Exhibit 10.41
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SERVICES AGREEMENT
BY AND BETWEEN
COMBINATORX, INCORPORATED
AND
COMBINATORX (SINGAPORE) PTE LTD
DATED AUGUST __, 2005
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TABLE OF CONTENTS
PAGE
1. GENERAL SCOPE OF AGREEMENT; STATEMENTS OF WORK ...........................1
2. RESPONSIBILITIES .........................................................1
3. PERSONNEL; INSPECTIONS AND AUDITS ........................................2
4. CHANGES IN SCOPE .........................................................2
5. TERM .....................................................................3
6. PAYMENTS AND SCHEDULES ...................................................3
7. NOTICES ..................................................................5
8. OWNERSHIP ................................................................5
9. CONFIDENTIAL INFORMATION .................................................7
10. MATERIALS ................................................................8
11. PUBLICATIONS .............................................................8
12. PUBLICITY ................................................................9
13. INDEMNIFICATION ..........................................................9
14. INSURANCE ...............................................................10
15. TERMINATION .............................................................10
16. CONFORMANCE WITH LAW; REPRESENTATION ....................................10
17. APPLICABLE LAW ..........................................................11
18. INDEPENDENT CONTRACTOR ..................................................11
19. ENTIRE AGREEMENT ........................................................11
20. ASSIGNMENT ..............................................................12
21. WAIVER ..................................................................12
22. FORCE MAJEURE ...........................................................12
23. DELIVERY TO PURCHASER OF INFORMATION AND UNUSED MATERIALS ...............12
24. DEBARMENT CERTIFICATION .................................................12
25. MISCELLANOUS ............................................................13
SERVICES AGREEMENT
This
Services Agreement (the "Agreement") is made as of ___________, 2005
(the "Effective Date"), by and between
CombinatoRx, Incorporated, a Delaware
corporation with its principal office and place of business at 000 Xxxxxx
Xxxxxx, Xxxxxx, XX 00000 ("Provider"), and CombinatoRx (Singapore) Pte Ltd, a
Singapore private limited company (the "Purchaser").
The parties agree as follows.
1. GENERAL SCOPE OF AGREEMENT; STATEMENTS OF WORK
A. As a "master" form of agreement, this Agreement permits the parties to
contract for multiple projects as may be agreed upon from time to time by
entering into multiple Statements of Work (as such term is defined in Section
1.B below), all of which shall be governed by the terms and conditions contained
herein.
B. Each project under this Agreement (each, a "Project") shall be
separately negotiated and set forth in a writing on terms and in a form
acceptable to the parties, and each such writing shall be executed by both
parties (each such writing, a "Statement of Work"). An initial Statement of Work
is attached hereto as Exhibit A. Each Statement of Work shall include a
description of the scope of work, protocols, specifications, responsibilities,
deliverables, timelines, budget and payment schedule. Each Statement of Work
shall reference this Agreement and shall be subject to all of the provisions of
this Agreement, in addition to the specific details set forth in the Statement
of Work. To the extent any provisions of a Statement of Work conflict or are
inconsistent with the provisions of this Agreement, the provisions of this
Agreement shall control. When executed by both parties each Statement of Work
shall constitute a separate and distinct contract between the parties and shall
be incorporated herein by reference and form a part hereof. Unless otherwise
expressly stated in a Statement of Work, the provisions of each Statement of
Work shall be independent of and shall not affect the provisions of any other
Statement of Work. Neither Purchaser nor Provider shall be under any obligation
to enter into any Statement of Work.
2. RESPONSIBILITIES
Provider shall perform the services and fulfill the obligations and
responsibilities set forth in this Agreement and each Statement of Work (such
services, obligations and responsibilities are referred to herein collectively
as the "Services"). Provider shall provide all personnel, equipment and
resources necessary to perform the Services, except for Materials (as such term
is defined in Section 10 hereof) to be provided by Purchaser as expressly set
forth in the applicable Statement of Work. Provider personnel shall devote such
time as is necessary to perform the Services diligently and in accordance with
the timelines set forth in this Agreement and the applicable Statement of Work.
Provider shall not perform any Services using the Materials beyond the scope of
the applicable Statement of Work.
Without limiting the generality of the foregoing, with respect to Services
which involve the conduct of assays or analyses of materials (including the
Materials) or data, Provider shall provide Purchaser with reports, in accordance
with the schedule set forth in each applicable
Services Agreement(6) A-1
Statement of Work, that contain the results of all assays or analyses, specific
assay or analysis conditions, methodologies, protocols and raw data.
3. INSPECTIONS AND AUDITS
A. Provider may engage any contractor, subcontractor or other vendor
(collectively, "Subcontractor") to perform any obligations under this Agreement,
subject to the terms of this Section. Provider shall be responsible for the
management of all Subcontractors. The engagement by Provider of any
Subcontractor shall not relieve Provider of its obligations under this Agreement
or any applicable Statement of Work. Any agreement between Provider and the
Subcontractor pertaining to the Services shall be consistent with the provisions
of this Agreement. Furthermore, unless otherwise agreed by Purchaser and
Provider, prior to or at the time of engagement of any Subcontractor to perform
any obligations hereunder, Provider shall cause such Subcontractor to agree in
writing to be bound by terms providing for Purchaser rights no less favorable to
Purchaser than the rights in this Agreement and the applicable Statement of
Work.
B. Purchaser authorized representative(s), and regulatory authorities to
the extent required by law and applicable to the scope of the Services
performed, may during regular business hours and, to the extent legally
possible, at times arranged in advance with Provider, audit, inspect and copy
all data, records and work products relating to the Services and Provider's
performance under this Agreement and the Statements of Work; provided that
Provider may limit the scope of any such audit or inspection to prevent the
disclosure of confidential information of Provider or third parties, unless such
confidential information is related to the performance of the Services and the
disclosure is required for purposes of the audit or inspection. The disclosure
of confidential information in connection with such audit or inspection is
subject to the provisions of Section 9 hereof.
C. (i) Provider shall prepare, maintain and retain complete, accurately
written records, accounts, notes, reports and data of the Services and
Provider's performance under this Agreement and the Statements of Work, in a
form and of quality reasonably acceptable to Purchaser. (ii) Provider shall take
such steps as are reasonably necessary to prevent the loss of computer-stored
files generated by Provider or provided to Provider by Purchaser under this
Agreement and to prevent any unauthorized access to such files.
4. CHANGES IN SCOPE
A Statement of Work may be amended by a written amendment to such Statement
of Work which is executed by both parties (a "Change Order"). Each Change Order
shall set forth the agreed changes to the applicable task, protocols,
specifications, responsibility, budget, timeline or other matter. A Change Order
shall become effective only upon the execution of the Change Order by both
parties. As used in this Agreement, the term "Statement of Work" shall mean any
Statement of Work, as amended by any Change Orders thereto. Each Change Order
shall reference this Agreement and the Statement of Work it relates to and shall
be subject to the provisions of this Agreement. To the extent any provisions of
a Change Order conflict or are inconsistent with the provisions of this
Agreement, the provisions of this Agreement shall control. All Change Orders
shall be incorporated herein by reference and form a part hereof.
Services Agreement(6) A-2
5. TERM
The term of this Agreement shall begin as of the Effective Date and end
four (4) years thereafter, and may be renewed for subsequent terms as are
mutually agreed in writing by the parties; provided, however, that should the
term of any Statement of Work entered into during the term of this Agreement end
beyond the termination date of this Agreement, then this Agreement shall remain
in effect with respect to such Statement of Work until the termination of such
Statement of Work; and provided further, that this Agreement and any Statement
of Work may be earlier terminated in accordance with the provisions of this
Agreement.
6. PAYMENTS AND SCHEDULES
A. Payment shall be due to Provider at such times and in such amounts as
set forth in this Agreement and the Statement of Work applicable to the Services
being provided. All costs and rates set forth in a Statement of Work shall
remain firm for the duration of the Services performed under that Statement of
Work. The cumulative value of all sums paid under all Statements of Work,
inclusive of any variance on the yearly budget stated in such Statements of
Work, shall not exceed US$7,253,000. Provider shall submit to Purchaser
Provider's invoice in accordance with the schedule set forth in the applicable
Statement of Work, and Purchaser shall pay to Provider the applicable amount
within thirty (30) days following receipt by Purchaser of such invoice. Payment
shall be made by wire transfer to Provider or by such other means as is agreed
by the parties.
B. In addition to the payments described in Section 6.A, until the
expiration of the Royalty Term, Purchaser shall pay to Provider a royalty of two
and a half percent (2.5%) of Net Sales of the Product in accordance with the
terms of this Section.
(1) FIRST COMMERCIAL SALE. Purchaser also agrees to report to Provider
in its immediately subsequent progress and royalty report the date of First
Commercial Sale of the Product in each country.
(2) QUARTERLY PAYMENT REPORTS AND PAYMENTS. After the First Commercial
Sale of the Product, Purchaser shall make quarterly payment reports
("Quarterly Payment Reports") to Provider on or before the thirtieth (30th)
day following the end of the preceding calendar quarter. Each Quarterly
Payment Report shall cover the most recently completed calendar quarter and
shall show (a) the Net Sales of the Product sold during the most recently
completed calendar quarter; (b) the royalties, in U.S. dollars, payable
with respect to Net Sales; (c) the method used to calculate the payments
owed to Provider; and (d) the exchange rates used and shall be accompanied
by the payment shown as due on such Quarterly Report. If, after the First
Commercial Sale of the Product, no sales of Products are made during any
reporting period, a statement to this effect is required.
(3) INTEREST ON LATE PAYMENTS. For purposes of this Section 6C only,
Purchaser will be in default with respect to payment, without receipt of a
reminder from Provider, for all payments not paid timely. In case of
default with respect to payment, any amount not paid timely shall bear
interest from its due date through the date of
Services Agreement(6) A-3
effective receipt of payment at the rate equal to the lesser of the maximum
rate allowable under applicable law or one percent (1%) over the prime rate
published in the eastern edition of THE WALL STREET JOURNAL on the date
such payment was due or a comparable newspaper if THE WALL STREET JOURNAL
shall cease publishing the prime rate.
(4) DEFINITIONS. As used in this Section 6C, the following terms shall
have the following definitions:
"FIRST COMMERCIAL SALE" shall mean the first sale or other disposition for
value of the Product, in a final dosage form packaged for the ultimate
consumer, to an independent third party following regulatory approval, by
Purchaser, its affiliates or a sublicensee of Purchaser.
"NET SALES" shall mean the gross amount invoiced on sales to independent
third parties of the Product by Purchaser or any of the Purchaser's
affiliates and/or sublicensees less the sum of (i) trade, quantity and cash
discounts actually allowed or paid; (ii) refunds, rebates, chargebacks,
retroactive price adjustments (including Medicaid, managed care and similar
types of rebates), and service allowances actually allowed or paid; (iii)
credits or allowances given or made for rejections or returns of previous
sales of the Product or for wastage replacement actually taken or allowed;
(iv) taxes, duties or other governmental charges levied on the sale,
transportation or delivery of the Product and paid by the selling party;
and (v) charges for shipping, freight and insurance directly related to the
distribution of the Product (excluding amounts reimbursed by third party
customers).
No deductions shall be made for commissions paid to individuals whether
they are with independent sales agencies or regularly employed by such
seller and on its payroll, or for the cost of collections.
"PRODUCT" shall mean any products or methods the manufacture, use, sale,
offer for sale or importation of which are covered by any claim contained
in any patent or patent application claiming any part of the Project
Intellectual Property (as defined in Section 8B).
"ROYALTY TERM" shall mean, on a country by country and Product by Product
basis, the period beginning upon the First Commercial Sale of a Product in
a country and ending at the time of the expiration of the last to expire
Valid Claim of any patent claiming Project Intellectual Property covering
the manufacture, use or sale of the Product.
"VALID CLAIM" shall mean any claim of a pending patent application which
has not been abandoned or finally rejected without the right of appeal or
which is not knowingly unpatentable, or any claim from an issued and
unexpired patent which has not been revoked or held unenforceable or
invalid by a decision of a court or other governmental authority of
competent jurisdiction, and which has not been disclaimed, denied or
admitted to be invalid or unenforceable through reissue or disclaimer or
otherwise.
Services Agreement(6) A-4
C. All monies due to Provider hereunder are payable in United States
dollars. When Products are sold for monies other than United States dollars, the
earned royalties will first be determined in the foreign currency of the country
in which such Products were sold and then converted into equivalent United
States funds. The exchange rate will be the average rate between the buying and
selling rate as quoted in THE WALL STREET JOURNAL for the last twenty (20) days
of the reporting period for which such rate is reported.
D. If at any time legal restrictions prevent the prompt remittance of part
or all payments by Purchaser with respect to any country where the Product is
sold, unless prohibited from lawfully doing so, Purchaser must convert the
amount owed into United States funds and must pay Provider directly from its
U.S. source of funds, if such source is available, for the amount impounded.
Purchaser will use commercially reasonable efforts to pay all future royalties
due to Provider from its U.S. source of funds, if such source is available, so
long as the legal restrictions described in this section still apply. For
clarity, nothing in this Section shall relieve Purchaser from its obligation to
make payments when due hereunder.
E. All prices under this Agreement (royalties and other prices) are net
prices. Any payment under this Agreement shall be made plus value added tax, if
value added tax is levied under applicable law, and shall be grossed up for any
withholding tax that may be required under applicable law. Fees of any nature
levied or incurred on account of any payments from Purchaser to Provider
accruing under this Agreement, by national, state or local governments, will be
assumed and paid by Purchaser.
7. NOTICES
All notices, invoices and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given when (i) delivered by
hand (with written confirmation of receipt), or (ii) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), to the appropriate address set forth below (or to such
other address as a party may designate by notice to the other party):
If to Purchaser: CombinatoRx (Singapore) Pte Ltd
00 Xxxxxxx Xxxxx
#00-00 Xxxxx Xxxxxx
Xxxxxxxxx 000000
If to Provider:
CombinatoRx, Incorporated
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
8. OWNERSHIP
A. All confidential or proprietary data, writings and other information
provided to Provider by or on behalf of Purchaser, irrespective of whether
provided in paper, oral, electronic
Services Agreement(6) A-5
or other form shall remain the property of Purchaser. As used in this Agreement,
the term "electronic form" shall include, but shall not be limited to, computer
disks and tapes, CD-ROM disks, optical disks, electronic mail and audio tapes.
B. Purchaser shall own all right, title and interest in and to any and all
data, writings (irrespective of whether in written or electronic form),
information (tangible and intangible), processes, methods, inventions,
discoveries, improvements, trade secrets, works of authorship and technology in
any form whatsoever, and any and all patent, copyright and other intellectual
property rights therein, resulting from or generated, made or developed by or on
behalf of Provider in the performance of the Services to the extent any of the
foregoing covers novel therapeutic combination therapies for Infectious Disease
(as defined in the Securities Purchase and Operating Agreement dated as of the
date hereof among the Purchaser, the Provider and BioMedical Sciences Investment
Fund Pte Ltd (the "Securities Purchase Agreement"), but excluding, without
limitation, any process, methods, inventions, discoveries, improvements, trade
secrets, works of authorship and technology related solely to the Provider
Technology (as defined in Section 8.D below), (collectively, the "Project
Intellectual Property"). The Project Intellectual Property shall be the sole and
exclusive property of Purchaser and, subject to the other provisions of this
Section 8, may be used by Purchaser or its designees for any purposes and
disclosed or transferred by Purchaser or its designees to any third parties
(including but not limited to for incorporation in any governmental filings or
for publication) with no further payment to Provider. Provider hereby assigns
and shall assign to Purchaser any and all right, title and interest in and to
the Project Intellectual Property, and Provider shall execute, and procure that
its employees and Subcontractors execute (directly or through assignment to
Provider and assignment by Provider to Purchaser), assignments to Purchaser of
all right, title and interest in and to the Project Intellectual Property. In
addition the Project Intellectual Property shall constitute confidential and
proprietary information of Purchaser and shall be treated as "Confidential
Information" of both parties for purposes of Section 9 hereof.
Purchaser and Provider understand and agree that the Project Intellectual
Property shall constitute works made for hire, as such is understood under the
Copyright Act of 1976 (if applicable), and that Purchaser shall be the sole and
exclusive owner of all rights in such work in any form and in all fields of use
known or hereafter existing. Purchaser shall be considered author for purposes
of the Copyright Act of 1976 (if applicable).
C. In the event that Purchaser shall decide to file one or more United
States or foreign patent applications covering one or more inventions
constituting Project Intellectual Property, Provider shall at Purchaser's
request and expense assist Purchaser in the preparation and prosecution of such
patent application(s) and shall execute, and shall procure that its employees
and Subcontractors execute (directly or through assignment to Provider and
assignment by Provider to Purchaser), all documents deemed necessary by
Purchaser for the filing thereof and for the vesting in Purchaser of sole and
exclusive title thereto. Provider shall provide written notice to Purchaser of
all inventions constituting Project Intellectual Property, which notice shall to
the extent practicable be promptly given.
D. Inventions, discoveries, technologies, trade secrets, works of
authorship, writings, data and other information (i) that are owned by Provider
prior to the conduct or commencement of any Services pursuant to this Agreement,
or which shall be developed or acquired by Provider
Services Agreement(6) A-6
independently of, and not in the performance of Services pursuant to this
Agreement (the "Provider Technology") or (ii) that are developed or acquired by
Provider in the performance of Services pursuant to this Agreement and that do
not relate to novel therapeutic combinations for Infectious Disease shall in
each case remain the property of Provider.
E. Purchaser does hereby grant to Provider a worldwide, fully paid,
perpetual, sublicensable exclusive license under all of Purchaser's rights in
the Project Intellectual Property to develop, use, make, have made, sell, offer
for sale and import and export products and services outside of the Field. For
purposes of this Agreement, the "Field" shall mean all systemic therapeutic
treatment for Infectious Disease, excluding (i) the discovery, development or
commercialization of any product(s) developed or to be developed for biodefense
application(s) and (ii) the discovery, development or commercialization of any
product or service for the treatment of Infectious Disease through Topical (as
defined in the Securities Purchase Agreement) application of one or more
therapeutic products.
9. CONFIDENTIAL INFORMATION
A. Neither Provider nor Purchaser shall disclose to any person or entity,
or use for any purpose other than pursuant to this Agreement, any and all trade
secrets, privileged records or other confidential or proprietary data or
information disclosed by or on behalf of the other party pursuant to this
Agreement or any previous confidentiality agreement(s) relating to the Services
(collectively "Confidential Information"); except that either party shall have
the right to disclose Confidential Information of the other party to employees
of the first party's Affiliates who are bound by like obligations of
non-disclosure and non-use. Such obligation of each party of non-disclosure and
non-use with respect to Confidential Information disclosed by or on behalf of
the other party shall not apply to the following:
(1) Information at or after such time that it is or becomes publicly
available through no fault of the receiving party or its Affiliates;
(2) Information that is already known to the receiving party or its
Affiliates as shown by prior written records and was not obtained directly
or indirectly from the disclosing party;
(3) Information at or after such time that it is disclosed to the
receiving party or its Affiliates by another party with the legal right to
do so;
(4) Information that is required to be released by law, judicial
process, court order or administrative request, provided that the receiving
party limits disclosure to that purpose, after giving the disclosing party
notice in time to allow the disclosing party to object to or seek to limit
such disclosure and the receiving party cooperates with the disclosing
party as the disclosing party may reasonably request;
(5) Information that is developed by or for the receiving party or its
Affiliates independently of access to the disclosing party's Confidential
Information; or
(6) Information that is disclosed with the disclosing party's express
prior written consent and pursuant to the terms of such consent.
Services Agreement(6) A-7
Notwithstanding anything herein to the contrary, the parties agree that the
Project Intellectual Property shall be considered Confidential Information of
Purchaser and shall be treated as Confidential Information disclosed by
Purchaser to Provider hereunder for purposes of this Section 9.
B. The obligations of each party under this Section 9 shall survive and
continue for seven (7) years after the Effective Date.
10. MATERIALS
Purchaser or its designees may provide certain proprietary compounds and
other proprietary materials for use in the performance of the Services (such
compounds and other materials provided by or on behalf of Purchaser, and any
other materials derived therefrom by Provider in the performance of the Services
pursuant to this Agreement and any Statement of Work, shall be referred to
collectively as the "Materials"). Provider hereby agrees as follows:
(1) Purchaser shall retain all rights, title and interest in and to
the Materials, except that Provider shall have the right to use the
Materials for the sole purpose of performing the Services for Purchaser in
accordance with the applicable Statement of Work. Materials shall be used
by Provider for no purpose other than the performance of the Services for
Purchaser in accordance with the applicable Statement of Work.
(2) Materials shall not be analyzed or modified by Provider other than
as required for performance of the Services pursuant to the applicable
Statement of Work.
(3) Materials shall be handled and used by Provider in accordance with
all applicable laws and regulations.
(4) Materials shall not be transferred by Provider to any third party
without the prior written consent of Purchaser.
(5) Upon the termination of or completion of the Services pursuant to
the applicable Statement of Work, any unused Materials shall be either
returned to Purchaser or disposed of under Provider's supervision in
accordance with applicable laws and regulations and the instructions of
Purchaser.
(6) Materials shall not be administered by Provider to humans under any
circumstances.
11. PUBLICATIONS
Publications or presentations by Provider of the methods and/or results of
the Services shall not be permitted without the prior written consent of
Purchaser.
Services Agreement(6) A-8
12. PUBLICITY
A. Provider and Purchaser shall obtain prior written permission from the
other before using or authorizing others to use the name, trademarks or service
marks of the other in any form of advertising or publicity in connection with
the Services.
B. Provider and Purchaser each agrees not to issue any press release or
like public announcement, whether oral or written, relating to this Agreement or
the terms hereof without the prior written consent of the other party, provided,
however, that in the event of a press release or like public announcement or
disclosure of the terms of this Agreement required by law, the parties shall
coordinate with each other with respect to the timing, form and content of such
required disclosure.
13. INDEMNIFICATION
A. Purchaser shall indemnify and hold harmless Provider and its Affiliates
and their respective directors, officers and employees from and against any and
all claims, proceedings, damages or liabilities arising out of Purchaser' breach
of any of the provisions of this Agreement or Purchaser' negligence or willful
misconduct in the performance of this Agreement; provided that, in regard to any
such claim or proceeding that is made by a third party, Purchaser, in reasonable
consultation with Provider, shall have the right to select defense counsel and
control the defense of such third party claim or proceeding.
B. Provider shall indemnify and hold harmless Purchaser and its Affiliates
and their respective directors, officers and employees from and against any and
all claims, proceedings, damages or liabilities arising out of Provider's breach
of any of the provisions of this Agreement or Provider's negligence or willful
misconduct in the performance of this Agreement; provided that, in regard to any
such claim or proceeding that is made by a third party, Provider, in reasonable
consultation with Purchaser, shall have the right to select defense counsel and
control the defense of such third party claim or proceeding.
C. Any party seeking indemnification hereunder shall notify the other party
in writing promptly after receipt of any third party claim or proceeding in
respect of which it intends to base a claim for indemnification hereunder, but
the failure or delay so to notify the indemnifying party shall not relieve the
indemnifying party of any obligation or liability that it may have to the
indemnified party except to the extent that its ability to defend or resolve the
claim or proceeding is adversely affected thereby. The indemnifying party shall
provide diligent defense against any third party claim or proceeding with
respect to the subject of the indemnity contained herein. The indemnifying party
shall not settle any such claim or proceeding without the prior written consent
of the indemnified party, which consent shall not be unreasonably withheld. The
indemnified party shall cooperate with and provide assistance to the
indemnifying party and its legal representatives as may be reasonably requested
by the indemnifying party in connection with such claim or proceeding. The
indemnified party shall have the right to select and to obtain representation by
separate legal counsel at its own expense.
Services Agreement(6) A-9
14. INSURANCE
A. Purchaser shall maintain insurance coverage at levels sufficient to
support the indemnification obligations assumed herein, in amounts and on other
terms reasonably acceptable to Provider. Purchaser shall provide for Provider to
be covered as a named insured, shall provide Provider with evidence of such
insurance and shall provide to Provider not less than thirty (30) days prior
written notice of any cancellation in its coverage.
B. Provider shall maintain insurance coverage at levels sufficient to
support the indemnification obligations assumed herein, in amounts and on other
terms reasonably acceptable to Purchaser. Provider shall provide for Purchaser
to be covered as a named insured, shall provide Purchaser with evidence of such
insurance and shall provide to Purchaser not less than thirty (30) days prior
written notice of any cancellation in its coverage.
15. TERMINATION
A. (i) Any party may terminate this Agreement or any Statement of Work
immediately by written notice to other party, in the event of a material breach
of this Agreement or such Statement of Work by the other party, if the
non-breaching party shall have given written notice to the breaching party
specifying the nature of the breach and such breach shall not have been
substantially cured within 180 days (30 days in the case of any payment breach)
after such notice of breach. Any termination by any party for breach by the
other party shall be without prejudice to any damages or remedies to which it
may be entitled from the other party. (ii) Any party may terminate this
Agreement or any Statement of Work immediately by written notice to the other
party, if the other party becomes insolvent, makes or has made an assignment for
the benefit of creditors, is the subject of proceedings in voluntary or
involuntary bankruptcy instituted on behalf of or against it (except for
involuntary bankruptcies which are dismissed within ninety (90) days) or has a
receiver or trustee appointed for substantially all of its property.
B. The expiration or termination of this Agreement or any Statement of Work
shall not affect the rights and obligations of the parties accrued prior to such
expiration or termination. The rights and obligations under Sections 3.E, 6.C,
6.D, 6.E, 6.F, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 23 and 24 of this Agreement
shall survive the expiration or termination of this Agreement.
16. CONFORMANCE WITH LAW; REPRESENTATION
Provider shall perform the Services and discharge obligations under this
Agreement and each Statement of Work in conformance with (i) professional
standards and practices, (ii) this Agreement and the applicable Statement of
Work, and (iii) all applicable laws and regulations. Without limiting the
generality of the foregoing, Provider shall retain all records relating to the
Services and Provider's performance of this Agreement and the Statements of Work
for the time periods required by applicable federal regulations.
Provider represents and warrants to Purchaser that Provider owns or has a
license to all patents, copyrights, trade secrets and proprietary information
used in the performance of the Services (other than patents, copyrights, trade
secrets or proprietary information that may be required as a result of
performance of the Services using any Materials provided by or on behalf of
Purchaser or any other compounds or materials in which third parties have or may
have
Services Agreement(6) A-10
intellectual property rights ("Third Party Compound IP Rights")) and
(subject only to any such Third Party Compound IP Rights) has the right to
perform Services and discharge obligations pursuant to this Agreement and each
Statement of Work and to grant rights to Purchaser pursuant hereto and thereto,
free and clear of all encumbrances, without the need for any third party
consent, and without infringing or violating any patent, copyright, trade
secret, proprietary or other right of any third party. Provider represents and
warrants to Purchaser that all individuals performing the Services for or on
behalf of Provider have entered into agreements with Provider providing for the
assignment to Provider of all inventions and discoveries made or arising in the
course of the performance of the Services. Provider shall indemnify and hold
harmless Purchaser and its Affiliates from and against any and all claims,
proceedings, damages or liabilities arising out of the breach of the foregoing
representations and warranties.
17. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of
Massachusetts, without regard to the conflicts of
laws principles thereof.
18. INDEPENDENT CONTRACTOR
A. Provider acknowledges and agrees that it is solely responsible for the
compensation of the personnel assigned to the Services, and as employer, shall
be responsible for withholding all federal, state, local or other applicable
taxes and similar items. Provider also shall be responsible for all other
employer related obligations, including providing appropriate insurance coverage
and employee benefits, and making all other deductions required by law affecting
the gross wages of each employee.
B. Provider personnel assigned to the Services are not nor shall they be
deemed to be at any time during the term of this Agreement employees of
Purchaser. The parties' relationship and status with each other shall be that of
independent contractors, and neither party shall state or imply, directly or
indirectly, that it is empowered or authorized to commit or bind the other party
or to incur any liabilities or expenses on behalf of the other party or to enter
into any oral or written agreement in the name or on behalf of the other party.
Nothing herein shall create, expressly or by implication, a partnership, joint
venture, agency, or other association of the parties.
19. ENTIRE AGREEMENT
This Agreement and any Statements of Work and Change Orders entered into
pursuant hereto represent the entire agreement and understanding of the parties
with respect to the subject matter hereof and supersede all prior communications
between the parties with respect to such subject matter. This Agreement shall
supersede the Confidentiality Agreement dated as of June 13, 2002 between
Purchaser and Provider with respect to Confidential Information disclosed
pursuant to this Agreement. Any Statements of Work and Change Orders shall be
incorporated in this Agreement by reference and form a part hereof. In the event
of any inconsistency between this Agreement and any Statement of Work or Change
Order, the provisions of this Agreement shall govern. This Agreement shall not
be modified or amended except by a written agreement signed by the parties
hereto.
Services Agreement(6) A-11
20. ASSIGNMENT
Except as expressly provided in this Section, this Agreement and any
Statement of Work, and all rights and obligations hereunder and thereunder, may
not be assigned by either party without the express written consent of the other
party. Any assignment or attempt at the same in contravention of the foregoing
shall be void and of no effect. Either party may assign this Agreement and any
Statement of Work, and all rights and obligations hereunder and thereunder, in
whole or in part without the consent of the other party, to any of the
assignment party's affiliates or in connection with the transfer or sale of all
or substantially all of the assigning party's assets or business or its merger
or consolidation with another company. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns.
21. WAIVER
No waiver of any term, provision or condition of this Agreement whether by
conduct or otherwise in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such term, provision or
condition, or as waiver of any other term, provision or condition of this
Agreement.
22. FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in
performing its obligations under this Agreement, to the extent such failure or
delay is caused by circumstances beyond such party's control, such as labor
disturbances or labor disputes, accidents, civil disorders or commotions, acts
of aggression or acts of God. In such event, the party affected shall use
reasonable efforts to resume performance of this Agreement.
23. DELIVERY TO PURCHASER OF INFORMATION AND UNUSED MATERIALS
Within thirty (30) days following the termination of this Agreement or the
termination of or completion of Services pursuant to any Statement of Work, (i)
upon written request, all data and information that were furnished to Provider
by or on behalf of Purchaser pursuant hereto shall be returned to Purchaser; and
(ii) all unused Materials shall either be returned to Purchaser or disposed of
in accordance with the provisions of Section 10(5) hereof.
24. DEBARMENT CERTIFICATION
Neither Provider nor any person employed thereby has been debarred under
Section 306(a) or (b) of the Federal Food, Drug and Cosmetic Act and no debarred
person shall in the future be employed by Provider in connection with any work
to be performed for or on behalf of Purchaser. If at any time after execution of
this Agreement, Provider becomes aware that Provider or any person employed
thereby in connection with any work performed for or on behalf of Purchaser is,
or is in the process of being debarred, Provider shall so notify Purchaser
immediately.
Services Agreement(6) A-12
25. MISCELLANOUS
A. As used in this Agreement, an "Affiliate" of any party shall mean any
corporation, company, partnership, firm or other entity that, directly or
indirectly, controls, is controlled by or is under common control with such
party. For purposes of this definition "control" of any party or entity shall
mean the beneficial ownership of fifty percent (50%) or more of the voting or
income interest in such party or entity.
B. Should one or more provisions of this Agreement or any Statement of Work
become void or unenforceable as a matter of law, then this Agreement or such
Statement of Work shall be construed as if such provision were not contained
herein or therein and the remainder of this Agreement or such Statement of Work
shall be in full force and effect, and the parties will endeavor in good faith
to substitute for the invalid or unenforceable provision a valid and enforceable
provision which conforms as nearly as possible with the original intent of the
parties.
C. The captions and headings used in this Agreement or any Statement of
Work or Change Order are for convenience of reference only and shall not affect
the meaning or interpretation hereof or thereof in any way.
D. This Agreement and any Statement of Work or Change Order may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Services
Agreement in duplicate.
COMBINATORX (SINGAPORE)
COMBINATORX, INCORPORATED
PTE LTD
By By
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Name Name
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Title Title
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Date Date
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Services Agreement(6) A-13
