COMVITA NEW ZEALAND LIMITED DERMA SCIENCES, INC
Exhibit
10.03
COMVITA
NEW ZEALAND LIMITED
DERMA
SCIENCES, INC
COLLABORATIVE
RESEARCH AND DEVELOPMENT
AGREEMENT
AGREEMENT dated February 23,
2010
PARTIES
COMVITA NEW ZEALAND LIMITED,
of Paengaroa, New Zealand (“Comvita”)
DERMA SCIENCES, INC, of
Princeton, New Jersey, United States of America (“Derma Sciences”)
INTRODUCTION
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A.
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Comvita
and Derma Sciences have agreed to work together to undertake research and
development to:
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(a)
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develop,
improve or test products containing Medical Honey;
and
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(b)
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ensure
or improve the safety and efficacy of products containing Medical
Honey.
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B.
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Comvita
and Derma Sciences wish to enter into this Agreement to establish a
framework for such research and development activities, and to agree the
rights and obligations of each party in relation to the commercialisation
of the results of such research and development
activities.
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AGREEMENT
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions: In
this Agreement, including the Introduction, the following terms have the
following meanings:
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“Agreement” means this
agreement and the attached Schedule;
“Business Day” means a day,
excluding Saturdays, Sundays, statutory public holidays or any day in the period
starting on 24 December and ending on 5 January, on which banks are open for
ordinary over-the-counter business in either Tauranga, New Zealand or New
Jersey, United States of America;
“Commencement Date” means the
date of signing of this Agreement by both parties;
“Confidentiality Agreement”
means the agreement entered into between the parties and entitled
“Confidentiality Agreement” and dated on or about the Commencement
Date;
“Confidential Information”
means all information of any kind, whether in tangible or documentary form, and
whether marked or identified as being confidential, relating to the Disclosing
Party or its business affairs and includes information relating to any
of:
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(a)
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the
business operations, business strategies, marketing plans and technologies
of the Disclosing Party;
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(b)
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the
Research Results;
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(c)
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any
information provided under this Agreement;
or
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exhibit 10.03 r&d
agmt
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1
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(d)
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the
terms of this Agreement;
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“Disclosing Party” means the
party to whom or to whose business affairs the Confidential Information
relates;
“Existing Material” means all
documentation, inventions and other materials used in the creation of or
incorporated in, the Research Results that are owned by, or licensed to, either
party:
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(a)
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prior
to the commencement of the relevant research and development;
or
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(b)
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after
the commencement of the relevant research and development and that are
developed independently from this Agreement or any Project
Agreement;
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“Force Majeure” has the
meaning given to that term in clause 10.1;
“Intellectual Property Rights”
means all industrial and intellectual property rights whether conferred by
statute, at common law or in equity, including, but not limited to:
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(a)
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all
copyright and similar rights that may subsist in works or other subject
matter;
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(b)
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rights
in relation to inventions (including all patents and patent
applications);
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(c)
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trade
secrets and know-how;
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(d)
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rights
in relation to designs (whether
registrable);
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(e)
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rights
in relation to registered and unregistered trade
marks;
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(f)
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business
names; and
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(g)
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rights
in relation to domain names;
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“Inventions” has the meaning
given to that term in the Licence Agreement;
“Licence Agreement” means the
agreement entered into between the parties and entitled “Licence Agreement” and
dated on or about the date of this Agreement;
“Licensed Product” has the
meaning given to that term in the Licence Agreement;
“Management Committee”
means the management committee to be established in accordance with clause
5.1;
“Medical Honey” has the
meaning given to that term in the Licence Agreement;
“Non-Severable Improvements”
has the meaning given to that term in the Licence Agreement;
“Notice” has the meaning given
to that term in clause 10.7;
“OTC Product” has the meaning
given to that term in the Licence Agreement;
“Project Agreement” has the
meaning given to that term in clause 3.4(a);
“Project” means a research and
development project to:
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exhibit 10.03 r&d
agmt
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2
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(a)
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develop,
improve or test products containing Medical Honey;
or
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(b)
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ensure
or improve the safety and efficacy of products containing Medical
Honey;
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“Project IP” means all
Intellectual Property Rights in and to the Research Results;
“Proposal” has the meaning
given to that term in clause 3.1 of this Agreement;
“Recipient” means the party
receiving Confidential Information under this Agreement;
“Research Results” means all
results, outcomes, conclusions, products, discoveries, inventions, reports,
records, data, materials, research processes, research protocols, lab books,
associated documents and research notes, memoranda and other writings and
drawings, created, discovered, invented, reduced to practice or developed during
or as a result of the research and development under this Agreement or any
Project Agreement; and
“Restraint Agreement” means
the agreement entered into between the parties and entitled “Restraint
Agreement” and dated on or about the date of this Agreement.
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1.2
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Interpretation: In
this Agreement:
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(a)
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headings
are used for convenience only and will not affect its
interpretation;
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(b)
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references
to the singular include the plural and vice
versa;
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(c)
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references
to a party include that party’s successors, executors, administrators and
permitted assignees (as the case may
be);
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(d)
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references
to clauses and the Schedule are to those clauses and the Schedule in this
Agreement;
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(e)
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where
a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
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(f)
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references
to a gender include all genders;
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(g)
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references
to a “person” include:
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(i)
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an
individual, firm, company, corporation or unincorporated body of
persons;
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(ii)
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any
public, territorial or regional
authority;
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(iii)
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any
government; and
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(iv)
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any
agency of any government or authority;
and
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(h)
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an
obligation not to do anything includes an obligation not to suffer, permit
or cause that thing to be done.
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2.
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TERM
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2.1
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This
Agreement will come into effect on the Commencement Date and will continue
in full force and effect for so long as the Licence Agreement remains in
full force and effect, unless earlier terminated pursuant to clauses 8.1
or 8.2.
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exhibit 10.03 r&d
agmt
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3
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3.
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COLLABORATIVE
RESEARCH PROJECTS
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3.1
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Proposal: From
time to time, either party may propose that the parties work together on a
particular research and development Project (“Proposal”). The
Proposal must outline at least the
following:
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(a)
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the
overall rationale for the Project;
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(b)
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the
scope and anticipated outcomes of the Project;
and
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(c)
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any
funding potentially available for the
Project.
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3.2
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Provide
information: The party formulating the Proposal will
provide the other party with such relevant supporting information as may
be available.
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3.3
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Negotiate details of
Project: Following receipt by the other party of a
Proposal under clause 3.1, the parties will use their best efforts to work
together to develop or refine the Proposal and agree (in writing) on
whether to proceed with the relevant Project. Such agreement
must include:
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(a)
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each
party’s responsibilities and
obligations;
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(b)
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what
resources will be contributed by the
parties;
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(c)
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the
funding required, and how that funding is to be obtained or applied
for;
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(d)
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the
involvement of any third party;
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(e)
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any
specifications and milestones for the Project, and any timeframes for
performance of the Project; and
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(f)
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any
other terms relevant to the particular
Project.
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3.4
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Enter into Project
Agreement:
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(a)
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Once
the parties have agreed in writing the terms on which the Project will be
conducted (“Project Agreement”), the Project Agreement will be binding on
the parties, and will form a schedule to this
Agreement.
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(b)
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Each
Project Agreement entered into by the parties forms part of, and is
governed by, the terms of this
Agreement.
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(c)
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In
the event of any inconsistency between a Project Agreement and the terms
of this Agreement, the terms of the Project Agreement will
prevail.
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3.5
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Freedom to undertake
research: Nothing in this Agreement will be construed so
as to limit or exclude either party’s right to undertake research and
development of any kind, either alone or with others, or to commission
others to undertake research and development, except as specified in
clause 3.6.
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3.6
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Limitation on Derma
Sciences: Derma Sciences agrees that it will not
undertake or commission any other person to undertake, any research or
development in relation to Medical Honey or products containing Medical
Honey other than under a Project Agreement, without first obtaining
Comvita’s written consent. Despite this, Derma Sciences will
not need to obtain Comvita’s consent for routine testing of existing
products containing Medical Honey that involves minimal numbers of
participants.
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exhibit 10.03 r&d
agmt
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4
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3.7
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Results of Derma Sciences’
research: If Comvita consents to any research or
development undertaken by Derma Sciences pursuant to clause 3.6, the
results or outcomes of such research and development will be deemed to be
and will be treated by the parties as Research Results arising under this
Agreement.
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4.
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OBLIGATIONS
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4.1
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Costs: Unless
otherwise agreed in writing or specified in a Project Agreement, each
party will fund all of the costs, expenses and disbursements incurred
under or in connection with any Project in equal
shares.
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4.2
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Responsibility for
personnel: Each party will be responsible for the
performance of its personnel. Any act or omission by either
party’s personnel that would constitute a breach of this Agreement if it
had been the party’s act or omission, will constitute a breach of this
Agreement by that party.
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4.3
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Responsibilities of each
party: Each party
will:
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(a)
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perform
their respective assigned portions of each Project as outlined in the
relevant Project Agreement;
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(b)
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inform
the Management Committee of all Research
Results;
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(c)
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keep
full and accurate records of all aspects of its assigned portion of each
Project; and
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(d)
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ensure
that the work performed by it under each Project is conducted using a
reasonable level of professional skill, efficiency, care and diligence and
in accordance with best scientific, ethical and commercial
practice.
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5.
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MANAGEMENT
COMMITTEE
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5.1
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Establishment:
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(a)
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The
parties will establish a Management Committee to oversee the activities
under the Projects.
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(b)
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Unless
otherwise agreed by the parties in writing, the Management Committee will
comprise two nominees from each party. The initial nominees of
each party will be as specified in the Schedule. Any change to those
nominees must be notified to the other party in
writing
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5.2
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Proceedings of Management
Committee:
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(a)
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The
Management Committee will meet regularly as and when reasonably requested
by a party, and at least once each calendar quarter. If
physical meetings are not possible they will be replaced by conference
calls, video conferencing or other agreed
means.
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(b)
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The
Chair of the Management Committee will be a person agreed by the
parties. If no agreement is possible, the first Chair will be a
person nominated by Comvita, and the Chair will then alternate on an
annual basis between the parties.
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exhibit 10.03 r&d
agmt
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5
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(c)
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The
Chair will ensure that proper records and minutes of each meeting are
taken, and are circulated to all Management Committee
members.
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(d)
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Decisions
of each meeting of the Management Committee must be by unanimous
agreement. Each member of the Management Committee will have
one vote. If the Management Committee cannot reach a unanimous
decision then the status quo will apply. The Chair will not
have a casting vote.
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(e)
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A
quorum for meetings of the Management Committee will be at least one
nominee from each party.
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(f)
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Except
as otherwise specified in this Agreement, the Management Committee will
determine its own procedures.
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5.3
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Role: The
role of the Management Committee will be
to:
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(a)
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oversee
the research and development under the
Projects;
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(b)
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consider
and agree the terms and scope of any Proposals submitted by either party
under clause 3.1;
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(c)
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agree
an annual research and development
budget;
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(d)
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consider
and agree variations to any Project
Agreements;
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(e)
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address
any issues or disputes that may arise in relation to any
Projects;
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(f)
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consider
whether each Project is likely to attain its objectives, and whether a
particular Project should continue;
and
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(g)
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provide
an annual report to the parties on the
Projects.
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5.4
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Reporting:
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(a)
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To
enable the Management Committee to perform its role effectively, each
party must submit regular written reports to the Management Committee on
its progress in undertaking research and development under ongoing
Projects.
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(b)
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Each
party will report to the Management Committee at the following
times:
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(i)
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at
least once each calendar quarter;
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(ii)
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at
any other time where it has made significant progress or has achieved a
milestone or target specified in a Project
Agreement;
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(iii)
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at
any other time where it has encountered a serious problem with a Project;
and
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(iv)
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at
any other time reasonably requested by the Management
Committee.
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(c)
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Each
report must:
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(i)
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summarise
the work completed on each Project since the last
report;
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(ii)
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summarise
the work planned for the coming calendar
quarter;
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(iii)
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identify
any Project IP created or arising since the last
report;
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exhibit 10.03 r&d
agmt
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6
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(iv)
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identify
any problems that may cause or will necessitate a deviation from the terms
of any Project Agreement; and
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(v)
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set
out the steps, if any, being taken to alleviate any identified
problems.
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6.
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OWNERSHIP
OF PROJECT IP
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6.1
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Ownership:
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(a)
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Despite
any other provision of this clause 6 to the contrary, each party or its
third party licensors retains ownership of all Intellectual Property
Rights in Existing Material belonging to that party or its third party
licensors.
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(b)
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Legal
and beneficial ownership of the Research Results and Project IP will be
exclusively owned by Comvita or its
nominee.
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(c)
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If
any Project IP does not vest in Comvita or its nominee on creation, Derma
Sciences will hold such Project IP on trust for Comvita or its nominee and
will, if called upon to do so by Comvita, assign to Comvita or its nominee
absolutely all of its rights, title and interest in or to such Project
IP.
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(d)
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Comvita
or its nominee will be entitled to:
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(i)
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seek
protection for the Research Results anywhere in the world;
and
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(ii)
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make
decisions about the lodging of any protective application for such
Research Results,
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as it may
decide at its absolute discretion and at its own expense.
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6.2
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Grant of
licence:
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(a)
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All
Research Results will be deemed to be and treated by the parties as
Non-Severable Improvements for the purposes of the Licence Agreement and
accordingly, will be licensed to Derma Sciences in accordance with clause
7.3(a) of the Licence Agreement.
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(b)
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Derma
Sciences acknowledges and agrees that Comvita grants no licence to use,
copy or otherwise exploit in any other way any of the Research Results or
Project IP, other than the licence expressly granted under clause
6.2(a).
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6.3
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Existing
Material: If any Research Results incorporate or rely on
any Existing Material of a party:
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(a)
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that
party will disclose to the other party in writing full details of such
Existing Material, including details of any third party owning or claiming
any rights in the Existing
Material;
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(b)
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if
that party is Derma Sciences, it will grant to Comvita an irrevocable,
royalty-free, non-exclusive, transferable, sub-licensable, worldwide and
perpetual licence to use such Existing Material, and all intellectual
property rights in and to such Existing Material, for the purpose of using
or commercially exploiting the Research Results and Project IP as Comvita
may determine, but subject always to any exclusive rights of Derma
Sciences under the Licence Agreement;
and
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exhibit 10.03 r&d
agmt
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7
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(c)
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if
that party is Comvita, it will grant to Derma Sciences a licence to use
that Existing Material and all intellectual property rights in and to such
Existing Material, solely to the extent necessary to enable Derma Sciences
to exercise its rights (if any) in relation to those Research Results
under the Licence Agreement.
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6.4
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No right to
use: Derma Sciences acknowledges and agrees
that:
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(a)
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other
than as specified in this Agreement, it has no claim
over:
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(i)
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any
Project IP; or
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(ii)
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any
revenue generated by Comvita from any commercial exploitation of the
Project IP; and
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(b)
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it
will not at any time contest or challenge the ownership of the Project
IP.
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6.5
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Further
actions: Each party will, and will ensure that their
respective employees and contractors will, execute all documents, give
such assistance and do all other acts and things as may be necessary or
desirable to give effect to the provisions of this clause
6.
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7.
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WARRANTIES
AND LIABILITY
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7.1
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Warranties: Each
party warrants that:
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(a)
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other
than as disclosed in writing under clause 6.3(a), it is not aware of any
third party owning or claiming any rights in the Existing Material
contributed by it to each Project;
and
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(b)
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except
to the extent expressly acknowledged to the other party in writing (such
as the inclusion of publicly available material), the Research Results
contributed or created by it under each Project will be the party’s own
original work and will not in any way rely on, utilise or incorporate any
work written or created by any third
party.
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7.2
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No other
warranties: Each party acknowledges that, in entering
into this Agreement, it does not do so in reliance on any representation,
warranty, term or condition except as expressly provided in this
Agreement, and all conditions, warranties or other terms implied by
statute or common law are excluded from this Agreement to the fullest
extent permitted by law.
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7.3
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Exclusion of
liability: In no event will either party (“first party”)
be liable (whether in contract, tort including negligence, or otherwise)
to the other party for:
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(a)
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loss
of revenue or profit, loss of anticipated savings, loss of goodwill or
opportunity, loss of production, loss or corruption of data or wasted
management or staff time; or
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(b)
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loss,
damage, cost or expense of any kind whatsoever that is indirect,
consequential, or of a special
nature,
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arising
directly or indirectly out of this Agreement, even if the first party had been
advised of the possibility of such loss, damage, cost or expense, and even if
such loss, damage, cost or expense was reasonably foreseeable by the first
party.
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exhibit 10.03 r&d
agmt
|
8
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8.
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TERMINATION
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8.1
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Early
termination: Without prejudice to any other right or
remedy it may have, either party may immediately terminate this Agreement
at any time by giving the other party notice in writing
if:
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(a)
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the
other party is in material breach of this Agreement and the material
breach is not remedied within 20 Business Days of the other party
receiving notice specifying the material breach and requiring its remedy,
provided that for non-payment defaults, if it is not commercially
reasonable for a material breach to be fully cured within 20 Business
Days, then the cure period shall be extended for an additional period of
no greater than six months provided the party in material breach has
commenced remedying the default and has clearly demonstrated in writing
that it is diligently pursuing and continues to diligently pursue such
cure;
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(b)
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the
other party ceases or threatens to cease to carry on all or substantially
all of its business or operations, is declared or becomes bankrupt or
insolvent, is unable to pay its debts as they fall due, enters into a
general assignment of its indebtedness or a scheme of arrangement or
composition with its creditors, or takes or suffers any similar or
analogous action in consequence of
debt;
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(c)
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a
trustee, manager, administrator, administrative receiver, receiver,
inspector under any legislation or similar officer is appointed in respect
of the whole or any part of the other party’s assets or business;
or
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(d)
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an
order is made or a resolution is passed for the liquidation of the other
party (other than voluntarily for the purpose of a solvent amalgamation or
reconstruction).
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8.2
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Termination of Restraint
Agreement or Licence Agreement: This Agreement will
immediately terminate in the event of termination of the Restraint
Agreement or the Licence Agreement for any
reason.
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8.3
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Consequences of
termination: On termination of this Agreement for any
reason whatsoever:
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(a)
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all
Project Agreements will immediately terminate except for any Project
Agreement that expressly states it is to continue beyond the termination
of this Agreement;
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(b)
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Derma
Sciences will disclose to Comvita full details of all research and
development in progress, and will deliver up to Comvita any relevant
documents, specifications, data, materials and information concerning the
Research Results in Derma Sciences’ control or
possession;
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(c)
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the
Recipient will, upon receipt of a written request from the Disclosing
Party, return or destroy (at the Disclosing Party’s option), all
Confidential Information in the Recipient’s possession or under the
Recipient’s control. Upon the return or destruction (as the
case may be) of all such Confidential Information, the Recipient will
provide to the Disclosing Party a certificate stating that the
Confidential Information returned or destroyed comprises all the
Confidential Information in the Recipient’s possession or under the
Recipient’s control;
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(d)
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the
provisions of clauses 6.1, 6.2(b), 6.3, 6.4, 7, 8.3, 9 and 10 and any
other clauses intended to survive termination, together with those other
provisions of this Agreement that are incidental to, and required in order
to give effect to those clauses, will remain in full force and effect;
and
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exhibit 10.03 r&d
agmt
|
9
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(e)
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subject
to this clause 8.3, and except for any rights and remedies of the parties
that have accrued before termination, including for prior breach of this
Agreement, neither party will be under any further obligation to the other
party.
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9.
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DISPUTES
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9.1
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Mediation: In
the event of a dispute arising out of or relating to this Agreement,
including any question regarding its existence, validity or termination,
the parties will first seek settlement of that dispute by mediation in
accordance with the LCIA Mediation Procedure, which procedure is deemed to
be incorporated by reference into this clause
9.
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9.2
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Arbitration: If
the dispute is not settled by mediation within five days of the
commencement of the mediation, or such further period as the parties may
agree in writing, the dispute will be referred to and finally resolved by
arbitration under the LCIA Rules, which rules are deemed to be
incorporated by reference into this clause
9.
|
|
9.3
|
Language: The
language to be used in the mediation and in the arbitration will be
English.
|
|
9.4
|
Governing
law: The governing law of this Agreement will be the
substantive law of New Zealand.
|
|
9.5
|
Arbitration
procedure: In any arbitration commenced pursuant to this
clause 9:
|
|
|
(a)
|
the
number of arbitrators will be three;
and
|
|
|
(b)
|
the
seat, or legal place, of arbitration will be London,
England.
|
|
9.6
|
Interlocutory
relief: Nothing in this clause 9 will prevent either
party, at any time, from seeking any urgent interlocutory relief from a
court of competent jurisdiction in relation to any matter that arises
under this Agreement.
|
|
10.
|
GENERAL
|
|
10.1
|
Force
majeure:
|
|
|
(a)
|
Neither
party will be liable to the other party for any breach or failure to
perform any of its obligations under this Agreement where such breach or
failure is caused by anything beyond that party’s reasonable control,
including (without limitation) war, civil commotion, hostility, act of
terrorism, strike, lockout, other industrial act, weather phenomena or
other act of God, or governmental regulation or direction (“Force
Majeure”), provided that the party seeking to rely on this
clause 10.1 has:
|
|
|
(i)
|
notified
the other party as soon as reasonably practicable upon becoming aware of
an actual or potential event of Force
Majeure;
|
|
|
(ii)
|
used
all reasonable endeavours to avoid, overcome or mitigate the effects of
the event of Force Majeure as quickly as practicable;
and
|
|
|
(iii)
|
consulted
with the other party on its efforts under clause
10.1(a)(ii).
|
|
|
(b)
|
If:
|
|
|
(i)
|
as
a result of a Force Majeure a party is unable to perform any of its
material obligations under this Agreement;
and
|
|
exhibit 10.03 r&d
agmt
|
10
|
|
|
(ii)
|
the
ability of such party to perform any such material obligation has been
permanently affected by such Force
Majeure,
|
then the
party not subject to the event of Force Majeure may terminate this Agreement on
giving the other party 10 Business Days’ written notice.
|
|
(c)
|
Nothing
in this clause 10.1 will excuse a party from any obligation to make a
payment when due under this
Agreement.
|
|
10.2
|
Variations: No
amendment, variation or modification to this Agreement will be effective
unless it is in writing and signed by duly authorised representatives of
both parties.
|
|
10.3
|
Assignment: Either
party may assign any or all of its rights and obligations under this
Agreement, provided it first obtains the written consent of the other
party, such consent not to be unreasonably
withheld.
|
|
10.4
|
No
waiver:
|
|
|
(a)
|
A
delay, neglect or forbearance by a party in enforcing any provision of
this Agreement against the other will not waive or limit any right of that
party.
|
|
|
(b)
|
No
provision of this Agreement will be considered waived by a party unless
that party waives the provision in
writing.
|
|
|
(c)
|
The
parties will not treat a waiver by a party of any breach as a waiver of
any continuing or re-occurring breach, unless the parties have expressly
agreed to do so in writing.
|
|
10.5
|
Invalid
clauses: If any part of this Agreement is held to be
invalid, unenforceable or illegal for any reason, this Agreement will be
deemed to be amended by the addition or deletion of wording necessary to
remove the invalid, unenforceable or illegal part, but otherwise to retain
the provisions of this Agreement to the maximum extent permissible under
applicable law.
|
|
10.6
|
Relationship:
|
|
|
(a)
|
The
parties will perform their obligations under this Agreement as independent
contractors to each other.
|
|
|
(b)
|
Nothing
in this Agreement will create, constitute or evidence any partnership,
joint venture, agency, trust or employer/employee relationship between the
parties, unless it expressly states otherwise. Neither party
may represent, or allow anyone to represent, that any such relationship
exists between the parties.
|
|
|
(c)
|
Neither
party will have the authority to act for, or incur any obligation on
behalf of, the other party, except as expressly provided for in this
Agreement.
|
|
10.7
|
Notices:
|
|
|
(a)
|
Each
notice or other communication to be given under this Agreement (“Notice”)
must be in writing and must be:
|
|
|
(i)
|
in
the English language and clearly
legible;
|
|
exhibit 10.03 r&d
agmt
|
Collaborative
Research and Development Agreement
|
11
|
|
|
(ii)
|
sent
by pre-paid post, facsimile (confirmed by pre-paid post) or personal
delivery to the addressee at the facsimile number, physical address, or
postal address specified in clause 10.7(b);
and
|
|
|
(iii)
|
marked
for the attention of the person or office holder (if any) specified in
clause 10.7(b).
|
|
|
(b)
|
The
initial facsimile number, address, and relevant person or office holder of
each party are, unless otherwise notified by the relevant party in writing
to the other party, as set out
below:
|
|
|
Derma
Sciences:
|
000
Xxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxx
Xxx
Xxxxxx 00000
Xxxxxx
Xxxxxx of America
Facsimile: x0
000 000 0000
Attention: Chief
Executive Officer
|
|
Comvita:
|
Comvita
New Zealand Limited
|
Xxxxxx
Road South
Paengaroa
New
Zealand
Facsimile: x00
0 000 0000
Attention: Chief
Executive Officer
|
|
(c)
|
No
Notice will be effective until received. A Notice is, however,
deemed to be received:
|
|
|
(i)
|
in
the case of posting, on the third Business Day following the date of
posting;
|
|
|
(ii)
|
in
the case of personal delivery, when received;
and
|
|
|
(iii)
|
in
the case of a facsimile, following receipt of a report from the machine on
which the facsimile was sent confirming that all pages were successfully
transmitted,
|
but any
Notice personally delivered or received by facsimile either after 5.00 pm on a
Business Day, or on any day that is not a Business Day, will be deemed to have
been received on the next Business Day.
|
|
(d)
|
Despite
clauses 10.7(a) and (c)(i), if the Notice is posted from a country other
than the country of the addressee, the method of posting must be pre-paid
airmail, and the Notice will be deemed to be received on the seventh
Business Day following the date of
posting.
|
|
10.8
|
Further
action: Each party agrees to execute, acknowledge and
deliver all instruments, make all applications and do all things, as may
be necessary or appropriate to carry out the purposes and intent of this
Agreement.
|
|
10.9
|
Announcements: Neither
party may:
|
|
exhibit 10.03 r&d
agmt
|
Collaborative
Research and Development Agreement
|
12
|
|
|
(a)
|
make
any press or other public announcement about any aspect of this Agreement;
or
|
|
|
(b)
|
use
the name of the other party in connection with or as a result of this
Agreement,
|
without
the other party’s prior written consent.
|
10.10
|
Entire
agreement:
|
|
|
(a)
|
This
Agreement and the Confidentiality Agreement contains the whole of the
contract and understanding between the parties relating to the matters
covered by it.
|
|
|
(b)
|
This
Agreement supersedes all prior representations, agreements, statements and
understandings between the parties relating to those matters, whether
verbal or in writing.
|
|
|
(c)
|
The
parties acknowledge that they do not rely on any representation,
agreement, term or condition that is not set out in this
Agreement.
|
|
10.11
|
Counterparts:
|
|
|
(a)
|
The
parties may sign this Agreement in any number of counterparts (including
facsimile or PDF copies), and a party may enter into this Agreement by
signing any counterpart.
|
|
|
(b)
|
The
parties confirm that their signing of this Agreement by such means will be
valid and sufficient. All counterparts, when taken together,
will constitute one and the same
agreement.
|
|
10.12
|
Costs: Each
party will bear its own legal costs and expenses incurred in connection
with the preparation, negotiation and execution of this
Agreement.
|
|
10.13
|
Remedies
cumulative:
|
|
|
(a)
|
The
rights of the parties under this Agreement are
cumulative.
|
|
|
(b)
|
The
parties do not exclude any rights provided by law, unless otherwise
expressly stated in this Agreement.
|
SIGNED
|
COMVITA NEW ZEALAND
LIMITED
|
by: |
/s/ Xxxxx X. Xxxxxxx
|
|
Signature
of Authorised Signatory
|
||
|
Xxxxx X. Xxxxxxx
|
||
|
Name
of Authorised
Signatory
|
|
DERMA SCIENCES, INC
|
by: |
/s/ Xxxxxx X.
Xxxxxx
|
|
Signature
of Authorised Signatory
|
||
|
Xxxxxx X. Xxxxxx
|
||
|
Name
of Authorised
Signatory
|
|
exhibit 10.03 r&d
agmt
|
Collaborative
Research and Development Agreement
|
13
|
SCHEDULE
Management
Committee members:
Xxxxx
Xxxxxxx
Xxxx
Xxxxxxxxxxx
Xxxx
Xxxxxx
Xxxxx
Xxxxxxxxx
|
exhibit 10.03 r&d
agmt
|
Collaborative
Research and Development Agreement
|
14
|
