSorbents Corporation, a corporation existing under the laws of Delaware, with offices at 305 College Road East, Princeton, New Jersey 08540, United States (“CytoSorbents”) and Fresenius Medical Care Deutschland GmbH, a corporation existing under the laws of Germany, with offices located at Else-Kroener-Strasse 1, 61352 Bad Homburg vor der Hoehe, Germany (“FMC”, together with CytoSorbents, the “Parties” and each, a “Party”).
WHEREAS, in accordance with the terms of this Agreement, FMC and CytoSorbents desire to work together to create broad market awareness of the compatibility between the FMC Platform and the CytoSorb Products and advance ICU access to the CytoSorb Products for use with the FMC Platform.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.DEFINITIONS. For purposes of this Agreement, the following terms have the following meanings:
1.1“Additional FMC Platform” means Xenios AG’s extracorporeal membrane oxygenation (ECMO) system (and associated tubing lines and disposables/kits).
1.2“Affiliates” means, with respect to a Party, any entity or person which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under the common control with another entity or person. For purposes of this definition, “control” and, with correlative meanings, the terms “controlled by” and “under common control with”, means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
1.3“Applicable Law” means any national, supranational, multinational, provincial, federal, state or local law (in each case, whether statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, statute, regulation or other similar requirement enacted, issued, adopted, promulgated, entered into or applied by a governmental, federal, or regulatory authority that may be in effect during the Term and applicable to a particular activity or country or other jurisdiction hereunder.
“Claims” has the meaning set forth in Section 11.1.
1.5“Commercially Reasonable Efforts” means, in respect of a Party, that level of effort and resources to accomplish such objective or activity as such Party would normally use to accomplish a similar objective or activity under similar circumstances, it being understood and agreed that, in the case of FMC with respect to the promotion and marketing of the CytoSorb Products, such efforts and resources shall be consistent with those efforts and resources commonly used by FMC for the promotion and marketing of its own products under similar circumstances at a similar stage in their development or product life and of similar market potential based on conditions then prevailing.