MASTER SERVICES AGREEMENT
THIS AGREEMENT is entered into effective as of the 19th day of November,
1997, by and between PharmaPrint Inc., a corporation of the State of Delaware
having its principal place of business at 0 Xxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000 ("PharmaPrint") and Xxxxxx Inc., a corporation of the State of
Colorado, having offices at 0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxx 00000
("Xxxxxx").
RECITALS:
A. WHEREAS, PharmaPrint has developed a process for the identification,
characterization of and standardization of the amounts of bioactive components
in herbal extracts (the "PharmaPrint-Registered Trademark- Process") and is
seeking to commercialize certain herbal extracts upon further characterization
and standardization utilizing the PharmaPrint-Registered Trademark- Process;
B. WHEREAS, PharmaPrint has developed proprietary technological
information, know-how, trade secrets, and obtained patents and filed patent
applications relating to and/or covering the subjects of Paragraph A above;
C. WHEREAS, Xxxxxx has developed special processes, know-how,
technologies, and trade secrets that give rise to considerable experience and
expertise in the extraction, isolation, purification, analysis and manufacture
of various herbal products;
D. WHEREAS, PharmaPrint recognizes and acknowledges the advantages and
value of Xxxxxx'x experience and expertise and desires to contract with Xxxxxx
for certain chemistry and other services related to the PharmaPrint-Registered
Trademark- Process and PharmaPrint is willing to pay for the services of Xxxxxx
in accordance with the terms of this Agreement;
E. WHEREAS, PharmaPrint desires to secure a coordinated and continuous
commercial supply of herbal products that have been identified, characterized
and standardized using the PharmaPrint -Registered Trademark- Process.
F. WHEREAS, Xxxxxx is willing to provide the services requested and
provide services for the further development, characterization, and
standardization of certain herbal extracts utilizing the PharmaPrint-Registered
Trademark- Process and Xxxxxx'x "Good Manufacturing Practice";
G. WHEREAS, the parties intend to enter into various Work Orders for
chemistry and other services under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
agreements, and conditions hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
The terms defined in this Article I shall for all purposes of this
Agreement have the following meanings unless the context requires otherwise.
1.1 "Agreement" shall mean this document as the same may be amended,
modified, or supplemented from time to time in accordance with the provisions
hereof.
1.2 "Effective Date" shall mean the date first written hereinabove.
1.3 "FDA" shall mean the Federal Food and Drug Administration of the
United States Department of Health and Human Services or any successor agency
thereto as well as governmental agencies of comparable jurisdiction in the
Territory and elsewhere.
1.4 "GMP" means the good manufacturing practice regulations of the FDA as
described in the United States Code of Federal Regulations or any successor
regulations in the United States and as may be described in comparable
regulations in force in countries within the Territory and elsewhere. For DSHEA
Licensed Products, "GMP" shall mean minimal compliance with the regulations of
the United States Dietary Supplement Health and Education Act of 1994 and
comparable regulations in force in countries within the Territory, or other
requirements as defined by PharmaPrint or other as applicable as mutually agreed
upon by Xxxxxx.
1.5 "Government Approvals" shall mean any approvals, licenses,
registrations, or authorizations, howsoever called, of any United States
federal, state, or local regulatory agency, department, bureau, or other
governmental entity, including the FDA, and similar Government Approvals in the
other countries within the Territory and elsewhere, necessary for the
manufacture, use, storage, transport, or sale, both interstate and intrastate,
in the United States, its territories, possessions, and Puerto Rico, as well as
the other countries within the Territory and elsewhere. In the case of DSHEA
Licensed Products, the term "Government Approvals" shall mean compliance with
the applicable sections of the United States Dietary Supplement Health and
Education Act of 1994 or other as defined by PharmaPrint and as mutually agreed
upon by Xxxxxx.
1.6 "Herbal Product(s)" shall mean only the herbal extracts that are
listed and identified in the various individual Work Orders that are entered
into and performed in accordance with this Agreement.
1.7 "Improvements" shall mean any and all new and useful processes,
methods, manufactures, devices, compositions of matter (except as limited
below), or methods of use first conceived, reduced to practice, or developed
after the Effective Date and during the term of this Agreement by PharmaPrint,
or a PharmaPrint Affiliate, Xxxxxx or any employees, consultants or other
persons under the direction or control of PharmaPrint or Xxxxxx which increases
the performance, efficacy, or safety of an Herbal Product(s),
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reduce the cost of manufacture, harmful side-effects or adverse reactions of
Herbal Product(s), or otherwise relates to the manufacture or use of Herbal
Product(s), or the practice of the method(s) claimed in any of the patents
and/or patent applications within the Patent Rights. For the avoidance of
doubt, the defined term "Improvement" does not include Herbal Products PER SE.
1.8 "Patent Rights" shall mean any and all issued patents in the United
States, Canada, and/or Mexico and any and all patent applications for letters
patent pending in the above countries (until such time as such applications or
any of them are denied, abandoned, or issued into patents) listed in Schedule A
and attached hereto, any patents issuing from such application, all divisionals,
continuations, continuations-in-part, and all patents granted thereon, as well
as all other patents in the Territory, including any re-issues, renewals, or
extensions thereof, which are owned by PharmaPrint, a PharmaPrint Affiliate, any
successors, purchasers, assignees of PharmaPrint, or under which PharmaPrint or
a PharmaPrint Affiliate shall have the right to grant rights, and which claim a
PharmaPrint-Registered Trademark- Process for identifying, characterizing and
standardizing the amounts of bioactive components in herbal extracts or
Improvements, which claim has not lapsed, become abandoned, or been declared
invalid or unenforceable by a final non-appealed or unappealable decision or
judgment of a court or tribunal of competent jurisdiction.
1.9 "PharmaPrint Affiliate" shall mean any company which directly or
indirectly through stock ownership or through other contractual arrangement
either controls, or is controlled by, or is under common control with
PharmaPrint.
1.10 "PharmaPrint-Registered Trademark- Process" shall mean the methods,
analysis, and results, as described in Schedule B, for the identification,
characterization and standardization of bioactive components in the Herbal
Product(s).
1.11 "Territory" shall mean the United States, its territories,
possessions, Puerto Rico, Canada, and Mexico.
1.12 "Work Order" shall mean the chemistry services that are requested by
PharmaPrint, on a per project basis, during the term of this Agreement. Each
Work Order, identified in Schedule C and its amended counterparts, will be a
separate agreement that is controlled by the terms and conditions of this
Agreement.
ARTICLE II
XXXXXX'X CHEMISTRY SERVICES
2.1 Xxxxxx agrees to provide and PharmaPrint agrees to purchase and pay
for chemistry services that may be requested from time to time by PharmaPrint
during the term of this Agreement. The price for these services, including
labor, supplies and equipment fees shall be determined by Xxxxxx'x prevailing
fee schedule in effect at the time the Work Order is entered into. The
chemistry services may consist of:
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2.1.1 Characterizing and standardizing the biologically active
components and the amounts thereof in each of the Herbal Products utilizing the
PharmaPrint -Registered Trademark- Process;
2.1.2 Detecting the presence of, characterizing and standardizing
other significant components present in the Herbal Products utilizing the
PharmaPrint -Registered Trademark- Process;
2.1.3 Development of a scaled-up process for manufacturing the
Herbal Products;
2.1.4 Conducting the services in subparagraphs 2.1.1 - 2.1.3
utilizing GMP methods in accordance with the attached Schedule B;
2.1.5 Providing written reports;
2.1.6 Providing written updates;
2.1.7 Manufacturing and supplying PharmaPrint with the Herbal
Products; and
2.1.8 Other services as mutually agreed upon between the parties.
2.2 The parties agree that the minimal Xxxxxx personnel or equivalent
personnel, their areas of expertise and the minimal percentage of their time
necessary to meet Xxxxxx'x obligations under paragraph 2.1 may be set forth in
an addendum to the specific Work Order listed in Schedule C.
2.3 PharmaPrint shall reimburse Xxxxxx for the time spent by the personnel
listed in the Work Order addendum, at their normal rate, in effect at the time
the Work Order is entered into, for project contract work according to and
within the time percentages listed. Should additional personnel and/or
additional time be deemed necessary by Xxxxxx to accomplish Xxxxxx'x obligations
pursuant to paragraph 2.1 hereinabove, whether due to (i) unforseen technical
difficulties experienced by Xxxxxx, or (ii) failure or delays by PharmaPrint or
its separately contracted suppliers or advisors in providing Xxxxxx with
information, data, samples, materials, directions and decisions related to this
Agreement, Xxxxxx shall immediately so advise and notify PharmaPrint in writing
with a brief description of the reason(s) for such additional personnel and/or
time required. PharmaPrint's agreement to the same shall not be unreasonably
withheld and PharmaPrint shall provide Xxxxxx with written agreement to said
additional time or personnel within three (3) business days after receipt of
Xxxxxx'x above identified notification. In the event PharmaPrint does not
respond to Xxxxxx'x written request within three (3) business days, PharmaPrint
will have been deemed to have accepted Xxxxxx'x request.
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ARTICLE III
PROVISION OF EQUIPMENT
3.1 It is agreed by the parties that the equipment necessary for Xxxxxx to
meet its obligations under paragraph 2.1 of this Agreement are set forth in
attached Schedule D and must be in place on or about the Effective Date of this
Agreement. Xxxxxx agrees that it has the obligation to obtain and set up the
equipment in working order as soon as reasonably possible by or very shortly
after the Effective Date of this Agreement and maintain the equipment throughout
the term of this Agreement. PharmaPrint, to the degree requested by Xxxxxx,
will render reasonable assistance to Xxxxxx in obtaining the equipment set forth
in Schedule D.
ARTICLE IV
PAYMENTS
4.1 PharmaPrint will be invoiced on all Work Orders on a monthly basis and
payment terms will be net thirty (30) days unless otherwise specified in each
Work Order.
4.2 Xxxxxx has or is in the process of purchasing six (6) new analytical
HPLCs and two (2) preparatory HPLCs (hereinafter referred to as the Equipment)
which will be charged to PharmaPrint at a guaranteed use of two thousand two
hundred (2,200) hours per individual piece of Equipment over a two (2) year
period at a rate of twenty-five ($25.00) dollars per hour per piece of
Equipment. Any and all time and usage of each piece of Equipment or other HPLC
instruments within any of Xxxxxx'x facilities owned and operated in the state of
Colorado for any project commenced under any agreement with PharmaPrint as
listed in Schedule C will be applied to this committment and charged to
PharmaPrint.
4.3 If Xxxxxx chooses (i) at the end of the term of this Agreement, (ii)
during the term of this Agreement, or (iii) upon early termination of this or
any other agreement(s), which includes Work Orders, with PharmaPrint requiring
the use of the Equipment for the completion of any PharmaPrint project, to use
any of the Equipment in work totally unrelated to any of the agreements with
PharmaPrint, notwithstanding the provisions in Paragraph 4.5, then the remainder
of the guaranteed time use charge for each piece of Equipment will no longer be
chargeable to or payable by PharmaPrint. Insofar as any of these events have
occurred, at PharmaPrint's sole discretion, PharmaPrint has the right to
renegotiate the payment terms, related to PharmaPrint's hourly guaranteed use of
the Equipment in order to continue access to and use of any or all of the
Equipment.
4.4 Should PharmaPrint discontinue or terminate further work under this
Agreement, the full hourly guaranteed use of two thousand two hundred (2,200)
hours per piece of Equipment less the actual hourly use per piece of Equipment
will be due and payable by PharmaPrint to Xxxxxx within thirty (30) days of such
discontinuance or termination.
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4.5 Notwithstanding the foregoing provisions, should any or all of the
Equipment stand idle for a consecutive sixty (60) day peroid period pursuant
to PharmaPrint's instructions or requirements, Xxxxxx may give notice to
PharmaPrint that Xxxxxx intends to move or use the idle Equipment in work
totally unrelated to any agreements with PharmaPrint. At such time as
PharmaPrint may elect, at their sole discretion, to continue to reserve the idle
Equipment by paying the normal use charge of twenty-five ($25) dollars per hour
for a forty (40) hour work week for each piece of Equipment that PharmaPrint
chooses to remain dedicated to existing or future PharmaPrint work. Should
PharmaPrint elect not to make such payment(s), Xxxxxx has the right to use any
or all of the idle Equipment for work unrelated to any PharmaPrint agreement.
PharmaPrint still retains the right to exclusive future use of the Equipment
providing that PharmaPrint gives Xxxxxx two (2) weeks written notice of its
intent to exercise its use of the Equipment.
4.6 Upon expiration of the lease of the six (6) analytical HPLCs and the
Nova preparatory HPLC Xxxxxx shall have the first option to pay the residual and
thus own these pieces of equipment. Upon expiration of the lease of the Delta
prepartory HPLC PharmaPrint shall have the first option to pay the residual and
thus own this piece of equipment.
4.7 Xxxxxx may dedicate some facilities, including laboratories, office
space, phone lines, for the sole exclusive use to PharmaPrint. Should any or
all of these facilities stand idle for a consecutive sixty (60) day period
pursuant to PharmaPrint's instructions or requirements, Xxxxxx may give notice
to PharmaPrint that Xxxxxx intends to use the facilities for work totally
unrelated to any agreements with PharmaPrint. At such time as PharmaPrint may
elect, at their sole discretion, to continue to reserve the idle facilities by
paying a reasonable fee, mutally agreed upon by PharmaPrint and Xxxxxx that
PharmaPrint chooses to remain dedicated to existing or future PharmaPrint work.
Should PharmaPrint elect not to make such payment(s), Xxxxxx has the right to
use any or all of the idle facilities for work unrelated to any PharmaPrint
agreement. PharmaPrint still retains the right to exclusive future use of the
Equipment providing that PharmaPrint gives Xxxxxx 60 days written notice of its
intent to exercise its use of the facilities.
ARTICLE V
CONFIDENTIALITY AND PUBLICITY
5.1 In connection with prior related disclosures and work, pursuant to the
Confidential Disclosure Agreement between the parties of January 24, 1997, which
agreement is incorporated herein by reference, and with the negotiation,
execution and performance of this Agreement, Xxxxxx and PharmaPrint have had and
will have access to certain confidential and proprietary information of each
other, including, but not limited to, financial data, know-how, trade secrets,
technology, PharmaPrint's Patent Rights relating to the PharmaPrint -Registered
Trademark- Process, and certain mutual information concerning the
identification, characterization of and standardization of the biological active
components, their biological activity, and their percent of the composition of
the Herbal Product(s) of
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this Agreement. Recognizing that such information is all confidential and
represents valuable assets and property to both parties, and the harm that may
befall such party if any of such information is disclosed, Xxxxxx and
PharmaPrint agree that for a period of ten (10) years after the execution of the
January 24, 1997 Confidential Disclosure Agreement between the parties, referred
to above, to hold all such information in confidence and not to use or otherwise
disclose any of such information to third parties without the prior written
consent of the other party PROVIDED, HOWEVER, that the obligations of
confidentiality created herein shall cease to apply to information: (a) that can
be demonstrated through documentary evidence to be in, or to come into, the
public domain through no fault of Xxxxxx or PharmaPrint; (b) that can be
demonstrated through documentary evidence to have been in either parties
possession prior to its disclosure, or can be demonstrated through documentary
evidence to have been later disclosed to either party by a third party who, to
the receiving party's knowledge, was under no obligation to keep such
information confidential; and (c) which, in the written opinion of Xxxxxx'x or
PharmaPrint's legal counsel, is required to be disclosed by law or regulation or
by the rules of any stock exchange on which Xxxxxx'x or PharmaPrint's securities
are listed, but only to the extent so required and only upon five (5) business
days written notice to and followed by consultation with the other party.
5.2 Xxxxxx shall submit to PharmaPrint and PharmaPrint shall submit to
Xxxxxx all advertising, herbal product labeling, herbal product literature,
written sales promotions, press releases, and other publicity matters relating
in any way to this Agreement or its general subject matter in which Xxxxxx'x
trademarks, and/or the PharmaPrint trademarks, the PharmaPrint -Registered
Trademark- Process, or the Herbal Product(s) produced in accordance with said
process is mentioned or that contains language from which the connection of said
name, trademark, PharmaPrint -Registered Trademark- Process, or the Herbal
Product(s) identified, characterized or standardized thereby may be implied or
inferred and neither party shall publish or use such advertising, sales
promotion, press release or publicity matters without either parties prior
written consent.
5.3 In the event Xxxxxx or PharmaPrint or any of its officers, employees
or consultants is requested or required by subpoena, order, discovery request,
or similar process or by applicable law or regulation or the rules of any stock
exchange on which such Xxxxxx or PharmaPrint securities are listed to disclose
any information that is required to be held in confidence pursuant to paragraph
5.1 of this Agreement, and Xxxxxx or PharmaPrint is required to disclose such
information the disclosing party shall provide advanced notice and a copy of the
proposed disclosure to the other party and will consult with the other party
with respect to taking legally available steps to resist or narrow such request
or disclosure. If disclosure of such information is required and Xxxxxx or
PharmaPrint is required to disclose such information, it shall furnish only that
portion of the information that, in the written opinion of the disclosing
party's counsel, such party is legally required to disclose and shall cooperate
with any action by the non-disclosing party (at the disclosing party's expense)
to obtain an appropriate protective order or written or equally reliable
assurance that confidential treatment shall be accorded the information.
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ARTICLE VI
NON-COMPETITION
6.1 During the term of this Agreement (or until termination) and for a
period of three (3) years thereafter, Xxxxxx will not engage in the use of the
PharmaPrint-Registered Trademark- Process and/or the production of the herbal
products utilizing the PharmaPrint-Registered Trademark- Process, as described
in Patent Rights and/or as developed by Xxxxxx for PharmaPrint under and
pursuant to this Agreement, for itself or for third parties for marketing and
sale or for purposes of comparison with herbal products, either existing or
developed, hereafter, of third parties.
6.2 Xxxxxx admits and agrees that no right or license is granted to it or
its customers or clients (by implication or otherwise) by PharmaPrint under its
proprietary technology, know how, trade secret, or Patent Rights and/or
Trademarks or by the performing of Xxxxxx'x obligations to PharmaPrint under and
pursuant to this Agreement.
ARTICLE VII
IMPROVEMENTS
7.1 Xxxxxx hereby agrees to disclose to PharmaPrint any Improvements,
whether believed to be patentable or unpatentable, made or discovered in
connection with performing its duties and obligations to PharmaPrint under
paragraph 2.1 of this Agreement. Such disclosure shall be made within sixty
(60) days after the Improvement is first reduced to writing.
7.2 In the event any Improvements, as described in Paragraph 7.1, above,
comprise a patentable invention conceived and reduced to practice independently
by Xxxxxx or jointly by Xxxxxx or PharmaPrint the parties shall own undivided
equal interests in such inventions as tenants in common with no obligation to
account to each other for the use thereof, except as specifically provided
elsewhere in this Agreement and the parties shall cooperate in and share equally
any and all expenses for the preparation, filing and prosecution of any patent
applications therefor.
ARTICLE VIII
WARRANTIES, COVENANTS AND REPRESENTATIONS
8.1 PharmaPrint represents and warrants to Xxxxxx that the execution of
this Agreement and the full performance and enjoyment of the rights of
PharmaPrint under this Agreement will not breach or in any way be inconsistent
with the terms and conditions of any license, contract, understanding or
agreement, whether express, implied, written, or oral between PharmaPrint and
any third party. Xxxxxx represents and warrants to PharmaPrint that the
execution of this Agreement and the full performance and enjoyment of the rights
of Xxxxxx under this Agreement will not breach or in any way be inconsistent
with the terms and conditions of any license, contract, understanding or
agreement, whether express, implied, written, or oral between Xxxxxx and any
third party.
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8.2 Xxxxxx warrants that the Herbal Product supplied by Xxxxxx pursuant to
Paragraph 2.1.7 of this Agreement shall conform to the Specifications identified
in the applicable Work Orders, be manufactured in accordance with GMP as
referenced in 1.4 and shall comply with all applicable laws in the Territory.
Provided, however, that Xxxxxx does not make any such warranty as to any matters
or processes (including the Specifications) specified or established by
PharmaPrint.
8.3 Xxxxxx shall indemnify, defend and hold harmless PharmaPrint from all
actions, losses, claims, demands, damages, costs and liabilities (including
reasonable attorneys' fees) except as arising from events listed here below in
paragraph 8.4 to which PharmaPrint is or may become subject insofar as they
arise out of or are alleged or claimed to arise out of:
(i) personal injury, death or property damage sustained by any person(s)
resulting from the use of the Herbal Product defectively manufactured by Xxxxxx,
(ii) any material breach by Xxxxxx of any covenants or warranties of
Xxxxxx, or
(iii) any grossly negligent or willful act or omission by Xxxxxx or its
employees, agents or subcontractors.
8.4 PharmaPrint shall indemnify, defend and hold harmless Xxxxxx, its
subsidiaries, and employees from all actions, losses, claims, demands, costs and
liabilities (including reasonable attorneys' fees) to which Xxxxxx is or may
become subject insofar as they arise out of or are alleged or claimed to arise
out of:
(i) any grossly negligent or willful act or omission by PharmaPrint
or its employees, agent or subcontractors,
(ii) personal injury, death or property damage sustained by any
person(s) resulting from the (A) use of the Herbal Product manufactured by
PharmaPrint or by a third party in accordance with the specific provisions set
forth in the applicable Work Order or (B) any matter or process (including the
Specifications) specified by PharmaPrint or (C) any changes to or adulteration
of the Herbal Product after shipment by Xxxxxx or (D) the Herbal Product
manufactured by Xxxxxx if Xxxxxx has followed the matters or processes
(including the Specifications) specified and established by PharmaPrint and in
other respects has manufactured in accordance with GMP and all applicable laws
in the Territory,
(iii) any labeling, advertising or promotional materials used by
PharmaPrint, or
(iv) any material breach by PharmaPrint of any covenants or warranties of
PharmaPrint.
8.5 PharmaPrint represents and warrants that to the best of its knowledge
and belief, the manufacture of the Herbal Product hereunder shall not infringe
any third party patents in the United States or anywhere in the Territory.
PharmaPrint undertakes to indemnify and hold harmless Xxxxxx against all
judgments, decrees, costs and expenses, including attorney's fees, resulting
from any alleged infringement and shall make its best efforts to defend, upon
written request of Xxxxxx, any claim of patent infringement in the use and/or
sale of the Herbal Product manufactured by Xxxxxx under this Agreement.
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Xxxxxx shall provide prompt notice to PharmaPrint of any such claim of patent
infringement and PharmaPrint shall have complete control over any defense or
settlement of such claim.
8.6 Xxxxxx represents and warrants that to the best of its knowledge and
belief, the services provided and the manufacture of the Herbal Products
hereunder shall not infringe any third party patents in the United States or
anywhere in the Territory. Xxxxxx undertakes to indemnify and hold harmless
PharmaPrint against all judgments, crees, costs and expenses, including
attorney's fees, resulting from any alleged infringement and shall make its best
efforts to defend, upon written request of PharmaPrint, any claim of patent
infringement in the services provided by Xxxxxx and in the use and/or sale of
the Herbal Product manufactured by Xxxxxx under this Agreement. PharmaPrint
shall provide prompt notice to Xxxxxx of any such claim of patent infringement
and Xxxxxx shall have complete control over any defense or settlement of such
claim.
8.7 Xxxxxx shall maintain, during the term of this Agreement,
comprehensive general liability insurance with an insurance carrier reasonably
acceptable to PharmaPrint, which insurance policy or policies shall maintain the
full products hazards provisions with the Herbal Product hazards limits subject
to deductibles not in excess of $10,000 in the aggregate, and with at least
$2,500,000 per occurrence and at least $2,500,000 overall coverage for claims of
bodily injury and property damage arising out of any loss. Such policy or
policies shall extend coverage with respect to occurrence during a policy
period, regardless of the dates on which claims arising for such occurrences are
made, and shall include PharmaPrint as named insured in such policy or policies.
Both parties shall provide notice to the other of any loss, whether actual or
threatened, promptly upon receipt of notice thereof.
8.8 PharmaPrint shall maintain, during the term of this Agreement,
comprehensive general liability insurance with an insurance carrier reasonably
acceptable to Xxxxxx, which insurance policy or policies shall maintain the full
products hazards provisions with the Herbal Product hazards limits subject to
deductibles not in excess of $10,000 in the aggregate, and with at least
$2,500,000 per occurrence and at least $2,500,000 overall coverage for claims of
bodily injury and property damage arising out of any loss. Such policy or
policies shall extend coverage with respect to occurrence during a policy
period, regardless of the dates on which claims arising for such occurrences are
made, and shall include Xxxxxx as named insured in such policy or policies.
Both parties shall provide notice to the other of any loss, whether actual or
threatened, promptly upon receipt of notice thereof.
8.9 A party entitled to indemnification hereunder agrees to give prompt
written notice (in no event later than ten (10) business days following its
receipt) to the indemnifying party after the receipt by such party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such party will claim
indemnification pursuant to this Agreement.
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Unless, in the reasonable judgment of the indemnifying party a conflict of
interest may exist between the indemnified party and the indemnifying parry with
respect to a claim, the indemnifying party may assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim. The indemnifying party will not be subject
to any liability for any settlement made without its consent, which shall not be
unreasonably withheld.
8.10 The provisions and obligations of this Article VIII shall survive any
termination or expiration of this Agreement.
ARTICLE IX
DURATION AND TERMINATION
9.1 This Agreement shall continue in full force and effect for three (3)
years from the Effective Date of this Agreement, unless terminated by either
party pursuant to the provisions set forth in this Article IX.
9.2 PharmaPrint and Xxxxxx may terminate this Agreement in its entirety,
upon mutual agreement, at any time upon thirty (30) days written notice to the
other party. In such event, PharmaPrint shall remain obligated to make the
payments due under Article IV.
9.3 Either party hereto shall be entitled to terminate this Agreement
upon thirty (30) days written notice to the other party if the other party shall
commit a breach of any material provision hereof and shall not within thirty
(30) days from receipt of notice of such breach by the complaining party remedy
the same (if capable of remedy).
9.4 Insofar as is lawful and legally permissible, this Agreement may be
terminated with immediate effect by a party upon giving written notice to the
other if the other is insolvent or has committed any act of bankruptcy or an
order is made or resolution passed for the winding up of the other party.
9.5 Failure on the part of either party to exercise or enforce any right
conferred upon it hereunder shall neither be deemed to be a waive of any such
right nor operate to bar the exercise or enforcement thereof at any time
thereafter.
ARTICLE X
MISCELLANEOUS
10.1 Any notice required or permitted under this Agreement shall be in
writing and deemed to have been sufficiently provided and effectively made as of
the delivery date if hand-delivered with written acknowledge thereof, or as of
the date received if mailed by
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registered or certified mail, postage pre-paid, and addressed to the receiving
party at its respective address, as follows:
XXXXXX, INC.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: President
PHARMAPRINT, INC.
0 Xxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
10.2 The relationship of the parties under this Agreement is that of
independent contractors and not as agents of each other or partners or joint
ventures, and neither party shall have the power to bind the other in any way
with respect to any obligation to any third party unless a specific power of
attorney is provided for such purpose. Each party shall be solely and
exclusively responsible for its own employees and operations.
10.3 In the event that the performance of this Agreement or of any
obligation hereunder, other than payment of money as herein provided by either
party hereto is prevented, restricted or interfered with by reason of any cause
not within the control of the respective party, and which could not by
reasonable diligence have been avoided by such party, the party so affected,
upon giving prompt notice to the other party, as to the nature and probable
duration of such event shall be excused from such performance to the extent and
for the duration of such prevention, restriction or interference, provided that
the party so affected shall use its reasonable efforts to avoid or remove such
cause of non-performance and shall fulfill and continue performance hereunder
with the utmost dispatch whenever and to the extent such cause or causes are
removed.
10.4 For the purpose of the preceding paragraph but without limiting the
generality hereof, the following shall be considered as not within the control
of the respective party; acts of God, acts or omissions of a governmental
agency, compliance with requests, recommendations, rules regulations or orders
of any governmental authority or any officer, department, agency or instrument
thereof, flood, storms, earthquake, fire, war, riots, insurrection, accidents,
acts of the public enemy, invasion, quarantine restrictions, strike, lockout,
embargoes, delays or failure in transportation and acts of a similar nature.
10.5 Should one of the provisions of this Agreement become or prove to be
null and void, such will be without effect on the validity of this Agreement as
a whole. Both parties will, however, endeavor to replace the void provision by
a valid one which in its economic effect is most consistent with void provision.
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10.6 This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado without regard to principles of conflicts of
laws.
10.7 This Agreement and the rights and obligations hereunder shall not be
assignable by Xxxxxx without the previous written consent of PharmaPrint which
consent will not be unreasonably withheld. PharmaPrint may assign this
Agreement (i) in connection with the transfer of all or substantially all of the
business to which it relates without any such consent, and (ii) in whole or in
part to a PharmaPrint Affiliate without any such consent.
10.8 The rights, duties and obligations of Paragraphs 5.1 and 5.3, and
Articles IV, VI, VII, and VIII along with the continuing payments obligations,
rights, and duties of Article IV shall survive the termination or expiration of
this Agreement.
10.9 This Agreement and the Work Orders referenced herein constitute the
entire understanding between the parties regarding the subject matter hereof in
the Territory and no party has relied on any representation not expressly set
forth or referred to in this Agreement. No amendment, variation, waiver or
modification of any of the terms or provisions of this Agreement shall be
effected unless set forth in writing, specifically referencing this Agreement,
and duly signed on behalf of the parties hereto.
10.10 No press release or other public announcement concerning this
Agreement shall be made by either party without the prior written approval of
the other party hereto, which approval shall not be unreasonably withheld,
except as otherwise required by law according to the written opinion of outside
legal counsel. Press releases or other public announcements reasonably required
by law according to the opinion as aforementioned shall be reviewed with the
other party and their comments given due consideration.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have caused this Agreement to be executed effective as of the date set
forth above.
XXXXXX, INC. PHARMAPRINT INCORPORATED
By: Xxxx X. Xxxxxx By: X. X. Xxxxxxx
------------------------- ---------------------------
Title: CEO Title: COO
----------------------- ------------------------
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