EXHIBIT 10.2
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A TRIPLE ASTERISK
(***). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION.
APPENDIX 9 - TRADEMARK(S) LICENSE AGREEMENT
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement (this "Agreement") is made and entered into as
of the 17th day of March, 2006 (the "EFFECTIVE DATE") by and between Aesthetica
Ltd., a Bermuda corporation and subsidiary of Medicis Corporation, a Delaware
corporation ("LICENSOR") and Ipsen Ltd., a company organized and existing under
the laws of England ("LICENSEE").
RECITALS
1. Licensor is the owner of certain trademarks and applications to
register the trademarks in various jurisdictions ("Licensed Marks," as defined
below), and
2. Licensee wishes to obtain a license from Licensor to use the Licensed
Marks in connection with the manufacture, promotion, and distribution of
formulations of botulinum toxins as set forth in the parties' Development and
Distribution Agreement (as defined below) and this Agreement, and
4. Licensor has agreed to license to Licensee the Licensed Marks for such
purposes, subject to certain restrictions and quality control standards set
forth herein.
AGREEMENT
In consideration of the mutual representations, warranties, covenants and
conditions contained herein, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS.
For purposes of this Agreement, the terms defined in this Article shall
have the meanings specified below. All capitalized terms not defined in this
Article shall have the meanings set forth in the parties' Development and
Distribution Agreement whether the Development and Distribution Agreement is in
force, terminated or expired.
1.1 DEVELOPMENT AND DISTRIBUTION AGREEMENT shall mean the parties'
development and distribution agreement for Licensee's current and future
formulations of botulinum toxins of even date.
1.2 LICENSED MARKS shall mean the trademarks, service marks, stylized
marks, and logos as listed on Exhibit A attached hereto, as amended by the
parties from time to time, and any and all applications and registrations
related thereto.
1.3 RESERVED TERRITORY shall mean Canada, Japan, and the United States of
America, including Puerto Rico and including the territories, possessions or
commonwealths of Canada, Japan and the United States as of the date of signature
of the Development and Distribution Agreement.
1.4 LICENSED TERRITORY shall mean all countries in the world except the
Reserved Territory.
1.5 EXTENDED LICENSED TERRITORY shall mean both the Licensed Territory and
the Reserved Territory.
1.6 REDUCED LICENSED TERRITORY shall mean solely those countries of the
Licensed Territory where a Regulatory Approval has been applied for or is issued
using a Licensed Xxxx, as on the relevant date indicated in this Agreement in
connection with the Reduced Licensed Territory.
1.7 REGULATORY APPROVAL shall mean all approvals and decisions from the
relevant regulatory authorities in a country (or such supra-national authorities
that may have jurisdiction in such country) necessary to lawfully import,
distribute, promote, and administer to humans, the Product(s).
1.8 LICENSEE'S NET SALES shall mean the actual amount invoiced by Licensee
or its sub-licensees to a third party other than a sub-licensee, for the sale of
a Product bearing a Licensed Xxxx for final sale in a country where a Licensed
Xxxx is registered and enforceable, after deducting the following, to the extent
actually incurred or allowed with respect to such sale: (i) normal and customary
trade, cash and/or quantity discounts, including any volume, formulary or other
positioning discounts paid or credited to the third party; (ii) import, export,
sales, use, excise and other consumption taxes and custom duties or tariffs, to
the extent and up to the amount mentioned in that respect on the invoice, and
any other governmental charges imposed upon the importation, use or sale of a
Product; (iii) actual freight, insurance and other transportation charges; (iv)
compulsory discounts, rebates, or payments (including retroactive price
reductions or statutorily required reimbursement) mandated by, granted,
credited, accrued, or paid for compliance with local, state, provincial or
federal law or regulation; (v) allowances or credits to customers on account of
recalls, rejection or return of Product (including for spoiled, damaged and/or
outmoded goods) in the ordinary course of business; and (vi) the bad debts
actually incurred by Licensee in respect of the resale of the Products, computed
in accordance with accounting regulations in force in the United Kingdom. Net
Sales will not include any Product supplied free of charge as commercial samples
or used free of charge for testing or clinical or marketing studies. Any other
Product sold or otherwise transferred other than in an arm's-length transaction
or in exchange for other property (e.g., barter), and any Bundled Product, shall
be deemed invoiced at the Product market price established by Licensee or its
sub-licensees in its applicable general conditions of sales or failing such
general conditions, at the arm's length price that the Licensee or its
sublicensees would generally or in the average invoice for such Product alone.
In the event discounts or rebates to the gross invoiced or charged price are
given in connection with the sale of goods or services other than the Products,
or for consideration or purposes other than the sale, transfer or delivery of
the Products, the gross sales price invoiced for the concerned Products shall be
deemed to be increased to an amount equal to the concerned Product's market
price or arm's length price as described above.
2. LICENSE.
2.1 License Grant. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Licensee : (A) In the Licensed Territory: a
royalty-free, exclusive, nontransferable (except as provided for in Section 7.1
herein), license to use the Licensed Marks in the Licensed Territory for the
manufacture, registration, promotion and/or distribution of Products under the
Licensed Marks; provided that in case the Development and Distribution Agreement
is terminated due to IPSEN being in breach under the Development and
Distribution Agreement and as from the date the Development and Distribution
Agreement is terminated for said reason, the license granted under this Section
2.1(A) will be limited to the Reduced Licensed Territory as constituted on the
date of termination of the Development and Distribution Agreement, and will be
granted in consideration for payment by Licensee to Licensor of a royalty of
***% (*** percent) of Licensee's Net Sales achieved in the Reduced Licensed
Territory, and,
(B) In the Reserved Territory: in case the Development and Distribution
Agreement is terminated due to MEDICIS being in breach under the Development and
Distribution Agreement and as from the date the Development and Distribution
Agreement is terminated for said reason, an exclusive, nontransferable (except
as provided for in Section 7.1 herein), license to use the Licensed Marks in the
Reserved Territory for the manufacture, registration, promotion and/or
distribution of Products under the Licensed Marks in consideration for payment
by Licensee to Licensor of a royalty of ***% (*** percent) of Licensee's Net
Sales achieved in the Reserved Territory.
Licensor undertakes to sign any amendment to this Agreement promptly upon
Licensee's request so as to include :
(a) in Exhibit A attached hereto, any trademark added to Appendix 5 of the
Development and Distribution Agreement,
(b) in Exhibit B attached hereto, any Product Extension and/or New Product which
is either included in MEDICIS's scope of appointment under Article 2 of the
Development and Distribution Agreement in accordance with the provisions of
Article 7.1 of the Development and Distribution Agreement, or which is the
subject of an agreement between IPSEN and MEDICIS for its development and/or
distribution in accordance with the provisions of Article 7.2 of the Development
and Distribution Agreement.
Subject to Licensor's prior written approval (which shall not be unreasonably
withheld), Licensee may sublicense the foregoing rights only to sublicensees who
will use the Licensed Marks to manufacture, promote and distribute the Products,
except that Licensee shall be free to grant any sublicenses, without the
necessity of Licensor's prior approval, (i) to Licensee's or Licensee's
Affiliates' third-party licensees or distributors for Licensee's or Licensee's
Affiliates' products in the Licensed Territory, as appointed on the date of
signature of this Agreement, and (ii) to Licensee's Affiliates. Licensee shall
cause any sub-licensees under the Licensed Marks to comply with the terms and
conditions of this Agreement as applicable.
Nothing herein shall be construed as an obligation for Licensee to use the
Licensed Marks in connection with the manufacture, registration, promotion
and/or distribution of the Products in the Licensed Territory (or in the
Extended Licensed Territory or Reduced Licensed Territory as applicable).
For the avoidance of doubt, Licensee is hereby entitled to have any Product
manufactured under the Licensed Marks in any country worldwide as long as it is
intended for registration, promotion and/or distribution thereof under the
Licensed Marks in the Licensed Territory or, as applicable, in
the Extended Licensed Territory or in the Reduced Licensed Territory in
accordance with the provisions of this Agreement.
2.2 Reservation of Rights. Licensee acknowledges that Licensor is the sole
owner of all right, title and interest in and to the Licensed Marks, and that
Licensee has not acquired, and shall not acquire, any right, title or interest
in or to the Licensed Marks except the right to use such Licensed Marks as
expressly set forth in this Agreement. All rights of Licensor in and to the
Licensed Marks not expressly granted under this Agreement are reserved by
Licensor. Should any right, title or other ownership in the Licensed Marks
become vested in Licensee against Licensor's will, Licensee agrees to assign
should Licensor so requests, and hereby assigns, all such right, title, and
other ownership to Licensor free of additional consideration. Licensee shall
provide and execute all documents reasonably necessary to effectuate and record
such assignment to Licensor.
Nothing herein shall prohibit Licensor from using the Licensed Marks
within the Reserved Territory except as expressly provided for in Section 2.1 in
case of termination of the Development and Distribution Agreement for Licensor's
breach under the Development and Distribution Agreement.
2.3 Option :
MEDICIS hereby grants IPSEN, during the term of this Agreement :
- the exclusive option to acquire the Licensed Marks in the Licensed Territory
as provided for in Article 12.3 of the Development and Distribution Agreement,
- the exclusive option to acquire the Licensed Marks after termination or expiry
of the Development and Distribution Agreement, in the Licensed Territory, or as
applicable according to Section 2.1(A) or (B) of this Agreement, in the Extended
Licensed Territory or in the Reduced Licensed Territory, in accordance with the
following : IPSEN may exercise the option from time to time after termination or
expiry of the Development and Distribution Agreement, to acquire the Licensed
Marks in one or more countries of the Licensed Territory, or as applicable
according to Section 2.1(A) or (B) of this Agreement, the Extended Licensed
Territory or Reduced Licensed Territory, as indicated from time to time by
IPSEN, under reasonable commercial purchase conditions to be negotiated in good
faith between MEDICIS and IPSEN. Should MEDICIS and IPSEN be unable to reach
agreement with respect to such purchase conditions, XXXXX'x option shall not be
extinguished and may be exercised for the same and/or other country/ies of the
Licensed Territory (or as applicable according to Section 2.1(A) or (B) of this
Agreement, of the Extended Licensed Territory or Reduced Licensed Territory),
whenever IPSEN deems it appropriate during the term of this Agreement.
2.4 Registration Rights and Expenses - Maintenance and renewal. Licensor
shall retain the exclusive right to apply for, obtain, and maintain
registrations for the Licensed Marks solely in Licensor's name throughout the
world, provided however that (i) Licensor shall apply for the Licensed Marks
registration solely in those countries of the Licensed Territory (or as
applicable, in those countries of the Extended Licensed Territory or Reduced
Licensed Territory) as Licensee shall indicate from time to time to Licensor,
and (ii) should Licensor fail to apply for or maintain any such registration
within 30 days as from any Licensee's written request thereto (or within shorter
delay in case a Licensed Xxxx registration or application would expire failing
Licensor's immediate intervention), Licensee shall be entitled to proceed to
such applications or maintenance in the name of Licensor.
Licensor shall bear the costs and expenses for applying for and maintaining any
such registrations in the Reserved Territory until and if Licensee is granted
rights under the Licensed Marks in the Reserved Territory as provided for under
Section 2.1 (B) above, in which last case Licensee shall
bear the related expenses accrued as from the date of termination of the
Development and Registration Agreement. Licensee shall reimburse Licensor for
all evidenced third-party expenses incurred by Licensor in connection with the
application for and maintenance of Licensed Marks registrations in the Licensed
Territory (or as applicable according to Section 2.1(A) only in the Reduced
Licensed Territory).
Licensee agrees to provide all reasonable assistance and cooperation with
Licensor's preparation and filing of applications, renewals or other
documentation necessary or useful to maintain Licensor's intellectual property
rights in the Licensed Marks in the Licensed Territory or, as applicable
according to Section 2.1(A) or (B), in the Extended Licensed Territory or in the
Reduced Licensed Territory.
2.5 Restrictions. All use of the Licensed Marks as permitted herein shall be
subject to the following restrictions:
2.5.1 Licensee shall not, and shall ensure that Licensee's Affiliates do
not, use the Licensed Marks in connection with the manufacture,
registration, promotion and distribution of products not listed on Exhibit
B hereto without the prior written approval of Licensor. Any such use
shall constitute a material breach of this Agreement and is grounds for
termination pursuant to Section 4.2.
2.5.2 Licensee shall not, directly, indirectly or otherwise: (i)
facilitate activities which jeopardize, dilute or otherwise adversely
affect the Licensed Marks, or (ii) attack, dispute or challenge (nor aid
or encourage others to do so) Licensor's right, title and interest in and
to the Licensed Marks, or the validity of the Licensed Marks.
2.5.3 Licensee shall not create, nor shall it permit third parties to
create a unitary composite xxxx involving the Licensed Marks or use the
Licensed Marks (i) as a portion or in combination with any other
trademarks, service marks or logos, (ii) as all or part of a corporate
name, trade name or any other designation used by Licensee to identify its
products, services or business or (iii) for any other purpose other than
as expressly permitted herein. Except for Licensor, both during and after
the term of this Agreement, neither Licensee nor any parent, subsidiary,
nor any person or entity owned or controlled by Licensee (including any
sublicensee) or under common ownership or control as Licensee shall use
any name, trademark, service xxxx, trade name, trade dress or logo which
is confusingly similar or identical to any of the Licensed Marks. Nothing
herein shall prevent Licensee from using or affixing other trademarks to
the Products simultaneously with the Licensed Xxxx as long as such usage
is not inconsistent with the requirements of this Section 2.5.3; provided,
however that, when appearing simultaneously with the Licensed Marks in no
event shall any such other trademark be of unreasonably greater prominence
than the Licensed Marks or obscure the Licensed Marks.
2.6 Notice. In connection with the use of the Licensed Marks, Licensee will for
each page or product surface on which a Licensed Xxxx is used, xxxx the use of
the Licensed Marks with the appropriate trademark symbol in accordance with
applicable law (e.g., "(TM)", or "(R)").
2.7 Enforcement.
Licensee and Licensor shall provide each other written notice promptly as
from becoming aware of the same, of any actual or threatened infringement,
misappropriation or unauthorized use of any Licensed Xxxx of which Licensee or
Licensor becomes aware in the Licensed Territory, or as applicable, in the
Extended Licensed Territory or in the Reduced Licensed Territory.
Licensor may at its sole option bring any action for any past, present
and/or future infringement of the Licensed Marks. Licensee shall cooperate and
offer all reasonable assistance in connection with any efforts by Licensor in
the Licensed Territory (or as applicable according to Section 2.1(A) or (B), in
the Extended Licensed Territory or in the Reduced Licensed Territory) to enforce
and/or maintain its rights in the Licensed Marks at Licensor's expense for any
out-of-pocket costs actually incurred by Licensee directly related to such
cooperation. Should Licensee so requests, Licensor shall enable Licensee to
intervene in any such action at Licensee's expenses and benefits. Licensor shall
retain any and all damages and other monies awarded or otherwise paid in
connection with any such action except in case of Licensee's intervention, for
all monies which compensate Licensee's (or Licensee's sub-licensees') damages
suffered as a result of the Licensed Marks infringement, which monies shall be
paid to Licensee.
If Licensor declines or fails to exercise the option referred to in the
previous paragraph within appropriate time as from Licensor's knowledge of the
past, present and/or future infringement of the Licensed Marks, Licensee may at
its sole expense bring any action for any such infringement in the Licensed
Territory, or as applicable, in the Extended Licensed Territory or in the
Reduced Licensed Territory, in which event Licensee shall retain any and all
damages and other monies awarded or otherwise paid in connection with any such
action.
3. QUALITY CONTROL. All use of the Licensed Marks as permitted herein, shall
comply with the following quality control standards:
3.1 Guidelines. Use of the Licensed Marks hereunder shall be in accordance
with the provisions of this Agreement, in particular Sections 2.5 and 2.6 and
this Section 3. Licensee shall not reproduce or use the Licensed Marks in any
manner whatsoever other than as expressly authorized by this Agreement.
3.2 Quality Control. Licensee represents and warrants that to the best of
its reasonable knowledge all use of the Licensed Marks as permitted herein shall
(i) be in accordance with applicable law in the applicable jurisdictions, and
(ii) conform to at least the standards of quality currently prevailing in
Licensee's Products, (iii) not be offensive, disparaging or misleading as to the
origin or quality of the Products, and (iv) be consistent with the general
advertising practices in the industry. Licensor shall be allowed, at its own
expense and upon reasonable advance notice to Licensee, to inspect the Products
bearing the Licensed Marks and related promotional materials or other items
bearing the Licensed Marks being offered in connection with the Products to
ensure they meet the standards specified herein. Licensee shall not engage
directly, indirectly or otherwise, in any practice or other activity that is or
is likely to be detrimental to the goodwill associated with the Licensed Marks
or the goodwill or reputation of the Licensor or its services or products, or
that constitutes a deceptive trade practice or unfair competition or that
violates any applicable fair trade laws, privacy protections or advertising
rules and regulations or that would disparage the Licensed Marks.
3.3 Oversight Authority: From time to time and upon Licensor's request,
Licensee shall submit to Licensor samples of all Products and other materials
bearing the Licensed Marks, including, without limitation, any advertising,
packaging and other publicly disseminated materials bearing the Licensed Marks.
If Licensor discovers in Licensor's reasonable opinion any use of the Licensed
Marks on any such submission which is not consistent with the provisions of this
Agreement, including association of the Licensed Marks with an activity that
Licensor deems in its reasonable opinion to be outside the scope of the license
granted herein or inconsistent with the quality control standards in Section 3.2
above, Licensor has the right after good faith consultation and discussion with
Licensee on the matter concerned, to deny use or display of the Licensed Marks
in such a manner. If Licensor chooses to allow Licensee to remedy such improper
use or display of the Licensed Marks, and delivers a writing describing in
detail the improper use to Licensee, Licensee shall use its reasonable
commercial efforts to promptly remedy the improper use. If Licensor fails to
provide Licensee with written notice of disapproval within thirty (30) days of
Licensor's receipt of any sample, such sample shall be deemed approved by
Licensor.
4. TERM AND TERMINATION.
4.1 Term. The term of this Agreement shall commence on the Effective Date
(as defined in the Development and Distribution Agreement)and shall continue in
full force and effect until terminated pursuant to this Section 4.
For the avoidance of doubt, termination of the Development and
Distribution Agreement for any reason whatsoever shall not affect the validity
and duration of this Agreement which shall continue in full force and effect
until terminated pursuant to this Section 4 or by mutual agreement between
Licensor and Licensee.
4.2 Termination for Cause. Either party may terminate this Agreement and
the licenses granted herein (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) in the event of a material
breach of this Agreement by the other party, by giving the breaching party
thirty (30) days' written notice thereof; provided, however, that any such
termination shall not be effective (i) if the breach has been cured prior to the
expiration of said thirty (30) days, and (ii) until the non-breaching party
confirms in writing to the other party that this Agreement is terminated under
this Section 4.2.
4.3 Termination by Licensee: Licensee may terminate this Agreement at any
time with 3 (three) months prior written notice to Licensor.
4.4 Automatic Termination. This Agreement shall automatically terminate
and all rights shall automatically revert to Licensor if Licensee commences or
becomes the subject of any case or proceeding under the bankruptcy, insolvency
or equivalent laws, or if a court appoints a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) for Licensee or for
any substantial part of Licensee's property, or if Licensee makes and assignment
for the benefit of creditors without Licensor's prior approval, or if Licensee
takes corporate action in furtherance of any of the foregoing.
4.5 Effect of Termination. Upon termination of this Agreement, all rights
and licenses granted hereunder shall immediately terminate, except that Sections
2.2, 4.5, 5.1, 6, and 7 shall survive. Upon termination of this Agreement,
Licensee shall immediately cease all use and display of the Licensed Marks,
provided that if Licensee is not in breach of this Agreement and is properly
using the Licensed Marks in accordance with Section 3 above, Licensee shall have
a limited right to sell off any Products bearing the Licensed Marks manufactured
prior to the termination of this Agreement for a period of thirty (30) days
following the termination of this Agreement ("Sell-Off Period"), with Licensor's
prior written approval, which shall not be unreasonably withheld. During the
Sell-off Period, Licensee shall be bound by all the provisions of this
Agreement.
5. INDEMNIFICATION; INSURANCE.
5.1 Indemnification. Licensee, at its own expense, shall indemnify, hold
harmless and defend Licensor, its affiliates, its successors and assigns, and
its and their directors, officers, employees and agents, against any claim,
demand, cause of action, debt, expense or liability
(including attorney's fees and costs), to the extent that the foregoing (a) is
based on a claim resulting from any products or services offered, provided,
manufactured, marketed, distributed, advertised, promoted or issued by or on
behalf of Licensee in the Licensed Territory, or as applicable according to
Section 2.1(A) or (B), in the Extended Licensed Territory or in the Reduced
Licensed Territory, including without limitation the Products, (b) results from
a breach, or is based on a claim that, if true, would be a breach, of this
Agreement by Licensee, or (c) is based upon use of the Licensed Marks by or on
behalf of Licensee in the Licensed Territory, or as applicable according to
Section 2.1(A) or (B), in the Extended Licensed Territory or in the Reduced
Licensed Territory.
Licensor, at its own expense, shall indemnify, hold harmless and defend
Licensee, its affiliates, its successors and assigns, and its and their
directors, officers, employees and agents, against any claim, demand, cause of
action, debt, expense or liability (including attorney's fees and costs), to the
extent that the foregoing results from a breach, or is based on a claim that, if
true, would be a breach, of this Agreement by Licensor.
5.2 Insurance. Licensee shall maintain commercial general liability
policies as from the date of first sale by Licensee (or any of its
sub-licensees) of a Product bearing the Licensed Marks and then during the
remainder of the term of this Agreement, that will cover any and all claims for
which Licensee will provide indemnity as set forth in Section 5.1 above and
shall cause Licensor to be added as an additional named insured on all such
commercial general liability policies maintained by Licensee during the term of
this Agreement.
6. LIMITATION OF WARRANTY AND LIABILITY.
6.1 LICENSOR DOES NOT MAKE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, RELATED TO OR ARISING OUT OF THE LICENSED MARKS. THE LICENSED MARKS ARE
PROVIDED "AS IS," AND LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE,
AND ALL OTHER WARRANTIES THAT MAY OTHERWISE ARISE FROM COURSE OF DEALING, USAGE
OF TRADE OR CUSTOM.
6.2 EACH OF THE PARTIES AGREES THAT THE REPRESENTATIONS AND WARRANTIES OF
THE OTHER PARTY CONTAINED IN THIS AGREEMENT ARE THE EXCLUSIVE REPRESENTATIONS
AND WARRANTIES MADE BY THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THAT SUCH OTHER REPRESENTATIONS AND
WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR MERCHANTABILITY,
FITNESS OR NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND
DISCLAIMED.
Neither party shall be entitled in connection with any breach or violation
of this Agreement to recover any punitive, exemplary or other special damages or
any indirect, incidental or consequential damages, including without limitation
damages relating to loss of profit, business opportunity or business reputation.
Each party, as a material inducement to the other party to enter into and
perform its obligations under this Agreement, hereby expressly waives its right
to assert any claim relating to such damages and agrees not to seek to recover
such damages in connection with any action, suit or proceeding relating to this
Agreement. The foregoing shall not limit the right of either party to
indemnification in accordance with Section 5 above, with respect to all
components of any claim, award or judgment against such party by any third party
not an Affiliate with either party to this Agreement.
7. MISCELLANEOUS.
7.1 Assignment. Neither party may assign this Agreement and/or any rights
and/or obligations hereunder without the prior written consent of the other
party and any such attempted assignment shall be void, except when such
assignment is to the benefit of an Affiliate of the assignor party in which case
this Agreement may be assigned with prior written notice to the non-assignor
party. This Agreement shall be binding upon the parties' permitted assigns and
successors and references to each party shall include such assigns and
successors.
Notwithstanding the foregoing, in connection with a Change-of-Control of
either party, the party subject to the Change-of-Control transaction may assign
this Agreement, and/or delegate its obligations hereunder, to the Third Party
assuming control of such party without the consent of the other party, unless
the Third Party seeking to obtain control is an actual or potential competitor
(as defined in Article 20.5 of the Development and Distribution Agreement) for
the Products, whether in the Licensed Territory or in the Reserved Territory.
For purposes of this Agreement, Change-of-Control shall have the meaning set
forth in Article 20.5 of the Development and Distribution Agreement.
7.2 Injunctive Relief. Each of Licensor and Licensee agree that in the
event of breach or threatened breach by either party of its obligations under
this Agreement, in addition to remedies at law, the non-breaching party shall
have the right to injunctive or other equitable relief to prevent the other
party's violations of its obligations hereunder, and hereby consents to the
entry of temporary restraints, a preliminary injunction, a permanent injunction
and such other equitable relief as the court may deem appropriate.
7.3 Amendment and Waiver; Interpretation. No modification, course of
conduct, amendment, supplement to, or waiver of this Agreement or any provisions
hereof shall be binding upon the parties unless made in writing and duly signed
by both parties. At no time shall any failure or delay by either party in
enforcing any provisions, exercising any option, or requiring performance of any
provisions, be construed to be a waiver of same. If any of the provisions of
this Agreement are held invalid, illegal or unenforceable, the remaining
provisions shall be unimpaired. Headings are for reference only and shall not
affect the meaning of any of the provisions of this Agreement. For the purposes
of this Agreement, the term "including" means "including but not limited to"
unless otherwise expressly indicated.
7.4 Independent Contractor Status. Nothing in this Agreement will be
construed as creating a joint venture, partnership or employment relationship
between Licensor and Licensee. Licensor and Licensee are independent
contractors. Neither party will have the right, power or implied authority to
create any obligation or duty on behalf of the other party, unless pursuant to a
separate written agreement between the parties.
7.5 Notices. Unless otherwise specified in this Agreement, all notices
shall be in writing and delivered personally, mailed, first class mail, postage
prepaid, or delivered by confirmed electronic or digital means, to the addresses
set forth at the beginning of this Agreement and to the attention of the
undersigned. Either party may change the addresses or addressees for notice by
giving notice to the other. All notices shall be deemed received on the date
personally delivered, three (3) days after being placed in the mail as
specified, or when electronic or digital confirmation is received.
7.6 Force Majeure: Non performance of a party (other than for the payment
of money) shall be excused to the extent that performance is rendered
commercially impracticable by strike, fire, earthquake, flood, governmental acts
or orders or restrictions, terrorist acts, war, failure of suppliers, or any
other reason where failure to perform could not be reasonably foreseen, is
beyond the reasonable control, and is not caused by the negligence, intentional
conduct or misconduct of the non-performing party; provided, however, that the
non-performing party shall use commercially reasonable efforts to resume
performance as soon as reasonably practicable.
7.7 Counterparts. This Agreement may be executed in counterparts, by
manual or facsimile signature, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
7.8 This Agreement shall be governed and construed in accordance with the
laws of the State of New York (United States of America), subject however to any
and all statutes, laws and/or regulations in force in the United Kingdom
applicable to the manufacturing, promotion, distribution and sale of the
Products. All disputes between the parties shall be settled in accordance with
the provisions of Articles 20.11 second paragraph and 20.13 of the Development
and Distribution Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above.
AESTHETICA LTD. IPSEN LTD.
/s/ Xxxx X. Xxxxxxxx, Xx. /s/ Xxxxxxxx Xxxxxx
------------------------- -------------------
(Signature) (Signature)
---------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx, Xx. Xxxxxxxx Xxxxxx
---------------------------------- -------------------------------------
President Chief Executive Officer
***
EXHIBIT A
LICENSED MARKS
RELOXIN
EXHIBIT B
NEW PRODUCTS AND PRODUCT EXTENSIONS
