Exhibit 10.6.2
(OXFORD THERAPEUTICS CONSULTING LOGO)
THIS AGREEMENT
IS MADE ON THE 19TH DAY OF SEPTEMBER 2006
BETWEEN
(1) BIOVEX LIMITED, 70 XXXXXX XXXX, ABINGDON, XXXXXX XX00 4RX("THE CLIENT") AND
(2) OXFORD THERAPEUTICS CONSULTING LIMITED WHOSE REGISTERED OFFICE IS AT XX XXX
000, XXXXXXXXXX XXX XXXXXXX, XXXXXXXXXXX XX00 0XX ("THE CONSULTANT")
NOW IT IS AGREED:
1. INTERPRETATION AND LAW
1.1 IN THIS AGREEMENT:
"Commencement Date" means 19 September, 2006
"Client's Confidential Information" means all information confidential to
the Client whether relating to the
Client's business, customers, clients,
suppliers or otherwise but excluding
information now or at any time
hereinafter becoming generally known or
accessible to the general public (unless
due to the default of the Consultant
hereunder) and information obtained by
the Consultant from a third party free
of restrictions on use or disclosure.
"Consultant's Confidential means all information confidential to
Information" the Consultant whether relating to the
Consultant's business, customers,
clients, suppliers or otherwise but
excluding information now or at any time
hereinafter becoming generally known or
accessible to the general public (unless
due to the default of the Consultant
hereunder) and information obtained by
the Client from a third party free of
restrictions on use or disclosure.
"Expenses" means all expenses properly incurred by
the Consultant in providing the Services
to the Client hereunder [including
without limitation travel, accommodation
and subsistence expenses and any
honoraria paid by the Consultant to
other advisers].
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"Fee" means the fees more particularly set out
in the Fees Appendix annexed and payable
in accordance with Clause 4 of this
Agreement.
"Man Day" means the provision of the Services by
any one of the Consultant's personnel
(which shall include travelling time) to
the client from 7.30 a.m. to 7.30 p.m.
on any week day subject to a minimum of
8 hours and "Man Hour" shall be
construed and interpreted accordingly.
"Results" means all materials (including without
limit software) to be provided to the
Client by the Consultant as part of the
Services, such materials being specified
in the Results Materials Appendix.
"Services" means the services specified in the
Services Appendix annexed hereto and
including the services described in any
documents referred to in the Services
Appendix, such documents being annexed
hereto.
"Term" means the period commencing on the
Commencement Date and expiring on 31
December 2006.
1.2 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
1.3 This Agreement shall be governed in all respects by English law and the
parties hereby submit to the non-exclusive jurisdiction of the English
courts.
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2. CONSULTANT'S OBLIGATIONS
2.1 The Consultant will provide the Services to the Client in accordance with
this Agreement. For the avoidance of doubt nothing in this Agreement shall
be construed as restricting or prohibiting the Consultant from at any time
providing services (whether or not similar to "the Services") to any third
party.
2.2 The Consultant will use all reasonable endeavours to provide the Services
to the Client within the Term but all timings agreed to by the consultant
are business estimates only (but given in good faith) and the Consultant
will not be liable for any loss, injury, damage or expense arising
directly or indirectly from any delay in respect of the Consultant's
performance of its obligations hereunder.
2.3 Without prejudice to any other obligation of confidentiality from time to
time subsisting between the Client and the Consultant, the Consultant
hereby undertakes (subject to the Client's written consent) not at any
time hereafter to disclose any Confidential Information to any third party
nor to use any Client's Confidential Information save (in either case) as
may be reasonably necessary for the purposes of providing the Services
hereunder.
3. CO-OPERATION BY CLIENT
3.1 The Client will as soon as is reasonably practicable after the signing of
this Agreement make available to the Consultant (in a form readily
accessible to the Consultant) all such information in the Client's
possession or control as is materially relevant to the services and
including without limitation the information and materials specified in
the Materials Appendix annexed hereto.
3.2 The Client will promptly provide to the Consultant such further
information as the Consultant may from time to time request.
3.3 The Client shall ensure that the person(s) named in the Personnel Appendix
annexed hereto is/are available to the Consultant at all reasonable times
for the purposes of liaison between the Client and the Consultant.
3.4 The Client will afford the Consultant every co-operation in relation to
this Agreement and the provision by the Consultant of the services
hereunder.
3.5 In the event that the Consultant requires information from the Client at
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any time then the obligations of the Consultant shall be suspended until
the Consultant receives such information. If such information is delayed
or withheld for more than 28 days then the Consultant may terminate this
Agreement by notice to the Client on terms that the Client will pay to the
Consultant the balance of the Fee [together with any further fees accrued
due under Clause 4] and a sum equal to the Consultant's loss of profit
resulting from such termination.
3.6 In the event that the Consultant finds it necessary or appropriate to
disclose to the Client any Consultant's Confidential Information then
without prejudice to any other obligation of confidentiality from time to
time subsisting between the Client and the Consultant the Client hereby
undertakes (subject to the Consultant's written consent) not at any time
to disclose any Consultant's Confidential Information to any third party
nor to use any Consultant's Confidential Information save (in either case)
as may be reasonably necessary for the purposes of providing the Services
hereunder.
4. FEES, EXPENSES AND PAYMENT
4.1 In consideration for the provision of the Services to be provided by the
Consultant under this Agreement, the Client agrees to pay the Consultant
the Fees. All payments to the Consultant shall be made against the
Consultant's invoices which shall be submitted to the client at the end of
each calendar month during the provision of the Services in respect of
work carried out during the period. All payments shall be made by the
Client within 30 days of the Consultant's invoice for such fees by cheque
or in such manner and currency as may be nominated by the Consultant.
4.2 The Consultant may at any time submit to the Client an invoice for
Expenses. Invoices which are exclusively for Expenses (i.e. not including
any Fees) are payable and will be paid by the Client within 30 days of the
invoice date. Invoices which are for fees and for Expenses are payable and
will be paid by the Client within 30 days of the Consultant's invoice.
4.3 If the Client fails to pay to the Consultant any sum due to the Consultant
hereunder when due then without prejudice to any other right of the
Consultant the Consultant may:
4.3.1 charge the Client interest before and after any judgement on such
overdue sums at a rate of 4% above the base rate per annum of the
National Westminster Bank PLC from time to time in respect of sums
which are overdue by no more than 60 days and
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at a rate of 6% above the base rate per annum of the National
Westminster Bank PLC from time to item in respect of sums which are
more than 60 days overdue, such interest to be charged weekly and
compounded until payment of such overdue sums in full together with
such interest; and/or
4.3.2 suspend provision of the Services until payment of such overdue sums
in full together with any interest charged under Clause 4.3.1.
5. FORCE MAJEURE
Neither party shall be liable to the other under this Agreement for failure to
carry out its provisions to the extent that such failure is caused by any cause
beyond the parties' respective reasonable control including without limitation
fire, war, riot, sabotage, sickness or industrial action. The Client or the
Consultant (as the case may be) shall promptly inform the other party of the
existence of such conditions of force majeure. In the event that such conditions
of force majeure continue or are expected to continue for more than 2 months the
parties shall consult together in order to find a mutually acceptable solution.
6. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise provided in any Protocol specified in the Services the Client
shall not use any Results for the purpose of making any submission to a
regulatory body or for the purpose of any advertising or publicity without prior
review by the Consultant to ensure accuracy of presentation of any Results used.
Following review, written confirmation will be provided by the Consultant to the
Client, such confirmation not to be unreasonably withheld. In addition the
Client shall ensure that its use of the results does not contravene any law,
regulation or code of practice.
7. LIABILITY
7.1 The Consultant will perform the Services with reasonable skill and care
but will effect the Services on the basis that they are not required for
any special purpose different from the usual purposes for which such
Services are required and the Client shall be deemed to have full
knowledge of the nature and consequences of the Services. It is the
Client's responsibility to satisfy itself that the Services are suitable
for its requirements and the Consultant does not profess to have any skill
or judgement in relation to the particular needs of the Client.
7.2 Subject to the warranty given in Clause 7.1 and as otherwise expressly
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provided herein all warranties and conditions, express or implied by law
or otherwise with respect to the Services are hereby excluded and the
Consultant shall not be liable to the Client for any loss or damage
whatsoever (including without prejudice to the generality of the foregoing
any liability in contract, negligence or any other tort for any indirect,
consequential or economic loss or for loss of profit or opportunity of any
kind) arising directly or indirectly in connection with the Services or
otherwise except insofar as any exclusion or limitation of the
Consultant's liability hereunder is prohibited void or enforceable by law.
7.3 The Client is solely responsible for the use which it makes of the Results
and for ensuring the safety and use of its products and for verifying the
accuracy of all information comprised in the Results when used in
promotional material or regulatory submissions.
7.4 The Client shall indemnify and hold harmless the Consultant from and
against all losses, costs, claims, demands and expenses accruing to the
Consultant arising out of any claim or cause of action with respect to any
loss of or damage to any property or any personal injury or death of any
person which is occasioned whether directly or indirectly by any act or
omission (whether negligent or not) on the part of the Client, its agents
or employees (including without limitation in respect of the use of the
results by the Client).
7.5 Where under the Services to be provided by the Consultant, there is a need
to effect contracts with third parties such contracts shall be made
directly between the Client and the third party unless otherwise agreed by
the Consultant and where the Consultant is charged with the negotiation of
the terms of such contracts, it does so as the agent of the Client and
without liability to the Client and/or the third party and the Client
hereby acknowledges that:-
7.5.1 it has sought and acts upon its own legal and professional advice as
to the terms thereof; and
7.5.2 does not rely upon any representation or warranty, implied or
otherwise on the part of the Consultant that the contract with the
third party is in a form appropriate and acceptable to enter into.
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8. TERMINATION
This contract may be terminated by either party at any time with one month's
written notice. Without prejudice to the rights of either party existing prior
to termination this Agreement may also be terminated by written notice:
8.1 Forthwith by the Consultant if the Client fails to pay to the Consultant
when due any sum payable hereunder.
8.2 Forthwith by either party if the other party is in breach of this
Agreement and fails in the case of a breach capable of remedy to remedy
the same or in the case of a breach not capable of remedy to pay
reasonable compensation in either case within 14 days of a written notice
requiring the defaulting party to remedy such breach or (as the case may
be) pay such reasonable compensation (which shall be specified in such
notice).
8.3 Forthwith by the Consultant if the Client adopts a resolution for its
winding up (unless the same be part of a solvent reconstruction or
amalgamation) or if any petition is presented for the appointment of an
administrator or a receiver or to wind up the Client or a receiver or an
administrative receiver is appointed in respect of any part of the
Client's undertaking or assets or if the Client suffers any other action
in consequence of debt or any analogous event under any foreign
jurisdiction occurs or if the Client is unable to pay its debts within the
meaning of Section 123 of the Insolvency Xxx 0000 (or any reenactment or
further enactment thereof) or if the Client makes or attempts to make any
arrangement or composition with or for the benefit of its creditors or
ceases to carry on business.
9. CONSEQUENCES OF TERMINATION
9.1 If this agreement is terminated by the Client in accordance with Clause
8.2 (but not otherwise) then the Client shall be entitled to retain any
materials provided to the Client by the Consultant in performing the
services and to use such materials in accordance with Clause 6 but
provided that the Client shall forthwith reimburse the Consultant all
Expenses and pay to the Consultant all other sums accrued due hereunder
together with a fair and reasonable proportion of the Fee and any further
Fees accrued under Clause 4 taking into account the time spent by the
Consultant in providing the Services.
9.2 If this Agreement is terminated by the Consultant in accordance with
Clause 8 (but not otherwise) then the Client shall forthwith at its own
cost and as directed by the Consultant return to the Consultant or destroy
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all materials embodying any Results (and certify to the Consultant that it
has done so), reimburse the Consultant all expenses and pay to the
Consultant the balance of the Fee outstanding together with any further
Fees accrued due under Clause 4 and a sum equal to the Consultant's loss
of profit resulting from such termination and all outstanding licenses
under the Intellectual Property Rights in the results shall forthwith and
automatically be revoked.
10. ASSIGNMENT AND SUBCONTRACTING
10.1 The Client will not assign any of its rights or obligations hereunder.
10.2 The Consultant may freely assign the whole or any part of this Agreement
and may sub-contract any of the services in its absolute discretion
notwithstanding the provisions of clause 7.5.
11. RELATIONSHIP OF PARTIES
Neither party shall be deemed by virtue of this Agreement to be the agent or the
partner of the other and the Client and the Consultant will respectively each
make clear in all dealings with third parties that it has no authority to make
representations on behalf of the other or to bind the other contractually with
any third party.
12. ENFORCEABILITY
If any of the terms hereof are held to be void or unenforceable by any reason of
law they shall be void or unenforceable to that extent only and no further and
all other terms shall remain valid and fully enforceable.
13. AMENDMENTS ETC
This Agreement together with all documents (if any) referred to herein and
annexed hereto embodies the entire agreement of the parties in relation to the
Services and this Agreement may not be amended except in writing signed by the
authorised representatives of both parties.
14. INDULGENCE
No indulgence granted by either party to the other in relation to any term
hereof shall be deemed a waiver of such term or prejudice the later enforcement
of that or any other term thereof.
15. NOTICES
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Any notice given hereunder shall be in writing and sent or delivered to the
address of the recipient party given above (or as from time to time otherwise
notified) by
16.1 Facsimile transmission and in which case it will be deemed received when
sent; or
16.2 Hand (including courier) and in which case it will be deemed received when
delivered; or
16.3 Air Mail (where appropriate) and in which case it will be deemed received
5 days after posting; or
16.4 Ordinary first class mail (where the recipient party is within the same
jurisdiction as the server) and in which case it will be deemed received 2
days after posting.
17. ARBITRATION
In the event of a dispute or difference between the parties as to the terms of
this Agreement or the Services to be performed or obligations operating as
between the parties, the matter shall be referred to the determination of an
independent arbitrator appointed by agreement between the parties or in default
of agreement by the President of the Institute of Arbitrators and who shall base
his determination upon English law and whose determination shall be final and
binding upon the parties.
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PERSONNEL APPENDIX
STAFF TO BE MADE AVAILABLE TO ASSIST IN THE PROVISION OF THE SERVICES
Dr Xxxxx Xxxxxxxx
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SERVICES APPENDIX
To provide advice relating to BioVex's clinical development programmes
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FEES APPENDIX
The Client shall pay to the Consultant:
L1400/L175.00(from January 1, 2006) for each Man Day/Man Hour exclusive of
Value Added Tax.
Expenses charged at cost
Petrol mileage at 60p/mile
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AS WITNESS the hands of the duly authorised representatives of the parties the
day and year first above written:
FOR BIOVEX LIMITED
Signed: /s/ Xxxxx Xxxx 15/9/06
Name: Xxxxx Xxxx
Position: Development Director
FOR OXFORD THERAPEUTICS CONSULTING LIMITED
Signed: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxx Xxxxxxx
Position: Director
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