INDEPENDENT CONTRACTOR SERVICES AGREEMENT Effective Date: April 8, 2008
Exhibit
99.2
Effective
Date: April 8, 2008
This
agreement (the “Agreement”) is made by and
between Zor Pharmaceuticals,
LLC (the “Company”), located at
(REDACTED: Zor address) and Genesense Technologies Inc.
located at 0 Xxxxxxxx Xxxx, Xxxxxxx, XX, Xxxxxx X0X 0X0 (the “Contractor”).
WHEREAS the Company and
Contractor have entered into an exclusive license agreement (the “License Agreement”) pursuant
to which Contractor has granted to Company the right, among other things, to
develop and commercialize Virulizin® in the countries of North America, South
America and Europe and in Israel;
WHEREAS pursuant to the terms
of the License Agreement Contractor agreed to provide technical assistance to
Company upon the terms set out herein; and
WHEREAS capitalized terms used
herein and not otherwise defined shall have the meaning given to such terms in
the License Agreement.
WITNESSES that in
consideration of the premises and the mutual covenants contained herein, the
parties agree as follows:
1. Engagement of
Services. During the term of this Agreement, authorized
executives of the Company (“Designated Executives”) may
give to Contractor written requests for technical assistance relating to
manufacturing of the Licensed Product, design of clinical trials for the
Licensed Product and other know-how regarding the Licensed
Product. Upon receipt of such request Company and Contractor shall
discuss the terms of the scope, timing and deliverables of such assistance, and
the participation of third party contractors or subcontractors, if
any. Such terms shall, upon agreement by the parties, be evidenced by
a written instrument signed on behalf of the parties, dated and numbered
sequentially and attached as Exhibit A
hereto, and shall thereupon constitute a project assignment (each, a “Project Assignment”) and shall
form part of this Agreement. Contractor may engage its parent
company, Lorus Therapeutics Inc., to perform Project Assignments for the benefit
of Contractor. Contractor shall not be responsible for, or otherwise
liable to Company in respect of, any services or other work performed by any
other contractor or subcontractor of Contractor in connection with any Project
Assignment except for liability resulting from Contractor’s negligence or wilful
misconduct. Except as otherwise provided in a Project Assignment,
Project Assignments shall be subject to the terms and conditions of this
Agreement and Contractor will render the services set forth in each Project
Assignment accepted by Contractor substantially in accordance with the terms
thereof.
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2.
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Compensation. During
the first twelve months of this Agreement Contractor will perform Project
Assignments up to (REDACTED: Rate of Payment, contract total and
scope of work) without charge to Company for the
services of Contractor (but Company shall pay all charges of contractors
and subcontractors described in the Project Assignments). At
the end of (REDACTED: Rate of Payment, contract total and scope of
work) whichever comes first, Company will pay to
Contractor (REDACTED: Rate of Payment, contract total and
scope of work) per hour (plus applicable goods and services
tax) for services of Contractor, pro rated as appropriate, for performance
of Project Assignments and all charges of contractors and subcontractors
described in the Project Assignments. Services provided by
contractors engaged by Company, or by Contractor’s subcontractors, and
described in a Project Assignment will be paid by Company at the rates
charged by such contractors and subcontractors. Contractor will
be reimbursed only for such other expenses described in the Project
Assignment or which are otherwise expressly approved in advance by
Company. Without limiting the foregoing, Contractor shall
provide (REDACTED: Rate of Payment, contract total and scope
of work) Under no circumstances shall Company be
required to pay for more than (REDACTED: Rate of Payment,
contract total and scope of work) (excluding applicable goods and
services tax) for this service from
Contractor.
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Company
will pay Contractor the fee set forth in each Project Assignment within
(REDACTED: Delivery dates) of receipt of
Contractor’s invoice, provided Contractor has furnished such documentation for
authorized expenses as Company may reasonably request. Upon
termination of this Agreement for any reason, Company will pay Contractor fees
on the basis stated in the Project Assignment, for work which has been completed
up to the time of termination, (REDACTED: Delivery dates)
following such termination.
Overdue
payments shall bear interest at the rate set out in Section 7.11 of the
License Agreement.
3. Independent Contractor
Relationship. Contractor’s relationship with Company is that
of an independent contractor, and nothing in this Agreement is intended to, or
should be construed to, create a partnership, agency, joint venture or
employment relationship. Contractor will not be entitled to any of
the benefits which Company may make available to its employees, including, but
not limited to, group health or life insurance, profit-sharing or retirement
benefits. Contractor is not authorized to make any representation,
contract or commitment on behalf of Company unless specifically requested or
authorized in writing to do so by a Designated Executive. Contractor
is solely responsible for filing all tax returns and payments required to be
filed with, or made to, any federal, state, provincial or local tax authority
with respect to the performance of services and receipt of fees under this
Agreement. No part of Contractor’s compensation will be subject to
withholding by Company.
4. Intellectual Property
Rights. Except as otherwise expressly provided in a Project
Assignment, all tangible and intangible information, know-how,
inventions, discoveries, trade secrets, data and materials, whether patentable
or not, including but not limited to: formulations, in vitro, preclinical or
clinical design, information or results, other proprietary materials, processes,
including but not limited to manufacturing processes, data, drawings, sketches,
designs, testing and test results, and regulatory information, created by
Contractor or its subcontractors in connection with the performance of each
Project Assignment (collectively, the “Know-How”), shall be owned by
Contractor and shall constitute Know-How (as defined in the License Agreement)
for all purposes of the License Agreement and the Contractor hereby grants to
the Company, and the Company accepts, an exclusive license under such Know-How
upon for the purpose, and on the terms and conditions, set out in the License
Agreement.
5. Confidential
Information.
5.1 Definition of Confidential
Information. “Confidential Information” as used in this
Agreement shall mean any and all technical and non-technical information
(written or oral) owned by the Company and disclosed by Company to Contractor
including patent, copyright, trade secret, and proprietary information,
technology, business and financial information, manufacturing methods, plans and
procedures relating to its pharmaceutical products, future and proposed products
and services of Company, its suppliers and customers, and includes, without
limitation, information concerning research, experimental work, development,
design details and specifications, engineering, financial information,
procurement requirements, customer lists, business forecasts, sales,
merchandising and marketing plans and information, and any other information
identified by Company as confidential.
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5.2 Nondisclosure and Nonuse
Obligations. Contractor will use the Confidential Information
solely to perform Project Assignment(s) for the benefit of
Company. Contractor agrees that it shall treat all Confidential
Information of Company with the same degree of care as it accords to its own
Confidential Information, and Contractor represents that it exercises reasonable
care to protect its own Confidential Information. Contractor agrees
that it shall disclose Confidential Information only to those of its employees
who need to know such information and certifies that such employees have
previously agreed, either as a condition of employment or in order to obtain the
Confidential Information, to be bound by an obligation of
confidentiality.
5.3 Exclusions from
Nondisclosure and Nonuse Obligations. Contractor’s obligations
under Paragraph 5.2 (“Nondisclosure and Nonuse Obligations”) with respect
to any portion of Confidential Information shall terminate when Contractor can
document that such Confidential Information (a) was in the public domain at or
subsequent to the time it was communicated to Contractor by the disclosing party
through no fault of Contractor; (b) was rightfully in Contractor’s possession
free of any obligation of confidence at or subsequent to the time it was
communicated to Contractor by the disclosing party; or (c) was developed by
employees or agents of Contractor independently of and without reference to any
information communicated to Contractor by the disclosing party, provided however
that nothing herein shall relieve Genesense Therapeutics, Inc. from its
obligations under Article 16 of the License Agreement made between that company
and the Company dated April 8, 2008.
5.4 Disclosure of Third Party
Information. Neither party shall communicate any information
to the other in violation of the proprietary rights of any third
party.
5.5 Return of Company’s
Property. All materials (including, without limitation, all
documents, records, reports, notes, compilations, or all other recorded matter
and copies or reproduction thereof, containing Confidential Information, whether
delivered to Contractor by Company or made by Contractor in the performance of
services under this Agreement (“Company Property”) are the
sole and exclusive property of Company. Contractor agrees to promptly
deliver the original and any copies of the Company Property to Company at any
time upon Company’s request. Upon termination of this Agreement by
either party for any reason, Contractor agrees to promptly deliver to Company or
destroy, at Company’s option, the original and any copies, including data stored
in electronic format, of the Company Property. Contractor agrees to
certify in writing that Contractor has so returned or destroyed all such Company
Property.
6. No Conflict of
Interest. During the term of this Agreement, Contractor will
not accept work, enter into a contract, or accept an obligation, inconsistent or
incompatible with Contractor’s obligations or the scope of services rendered by
Company under this Agreement. Contractor warrants that, to the best
of its knowledge, it is not a party to any other contract or subject to any duty
on its part inconsistent with this Agreement. Contractor agrees to
indemnify Company from any and all loss or liability incurred by Company by
reason of the alleged breach by Contractor of any services agreement with any
third party.
7. Term, Renewal and
Termination.
7.1 Term. This
Agreement is effective as of the Effective Date set forth above and will
terminate on the earlier of (i) first anniversary of the Effective Date
unless terminated earlier as set forth below, or unless stated otherwise in any
Project Assignment that extends beyond the first anniversary of the Effective
Date or unless renewed pursuant to Section 7.2; and (ii) the date of
termination of the License Agreement for any reason.
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7.2 Renewal. This
Agreement may be renewed by Company upon (REDACTED: Renewal
Terms) written notice to Contractor, for (REDACTED:
Renewal Terms) in the event that Contractor has provided less
than the (REDACTED: Renewal Terms) of services described
in Section 2.
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7.3
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Termination by
Company. Company may terminate this Agreement, with or
without cause, at any time upon (REDACTED:
Term) prior written notice to Contractor. Company
may also terminate this Agreement immediately in its sole discretion
(i) upon Contractor’s material breach of Section 4
(“Intellectual Property Rights”), (“Confidential Information”),
Section 9 (“Noninterference with Business”), (ii) upon any acts
of misconduct by Contractor directly affecting this Agreement or the
independent contractor relationship, or (iii) in the event Company
determines in its sole discretion that the quality of Contractor’s work is
unacceptable.
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7.4
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Termination by
Contractor. Contractor may terminate this Agreement upon
any failure of Company to pay any amounts owing to Contractor hereunder
(REDACTED: Term) following notice in writing from
Contractor. Except during the term of a Project Assignment and only after
the one year anniversary of the Effective Date, Contractor may terminate
this Agreement, with or without cause, at any time upon (REDACTED:
Term) prior written notice to Company.
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7.5
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Survival. The
rights and obligations contained in Sections 4 (“Intellectual
Property Rights”), 5 (“Confidential Information”), and 8 (“Noninterference
with Business”) will survive any termination or expiration of this
Agreement and will continue to survive following the termination of this
Agreement.
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8. Noninterference with
Business. During this Agreement, and for a period of
(REDACTED: Term) immediately following its termination or
any renewal or extension thereof, Contractor agrees not to solicit or induce any
employee or independent contractor to terminate or breach an employment,
contractual or other relationship with Company.
9. Successors and
Assigns. Contractor may not subcontract or otherwise delegate
its obligations under this Agreement without Company’s prior written
consent. Subject to the foregoing, this Agreement will be for the
benefit of Company’s successors and assigns, and will be binding on Contractor’s
assignees. Company may only assign this Agreement to the same
assignee to whom the License Agreement is assigned by Company pursuant to the
provisions of Section 17.1 thereof.
10. Notices. Any
notice or other communication required or permitted to be given under this
Agreement shall be in writing and shall be given by prepaid mail, by facsimile
or other means of electronic communication or by hand-delivery. Any
such notice or other communication, if mailed by prepaid mail shall be deemed to
have been received in the second day after the date that was post marked upon
it, or if sent by facsimile or other means of electronic communication or
hand-delivered shall be deemed to have been received on the day it is
delivered. All notices and other communications given or made
pursuant to this Agreement shall be addressed as follows:
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If
to Contractor:
Genesense
Technologies Inc.
0
Xxxxxxxx Xxxx
Xxxxxxx,
XX, Xxxxxx X0X 0X0
Attention:
Xx. Xxxxxx X. Xxxxx
If
to Company:
Zor
Pharmaceuticals, LLC
(REDACTED: Zor
Address)
11. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
12. Severability. Should
any provisions of this Agreement be held by a court of law to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected or impaired
thereby.
13. Waiver. The
waiver by Company of a breach of any provision of this Agreement by Contractor
shall not operate or be construed as a waiver of any other or subsequent breach
by Contractor.
14. Injunctive Relief for
Breach. Contractor’s obligations under this Agreement are of a
unique character that gives them particular value; breach of any of such
obligations will result in irreparable and continuing damage to Company for
which there will be no adequate remedy at law; and, in the event of such breach,
Company will be entitled to injunctive relief and/or a decree for specific
performance, and such other and further relief as may be proper (including
monetary damages if appropriate).
15. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
contemporaneous oral or written agreements concerning such subject
matter. The terms of this Agreement will govern all Project
Assignments and services undertaken by Contractor for Company. This
Agreement may only be changed by mutual agreement of authorized representatives
of the parties in writing.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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ZOR
PHARMACEUTICALS, LLC
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GENESENSE
TECHNOLOGIES INC.
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| By: | (REDACTED: Individual name) | By: | /s/ Xxxxxx Xxxxx | ||
| Name: | (REDACTED: Individual name) | Name: | Xxxxxx Xxxxx | ||
| Title: | (REDACTED: Individual name) | Title: | President and CEO | ||
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EXHIBIT
A
PROJECT
ASSIGNMENT - No. 1
between
GENESENSE
TECHNOLOGIES INC. (“Contractor”)
and
ZOR
PHARMACEUTICALS, LLC (“Company”)
Date: ___________,
2008
Designated
Executive
Services
Contractor
shall provide the following services:
Payment of
Fees. Fee will be as follows:
Contractor
shall receive US $________ (__________________________________ US
dollars). The maximum amount to be paid under this Project Assignment
No. 1 is US $______________ dollars.
Expenses. Company
will reimburse Contractor for the following expenses incurred in connection with
this Project Assignment upon receipt of proper documentation of those expenses
from Contractor:
NOTE: This
Project Assignment is governed by the terms of an Independent Contractor
Services Agreement in effect between Company and Contractor. Any item
in this Project Assignment which is inconsistent with that Agreement is
invalid.
IN WITNESS WHEREOF, the parties have
executed this Project Assignment as of the date first written
above.
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ZOR
PHARMACEUTICALS, LLC
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GENESENSE
TECHNOLOGIES INC.
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| By: | By: | ||||
| Name: | Name: | ||||
| Title: | Title: | ||||
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