CONFIDENTIAL TREATMENT REQUESTED Confidential Portions of this Agreement Which Have Been Redacted Are Marked With Brackets “[***]”. The Omitted Material Has Been Filed Separately With The Securities and Exchange Commission. LICENSING AND DISTRIBUTION...
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CONFIDENTIAL
TREATMENT REQUESTED
Confidential
Portions of this Agreement Which Have Been Redacted
Are
Marked With Brackets “[***]”. The Omitted Material Has
Been
Filed
Separately With The Securities and Exchange Commission.
Agreement
made this 6th
day
of
June, 2007, between Laboratoires Carilène S.A.S a corporation existing under the
laws of France, and having its principal place of business at 0, xxx xx Xxxxx
xxx Xxxxxxx, 00000 Xxxxxxxxx-Xxxxxx (hereinafter referred to as “Supplier”),
and
Auriga Laboratories, Inc.,
existing
under the laws of the State of Delaware, U.S.A,
having
its principal place of business at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX 00000 U.S.A.
(hereinafter referred to as “Buyer”).
WITNESSETH
:
WHEREAS,
The
Supplier desires to sell and the Buyer desires to buy the Product defined below
and described in Exhibit C hereto; and
WHEREAS,
The Supplier
is willing to furnish all of Buyer’s requirements for the Product and Buyer is
willing to purchase all of its requirements for the Product from Supplier,
subject to Supplier’s ability to meet Buyer’s demand for the Product;
and
WHEREAS,
The Buyer shall be the exclusive distributor of the Product in the Territory.
Supplier
is the exclusive owner of an invention relating to the use in treatment for
alopecia and the subject of United States Patent No. 6,001,378 and subject
to a
PCT filing number PCT/FR97/00141 filed January 24, 1997, as listed in Exhibit
D
attached hereto, and all claims therein, that covers the Product (hereinafter
called the “Invention’); and
WHEREAS,
The Supplier
will transfer to the Buyer the Information, as well as scientific and marketing
data which are essential to the manufacture and commercial exploitation of
the
Product.
NOW
THEREFORE, this
Agreement witnesses that for and in consideration of the respective covenants
and agreements herein contained, it is agreed by and between the parties as
follows:
ARTICLE
1
DEFINITIONS
| 1.1. |
Definitions.
For the purpose of this Agreement or any amendment thereto, the following
terms shall have the following meanings,
respectively :
|
1.1.1.
“Product(s)” shall mean combinations, in particular for use as the active
principle in a cosmetic and particularly dermatological composition, containing
peroxidised lipids and organosilicon compounds containing them, as well as
their
applications, including but not limited to the combination known in Europe
as
“Silicium 44 Lotion” and “Silicium 44 Shampoo” as covered by the Patent and all
other Supplier intellectual property rights and as further described in Exhibit
C and covered by the Patent listed in Exhibit D. Product shall include all
successor products and all line extensions, upgrades, new formulations and
the
like. Product shall also include sample packages as mutually agreed to between
the parties from time to time.
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1.1.2.
“Territory” shall mean the United States of America and its possessions and
territories
1.1.3.
“Information” shall mean all trade secrets, data, information and know-how
related to the Invention, Product and the Patent.
1.1.4.
“Patent” means the U.S.A. Patent No. 6,001,378, as described above and further
described in Exhibit D, including all divisionals, reissuances, reexaminations,
foreign counterparts and the like.
1.1.5
Transfer price shall mean the price in EURO, paid by the Buyer to Supplier
for
the Product as described below in Article 5.4
1.1.6
“FCA” shall have the meaning ascribed thereto in INCOTERMS 2000 of the
International Chamber of Commerce, meaning, among other things, that Supplier
shall deliver the goods cleared for export, at Supplier’s expense, and Buyer
shall clear, at its expense, the goods for import into the
Territory.
1.1.7
“Quality Assurance Agreement”: The Quality Assurance Agreement shall ensure all
applicable governing laws, rules and regulations including but not limited
to
those relating to Good Manufacturing Practices (GMPs) and under the European
guide line of registration of Cosmetic file (see appendix).
1.1.8
“Manufacturing Package” means all Information and instructions necessary to
enable a third party to manufacture the Product if permitted pursuant to this
Agreement.
1.1.9
“Net Sales” means all amounts actually received by the Buyer as a results of its
sales of Products less all the deductions for discounts, products
Rebates,
forces or mandated wholesales/distributors fees, rebates to other government
agencies or purchasing associations, returns, charges back and imported fess.
These rebates cannot exceed 15% of gross sales.
ARTICLE
2
REQUIREMENTS
AND EXCLUSIVITY
2.1.
License. Except
as
otherwise explicitly provided for in this Article 2, Supplier hereby grants
to
Buyer the exclusive (even as to Supplier) right, under all applicable worldwide
intellectual property rights, to sell, market, distribute, sublicense and
exploit the Product in the Territory under The trade name of Silicium 44 (Lotion
and Shampoo). Except as otherwise explicitly provided for in this Article 2,
Buyer is also hereby granted an exclusive right and license, under all
applicable worldwide proprietary rights, to make, have made, use, sell, have
sold, market, distribute, sublicense and manufacture the Product, but only
if
and when expressly authorized under the terms and conditions of this Agreement.
2.2 Sale
of Requirements.
During
the term of this Agreement, Supplier agrees to sell to Buyer all of Buyer’s
requirements of the Product in accordance with the terms of this Agreement.
If
Supplier is unable to supply all of Buyer’s requirements, Supplier shall, as
Buyer’s sole remedy, use commercially reasonable efforts to provide Buyer, at
prices at or lower than those set forth in this Agreement, with the Product
from
other sources to avoid out-of-stock situations. Notwithstanding the foregoing,
if Supplier is unable to supply Buyer’s requirements two (2) or more times
during a ninety (90) day period, then Buyer shall have the right to require
qualification of a second manufacturer, of Buyer’s choice, to manufacture the
Product for Buyer by using the Manufacturing Package. Such additional
manufacturer shall be subject to the confidentiality restrictions set forth
herein.
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2.2.1
Purchase of Requirements.
During
the term of this Agreement, Buyer agrees to buy from Supplier all of Buyer’s
requirements for the Product in accordance with the terms of this
Agreement.
2.3.
Exclusivity.
During
the term of this Agreement, except with respect to, Supplier agrees not to
distribute or sell the Product directly or indirectly to any other party for
the
purpose of use or sale in the Territory in accordance with Article 2.1. If
during the Term of the Agreement, Buyer at any time notifies Supplier that
a
party is distributing or selling Product in the Territory Supplier agrees that
it will take all action necessary to immediately halt all sales (direct and
indirect) of Product to such party that is distributing or selling in the
Territory providing that the source of the product is identified to be the
Supplier. In the event any damages are recovered as a result of Supplier’s
actions, after reimbursing Supplier its reasonable costs to take such action,
all remaining proceeds shall belong to Buyer, subject to the royalty set forth
in Article 5.3 If the source of the Product is other than Supplier, then Buyer
shall have the right, by virtue of the exclusive license granted in Article
2.1,
to take action against such third party, and all proceeds of any such action
shall belong solely to Buyer, subject to the royalty set forth in Article
5.3.
2.4.
No Sales Outside the Territory.
Buyer
shall not, without the prior written approval of Supplier (to be granted or
withheld in Supplier’s sole and absolute discretion), directly or indirectly
sell Product outside the Territory, advertise, promote or solicit customers
for
Product outside the Territory, establish any office outside the Territory
through which orders are solicited or establish any depot at which inventories
of Product are stored outside the Territory.
2.5 Right
of First Refusal.
In the
event Supplier decides to grant an exclusive right to distribute and sell any
further Supplier products in the Territory, and such products are not included
under the definition of Products set forth in this Agreement, Supplier shall
provide Buyer the first opportunity to obtain such exclusive right for such
products upon mutually agreed upon terms and conditions. Upon receiving
information regarding new Products, Buyers shall have 90 days to exercise right
of first refusal.
ARTICLE
3
REPRESENTATIONS
3.1.
Representations of Supplier.
The
Supplier represents that:
3.1.1.
Supplier
is the exclusive owner of all rights, title and interest in and to the
Invention, Patent, and Information, and has the right to grant to Buyer the
rights and licenses set forth in this Agreement. The Invention and Products
are
completely safe for human use and does not have any direct or indirect adverse
health effects.
3.1.2.
As
of the
date of this Agreement, other than the Patent, Supplier has not filed, or caused
to be filed in the U.S., patent applications, or obtained in its name or caused
to obtain in the name of others, any other patent based on or relating to the
Invention, Information or devices or methods similar to the
Invention.
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3.1.3.
Supplier
has, and will continue to, comply with all applicable laws, rules and
regulations with respect to the development, manufacture, sale, use and
distribution of the Product (“Laws”).
3.2.
Information.
Supplier shall furnish to Buyer, or its nominees, any Information reasonably
required (as determined by Supplier and Buyer) by Buyer to commercialise and
exploit the use of the Invention and the Products permitted under this
Agreement, including without limitation the clinical data and related materials
that were conducted on the Invention and/or Products.
3.3.
Buyer
represents that Buyer (i) will adhere to all applicable laws, rules and
regulations, relating to the sale of Product in the Territory; and (ii) will
store the Product in appropriate conditions and facilities (as instructed by
Supplier).
ARTICLE 4
GENERAL
OBLIGATIONS
4.1.
Buyer’s Obligations.
Marketing
and distribution.
In
addition to any and all other obligations and liabilities of Buyer as provided
in this Agreement, Buyer or Buyers successors shall use commercially reasonable
efforts to promote and market the Product for sale according to the business
plan covering the first 3 years communicated to Supplier.
4.2 Supplier’s
Obligations.
4.2.1.
Lead time:
Lead
time for Products ordered hereunder shall be 16 weeks for the first order after
reception of the final art work data signed by both supplier and buyer, and
then
16 weeks after receipt of all other orders. Shipment time by ocean shall be
4/5
weeks; by air-freight shall be 1 week. Shipment time shall be added to lead
time
for purposes of scheduling delivery. 50% of total billing for the first order
only, will be paid by money bank transfer at order time.
4.2.2.
Supplier
shall provide Buyer with a Certificate of Analysis for batches of Product by
facsimile three (3) working days prior to shipment. Original copies of the
Certificates of Analysis shall be sent regular mail.
4.2.3.
Supplier
shall provide Buyer with a copy of the xxxx of lading by facsimile upon
shipment.
4.3 Manufacturing
Rights.
In the
event Supplier admits in writing its inability to pay its debts generally as
they become due, files an assignment or a petition in bankruptcy, as the case
may be, or a petition to take advantage of any insolvency statute, makes a
general assignment for the benefit of its creditors, consents to the appointment
of a receiver of itself or of the whole or any substantial part of its property,
undertakes its liquidation, winding-up or dissolution, or enters into an
arrangement or composition with or for the benefit or creditors generally
occurring in circumstances in which it is unable to meet its obligations as
they
fall due, then Buyer shall have a non-exclusive right and license to use the
Manufacturing Package and to select a third party to manufacture the Product
for
continued distribution in the Territory. In the event Buyer exercises its rights
under this Section 4.3, all royalties payable hereunder shall remain unchanged.
Supplier
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[***]
- CONFIDENTIAL PORTIONS OF THIS AGREEMENT WHICH HAVE BEEN REDACTED ARE MARKED
WITH BRACKETS (“[***]”). THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
shall
place the Manufacturing Package in escrow pursuant to a mutually agreed upon
escrow agreement that enables release of the Manufacturing Package upon written
notice of the occurrence of any of the foregoing release conditions. When
Supplier recovers it’s total ability to run it’s business normally, the Buyer’s
manufacturing rights under this Section 4.3 shall terminate and the provisions,
terms and conditions of this Agreement shall be in full force and
effect.
ARTICLE 5
PRICE
AND TERMS
5.1.
Payments
: In
consideration of the exclusive license granted in Article 2.1, upon receipt
of
Product pursuant to orders by Buyer, Buyer shall pay to Supplier a non
refundable premium of USD $1.5 million in accordance with the following payment
schedule:
(i)
US$
250 000 upon the commercial launch of the product in the US
(ii)
US$
500 000 on or before the 90th
day
after commercial launch of the product in the US
(iii)
US$
750 000 upon the earlier twelve month after the commercial launch of the
Product
or
at the
time that Buyer achieves £ 5 000 000 of net Sales in the first
year.
5.2
The
transfer price of the two presentations, SILICIUM (Lotion & Shampoo) are
defined as below and calculated in a USA$ with a fix exchange rate as specified
in the article 5.4
(i). EURO
[***]
per
bottle of Xxxxxxxx 00 Xxxxxx,
(xx). EURO
[***]
per
bottle of Silicium 44 Shampoo.
Buyer
shall pay these amounts to Supplier in US Dollars at the then existing Transfer
Price as calculated in Section 5.4.
5.2.
Minimum Batch size : The
minimum batch size for stock
bottles of either the Silicium 44 Lotion or Silicum 44 Shampoo shall be 50,000
units per product.
5.3
Royalties: Buyer will pay royalties equal to five percent (5 %) on Net Sales.
Royalties will be calculated for the first six months after initial distribution
by Buyer and every six months thereafter. Royalty is to be paid 60 days
following the determination period to Supplier
5.4. Transfer
Price: The
official exchange rate applied on May 15th,
2007
will be applied all through the year 2007/2008 : 1€ = $ 1.36. For
the
first twelve months of the term of this Agreement the Transfer Price shall
be as
set forth in Exhibit B. After the initial 24 months of exploitation of the
product, the Transfer Price may be negotiated on an amicable basis following
cost increase of raw materials, energy and labour; provided, however, that
if
agreement regarding the Transfer Price is not reached after good faith
negotiations, then the Transfer Price from the most recent year shall be used
for the current year.
5.5.
Price Decreases:
Supplier
shall use all commercially reasonable efforts to reduce the prices charged
to
Buyer hereunder for the Products. If such prices can be reduced as a result
of
market forces or cost reduction strategies identified by Supplier, then 50%
of
the amount of such price reduction shall be applied to the prices paid by Buyer
hereunder. If prices can be reduced as a result of cost reduction strategies
identified by Buyer, then 100% of the amount of such reduction shall be applied
to the prices paid by Buyer hereunder.
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5.6
Transport and Product Insurance : All
risk
of damage to or loss or delay of the Product shall pass to Buyer upon Supplier’s
delivery at the FCA pick-up point to a common carrier. Buyer shall insure each
shipment of the Product with a reputable insurer for the full invoice value
of
such shipment. Such insurance shall provide for full coverage from the time
the
Product are delivered from the FCA pick-up point until Buyer shall have paid
Supplier in full for such Product.
5.7.
Payment Terms :
The
Buyer shall be invoiced for purchases of Product with a payment term of 30
days
from evidence of shipment. All invoices shall be paid by Buyer within thirty
(30) days of receipt by bank transfer only.
5.8.
Forecasts
: Buyer
agrees to provide Supplier with a twelve (12) month non-binding forecast
indicating Buyer’s estimated intended purchases of Product during each calendar
quarter of such period. Such forecast shall be updated by Buyer on a rolling
basis for a new twelve (12) month period, which updated forecast must be
received by Supplier no later than thirty (30) days prior to the first day
of
each succeeding calendar quarter. Such rolling forecasts by Buyer are required
to meet the lead times required by certain of Supplier’s suppliers as
communicated to Buyer by Supplier.
5.9.
Minimum Purchase Requirements for USA.
In
order to maintain its exclusive distribution license in accordance with Article
2.1, Buyer shall purchase the following minimum amounts of the Product from
Supplier during the term of this Agreement.
5.9.1.
During
the first twelve (12) month period, Buyer will purchase at least Fifty Thousand
(50,000) units of each Product to maintain exclusivity.
5.9.2.
During
the second twelve (12) month period, Buyer will purchase at least Eighty
Thousand (80,000) units of each Product to maintain exclusivity.
5.9.3.
During
the third twelve (12) month period, Buyer will purchase at least One Hundred
Twenty Thousand (120,000) units of each Product to maintain
exclusivity.
5.9.4.
During
the fourth twelve (12) month period, and for each twelve (12) month period
thereafter, Buyer will purchase at least One Hundred Fifty Thousand (150,000)
units of each Product to maintain exclusivity.
5.9.5.
Failure
to achieve the above targets for two consecutive years, could result in the
loss
of exclusive rights to the Product in the Territory (whereupon Supplier shall
give Buyer 90 days prior written notice of such loss of exclusive rights).
Notwithstanding the foregoing, Buyer shall have the right to “buy out” the
Minimum Purchase Requirement for any given year by paying to Supplier the amount
of royalty that would have been paid to Supplier had Buyer met the applicable
Minimum Purchase Requirement, based on Buyer’s sales price in effect at the
time.
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ARTICLE 6
TRADEMARKS
6.1.
Use of Trademarks.
Buyer
can market Product in the Territory preferably under SILICIUM 44 Trade xxxx.
If
the Buyer uses its own trademarks and trade names; provided, however, Buyer
shall include notices on each Product stating the issued US Patent number and
Supplier’s ownership rights, as well as being identified as the manufacturer of
the finished product or use Supplier’s trade name free of charge. Buyer is
granted a non-exclusive right and license to use Supplier’s trademarks and trade
names for the purpose of marketing and distributing the Products in the
Territory. Supplier shall label the Product in accordance with Buyer’s
instructions, as may be updated from time to time.
In
case
Buyer chooses it’s own trademark, Buyer, at its own expense, shall be
responsible for the selection, registration and maintenance of the brand name
to
be used with respect to the Product and shall own and control such trademark.
All goodwill arising as a result of such trademark shall inure solely to the
benefit of Buyer.
6.2 Right
of First Refusal.
If (a)
Buyer undergoes a change of owner, dissolution, or acquisition of the Buyer,
and
(b) the new owner or controlling entity indicates its intent not to continue
to
market the Trademark or Trade name for the Products, the Supplier has the right
of first proposal, first refusal to acquire, at preferred rate, the Trademark
and Trade names.
ARTICLE 7
TERM
AND TERMINATION
7.1.
Term.
This
Agreement shall take effect as of the date first above written, and unless
earlier terminated as otherwise provided in this Agreement, shall continue
in
force until the expiration of the Patent so long as Buyer has purchased the
minimum requirements set forth in Section 5.9.
7.2.
Termination.
This
Agreement may be terminated in accordance with the following
provisions:
7.2.1.
Either
party may terminate this Agreement by giving notice in writing to the other
party should an event of Force Majeure continue to affect the other party hereto
uninterrupted for more than six (6) months as provided in Section 8.5
below;
7.2.2.
Either
party may terminate this Agreement by giving notice in writing to the other
party in the event the other party is in material breach of a material provision
this Agreement and such breaching party shall have failed to correct such breach
within thirty (30) days of receipt from the other party of written notice
describing with specificity such breach (and if such breach is not reasonably
corrected within such 30 days, such breaching party must have at least
undertaken within such 30 day period reasonable steps to correct such breach
after such 30 day period in order to prevent such termination).
7.3.
No compensation.
In the
event either party terminates this Agreement in accordance with the terms
hereof, the parties hereby agree that neither party shall be entitled to any
compensation or like payment from the other party or any affiliate of the other
party as a result of such termination.
7.4.
Upon
termination or expiration of this Agreement in accordance with its terms, Buyer
shall within 160 days thereafter immediately cease to sell and/or distribute
the
Product. Further, upon termination or expiration of this Agreement, subject
to
the foregoing sentence, each party shall return or destroy the other party’s
Confidential Information (as defined below).
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ARTICLE 8
FORCE
MAJEURE
8.1.
Definition.
“Force
Majeure” shall mean any event or condition not reasonably within the control of
either party which prevents in whole or in material part the performance by
one
of the parties of its obligations hereunder or which renders the performance
of
such obligations so difficult or costly as to make such performance commercially
unreasonable. Without limiting the foregoing, the following shall constitute
events or conditions of Force Majeure; acts of State or governmental action,
riots, war, strikes, prolonged extreme slowdowns, prolonged extreme shortage
of
energy supplies, epidemics, fire, flood, hurricane, typhoon, earthquakes,
lightning and explosion; provided, however, a Force Majeure event shall not
limit Buyer’s obligation to make payments to Supplier for Product. It is in
particular expressly agreed that any refusal or failure of any governmental
authority to grant any authorization, approval or license legally required
for
the fulfillment by Supplier of its obligations hereunder shall constitute an
event of Force Majeure.
8.2.
Notice.
Upon
giving notice to the other party, a party affected by an event of Force Majeure
shall be released without any liability on its part from the performance of
its
obligations under this Agreement, except for the obligation to pay any amounts
due and owing hereunder, but only to the extent and only for the period that
its
performance of such obligation is prevented by the event of Force Majeure.
Such
notice shall include a description of the nature of the event of Force Majeure,
and its cause and possible consequences. The party claiming Force Majeure shall
promptly notify the other party of its termination of such event.
8.3.
Confirmation.
The
party invoking Force Majeure shall provide to the other party confirmation
of
the existence of the circumstances constituting Force Majeure. Such evidence
may
consist of statement or certificate of an appropriate governmental department
or
agency where available, or a statement describing in detail the facts claimed
to
constitute Force Majeure.
8.4.
Suspension of Performance.
During
the period that the performance by one of the parties of its obligations under
this Agreement has been suspended by reason of an event of Force Majeure, the
other party may likewise suspend the performance or all or part of its
obligations hereunder to the extent that such suspension is commercially
reasonable.
8.5.
Termination.
Should
the period of Force Majeure continue for more than sixty (60) consecutive days,
the party not suffering the Force Majeure may terminate this Agreement without
liability to the other party, except for payments due to such date, upon giving
written notice to the other party.
ARTICLE 9
PRODUCT
LIABILITY
9.1.
Supplier
Product Liability Insurance. Supplier
is the supplier of the finished consumer Product, and bears all products
liability risk associated therewith. Supplier
shall maintain and shall require all of its subcontractors and manufacturers
to
maintain Commercial General Liability insurance with a limit of not less than
$1
million per each occurrence and $2 million aggregate. Such insurance shall
be
maintained from the inception of this Agreement until 9 months following
termination of this Agreement.
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Supplier
shall provide certified copies of each policy providing the such insurance
upon
Buyer’s request at any time (and such certificates shall (1) clearly evidence
all such coverage and specific evidence of a separate commercial general
liability endorsement adding such additional insured, and (2) provide that
such
insurance shall not be modified, terminated or cancelled except on 30 days'
prior written notice to Buyer. If Supplier for any reason, fails to maintain
insurance coverage which is required pursuant to this Agreement, the same shall
be deemed a material breach of contract and Buyer may, at its sole option,
terminate this Agreement and obtain damages from Supplier resulting from said
breach. (By requiring insurance herein, Buyer does not represent that coverage
and limits will necessarily be adequate to protect Buyer and such coverage
and
limits shall not be deemed as a limitation on liability under the indemnities
hereunder.)
9.2.
Indemnity.
Supplier shall indemnify, reimburse, and hold harmless Buyer, its affiliates,
and their respective officers, directors, employees, agents, successors and
assigns from and against any and all costs, losses, liabilities, damages,
pending, threatened or concluded lawsuits, deficiencies, claims and expenses
(including reasonable fees and disbursements of attorneys) (collectively, the
“Damages”)
to the
extent such Damages are incurred in connection with or arise out of (i) any
breach of any covenant or agreement of Supplier herein; (ii) the breach of
any
representation or warranty made by Supplier in this Agreement (without regard
to
materiality qualifiers contained in such representations or warranties);
(iii) the negligence or willful misconduct of Supplier, its employees,
agents or contractors; and (iv) the use or distribution of the Products,
including without limitation any actual or alleged infringement of any third
party intellectual property rights by the Products or Information, or the use,
sale or distribution thereof.
9.3
Buyer
Product Liability Insurance. Buyer
shall maintain Commercial General Liability insurance with a limit of not less
than $1 million per each occurrence and $2 million aggregate. Such insurance
shall name Supplier and each of its members, managers, directors, officers
and
employees as an “additional insured.” Such insurance shall be maintained from
the inception of this Agreement until 9 months following termination of this
Agreement.
Buyer
shall provide certified copies of each policy providing the such insurance
upon
Supplier’s request at any time (and such certificates shall (1) clearly evidence
all such coverage and specific evidence of a separate commercial general
liability endorsement adding such additional insured, and (2) provide that
such
insurance shall not be modified, terminated or canceled except on 30 days'
prior
written notice to Supplier. If Buyer for any reason, fails to maintain insurance
coverage which is required pursuant to this Agreement, the same shall be deemed
a material breach of contract and Supplier may, at its sole option, terminate
this Agreement and obtain damages from Buyer resulting from said breach. (By
requiring insurance herein, Supplier does not represent that coverage and limits
will necessarily be adequate to protect Supplier and such coverage and limits
shall not be deemed as a limitation on liability under the indemnities
hereunder.)
ARTICLE 10
GOVERNING
LAW, ETC.
10.1.
Applicable Law.
This
Agreement shall be governed by, and shall be construed and enforced in
accordance with, the internal laws of New York, USA, without regard to conflicts
of laws provisions thereof and without regard to the United Nations Convention
on Contracts for the International Sale of Goods. Any legal action or proceeding
arising under this Agreement will be brought exclusively in the federal or
state
courts located in New York City, New York, and the parties hereby consent to
the
personal jurisdiction and venue therein.
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ARTICLE 11
MISCELLANEOUS
11.1
Assignment: Neither
party shall have the right to assign or otherwise transfer its rights and
obligations under this Agreement except with the prior written consent of the
other party and consent shall not be unreasonably withheld; provided, however,
that either party shall be entitled to assign any or all of its rights and
obligations hereunder to any of its affiliates, or in the event of a merger
or
acquisition of substantially all of a party’s stock, assets or
business.
11.2 Limitation
of Liability.
Except
in the event of a breach of any of the provisions of Article 2, Article 3,
Article 11.3 of this Agreement, or liability under Article 9, neither party
shall be liable to the other party or any third party for special, indirect,
incidental, consequential or punitive damages of any kind or nature whatsoever,
whether arising under contract, warranty, or tort (including negligence or
strict liability) or any other theory of liability even if the possibility
of
such damages were disclosed to the other party or could have been reasonably
foreseen. The limitations of liability reflect the allocation of risk between
the parties. The limitations specified in this Section 11.2 will survive and
apply even if any limited remedy specified in this Agreement is found to have
failed of its essential purpose.
11.3. Confidentiality.
Both
parties acknowledge that either may receive (the “receiving party”) Confidential
Information (as defined hereinafter) from the other (the “disclosing party”)
during the term of this Agreement, including information designated as
confidential at the time of disclosure, or summarized in writing as Confidential
Information within a reasonable time after disclosure. The receiving party
shall
only use the other party’s Confidential Information to perform its obligations
under this Agreement and disclose the other party’s Confidential Information
only to persons within the receiving party having a need to know the information
for the purpose of this Agreement. The receiving party shall treat the
Confidential Information as it does its own valuable and sensitive information
of a similar nature, and, in any event, with not less than a reasonable degree
of care. “Confidential Information” means any business or technical information
of a party, including but not limited to any information relating to product
plans, designs, costs, product prices and names, finances, marketing plans,
business opportunities, personnel, research, development or know-how that is
designated by the disclosing party as "confidential" or "proprietary" and,
if
orally disclosed, reduced to writing by the disclosing party within thirty
(30)
days of such disclosure.
11.4. Ownership.
Supplier is and shall remain the owner of all Patents and Information, including
any enhancements, modifications or enhancements to such Patents and/or
Information which are made during the term of this Agreement by either
party.
11.5. Entire
Agreement/Modifications.
Except
with respect to the Quality Assurance Agreement, this Agreement constitutes
the
complete and exclusive statement of the agreement between the parties, and
supersedes all proposals, and all other prior or contemporaneous communications
between the parties relating to the subject matter hereof, whether written
or
oral. No purchase order shall add additional terms to or vary the terms of
this
Agreement. Modifications to this Agreement shall be in writing, expressly refer
to this Agreement, and be signed by authorized representatives of Buyer and
Supplier.
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11.6.
Severability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
contrary to law, the remaining provisions of the Agreement shall remain in
full
force and effect.
11.7.
Independent
Contractors.
The
parties are independent contractors to each other. No agency, employment, or
partnership is hereby created by and between the parties. Neither party shall
have authority to act for the other in any manner to create obligations or
debts
that would be binding upon the other. Neither party shall be responsible for
any
obligations or expenses of the other except as expressly authorized to be
incurred in the performance of this Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
on
the date first above written.
| Laboratoires Carilène, SA | Auriga Laboratories, Inc. | |||
| Signature | Signature | |||
|
|
|
|||
| Name | Name | Xxxxxx X. Xxxxx | ||
|
|
|
|||
| Position | Position | Chief Executive Officer | ||
|
|
|
|||
Page
12
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APPENDIX
1
PACKAGING
AND BATCH LABELING INSTRUCTIONS
Page
13
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[***]
- CONFIDENTIAL PORTIONS OF THIS AGREEMENT WHICH HAVE BEEN REDACTED ARE MARKED
WITH BRACKETS (“[***]”). THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
Exhibit
B
Transfer
Pricing
| Product |
Product
Cost Per Unit (US Dollars)
|
|
| “Silicium 44” Lotion |
[***]
|
|
| “Silicium 44” Shampoo |
[***]
|
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Exhibit
C
Product
Description
The
Product is a lotion and shampoo based upon combinations, in particular for
use
as the active principle in a cosmetic or pharmaceutical and particularly
dermatological composition, containing peroxidised lipids and organosilicon
compounds containing them, as well as their applications. The Product includes
but is not limited to the combination commonly known and sold in Europe as
“Silicium 44 Lotion” and “Silicium 44 Shampoo.” The Product is sold in Europe
under the name M44 for France, Silicium 44 in the CEE and Middle East
countries.
Page 15
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Exhibit
D
Patent
& PCT Filing
Page
16
sur 24
Page
17
sur 24
