CONSULTING AGREEMENT
EXHIBIT
4.31.2
This
Consulting Agreement (“Agreement”) is by and between KKS-TU GmbH, a German
Corporation (“KKS”),
located at Xxxxxxx-Xxxxxx-Xxx. 00, 00000 Xxxxxxxx, Xxxxxxx, and Gentium, an
Italy Corporation (“Gentium”),
located at Xxxxxx XX Xxxxxxxxx 0, Xxxxx Xxxxxx (Xxxx), Xxxxx.
| 1. |
Description
of Services
|
As
of the
date hereof, KKS will provide Gentium with clinical and regulatory consulting
services (“the
Services”).
KKS
will
use its best efforts to perform the Services in accordance with the highest
standards of its field. KKS will work closely with Gentium by meetings,
teleconferences and project reviews to assure that the Services are performed
as
desired.
| 2. |
Performance
of Services
|
The
manner in which the Services are to be performed shall be based on Estimated
Project Budgets (Appendix A “offer A-SC-0071/05”), Appendix B “offer
A-SC-0076/05”). KKS shall work as many hours as may be reasonably necessary to
fulfill KKS’s obligations under this Agreement. For translation of documents,
KKS will inform Gentium on the reason why translation is needed for the scope
of
this agreement.
| 3. |
Payment
to KKS
|
By
the
5th day of every month. KKS shall submit an invoice to Gentium. All invoices
will clearly define each task performed. Gentium shall pay KKS no later than
30
days following receipt of each invoice.
| 4. |
Term
/Termination
|
This
Agreement shall be effective for two years from the signature date. Either
party
may terminate this Agreement by serving the other party with 60 days prior
written notice to that effect. In the event of breach that the other party
breaches this Agreement and fails to cure that breach within 30 days of receipt
of written notice to that effect.
| 5. |
Relationship
of Parties
|
It
is
understood by the parties that KKS is an independent contractor with respect
to
Gentium, and not an employee of Gentium. Gentium will not provide fringe
benefits, including health insurance benefits, paid vacation or any other
employee benefit, for the benefit of KKS or KKS’s employees.
| 6. |
Disclosure
|
KKS
and
Gentium recognize that KKS may work on various and similar projects for other
clients. It is understood and agreed that KKS will not disclose to Gentium
any
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confidential
information of past and present clients. Gentium will rely on KKS’s ethical
judgment to avoid conflicts of interest. Notwithstanding the above, KKS is
required to disclose any outside activities or interests, including ownership
or
participation in the development of prior inventions, that conflict with the
best interests of Gentium. Prompt disclosure is required under this paragraph
if
the activity or interest is related, directly or indirectly, to any activity
that KKS may be involved with on behalf of Gentium.
| 7. |
KKS’s
Employees and
Subcontractors
|
KKS’s
employees and professionals with whom they have contracts, if any, who perform
services for Gentium under this Agreement, shall also be bound by the provisions
of this Agreement.
| 8. |
Confidentiality
|
|
a.
|
Gentium
recognizes that during the discussions leading up to this Agreement
and
during the term of this Agreement, KKS has acquired or will acquire
from
Gentium information which Gentium considers to be proprietary and
confidential. For example, Gentium has or will have products, prices,
business affairs, future plans, trade secrets, process information,
customer lists, technical information, product design information,
and
other proprietary information (collectively, “Information”) which are
valuable, special and unique assets of Gentium. KKS agrees that KKS
will
not at any time or in any manner, either directly or indirectly,
[i] use
any Information for KKS’s own benefit, (ii) use any Information other than
for the purpose of performing its services under this Agreement,
or (iii)
divulge, disclose or communicate in any manner to any third party
any
Information without the prior written consent of Gentium. KKS will
protect
the Information and treat it as strictly confidential for a period
of 10
years. A violation of this paragraph shall be a material violation
of this
Agreement.
|
|
b.
|
Unauthorized
Disclosure of Information
|
If
it
appears that KKS has disclosed with fault (or has threatened to disclose)
Information in violation of this Agreement, Gentium shall be entitled to an
injunction to restrain KKS from disclosing, in whole or in part, such
Information, or from providing any services to any party to whom such
Information has been disclosed or may be disclosed. Gentium shall not be
prohibited by this provision from pursuing other remedies, including a claim
for
losses and damages.
|
c.
|
Services
by KKS to Third Parties
|
The
parties recognize that KKS may provide consulting services to third parties.
However, KKS is bound by the confidentiality provisions of this Agreement,
and
KKS may not use the Information, directly or indirectly, for the benefit of
third parties.
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| 9. |
Indemnification
/Hold Harmless
|
KKS
will
not be held liable for any loss, injury or damage incurred by Gentium or by
a
third party as a result of the performance of the Services and/or as a result
of
Gentium’s activities, provided that such loss, injury or damage does not arise
from KKS’s gross negligence or willful misconduct or breach of this Agreement.
This obligation shall survive the expiration or earlier termination of this
Agreement.
| 10. |
Notices
|
All
notices required or permitted under this Agreement shall be in writing and
shall
be deemed delivered when delivered in person or sent certified and return
receipt requested, postage prepaid, addressed as follows:
|
Gentium:
|
Gentium
P.zza
XX Xxxxxxxxx, 0
00000
Xxxxx Xxxxxxx (Xxxx), Xxxxx
|
|
|
Attn:
|
Xxxxxxx
Xxxxxxxxx, Scientific Director
|
|
|
KKS:
|
KKS-TU
GmbH
Xxxxxxx-Xxxxxx-Xxx.
00
00000
Xxxxxxxx, Xxxxxxx
|
|
|
Attn:
|
Prof.
Xx. X. X. Xxxxxxx, Managing Director
|
|
Such
addresses may be changed from time to time by either party by providing written
notice in the manner set forth above.
| 11. |
Entire
Agreement
|
This
Agreement contains the entire agreement of the parties and there are no other
promises or conditions in any other agreement whether oral or written. This
Agreement supersedes any prior written or oral agreements between the
parties.
| 12. |
Amendment
|
This
Agreement may be modified or amended, if the amendment is made in writing and
is
signed by both parties,
| 13. |
Severability
|
If
any
provision of this Agreement shall be held to be invalid or unenforceable for
any
reason, the remaining provisions shall continue to be valid and enforceable.
If
a court finds that any provision of this Agreement is invalid or unenforceable,
but that by limiting such provision it would become valid and enforceable,
then
such provision shall be deemed to be written, construed and enforced as so
limited.
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| 14. |
Waiver
of Contractual Right
|
The
failure of either party to enforce any provision of this Agreement shall not
be
construed as a waiver or limitation of that party’s right to subsequently
enforce and compel strict compliance with every provision of this
Agreement.
| 15. |
Governing
law and jurisdiction
|
This
Agreement shall be governed by and construed in accordance with the laws of
Italy, without reference to any conflicts of law principles therein, and the
courts of Como shall have sole jurisdiction in the event of a dispute arising
between the parties in that regard.
| 16. |
Inventions
|
Any
and
all inventions, discoveries, reports or work product which KKS may make during
the term of this Agreement relating to the subject matter hereafter (the
“Inventions”) and all know-how which KKS may develop in connection therewith
shall be Gentium’s property and shall be disclosed promptly and fully to Gentium
in writing.
The
obligations set forth in this paragraph shall survive the termination of
expiration of this Agreement.
|
For:
|
Gentium.
|
||
|
By:
|
/s/
Xxxxx Xxxx Xxxxx
Xxxxx
Xxxx Xxxxx
|
Date: |
Jan.
17, 2006
|
|
Title:
|
President
|
||
|
For:
|
KKS-TU
GmbH
|
||
|
By:
|
/s/
Prof. Xx. X. X. Xxxxxxx
Prof.
Xx. X. X. Xxxxxxx
|
Date: |
Feb.
12, 2006
|
|
Title:
|
Managing
Director
|
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