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Exhibit 10.56
LICENSE AGREEMENT
This License Agreement (this "Agreement"), dated and effective as of
March 12, 2002 (the "Effective Date") is by and between SENETEK PLC, a British
public limited company ("Senetek"), with an office at 000 Xxxxxxx Xxxx, Xxxx,
Xxxxxxxxxx 00000, X.X.X. and Enprani Co., Ltd., a company duly organized and
existing under the laws of the Republic of Korea ("Korea") ("Enprani") and
having a place of business at 000 Xxxxxxxx-xxxx, Xxxxx-Xx, Xxxxx, Xxxxx 100-791.
RECITALS:
A. Senetek has developed and holds Korea Patent No. 196660 (the
"Patent") relating to the formulations and use as a cosmetic product of certain
formulations containing Kinetin.
B. Enprani wishes to acquire a license under the Intellectual Property
to manufacture, have manufactured, market, distribute and sell in the Market (as
defined below) skin care products containing [***] Kinetin by concentration,
pursuant to the terms and conditions of this Agreement.
C. Senetek is willing to grant Enprani a license under the
Intellectual Property to manufacture, market, distribute and sell such products
in the Market, pursuant to the terms and conditions of this Agreement.
D. The parties recognize and acknowledge that there is in effect a
Confidentiality and Non Use Agreement dated November 27, 2001 (the
"Confidentiality Agreement") pertaining to Enprani's use of Senetek's
confidential information relating to the Intellectual Property provided to
Enprani for certain evaluative purposes, which Confidentiality Agreement is
incorporated herein by reference.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 The Preamble and Recitals hereto are intended to be an integral
part of this Agreement, and the Preamble and Recitals hereto (including the
definitions set forth therein) are hereby incorporated by reference.
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1.2 As used in this Agreement, the capitalized terms shall have the
following respective meanings:
"Affiliate" with respect to Senetek or Enprani, any entity which,
directly or indirectly, owns or Controls, is owned or Controlled by, or is under
common ownership or common Control with Senetek or Enprani, as the case may be.
For purposes of this definition, ownership means the direct or indirect
beneficial ownership of more than 50% of the equity securities of the entity and
control means the power to direct the management or affairs of the entity.
"Contract Year" shall mean a period from January 1 of a calendar year
through December 31 of a calendar year; provided that the first Contract Year
shall commence on the Effective Date and continue through December 31, 2002.
"Improvement" shall mean any information, discovery, creation,
derivative work, or invention, whether or not patented or patentable or
copyrighted or copyrightable, based upon the Patent or the Know-How that is
developed or otherwise acquired after the Effective Date by Senetek or its
Affiliates.
"Intellectual Property" shall mean (i) the Patents, (ii) Know-How,
(iii) Published Data, such as clinical trial data, in each case owned or
controlled by Senetek or its Affiliates relating to the Products (or any
Product) as of the Effective Date and necessary for the manufacture, marketing,
distribution and sale of the Products (or any Product) in the Market.
"Know-How" shall mean such know-how, special knowledge, technical or
other information (including trade secrets and secret processes) such as
permeation and safety data, formulations, efficacy data and clinical trial
protocols, results and other information in connection with clinical trials,
whether or not patented or patentable, owned or controlled by Senetek or its
Affiliates as of the Effective Date specifically related to the development,
manufacture or use of the Products, but only to the extent any of the foregoing
is not subject to an agreement or commitment precluding Senetek from making it
available to Enprani.
"Market" shall mean the markets which shall be licensed to Enprani
both on an exclusive and non-exclusive basis, as set forth in Section 2.1 of
this Agreement. Excluded are in all cases markets where medical products are
bought and/or sold (i.e., drugstores, hospitals, etc.), as well as the mass
market characterized by low price points. Furthermore, any retail or other
distribution outlets are excluded to the extent that they sell outside of The
Republic of Korea.
"Packaging Requirements" shall have the meaning set forth in
Section 2.2.
"Products" or "Product" shall mean, individually or collectively, any
or all cosmetic products containing a Kinetin concentration of up to and no more
than [***] by concentration.
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"Senetek Confidential Information" shall mean marketing, sales,
financial, scientific, and other non-public and/or proprietary information
concerning the products, projects, business and operations of Senetek including
the manufacture, use, or sale of the Products disclosed by Senetek to Enprani.
"Territory" shall mean The Republic of Korea.
"Unit" shall mean an individual container of Product for sale to an
individual end user (it being understood that each container of product
regularly sold together with a 10 ml and 8ml "gift," "bonus," or other bundles
of limited quantities and limited time, shall constitute a Unit).
ARTICLE II
MANUFACTURING. SALE AND LICENSE
2.1 Grant of License. Senetek hereby grants to Enprani an exclusive
license (except for the non-exclusive right of Osmotics Corporation in the same
distribution channel) and right in the Intellectual Property during the Term
solely to manufacture, market, distribute and sell the Products to any stores
and outlets, regardless of size, that exclusively deal with cosmetics and skin
care products (collectively referred to as "Cosmetics Specialty Stores" or
"Perfumeries") through any wholesaler and/or retailer within the Republic of
Korea ("the "License").Senetek further agrees to grant to Enprani a
non-exclusive license and right in the Intellectual Property during the Term to
manufacture, market, distribute and sell the Products in any and all other
markets in The Republic of Korea, whether wholesale or retail, and including,
without limitation, sales of Products via the Internet, TV Shopping channels or
similar market channels, but exclusive of the mass market in the Republic of
Korea targeting bargain shoppers, such as supermarkets, discount markets,
hypermarkets, convenience stores, and exclusive of drugstores and other outlets
where medical products are sold. For the purpose of this Agreement, the term
"Market" as used herein throughout this Agreement shall refer to the markets
which Enprani shall be licensed both on an exclusive and non-exclusive basis as
set forth in this Section.
As soon as reasonably practicable after the Effective Date of this
Agreement, Senetek shall provide Enprani such of the Intellectual Property that
exists in written or electronic form that Senetek believes is necessary to
enable Enprani to manufacture the Products in accordance with the terms and
conditions of this Agreement.
2.2. Packaging. All Product packaging and inserts (if any) (i) shall
state that "Manufactured And Sold Under License from Senetek PLC, Korea Patent
Number 196660", (ii) shall comply with applicable law and, (iii) shall be
otherwise acceptable to Senetek in its reasonable discretion (collectively, the
"Packaging Requirements").
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2.3 Kinetin Raw Material. Enprani shall and shall cause its contract
manufacturers to purchase Kinetin from Senetek at Senetek's documented direct
cost, which is currently approximately [***]. In the case of Enprani purchasing
Kinetin from Senetek, Senetek agrees to deliver all Kinetin to Enprani or to a
designated address in Korea. Enprani shall have sole responsibility for
insurance, freight and other costs Senetek may incur, as well as duties, fees
and taxes imposed in Korea for such delivery, provided, however, that any taxes,
duties, fees, charges or assessments of any nature arising within the United
States and its subdivisions shall be borne by Senetek.
2.4 Product Formulations. Senetek shall have the right (but not the
obligation) to analyze Enprani's formulations of the Products for compliance
with Senetek's efficacy and safety standards, which are as follows: Senetek
shall provide its assay method to Enprani to conduct testing of any and all
formulations produced and marketed by Enprani to insure that such formulations
have less than [***] systemic absorption with a time interval of [***], such
testing to utilize either mass spectrometry techniques or radioactive tracers.
Senetek is granted with the right of analysis of random samples prior to
Enprani's full production of the Product. Senetek reserves the right to update
or change testing procedures and shall promptly give Enprani a written notice
thereof. Senetek shall be afforded a period of fifteen (15) days upon receipt of
the data to provide its written approval or disapproval of such formulations
with written reasons for its decision. If no written response is received from
Senetek within fifteen(15) days upon receipt of the data, such formulation shall
be deemed approved. No approval of any formulation by Senetek shall be deemed an
endorsement of such formulation or a determination by Senetek that such product
is safe or effective, nor shall the same be implied by Enprani to any person or
entity. After the manufacture of the Product has commenced, Enprani shall report
to Senetek, from time to time, the analysis results for L random samples of the
Units manufactured with lots specified. Senetek shall have the right to audit,
at Senetek's expense, random samples of the product formulations once a year
during normal business hours, and more frequently if an audit reveals that
product formulation standards deviate from those standards stated herein.
2.5 Enprani's Manufacturing Sites. Enprani (i) will provide Senetek
with access to any manufacturing sites operated by Enprani or its contract
manufacturers that produce Products and (ii) agrees to provide Senetek access to
and in conducting reasonable inspections of any manufacturing sites that
manufacture Products for Enprani solely for the purpose of ensuring compliance
with Senetek's standards in accordance with the following: (i) such
manufacturing site shall comply with cosmetic GMP standards and shall be free of
bacteria (i.e., subject to microbiological testing); and (ii) if necessary each
batch to be analyzed by Enprani to insure that the concentration is [***].
Senetek shall bear any costs and expenses (i.e., air fare, lodging, meals and
out-of-pocket expenses) incurred by Senetek's employees in connection with their
visit to Enprani's manufacturing sites and conducting inspections thereof,
except where such inspection uncovers material non-compliance with this
Agreement in which event Enprani shall reimburse Senetek for the reasonable
costs of inspection. Senetek shall not conduct such inspections more than once
per quarter; provided, however, that in any quarter in which Enprani fails
inspection and the following quarter, Senetek may conduct such inspections as it
deems reasonably necessary.
2.6 Marketing Materials. Senetek shall have the right to pre-approve
Enprani's marketing materials to confirm that any representations are clinically
factual and the contents of the marketing materials are in compliance with, and
do not subject Senetek to unreasonable liability under all applicable laws
(including, but not limited to, the laws of the United States, the United
Kingdom and Korea). No such review or approval by Senetek shall constitute a
representation to Enprani or any other person or entity that such marketing
materials are accurate, in compliance with law or otherwise appropriate. No
marketing materials or other statements by Enprani or its Affiliates shall state
or imply any comparative advantages of Kinetin based on concentrations thereof.
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2.7 No Other Rights. It is expressly understood that this Agreement
grants no rights to Enprani except those expressed rights set forth in Section
2.1. Without limiting the foregoing, it is understood and agreed that Enprani
shall (i) not sell or permit the sale of Products outside the Market specified
with respect thereto and (ii) not have any rights with respect to Improvements,
except as set forth in Section 2.8. below. Upon any termination of this
Agreement for any reason, all rights granted by this Agreement shall terminate
and Enprani shall have no right of any kind with respect to the Products,
Intellectual Property or Senetek's Improvements other than the right to complete
the sale of Products then lawfully in its possession subject to the payment of
royalties pursuant to Section 3.1.
2.8 Improvements. During the Term, Enprani shall have a right of first
offer to obtain the right to sell in the Market any Improvement on a
non-exclusive basis; provided, however, that (x) such right of first offer shall
not apply with regard to products that are protected through patents or other
exclusivity as to, owned by, or vested in a third party and as to which Senetek
or its Affiliates have not acquired the right to grant marketing rights to
others, and (y) if Enprani fails to obtain any requisite regulatory approval to
sell such Improvement in the Market within twelve (12) months from the date the
parties execute an agreement governing the sale of such Improvement in the
Market, such agreement shall terminate and all such rights of Enprani with
respect to such Improvement shall revert to Senetek. Enprani shall have thirty
(30) days from the date that Senetek notifies Enprani that such an Improvement
is to or may become available for sale to deliver an offer to Senetek setting
forth in reasonable detail the terms upon which Enprani would purchase, market
and sell such product. If Senetek elects not to accept Enprani's offer (or if no
offer is made within such period), Senetek shall be free to grant such rights to
others, exercise such rights itself, or any combination thereof, all in
Senetek's sole and absolute discretion. Nothing in this Section 2.8 shall give
Enprani any rights with respect to any use or sale, including prior use or sale,
of Improvements outside the Market. Improvements remain the property of Senetek
unless, prior to commencement of any joint research and development efforts, the
parties agree that the results shall be jointly owned and the parties formally
agree in writing on the terms of such joint ownership.
ARTICLE III
TERMS OF LICENSE AND SALE
3.1 Royalty. In consideration of the licenses and rights set forth in
Section 2.1, Enprani shall pay a royalty to Senetek equal to [***] per Unit
sold. Exempt from royalty payment are a reasonable amount of up to 10 ml
consumer samples Enprani distributes free of charge in the Market. Royalties are
due and payable on any Product containing Kinetin and irrespective of the
validity of the Patent, and with respect to all sales in each Calendar Quarter
within thirty (30) days after the end of such Calendar Quarter. All such
payments shall be made by wire transfer either to [***], or to such other bank
as Senetek may from time to time advise. Royalty payments shall be accompanied
by a reasonably detailed accounting setting forth the basis upon which such
payment was calculated. Late payments shall be subject to a monthly processing
fee of one percent (1%) of the amount overdue or, if such amount is not
permitted by law, the maximum amount permitted by law. The timely payment of
royalties shall be a material term of this Agreement.
3.2 Lump Sum Royalty Payment. Upon signing to this Agreement a royalty
lump sum payment by Enprani of [***] is due, it being understood that this [***]
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payment by Enprani shall have completely satisfied its obligation for the first
[***] Units of Products manufactured and sold by Enprani (excluding free gift
and consumer samples of up to 10 ml content), as well as the minimum sales
requirement of the first twelve months of the License and the corresponding
royalty payments therefore. Such royalty shall be paid as follows: [***]
upon signing of the Agreement; [***] upon any manufacturing of Products
(excluding consumer samples) by or for Enprani on or after the Effective Date,
however, not later than 30 days after the Effective Date.
3.3. Minimum Sales Requirements. During the first two Contract Years,
Enprani shall sell not less than [***] Units during each Contract Year, and
during each subsequent Contract Year Enprani shall sell not less than [***]
Units per year (the "Minimum Sales Requirements"). In case the First Contract
Year consists of less than 12 calendar months, the Minimum Sales Requirement for
that First Contract Year shall be reduced by [***] Units for each full calendar
month missing. The Minimum Sales Requirement may be met with any combination of
Units (including line extensions and/or additional formulations) sold by Enprani
pursuant to this Agreement. In the event Enprani fails to meet the Minimum
Purchase Requirement, Senetek's sole remedy shall be termination of the
Exclusivity Right as per Section 7.2. below.
3.4 Books and Records. Enprani shall keep books and records sufficient
the accuracy and completeness of its accounting referred to above, including
without limitation inventory, cost, sales, purchase and invoice records relating
to the Products or their manufacture, purchase and sale. Such books and records
shall be preserved for a period not less than six (6) years after they are
created during and after the Term of this Agreement. Notwithstanding the
foregoing and unless otherwise agreed or this is a dispute outstanding, all
books and records may be destroyed within six months from the effective date of
termination of this Agreement.
3.5 Audit Right. Enprani shall take commercially reasonable steps
necessary so that Senetek may, within thirty (30) days of Senetek's request,
review portions of the books and records which contents are reasonably necessary
to verify the accuracy of Enprani's royalty payments at a single Korean
location. Such review may only be performed by a US or Korean licensed certified
public accountant designated by Senetek upon reasonable prior notice and during
regular business hours. Senetek shall conduct no more than two (2) reviews
during any Contract Year, provided, however, that if any such Audit reveals an
underpayment of royalties of more than 2%, Senetek may conduct such additional
Audits during that Contract Year and the immediately following Contract Year, if
any, as it reasonably deems necessary. Senetek shall also have the right to
audit Enprani's manufacturers of Products for the purpose of confirming the
quality of Products as well as quantity audits to support verification of the
accuracy of Enprani's royalty payments. The Senetek shall bear its own expenses
in connection with all audits under this Section 3.4, except that Enprani shall
pay for Senetek's expenses for any such audit which reveals that Enprani
underpaid its royalties by more than five (5) percent in any quarter.
3.6 Market forecasts. Enprani shall provide Senetek with a rolling
twelve (12) month forecast of its anticipated sales of Products under this
Agreement to be updated quarterly, and delivered to Senetek at least thirty (30)
days in advance of the first day of the period required to be forecasted.
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3.7 Notice of Non-Performance. Enprani shall notify Senetek in writing
promptly in the event Enprani is not in compliance with any material obligation
of Enprani under this Agreement.
ARTICLE IV
MARKETING: REGULATORY APPROVALS
Enprani shall be solely responsible for and shall take commercially
reasonable actions to register the Products for sale in Korea within the Market,
if and where so required, and obtain all other governmental approvals necessary
to sell the Products. Senetek shall provide commercially reasonable assistance
to Enprani in connection with, and shall promptly provide Enprani with all
reasonably necessary information within its possession, and shall use
commercially reasonable efforts to obtain and provide Enprani with all other
reasonably necessary information to permit the proper registration of, or
obtaining approval for the sale of, Products where required.
ARTICLE V
REPRESENTATIONS. WARRANTIES AND COVENANTS
Each of the parties hereto represents and warrants to the other that:
(i) it is duly organized, validly existing and in good standing in accordance
with the laws of its jurisdiction of organization; (ii) it has all requisite
legal and corporate power and authority to enter into and perform its
obligations under this Agreement: (iii) it has duly authorized the entry into
and performance of its obligations under this Agreement by all requisite
corporate actions; (iv) when executed by the presidents whose names appear on
the signature page hereof, this Agreement shall be a legal, valid and binding
obligation of such party enforceable in accordance with its terms, subject to
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and general principles of equity; (v) its execution and delivery and performance
of its obligations under this Agreement do not breach, violate, conflict with or
contravene in any material respect (A) its organizational documents, (B) any
laws, rules, regulations, orders, judgments or decrees applicable to or binding
upon such party or its property, or (C) any other agreement, instrument,
mortgage, indenture, contract, license or other document to which it is a party
or by which it is bound; (vi) it has obtained all governmental and third party
consents and made all filings and notices required in connection with its
execution, delivery and performance of this Agreement, and all such consents,
filings and notices remain in full force and effect; and (vii) it will comply in
all material respects with all applicable laws, rules and regulations in the
conduct of its responsibilities and activities under this Agreement.
Enprani hereby warrants and represents that it has no involvement in
the relationship between Senetek and OMP, Inc. and has no responsibility thereto
and that Senetek did never interfere in their former relationship with OMP, Inc.
and that Enprani terminated its relationship with OMP, Inc. independently from
Senetek and for reasons not connected with Senetek.
Senetek warrants that as of the date of this Agreement, Senetek is not
aware of any actual or threatened suit by any third party claiming that
Senetek's licensing of the Intellectual Property in Korea infringes the rights
of such third party or claiming that any of the Intellectual Property is invalid
or unenforceable. Senetek further covenants that all Kinetin raw material
supplied by
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or on behalf of Senetek to Enprani shall be consistent with the specifications
attached as Exhibit B, and the price of Kinetin raw material shall be at least
equal to the price offered to other licensees of Senetek in similar situations.
ARTICLE VI.
NOTIFICATION OF INFRINGEMENT
During the Term, Enprani shall promptly advise Senetek in writing of any
infringement, imitation or act by third parties inconsistent with ownership or
any act of unfair competition by third parties (any of the foregoing shall be
referred to as an "infringement") relating to any of the Intellectual Property
wherever and whenever such infringement or act shall come to the attention of
such party.
ARTICLE VII.
TERM AND TERMINATION
7.1 Term. The term of is Agreement (the "Term" hall be five (5) years
from the Effective Date unless terminated earlier pursuant to the terms of this
Agreement. The Term of this Agreement shall be automatically renewed on an one
year basis unless either party gives the other party a written notice of
termination ninety (90) days before the end of the relevant Contract Year.
7.2. Termination of Exclusivity. Senetek shall have the right to
terminate the exclusivity of the license granted to Enprani in this Agreement by
written notice to Enprani 90 days after the end of any Contract Year in which
Enprani failed to satisfy the Minimum Sales Requirement as set forth in Section
3.2 of this Agreement. In the event Enprani fails to provide sales data as
required by this Agreement or such sales data is inaccurate, Senetek shall have
a period of 90 days after the date accurate sales data are provided to make its
election, if applicable, under this Section 7.2.
7.3 Termination for Cause. Each party shall have the right to
terminate this Agreement at any time upon written notice to the other in the
event if (i) the other party breaches any provision of this Agreement in a
material aspect and fails to cure such breach within 30 days after receipt of
written notice from the non-breaching party specifying such breach or (ii) the
other party is declared insolvent or bankrupt by a court of competent
jurisdiction, or a voluntary petition of bankruptcy is filed in any court of
competent jurisdiction by the other party, or the other party makes or executes
any assignment for the benefit of creditors.
Senetek shall have the right to terminate this Agreement if Enprani's
payments under Section 3.1 are not received within fifteen (15) days of the date
they are due without providing notice, in which case Enprani shall cease all
manufacturing of, or causing to be manufactured, selling or distributing
Products, and shall provide an accounting with respect to the Calendar Quarter
for which payment was not received.
Upon any termination of this Agreement for any reason, Enprani shall
have no right of any kind with respect to the Products, Intellectual Property or
Senetek's Improvements other than the right to complete the sale of Products
then lawfully in its possession subject to the payment of royalties pursuant to
Sections 3.1.
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ARTICLE VIII
INDEMNIFICATION. INSURANCE AND LIMITS ON LIABILITY
8.1 Indemnification by Enprani. Enprani shall defend, indemnify, and
hold harmless Senetek, its officers, agents, employees and affiliates from any
loss, claim, action, damage, expense or liability (including defense costs and
attorneys' fees) (collectively "Claims") arising out of or related to a breach
or alleged breach of any representation, warranty or covenant made by Enprani
herein, or the manufacture, handling, possession, marketing, sale or other use
of Products by Enprani, except insofar as such claims arise from Senetek's
negligence or breach of any representation, warranty or covenant made by Senetek
under this Agreement.
8.2 Indemnification by Senetek. Senetek shall defend, indemnify, and
hold harmless Enprani, its officers, agents, employees and affiliates from any
Claims arising out of or related to (i) a breach or alleged breach of any
representation, warranty or covenant made by Senetek herein or (ii) any claim by
any person or entity other than Enprani or its Affiliates that the use of the
Intellectual Property in Korea by Enprani in accordance with the terms of this
Agreement infringes the rights of such person or entity, except with respect to
either (i) or (ii) insofar as such claims arise from Enprani's negligence or
breach of any representation, warranty or covenant made by Enprani in this
Agreement, or any Claims in connection with its relationship and/or contract
with OMP, Inc.; provided, however, that in the event of any claim of
infringement or in the event Senetek reasonably believes such a claim is likely
to be brought, then so long as Senetek shall undertake in writing to indemnify
and hold harnl1ess Enprani from and against any damages payable as a result of
infringement prior to the date of Senetek's indemnification undertaking, Senetek
may at its sole election either (a) obtain such rights at its expense as are
necessary to avoid such infringement, or (b) substitute non-infringing
technology of substantially equivalent functionality or (c) terminate this
Agreement upon written notice to Enprani and in the case of this clause (c), if
Enprani elects by written notice to Senetek to re-sell to Senetek its inventory
of Products, payment to Enprani of an amount equal to Enprani's actual direct
production cost of any number of up to six months sales (measured according to
the preceding six months sales) of Units held in inventory by Enprani.
8.3 Insurance. Enprani shall maintain at its expense commercial
insurance as the solely responsible party for product liability coverage in
accordance with the relevant laws of Korea. Within thirty (30) days after the
date of this Agreement, Enprani shall furnish to Senetek certificates evidencing
its insurance, Senetek's designation as an additional insured, and such notice
requirement. Senetek may elect to suspend its performance under this Agreement
until any insurance required to be maintained by Enprani is in place and such
certificates of coverage are provided, and may thereafter suspend its
performance if it reasonably believes such insurance is not in place until
Enprani provides Senetek reasonable assurance that such coverage is in place
without any gap in coverage during the Term and will be maintained as required
by this Agreement.
As promptly as practicable, and in any event within 180 days of the
date hereof, Senetek shall obtain at its expense commercial insurance for patent
related defense and damages expenses in amounts reasonable in relation to the
projected volume of sales of the Products by Enprani and such policy shall name
Enprani as an additional insured. Within 180 days after the date of this
Agreement, Senetek shall furnish to Enprani certificates evidencing its
insurance, Enprani's designation as an additional insured, and such notice
requirement. Enprani may elect to suspend its performance under this Agreement
until any insurance required to be maintained by Senetek is in place and such
certificates of coverage are provided, and may thereafter suspend its
performance if it reasonably believes such insurance is not in place until
Senetek provides Enprani reasonable assurance that such coverage is in place
without any gap in coverage during the Term and will be maintained as required
by this Agreement.
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8.4 No Consequential Damages. Neither party shall be liable to the
other for consequential damages, lost profits, injury to reputation or similar
claims, except for (a) claims that include consequential damages paid to
entities that are not Affiliates of an indemnified party or (b) consequential
damages incurred by Senetek as a result of Enprani selling Product outside of
the Market; Provided that nothing in this sentence shall be construed to limit
in any way Enprani's obligation to pay the royalties and other amounts due to
Senetek under this Agreement. UNDER NO CIRCUMSTANCES SHALL SENETEK OR ITS
AFFILIATES HAVE ANY LIABILITY ARISING FROM THIS AGREEMENT IN EXCESS OF THE
HIGHEST AGGREGATE AMOUNT PAID AS ROYALTIES OVER THE COURSE OF ANY THREE
CONSECUTIVE CONTRACT YEARS. Each party acknowledges and agrees that, but for the
limitations of liability set forth in this Section, the other party would not
have entered into this Agreement upon the terms set forth herein and that such
limitations are a material part of this Agreement. Notwithstanding the
foregoing, however, in the case where damages are incurred by Enprani as a
result of negligence or defect in the Patent or any other Intellectual Property
provided by Senetek, Senetek shall only be fully liable and compensate Enprani
for all direct damages.
8.5 Recalls. In the event any Product(s) must be recalled from
distribution by reason of failure to meet any requirements of law or otherwise
(except as provided below), Enprani shall have the sole responsibility to effect
the recall and shall bear all expenses in connection therewith. Senetek shall
use its commercially reasonable efforts to cooperate with Enprani in
implementing any such recalls to the extent such cooperation is necessary to
effect the recall. Senetek shall be entitled to indemnification by Enprani for
the expense of such cooperation as set forth in Section 8.5. In the event recall
is solely the result of ingredients supplied by Senetek or its supply
subcontractors (other than Enprani or its supply subcontractors), Senetek shall
bear all such expenses.
8.6 Survival of Obligations. Each party's obligations under this
Article VIII shall survive the expiration or termination of this Agreement.
8.7 Limitation of Liability. Notwithstanding anything to the contrary
in this Agreement, in no event shall any party be liable to the other party or
any third party for any indirect, incidental, special or consequential damages
under any causes of any action, even if such party has been advised of the
possibility of such damages; provided that the liability limitation contained in
this Section 8.7 shall not apply to the parties' obligation to indemnify each
other against third party Claims pursuant to Sections 8.1 and 8.2.
ARTICLE IX
CONFIDENTIAL INFORMATION
9.1 Treatment of Prior Agreement. The Parties acknowledge that the
Confidentiality Agreement incorporated herein by reference pertains to use of
"Confidential Information" (as defined under such Confidentiality Agreement) for
certain evaluation purposes distinct from those uses contemplated hereunder and
addressed in this Article IX. Accordingly, the terms of such Confidentiality
Agreement shall not apply to uses of Senetek Confidential Information
contemplated in this Article IX.
9.2 Non-disclosure of Senetek Confidential Information. With respect
to each disclosure, without the express written consent of Senetek, Enprani
shall not (a) use Senetek Confidential Information except to perform its
obligations under this Agreement, (b) disclose Senetek Confidential Information
to any person or entity (except to its employees and agents who reasonably
require the same for the purpose hereof and who are bound to Enprani by the same
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obligations as to confidentiality), or (c) disclose Senetek Confidential
Information to any person or entity that competes with Senetek, unless such
disclosure is required by a governmental authority or by order of a court of
competent jurisdiction.
9.3 Misuse of Enprani Confidential Information Prohibited. The parties
shall not misuse any information (including market and competitors' information)
obtained or acquired from each other during the Term of this Agreement, whether
they are indicated confidential or not.
9.4 No Implied License. The furnishing of confidential information by
one party to the other shall not constitute any grant, option or license to the
other under any patent or other rights now or hereafter held by the furnishing
party.
9.5 Survival. The provisions of this Article IX shall survive
termination of this Agreement and continue for a period five (5) years.
ARTICLE X
MISCELLANEOUS
10.1 Governing Law. The validity, interpretation and performance of
this Agreement shall be governed and construed in accordance with the laws of
Switzerland (without application of conflict of laws principles thereof).
10.2 Assignment. The parties may not assign this Agreement or any
rights or obligations hereunder without the prior written consent of the other
party, such written consent not to be withheld unreasonably; provided, however,
that no such assignment shall relieve the parties of their obligations under
this Agreement.
10.3 Entire Agreement. This Agreement and the Confidentiality
Agreement constitute the full understanding of the parties and a complete and
exclusive statement of the terms of their agreement. All prior agreements,
negotiations, dealings and understandings, whether written or oral, regarding
the subject matter hereof, are hereby superseded and merged into this Agreement;
except for the Confidentiality Agreement between the parties.
10.4 Amendments. This Agreement shall not be modified, rescinded or
waived except in writing signed by the party to be bound thereby.
10.5 Notices. Any notice, request, approval or other document required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been sufficiently given when delivered in person or by courier
service of established reputation to the President of the subject party at the
address for such subject party specified in the Preamble hereto or to such other
address as may be specified from time to time in a written notice to the other
party.
10.6 Headings for Convenience. Section and article headings are
provided for convenience of the parties only and shall not be construed as a
part of this Agreement or a limitation on the scope of the particular sections
and articles to which they refer.
10.7 Partial Invalidity. If any term or provision of this Agreement or
any application thereof shall be invalid or unenforceable, the remainder of this
Agreement or any other application of such term or provision shall not be
affected thereby.
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10.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original and all of which
together shall constitute a single instrument.
10.9 No Joint Venture. It is not the intent of the parties hereto to
form any partnership or joint venture. Each party shall, in relation to its
obligations hereunder, act as an independent contractor, and nothing in this
Agreement shall be construed to give either party the power or authority to act
for, bind or commit the other.
10.10 Dispute Resolution; Binding Arbitration. Senetek and Enprani
agree to binding arbitration of any and all disputes or claims arising out of or
relating to this Agreement. Any arbitration shall be conducted in Switzerland,
unless otherwise agreed by the parties in writing. Each and any arbitration
shall be administered by a panel of three members under the auspices of the
International Chamber of Commerce in accordance with ICC's Rules on Conciliation
and Arbitration, as may be amended from time to time. All proceedings shall be
conducted in the English language. The decision or award of the panel shall be
final, binding and incontestable and may be used as a basis for judgment thereon
by any court of competent jurisdiction. Accordingly, there shall be no appeal to
any court or other authority from the decision of the arbitration panel, and the
parties shall not dispute nor question the validity of such decision or award
before any regulatory or other authority in any jurisdiction where enforcement
action is taken by the party in whose favor the decision or award is rendered,
except in the case of fraud.
10.11 Exceptions to Binding Arbitration. Notwithstanding Section
10.10, (i) Senetek shall have the right to seek injunctive relief from any court
of competent jurisdiction in order to prevent immediate and irreparable injury,
loss, or damage, including, without limitation, in the event of termination of
this Agreement under Section 7.3 for the nonpayment of royalties, (ii) any and
all issues regarding the scope, construction, validity and enforceability of one
or more patents shall be determined in a court of competent jurisdiction under
the local patent laws of the jurisdictions having issued the patent or patents
in question, and (iii) ALL ACTIONS OR PROCEEDINGS CONTEMPLATED UNDER THIS
SECTION 10.11 SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN SWITZERLAND. THE
PARTIES HEREBY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY COURTS LOCATED
WITHIN SWITZERLAND, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION IT
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS.
10.12 Attorney's Fees and Costs. In the event of any dispute
concerning or arising out of this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs.
10.13. Force Majeure. The performance or observance by either party of
any obligations of such party under this Agreement may be suspended by it, in
whole or in part and without liability, to the extent (and only to the extent)
any of the following prevents such performance or observance: (a) Act of God,
war, riot, uprising, fire, explosion, accident, flood, sabotage, lockout or
injunction, (b) national defense requirement; (e) compliance with governmental
laws, regulations, rules, orders or actions; or (f) any other cause (whether
similar or dissimilar) beyond the reasonable control of such party; provided,
however, that the party so prevented from complying with its obligations (i) has
taken commercially reasonable steps to avoid the effects of such Force Majeure
event and (ii) shall immediately notify in writing the other party thereof and
such party so prevented shall exercise diligence in an endeavor to remove or
overcome the cause of such inability to comply.
To evidence their agreement, the parties have executed this Agreement
as of the date hereto affixed.
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SENETEK PLC
BY /s/ XXXXX X. XXXXXXX
-----------------------------------
XXXXX X. XXXXXXX, ITS PRESIDENT DATE: Xxxxx 00, 0000
XXXXXXX CO., LTD.
BY /s/ XXX-XXXX, XXX
-----------------------------------
XXX-XXXX, XXX, ITS PRESIDENT DATE: March 12, 2002
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