Network Agreement
* INDICATES
A PORTION OF THIS EXHIBIT THAT WAS OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THIS EXHIBIT INCLUDING SUCH OMITTED
INFORMATION WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ON
A CONFIDENTIAL BASIS.
This
agreement (the “Agreement”) is made as of June 15, 2009 (the “Effective Date”)
by and between NeoStem, Inc., a Delaware corporation with its principal place of
business located at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx
Xxxx 00000 (“NEOSTEM”), and Enhance BioMedical Holdings Limited, a
China corporation with its principal place of business located at 6565 Xx Xxxx
Road, Shanghai 201804 PRC (“SERVICE PROVIDER”) (NEOSTEM and SERVICE PROVIDER
each being individually referred to as a “Party” and collectively as the
“Parties”).
WHEREAS,
NEOSTEM is a leader in adult stem cell collection, processing, cryopreservation
and storage services and has rights to a range of proprietary stem cell
technologies to be used in therapeutic applications;
WHEREAS,
SERVICE PROVIDER is knowledgeable and experienced in the Asian healthcare market
and wishes to obtain from NEOSTEM the exclusive rights to provide the NEOSTEM
Stem Cell Services on the terms hereinafter set forth to a network of Centers as
herein described; and
WHEREAS,
NEOSTEM desires to provide to SERVICE PROVIDER the exclusive rights to provide
the NEOSTEM Stem Cell Services on the terms hereinafter set forth.
NOW
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Parties agree as follows:
|
Section
1.
|
Definitions.
|
The
following capitalized terms used in this Agreement shall, unless the context
otherwise requires, have the following meaning:
|
1.1.
|
“Affiliate”
means, with respect to any entity, any other entity that, directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such entity. The term
“control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of an entity,
whether through the ownership of voting securities, by contract, or
otherwise. Affiliate includes with respect to NEOSTEM any WFOE
or limited liability company of NEOSTEM relating to the conduct of the
subject matter of this Agreement.
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|
1.2.
|
“Business” means
the NEOSTEM Stem Cell Services.
|
|
1.3.
|
“Center” means a
facility or hospital constructed, furnished, equipped and staffed to
operate and perform NEOSTEM Stem Cell Services in the
Territory.
|
|
1.4.
|
“Client” means a
person for whom NEOSTEM Stem Cell Services are
provided.
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|
1.5.
|
“Exclusivity
Period” has the meaning set forth in Section
6.1.
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|
1.6.
|
“Intellectual
Property” means all know-how, trade secrets, copyrights and other
intellectual property rights (excluding the Marks) that NEOSTEM owns or
otherwise has the right to grant licenses under and are relevant to the
delivery of NEOSTEM Stem Cell Collection
Services.
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|
1.7.
|
“Territory”
means (i) Taiwan; (ii) Shanghai Municipality and the five provinces of
Jiangsu, Zhejiang, Fujian, Anhui and Jiangxi in the People’s Republic of
China (“PRC”); and (iii) up to 50 hospitals in selected parts of the PRC
(subject to mutual written agreement) with which SERVICE PROVIDER has
pre-existing relationships and such other territories as the parties may
agree to in writing from time to
time.
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|
1.8.
|
“Center
Agreement” means a separate agreement between SERVICE PROVIDER and
a hospital, doctors office or facility with respect to enabling them to
offer NEOSTEM Stem Cell Services. SERVICE PROVIDER and or its
Affiliates agree to use language in the Center Agreement that provides the
Center will follow protocols and standard operating procedures for NEOSTEM
Stem Cell Services and otherwise employ reasonable care in providing such
services and protect the IP, technology and know-how with
respect to the delivery of NEOSTEM Stem Cell Services as well as requiring
that any employee of a Center shall enter into NeoStem’s form of
non-competition agreement.
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|
1.9.
|
“Marks” means
the “NEOSTEM” xxxx and name, and such other marks and names used by
NEOSTEM and relating to the
Business.
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|
1.10.
|
“NEOSTEM Stem Cell
Services” means NEOSTEM’s adult stem cell collection, processing,
cryopreservation and storage services for autologous use and therapies
that may be provided through the use of NEOSTEM’s proprietary technologies
as identified by NeoStem from time to
time.
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|
1.11.
|
“Operating
Entity” means each operating entity, if any, organized by SERVICE
PROVIDER in connection with the provision of the NEOSTEM Stem Cell
Services.
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1.12.
|
“Stem Cell
Collection” means that collection of human adult stem cells derived
from peripheral blood and all related clinical
procedures.
|
|
1.13.
|
“Stem Cells”
means adult human stem cells derived from peripheral
blood.
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|
1.14.
|
“Center” means a
facility within the Territory at which SERVICE PROVIDER desires to enable
the use of NEOSTEM Stem Cell Services pursuant to this Agreement and with
which SERVICE PROVIDER establishes a Center
Agreement.
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|
1.15.
|
“SERVICE
PROVIDER” means Enhance BioMedical Holdings Limited and any
Affiliate, including any Operating Entity and is sometimes referred to
herein as “SERVICE PROVIDER”.
|
|
1.16.
|
“Gross Revenues”
means total gross receipts of sales of NEOSTEM Stem Cell
Services.
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|
Section
2.
|
Term of Agreement;
Other Agreements.
|
2.1 Term of
Agreement. This Agreement will commence on the Effective Date
and will expire ten (10) years after the Effective Date, unless terminated
earlier as provided in Section 4 hereof (the “Term”).
2.2 Renewal
Terms. Upon the expiration of the Term SERVICE PROVIDER shall
be entitled at its option to renew this Agreement for a subsequent ten (10) year
period; provided that (i) SERVICE PROVIDER provides written notice of its desire
to renew not less than one year prior to the end of the initial term or any
renewal term, (ii) at the time of renewal SERVICE PROVIDER executes NEOSTEM’s
then current form of agreement, which could include, among other things, higher
or additional fees, (iii) SERVICE PROVIDER has paid or otherwise satisfied all
monetary obligations to NEOSTEM, and (iv) such other reasonable requirements as
NEOSTEM may require.
|
Section
3.
|
Training and
Establishment of Centers.
|
3.1 Training of SERVICE
PROVIDER. NBS shall train or arrange training for the SERVICE
PROVIDER and other staff members of the SERVICE PROVIDER on the NEOSTEM Stem
Cell Services and SOPs. NEOSTEM will train the SERVICE PROVIDER at
NEOSTEM’s option at a NEOSTEM facility or other location located in China or the
United States. The cost of training the SERVICE PROVIDER shall be
borne by NEOSTEM. All other expenses relating to the training,
including salary, wages and benefits, meals, lodging, travel and similar
expenses shall be borne by the SERVICE PROVIDER.
3.2 Training of
Centers. Training of the Centers shall be conducted by SERVICE
PROVIDER but if necessary and on request of SERVICE PROVIDER subject to the
availability of NEOSTEM personnel, NEOSTEM will at the cost of SERVICE PROVIDER
(or Center if passed down to Center) assist in training Centers based on a fee
for services. Once the needs and fees are determined the rates set
forth will be added to this Agreement as Attachment A. Such fees
shall be invoiced to SERVICE PROVIDER on a monthly basis for services provided
in the prior month and shall be payable within thirty (30) days of receipt
thereof.
3.3 Other
Assistance. Other assistance that NEOSTEM may provide, subject
to a separate written agreement, including with respect to the fee for services,
includes:
3.3.1 Set-up
Assistance. In connection with the establishment of any
Center, NEOSTEM shall offer services with respect to constructing, equipping,
furnishing and staffing such Center.
3.3.2 Marketing and
Advertising. NEOSTEM shall provide to SERVICE PROVIDER
marketing support and medical education with respect to the delivery of the
NEOSTEM Stem Cell Services.
3.3.3 Costs. The
costs of the assistance set forth in this section 3.3 shall be on a fee for
services basis as shall be determined by the Parties.
3.4 SERVICE PROVIDER
Responsibilities. SERVICE PROVIDER solely shall be responsible
for (i) providing appropriate office space for any Center in the Territory, (ii)
all payroll, benefits and other employment-related matters with respect to the
personnel participating in the NEOSTEM Stem Cell Services in the Territory,
(iii) obtaining, setting up and maintaining all equipment and supplies necessary
for the provision of the NEOSTEM Stem Cell Services, and (iv) obtaining any and
all required licenses and permits, provided that if requested by SERVICE
PROVIDER, NEOSTEM will undertake on a best efforts basis to assist SERVICE
PROVIDER in the application for such licenses and permits and will assist
SERVICE PROVIDER in training their centers and collecting fees owed to them of
which NBS is entitled.
3.5 Audit and
Survey. NEOSTEM shall have the right to audit and survey,
prior to operational commencement of the NEOSTEM Stem Cell Services, appropriate
training with respect to the delivery of the NEOSTEM Stem Cell Services at the
Center.
3.6 Execution of Center
Agreement. In order to protect the IP, proprietary technology
and techniques and provide for standardization and quality of services, SERVICE
PROVIDER shall execute a Center Agreement with each Center and agrees that it
shall contain, in addition to other appropriate provisions, language ensuring
compliance with the terms of this Agreement.
3.7 No Medical
Advice. SERVICE PROVIDER acknowledges that NEOSTEM is not a
health care provider, licensed or otherwise. NEOSTEM will not direct
patient clinical care and treatment services or emergency patient
issues. NEOSTEM can not and will not assume responsibility for the
direct medical care of any patient, which shall, at all times remain the
responsibility of the treating physician.
3.8 Standard of
Conduct. SERVICE PROVIDER shall ensure the NEOSTEM Stem Cell
Services are provided in compliance with:
|
(i)
|
all
applicable laws, rules and
regulations;
|
|
(ii)
|
all
standards of conduct, codes of ethics and other policies and guidelines
promulgated that are reasonably applicable to the delivery of the NEOSTEM
Stem Cell Services;
|
|
(iii)
|
such
operating policies and procedures as may be provided by NEOSTEM in
connection with the training provided for in this Agreement;
and
|
|
(iv)
|
with
a high level of client service.
|
|
Section
4.
|
Termination of
Agreement.
|
4.1 Termination. In
the event of a material breach of this Agreement by a Party, the other Party may
terminate this Agreement by giving thirty (30) days prior, written notice to the
breaching Party; provided, however, that this
Agreement will not terminate if the breaching Party has cured the breach before
the expiration of such thirty (30) day period. This Agreement is
terminable immediately without notice by a Party if the other Party: (i)
voluntarily institutes insolvency, receivership or bankruptcy proceedings, (ii)
is involuntarily made subject to any bankruptcy or insolvency proceeding and
such proceeding is not dismissed within sixty (60) days of the filing of such
proceeding; (iii) makes an assignment for the benefit of creditors, or (iv)
undergoes any dissolution or cessation of business.
4.2 Effect of
Termination. Upon any termination or expiration of this
Agreement:
|
(i)
|
Each
Party shall pay the other Party all amounts due and payable as of the
effective date of termination or
expiration;
|
|
(ii)
|
SERVICE
PROVIDER and each Center shall immediately cease all use of NEOSTEM
Intellectual Property and provision of NEOSTEM Stem Cell Services and all
rights granted under this Agreement shall terminate immediately;
and
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|
(iii)
|
SERVICE
PROVIDER, at NEOSTEM’s option, will either return to NEOSTEM or provide
NEOSTEM with written certification of the destruction of, all documents,
computer files and other materials containing any Proprietary Information
that are in the SERVICE PROVIDER or a Center’s possession or
control.
|
4.3 Survival. The
following provisions will survive any expiration or termination of this
Agreement: “Use of Confidential Information.”; “Exclusivity.”,
“Effect of Termination”.
|
Section
5.
|
Use of Confidential
Information.
|
5.1 Proprietary
Information. SERVICE PROVIDER agrees at all times to keep
confidential any and all Proprietary Information and will not, without the
express prior written consent of NEOSTEM, disclose directly or indirectly any
Proprietary Information to any other person or use directly or indirectly any
such Proprietary Information, for the benefit of SERVICE PROVIDER, or any third
party. For the purposes of this Agreement, “Proprietary
Information” includes all trade secrets, know-how, show-how, technical,
operating, financial, and other business information related to NEOSTEM and its
Affiliates, the Business or the customers or suppliers of NEOSTEM, whether or
not reduced to writing or other medium and whether or not marked or labeled
confidential, proprietary or the like, specifically including, but not limited
to, information regarding procedures, methods and techniques regarding the
NEOSTEM Stem Cell Services, financial and other information regarding the
Business, the terms and conditions of this Agreement, marketing, sales and
pricing techniques, designs, inventions, products, improvements, modifications,
methodology, processes, concepts, records, files, memoranda, reports, plans,
proposals, price lists, client and supplier information, product development and
project procedures. Proprietary Information will not include
information which (i) is or becomes generally available to the public (other
than as a result of a disclosure by the SERVICE PROVIDER or its
representatives), or (ii) becomes available on a non-confidential basis from a
source other than NEOSTEM or one of its representatives which is entitled to
disclose it. The SERVICE PROVIDER acknowledges that the “Proprietary
Information” may include material, non-public information regarding the business
of NEOSTEM and its parent company (a publicly-traded company) and, without
limiting any of the foregoing, the SERVICE PROVIDER agrees not to use or
disclose any such information in violation of any applicable securities laws and
regulations.
5.2 SERVICE PROVIDER Personnel
and Center Agreements. SERVICE PROVIDER shall require all of
SERVICE PROVIDER’s employees, consultants and other personnel and all Centers
and their employees, consultants and other personnel, as a condition of their
employment or other arrangement, to execute a written agreement prohibiting
them, during the term of their employment or such other arrangement and
thereafter, from communicating, divulging, or using for the benefit of any
person, persons, agent, association, corporation or other entity any Proprietary
Information which may be acquired as a result of their employment or other
arrangement with SERVICE PROVIDER. Each such agreement shall be in a
form that has been approved by NEOSTEM in writing and shall expressly provide
that NEOSTEM is a third party beneficiary thereof.
5.3 Non-Disparagement. Neither
Party will at any time disparage the business reputation of the other Party or
any of the other Party’s employees, officers, directors, agents and/or
clients.
|
Section
6.
|
Exclusivity.
|
6.1 During
the Term or any Renewal Term and for a period
of * thereafter (the “Exclusivity Period”)
SERVICE PROVIDER shall not directly or indirectly, whether itself or through a
subsidiary, successor or affiliate, engage in (i) providing any adult stem cell
services inside or outside the Territory other than the NEOSTEM Stem Cell
Services being provided within the Territory pursuant to the terms of this
Agreement; or (ii) engaging in activities that are related, incidental or
incremental to the NEOSTEM Stem Cell Services inside the Territory without the
prior explicit written consent of NEOSTEM and the entering into of such
additional agreements as may be requested by NEOSTEM in connection with the
joint pursuit. During the Term or any Renewal Term, NEOSTEM shall not
(i) enable any party (including NEOSTEM) other than SERVICE PROVIDER to provide
the NEOSTEM Stem Cell Services in the Territory; or (ii) provide knowledge,
technology and operating procedures in relation to the NEOSTEM Stem Cell
Services, directly or indirectly, to any party other than SERVICE PROVIDER in
the Territory. The Parties acknowledges that the restrictions
contained in this Section 6 are
reasonable and necessary to protect the legitimate proprietary interests of the
Parties and that any breach by a Party of any provision hereof will result in
irreparable injury to the other Party. The Parties acknowledges that,
in addition to all remedies available at law, each party will be entitled to
equitable relief, including injunctive relief and an equitable accounting of all
earnings, profits or other benefits arising from such breach and will be
entitled to receive such other damages, direct or consequential, as may be
appropriate. NEOSTEM shall be released from its obligations contained
in this Section 6 to the extent SERVICE PROVIDER fails to comply with its
obligations contained in Section 7.
|
Section
7.
|
Technical Assistance
Fee and Royalties.
|
7.1 Technical Assistance
Fee. SERVICE PROVIDER agrees to pay NEOSTEM US
* as Service Fee as
follows:
|
(i)
|
* upon
the signing of this Agreement;
|
|
(ii)
|
* upon
the commencement of the training of SERVICE PROVIDER staff by NEOSTEM
pursuant to Section 3.1 hereof;
|
|
(iii)
|
* upon
the satisfactory review by SERVICE PROVIDER (which review must be
completed by no later
than * ) of the necessary
knowledge, technology and operating procedures (See Attachment B) in
relation to the NEOSTEM Stem Cell Services to be provided by SERVICE
PROVIDER in the Territory. NEOSTEM will deliver the necessary
knowledge, technology and operating procedures to SERVICE PROVIDER in
order that they may provide the NEOSTEM Stem Cell Services and enable
SERVICE PROVIDER and its affiliates in the methods of treatment using all
of NEOSTEM technologies created and licensed to date and in the
future.
|
7.2 Royalties.
7.2.1 SERVICE
PROVIDER agrees to pay to NEOSTEM a Royalty equal to * of Gross Revenues of
NEOSTEM Stem Cell Services in the Territory. SERVICE PROVIDER agrees
to pay the Royalty within 30 days of receipt of Gross Revenues, provided such
Royalties will only become payable from the Gross Revenues of any NEOSTEM Stem
Cell Services.
If annual Royalty paying to NEOSTEM do
not reach the following minimum payment during the Term, SERVICE PROVIDER may
pay NEOSTEM the difference:
|
(i)
|
* on * (“Year
One”);
|
|
(ii)
|
* on * (“Year
Two”);
|
|
(iii)
|
* on * (“Year
Three”);
|
|
(iv)
|
* on * and
each one year anniversary thereafter for the remainder of the Term;
provided that in lieu of paying
the * minimum
payment SERVICE PROVIDER may terminate this
Agreement.
|
7.2.2 SERVICE
PROVIDER will be exempt from the payment of Royalties for any Royalty Period
during which NEOSTEM is in breach of the provisions set forth in Section 6 of
this Agreement.
7.2.3 SERVICE
PROVIDER shall deliver to NEOSTEM un-audited monthly and quarterly financial
statements and audited annual statements as well as such other information as
may be reasonably requested. Such reports shall be in sufficient
detail to enable NEOSTEM to verify the amount of Royalties payable
hereunder.
7.3 Tax. Any
tax that may be levied on such Royalty and other payments set forth in this
Agreement will be borne by NEOSTEM.
7.4 Interest. The
Royalty and other payments set forth in this Agreement shall, if overdue, bear
interest until payment at the quarterly rate of 5%. This penalty
would not begin until 30 days after which time the payment was
due.
7.5 Inspection. SERVICE
PROVIDER shall allow NEOSTEM or its authorized representatives to visit and
inspect the properties of SERVICE PROVIDER and/or Holdco including their
corporate and financial records and to discuss their business and finances with
officers and other employees of SERVICE PROVIDER during normal business hours
following reasonable notice and as often as may be reasonably
requested.
|
Section
8.
|
Option in SERVICE
PROVIDER.
|
SERVICE PROVIDER will grant NEOSTEM for
a period of 5 years from the effective date of this Agreement the right to
acquire up to
a * fully diluted
equity interest in SERVICE PROVIDER based on the fair market value of SERVICE
PROVIDER as shall be determined by an independent third party designated by the
parties. SERVICE PROVIDER may not provide the NEOSTEM Stem Cell
Services through any entity other than SERVICE PROVIDER.
|
Section
9.
|
Compliance with
Government Regulations; Indemnification; Insurance and
Liability.
|
9.1 Compliance with Government
Regulations. The parties agree to comply with all applicable
regulations and safety standards of government agencies, including without
limitation the Chinese Ministry of Health.
9.2 Indemnification. SERVICE
PROVIDER shall defend, indemnify and hold harmless NEOSTEM, and its trustees,
officers, employees and agents and their respective successors, heirs and
assigns (“Indemnitees”), against any and all liability, claims, demands, damage,
loss or expense (including reasonable attorneys’ fees and expenses of
litigation) resulting from, or alleged to have resulted from, or in connection
with SERVICE PROVIDER’s providing the NEOSTEM Stem Cell Services or that may be
incurred by or imposed upon the Indemnitees, or any of them, in connection with
any Third Party claim, suit, demand, action or judgment arising from this
Agreement.
9.3 Insurance. SERVICE
PROVIDER shall procure and maintain in full force and effect during the Term, at
SERVICE PROVIDER’s expense, an insurance policy or policies protecting SERVICE
PROVIDER and NEOSTEM and their officers, directors, agents and employees,
against any loss, liability or expense whatsoever relating to the conduct
provision of NEOSTEM Stem Cell Services.
|
Section
10.
|
Liability.
|
10.1 Liability
Exclusion. EXCEPT IN CONNECTION WITH CLAIMS ARISING FROM THE
UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY INFORMATION OR THE GROSS
NEGLIGENCE. FRAUD OR WILLFUL MISCONDUCT OF A PARTY, NO PARTY WILL BE LIABLE TO
THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER
PARTY’S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND
(INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) WITH
RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE
AND STRICT LIABILITY) ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THE
PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN
FACT KNEW OF THE POSSIBILITY THEREOF. For the purposes of clarity,
the exclusion set forth in this Section 10.1 shall
not be construed to limit SERVICE PROVIDER’s indemnity obligations under Section
9.
10.2 Limitation of
Damages. EXCEPT IN CONNECTION WITH (I) CLAIMS ARISING FROM THE
UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY INFORMATION OR THE GROSS
NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF A PARTY AND (II) SERVICE PROVIDER’S
INDEMNITY OBLIGATIONS UNDER SECTION 9, EACH
PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN
CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED ONE HUNDRED
FIFTY THOUSAND DOLLARS ($150,000.00), PLUS ANY FEES PAYABLE BUT UNPAID BY SUCH
PARTY.
|
Section
11.
|
Miscellaneous
Provisions.
|
11.1 Separate
Entities. The Parties acknowledge that they are separate legal
persons and are not joint venturers, joint employers or agents of each other in
any sense whatsoever. Nothing contained herein will be construed to
mean that the Parties are joint venturers, joint employers or agents of each
other or to create a membership association or organization. No Party
has the right to bind or make commitments for the other Parties. No
Party will be liable for any obligations or duties of the other
Parties.
11.2 Publicity. SERVICE
PROVIDER will not refer to NEOSTEM, or use NEOSTEM’s logo or trademarks, in any
press releases, marketing materials or other internal or external written
communication without NEOSTEM’s prior, written approval, which approval may be
granted or withheld in NEOSTEM’s sole and absolute discretion.
11.3 Law Governing;
Jurisdiction. This Agreement and any and all matters arising
directly or indirectly herefrom will be governed by and construed and enforced
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such state, without giving effect to the
conflict of law principles thereof.
11.4 Entire
Agreement. This Agreement (including the Schedule hereto)
contains, and is intended to be, a complete statement of all the terms of the
arrangements between or among the Parties with respect to the matters set forth
herein, and supersedes any previous agreements, understandings and discussions
between the Parties with respect to those matters. There are no
promises, representations, warranties, covenants or undertakings other than
those set forth herein.
11.5 No Waiver;
Modification. No course of dealing and no delay on the part of
any Party in exercising any right, power or remedy conferred by this Agreement
will operate as a waiver thereof or otherwise prejudice such Party’s rights,
powers and remedies conferred by this Agreement or will preclude any other or
further exercise of any other right, power and remedy. No term or
provision of this Agreement may be amended, altered, modified, rescinded,
supplemented, or terminated except by a writing signed by the Party against whom
enforcement is sought.
11.6 Notices. All
notices and other communications required or permitted to be given pursuant to
this Agreement will be in writing signed by the sender, and will be deemed duly
given (i) on the date delivered if personally delivered, or (ii) on the third
business day after being sent by Federal Express or another recognized overnight
mail service which utilizes a written form of receipt for third business day
delivery in the PRC, in each case addressed to the applicable party at the
address set forth below; provided that a Party may change its address for
receiving notice by the proper giving of notice hereunder:
If to
NEOSTEM:
000
Xxxxxxxxx Xxxxxx
Xxxxx
000
XX, XX
00000
Attention: General
Counsel
If to the
SERVICE PROVIDER:
6565 Xx
Xxxx Xxxx
Xxxxxxxx
000000 XXX
Xxxxxxxxx: _______________
11.7 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction will
not invalidate or render unenforceable such provision in any other
jurisdiction. To the fullest extent permitted by applicable law, the
Parties hereby waive any provision of law which renders any provisions hereof
prohibited or unenforceable in any respect. If it is ever held that
any restriction hereunder is too broad to permit enforcement of such restriction
to its fullest extent, such restriction will be enforced to the maximum extent
permitted by applicable law.
11.8 Headings;
Counterparts. The Section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the
Parties and will not in any way affect the meaning or interpretation of this
Agreement. This Agreement may be executed in any number of
counterparts, each of which will be an original, but all of which together will
constitute one instrument. This Agreement may also be executed via
facsimile, which will be deemed an original.
11.9 Assignment. This
Agreement may not be assigned by either Party without first obtaining the
written consent of the other Party, which consent shall not be unreasonably
withheld. Any purported assignment without the written consent of the
other Party shall be null and of no effect. Notwithstanding the
foregoing, NEOSTEM may assign this Agreement without the consent of SERVICE
PROVIDER to a (i) an Affiliate, or (ii) the purchaser of all or substantially
all of NEOSTEM’s assets or business (or that portion thereof to which this
Agreement relates), or (iii) the surviving entity in a merger or other business
consolidation.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed,
under seal, by their duly authorized representatives as of the day and year
first above written.
|
SERVICE
PROVIDER
|
||
|
Signature
|
Signature
|
|
|
Name
of signer
|
Name
of signer
|
|
|
Title
|
Title
|
