Exhibit 10.55
▇▇▇▇▇▇▇ PHARMACEUTICALS LIMITED
DEVELOPMENT AND DISTRIBUTION AGREEMENT
Distribution of Senetek's Product by ▇▇▇▇▇▇▇
PARTIES
▇▇▇▇▇▇▇ PHARMACEUTICALS LIMITED ("▇▇▇▇▇▇▇")
SENETEK PLC ("SENETEK")
Senetek and ▇▇▇▇▇▇▇ have agreed that together they will develop the
market in New Zealand for the Product and that ▇▇▇▇▇▇▇ shall have the
exclusive right to distribute the Product in New Zealand with the
right of first offer to distribute the Product in Australia in
accordance with the terms set out in this agreement (including the
attached Terms and Conditions).
Senetek have agreed to pay ▇▇▇▇▇▇▇ for its assistance to develop
packaging of the Product which packaging shall be used by Senetek
worldwide.
The parties agree to be bound by the terms of this agreement
(including the attached Terms and Conditions).
SENETEK
POSTAL ADDRESS ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇
STREET ADDRESS ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ NO ▇ ▇▇▇▇▇▇ ▇▇▇▇
CONTACT PERSON Andreas ▇▇▇▇▇▇
▇▇▇▇▇▇▇
POSTAL ADDRESS ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 8
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
TELEPHONE NO 00649 835 0660 FACSIMILE NO ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
CONTACT PERSON ▇▇▇▇▇▇▇ Sierrnans
DEVELOPMENT AND DISTRIBUTION AGREEMENT
PRODUCT TRADE MARKS
Invicorp 2 (1) InvicorpTM
(1) consisting of:
a. one ampoule of Invicorp 2
b. one syringe
c. one 21g needle
d. one 30g needle
(a) to (d) together also called a "Unit of Product".
Confidential Treatment Requested
--------------------------------
COMMENCEMENT DATE 12 November 2002
("Commencement Date")
TERRITORY New Zealand
together with any other countries or regions
that the parties may agree shall be included
in the territory from time to time by
agreement in writing ("Territory")
TERMS OF DELIVERY The Units of Product shall be airfreighted
CIP under Cold Chain conditions and delivered
to the address specified by ▇▇▇▇▇▇▇
(CIP as that term is defined in the Incoterms
published by the International Chamber of
Commerce, as amended from time to time).
TERM OF APPOINTMENT Three years
("Term")
RENEWAL TERMS Upon the expiry of the Term, this agreement
shall automatically be renewed for further
consecutive periods of two years, subject to
either party giving notice in writing at
least six (6) months prior to the expiry of
the relevant Term that it does not wish to
renew the agreement.
PRICE AND PAYMENT TERMS (I) Senetek shall pay to ▇▇▇▇▇▇▇ no more than
[***] 11- II for services to be provided by
▇▇▇▇▇▇▇ in assisting Senetek to develop
Product packaging to be used by Senetek in
the sale and distribution of the Product
worldwide.
The payment by Senetek shall be made within
30 days of the invoice date in accordance
with the following timetable:
(a) [***] to be paid on the Commencement
Date;
(b) [***] to be paid on the first commercial
sale of the Product within the Territory;
(c) The balance to be charged as incurred by
▇▇▇▇▇▇▇ at cost.
(2) ▇▇▇▇▇▇▇ shall pay to Senetek [***] of the
total Net Selling Price received by ▇▇▇▇▇▇▇
for the Net Sales of the Product within the
Territory.
*** Confidential portions of this materials have been omitted
and filed separately with the Securities and Exchange Commission
▇▇▇▇▇▇▇ shall pay Senetek within 30 days of
the end of each calendar quarter in respect
of sales of Product during that previous
calendar quarter. A statement setting forth
in reasonable detail the basis for the
calculation of the amount owing to Senetek
for the relevant calendar quarter shall
accompany each payment.
EXECUTION
▇▇▇▇▇▇▇ PHARMACEUTICALS SENETEK PLC
LIMITED by:
by:
-------------------------------- --------------------------------
Signature Signature
-------------------------------- --------------------------------
Name (▇. ▇▇▇▇▇▇▇) Name (▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
-------------------------------- --------------------------------
Position (Managing Director) Position (COO & MD Europe)
Confidential Treatment Requested
--------------------------------
TERMS AND CONDITIONS
1. INTERPRETATION
1.1 In these Terms and Conditions:
"Net Sales" means the actual bona fide third party sales of the
Product made by ▇▇▇▇▇▇▇ as per invoices covering the sales less all
rebates, returns, trade and cash discounts and all taxes.
"Net Selling Price" means the sales price established by Senetek for
each Unit of Product, which price shall be at least [***] higher than
the price for which Pharmacia's Caverject product is sold in the
Territory.
"Product" means the Product described at the front of this agreement,
together with any additional Product which ▇▇▇▇▇▇▇ agrees to
distribute pursuant to clause 5.3.
"Trade Marks" means the trade marks described at the front of this
agreement (as amended from time to time as a consequence of any new
Product being added to the list of Products pursuant to clause 5.3)
and/or such other trade marks used by Senetek during the Term in
connection with the Product.
All other capitalised terms shall have the meaning given to them at
the front of this agreement.
1.2 Interpretation: In this agreement, unless the context otherwise
requires:
(a) the singular includes the plural and vice versa;
(b) references to clauses and schedules are references to clauses and
schedules in this agreement;
(c) section and clause headings have been inserted for convenience
only and shall not affect the interpretation of this agreement;
and
(d) references to any statute shall include any modification or
re-enactment of the statute and all legislation, orders and
regulations issued under that statute or passed or made in
substitution for the same.
*** Confidential portions of this materials have been omitted
and filed separately with the Securities and Exchange Commission
2. TERM OF APPOINTMENT
2.1 Term of appointment: This agreement shall commence on the Commencement
Date and shall continue for the Term specified at the front of this
agreement (unless sooner terminated under section 16).
2.2 Renewal: Any rights of renewal shall be as specified at the front of
this agreement, subject to there being no prior breach of this
agreement and the parties having complied with their respective
obligations under this agreement.
3. ▇▇▇▇▇▇▇' OBLIGATIONS
3.1 ▇▇▇▇▇▇▇' obligations: ▇▇▇▇▇▇▇ shall at all times during the Term use
its reasonable efforts to fully develop and exploit the potential
market for the Product and to distribute, sell and promote, the
Product in its original form under the Trade Marks. In particular,
▇▇▇▇▇▇▇ shall:
(a) provide all of its sales representatives with ongoing training
and support (or arrange for the provision of the same by a
suitably qualified person) to assist them in promoting the
Product;
(b) store sufficient stock of the Product under conditions that
prevent deterioration (whether due to temperature, humidity, dust
or other environmental factors) before the specified expiry date;
(c) allow Senetek to visit any premises at which ▇▇▇▇▇▇▇ stores
and/or packages Product during business hours for inspection
purposes, provided that Senetek shall be required to give
reasonable notice of any such proposed inspection visit;
(d) notify Senetek of any known or suspected infringement of Senetek'
rights in the Product in accordance with section 13;
(e) use its reasonable efforts to gain government cost reimbursement
for the Product;
(f) market the Autoject 2 auto injector in combination with the
Product if Senetek so requires.
In addition to the above obligations, ▇▇▇▇▇▇▇ shall assist Senetek to
develop packaging and labelling for the Product to be used by Senetek.
3.2 Trade Marks: ▇▇▇▇▇▇▇ must conform to all reasonable requirements of
Senetek in relation to the use of the Trade Marks on the Product and
packaging and in all advertising.
3.3 No alterations: ▇▇▇▇▇▇▇ shall not, without Senetek's prior written
consent, alter, or add to, or apply or attach anything to, the Product
or their packaging or labelling.
3.4 Compliance with laws: ▇▇▇▇▇▇▇ must observe and comply with all
statutes, regulations, by-laws, requirements and directions of any
national or local authority in the Territory having jurisdiction in
relation to the promotion and distribution of the Product and the
performance of any of its obligations under this agreement.
3.5 Promotional activities: ▇▇▇▇▇▇▇ shall apply at least the same
marketing and promotional activities, expenditures and sales force in
the Territory as are customary for the sale of like products. ▇▇▇▇▇▇▇
shall, in cooperation with Senetek and with Senetek's approval,
develop promotional documentation, brochures and other materials
relating to the Product in sufficient quantities to enable ▇▇▇▇▇▇▇ to
fully promote the Product in the Territory. Senetek shall have the
right to use the promotional documentation, brochures and other
materials relating to the Product for promotional activities in other
countries. The cost of such promotional documentation, brochures and
other materials shall be borne by ▇▇▇▇▇▇▇.
3.6 Audits: ▇▇▇▇▇▇▇ shall at the request of Senetek allow independent
auditors reasonable access to the data necessary to audit the
calculation of the total Net Selling Price and Net Sales in any
calendar year. Any such audit shall be commenced by the designated
auditors no later than three months following the end of the relevant
calendar year and not more than one audit shall be conducted during
any calendar year. Senetek shall pay the costs of such independent
audit unless the audit finds that ▇▇▇▇▇▇▇' calculation of total Net
Selling Price and Net Sales in any calendar year was understated by
more than 5% from the calculations arrived at by the audit.
4. OBLIGATIONS OF SENETEK
4.1 Information: Senetek shall provide ▇▇▇▇▇▇▇ with all technical and
marketing information and assistance as ▇▇▇▇▇▇▇ may from time to time
consider necessary to enable ▇▇▇▇▇▇▇ to perform its obligations under,
and obtain the full benefit of, this agreement including, without
limitation, information regarding new developments of the Product.
4.2 Sufficient stocks: Senetek shall ensure that ▇▇▇▇▇▇▇ has access at all
times to sufficient stocks of each of the Product to enable ▇▇▇▇▇▇▇ to
meet its obligations under, and obtain the full benefit of, this
agreement.
4.3 Promotional activities: Senetek shall supply ▇▇▇▇▇▇▇ and its employees
with an agreed number of samples of the Product. The parties have
agreed that ▇▇▇▇▇▇▇ shall provide with each two Units of Product sold
one free Unit of Product.
5. PRODUCT
5.1 Bulk packaging: Senetek shall ship the Product in bulk pursuant to the
terms of delivery set forth at the front of this agreement. ▇▇▇▇▇▇▇
shall package and label the Product in the Territory free of charge,
provided that ▇▇▇▇▇▇▇ shall:
(a) submit to Senetek in advance for its approval (such approval not
to be unreasonably withheld) all packaging and labelling used in
the repackaging; and
(b) provide Senetek with samples of packaged and labelled Product on
request.
(c) The Product shall carry Senetek's name with fine print stating
"distributed by ▇▇▇▇▇▇▇" on the packaging.
5.2 Cost of packaging: Senetek shall pay cost price for all packaging and
labelling materials used by ▇▇▇▇▇▇▇ to package the Product. ▇▇▇▇▇▇▇
shall provide, if requested by Senetek copies of all invoices for such
materials.
5.3 First right of offer: During the Term hereof, ▇▇▇▇▇▇▇ shall have the
right of first offer to obtain the right to sell any additional
product in the Territory (whether or not similar to the Product).
▇▇▇▇▇▇▇ shall have sixty (60) days from the date that Senetek notifies
▇▇▇▇▇▇▇ that such additional product is to become available for sale
in the Territory to deliver an offer to Senetek setting forth in
reasonable detail the terms upon which ▇▇▇▇▇▇▇ would purchase, market
and sell such product. If Senetek elects not to accept ▇▇▇▇▇▇▇' offer
(or if no offer is made within such period), Senetek shall be free to
grant such rights to others on terms no better to such other party
than those last offered by ▇▇▇▇▇▇▇ (or if Senetek has made a counter
offer, on terms no better to such other party than those offered by
Senetek to ▇▇▇▇▇▇▇), or to exercise such rights itself, or any
combination thereof, all in Senetek's sole and absolute discretion.
5.4 Extension of Territory to Australia: Upon registration of the Product
in Australia Senetek shall give ▇▇▇▇▇▇▇ the option to extend its
exclusive distribution rights for the Product to Australia. ▇▇▇▇▇▇▇
shall notify Senetek in writing within thirty (30) days from the date
that Senetek notifies ▇▇▇▇▇▇▇ that the Product has been approved in
Australia whether it wishes to extend the Territory to include
Australia. If ▇▇▇▇▇▇▇ does wish to extend the Territory to include
Australia the parties will in good faith negotiate any additional
terms to this agreement to cover distribution of the Product by
▇▇▇▇▇▇▇ in Australia. If ▇▇▇▇▇▇▇ advises Senetek that it does not wish
to distribute the Product in Australia or does not respond within the
time period set out in this clause, Senetek shall be free to grant
distribution rights in Australia to such other party as it determines.
5.5 Confidentiality: In the event that Senetek offers any additional
product for sale in the Territory and ▇▇▇▇▇▇▇ does not accept such
offer pursuant to clause 5.3, ▇▇▇▇▇▇▇ shall:
(a) maintain confidentiality in respect of any information and
documentation provided to it by Senetek in respect of the
product, and any associated trade marks and patents, on the terms
set out in section 16; and
(b) promptly return to Senetek all documentation provided to ▇▇▇▇▇▇▇
in respect of the product.
5.6 Process for implementing changes: Where the parties agree that any
additional product shall be added to this agreement, the parties shall
prepare an amended list of Products (incorporating any additional
trade marks used in connection with such additional product and the
price for such product), which shall be deemed to be incorporated into
this agreement, in substitution for the former list, once it has been
signed by both parties. The parties shall then be bound from that time
by the terms of this agreement in respect of the amended list of
Products from the date of signing (except where the parties have
specifically agreed in writing that such amendments shall take effect
from a different date).
6. REGISTRATION AND DOCUMENTATION
6.1 Documents to be obtained by Senetek: Senetek must, at its sole cost,
obtain all necessary export
licenses and other documents and permits required to export the
Product to ▇▇▇▇▇▇▇ for sale in the Territory.
6.2 Documents to be obtained by ▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ must, at its sole cost,
obtain all necessary import licenses and other documents and permits
required to import the Product into the Territory.
6.3 Registration: Senetek shall register the Product with the appropriate
authorities within the Territory, all such Product registrations to be
at the cost of Senetek and (subject to clause 6.4) to be in the name
of Senetek. In such circumstances:
(a) ▇▇▇▇▇▇▇ shall provide Senetek and any regulatory authorities
directly involved in the registration of the Product with such
reasonable assistance and information as is necessary to enable
Senetek to obtain and maintain registration of the Product;
(b) Senetek agrees to reimburse ▇▇▇▇▇▇▇ for all reasonable expenses
incurred by ▇▇▇▇▇▇▇ in providing such assistance and information;
and
(c) Senetek shall provide ▇▇▇▇▇▇▇ with copies of any registration
certificates or other evidence received upon registration of any
of the Product, as well as any other information and
documentation relating to the registration of the Product which
▇▇▇▇▇▇▇ may request from time to time.
6.4 Registration in name of ▇▇▇▇▇▇▇: Where Senetek is not permitted
pursuant to the relevant laws and regulations to register the Product
in its own name, ▇▇▇▇▇▇▇ shall, with the prior written approval of and
in cooperation with Senetek, carry out such Product registrations on
behalf of Senetek, provided that:
(a) ▇▇▇▇▇▇▇ shall be entitled to reimbursement from Senetek in
respect of any costs incurred pursuant to this clause 6.4; and
(b) Except for liability, claims and loss, damage, costs and expenses
caused by the negligence of ▇▇▇▇▇▇▇ or any breach by ▇▇▇▇▇▇▇ of
the terms of this Agreement (for which ▇▇▇▇▇▇▇ shall indemnify
Senetek as provided in this clause (b>>, Senetek agrees to
indemnify ▇▇▇▇▇▇▇ in respect of all liability, claims and loss,
damage, costs and expenses (whether direct or indirect, and
including all reasonable legal, accounting and other professional
fees) awarded against, suffered or incurred by ▇▇▇▇▇▇▇ arising
out of or in connection with the performance of its obligations
under this clause 6.4.
7. TERRITORY
7.1 Sale only to ▇▇▇▇▇▇▇: Senetek must not sell or supply the Product in
the Territory to any person other than ▇▇▇▇▇▇▇ and shall use all
reasonable endeavours to prevent any unauthorised shipment of the
Product in the Territory.
7.2 Sales outside Territory: ▇▇▇▇▇▇▇ shall not sell or permit the sale or
delivery of the Product outside the Territory without the prior
written consent of Senetek.
Confidential Treatment Requested
--------------------------------
7.3 Referral of enquiries by Senetek: Senetek must refer to ▇▇▇▇▇▇▇ all
enquiries which it receives from persons residing inside or outside
the Territory relating to the purchase, use or resale of the Product
in the Territory.
7.4 Referral of enquiries by ▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ must not solicit orders
outside of the Territory, and shall refer to Senetek all enquiries
which it receives from persons residing inside or outside the
Territory, relating to the purchase, use or resale of the Product
outside the Territory.
8. PLACEMENT OF ORDERS
8.1 Orders: ▇▇▇▇▇▇▇ shall order Product directly from Senetek by
facsimile, confirmed in writing by mail. ▇▇▇▇▇▇▇ shall accompany each
order with rolling twelve (12) months Product forecasts to be updated
quarterly and delivered to Senetek at least thirty (30) days in
advance of the period forecasted.
8.2 Minimum Sales Requirement: During the first year of the Term,
▇▇▇▇▇▇▇ shall sell [***]. For subsequent years Senetek and ▇▇▇▇▇▇▇
shall agree on the Minimum Sales Requirement based on the prior year's
actual Net Sales, provided, however, that if the parties shall fail to
agree on the Minimum Sales Requirement for any year after the first
year by March 31 of such year, the Minimum Sales Requirement for such
year shall be the prior year's Minimum Sales Requirement [***].
Senetek may terminate this agreement in accordance with clause 16.3
(b) if during any year of the Term ▇▇▇▇▇▇▇ fails to achieve the
Minimum Sales Requirement with respect to such year.
8.3 Acceptance of orders: Senetek shall confirm acceptance of each order
in writing within one week following receipt of the relevant order
from ▇▇▇▇▇▇▇.
8.4 Cancellation: ▇▇▇▇▇▇▇ may cancel an order at any time prior to
acceptance by Senetek in accordance with clause 8.3.
9. PAYMENT
9.1 Payment: Payment of all amounts under this agreement shall be made in
accordance with the payment terms specified at the front of this
agreement. All amounts are specified exclusive of any related taxes
including any goods and services tax or other value added tax.
9.2 Withholdings: ▇▇▇▇▇▇▇ shall deliver to Senetek, as soon as is
practicable after it has made any payment from which it is required by
law to make any deduction, withholding or payment, a receipt, issued
by the applicable taxing or other authorities evidencing the
deduction, withholding or payment of all amounts required to be
deducted, withheld or paid from such payment. If any such withholding
or deduction is permitted to be recovered by Senetek, ▇▇▇▇▇▇▇ shall,
at its expense, take all action necessary for Senetek to recover same.
To the extent that any such withholding or deduction is not recovered
by Senetek, ▇▇▇▇▇▇▇ shall pay the same to Senetek together within 90
days of payment.
9.3 Set-off: Neither party shall set off against any payment due hereunder
any amount claimed to be due from the other party, it being agreed
that any disputes shall be resolved in the manner provided in section
22.
10. DELIVERY
*** Confidential portions of this materials have been omitted
and filed separately with the Securities and Exchange Commission
10.1 Terms of delivery: Delivery shall be made in accordance with the terms
specified at the front of this agreement and any terms (including any
delivery date) specified in the relevant order submitted by ▇▇▇▇▇▇▇.
Senetek shall inform ▇▇▇▇▇▇▇ promptly when the first Products are
ready for shipping and all approvals in New Zealand for the new
manufacturing site are granted. The date of the first delivery shall
be agreed upon by both parties. Time is of the essence in respect of
any agreed date of delivery.
10.2 Risk: Risk of any loss or damage of or to the Product shall pass to
▇▇▇▇▇▇▇ in accordance with the terms of delivery specified at the
front of this agreement.
10.3 Title: Title to the Products shall remain with Senetek until such
Products have been sold by ▇▇▇▇▇▇▇ to a third party in accordance with
the terms of this agreement.
11. WARRANTIES
11.1 Warranties: Senetek warrants that the Product will:
(a) conform to the Certificate of Assay accompanying each delivery;
(b) be of merchantable quality;
(c) be fit for the purposes specified in writing by Senetek;
(d) comply with any samples provided by Senetek to ▇▇▇▇▇▇▇ from time
to time;
(e) comply with all descriptions, specifications and any other
information provided by Senetek to ▇▇▇▇▇▇▇ from time to time in
respect of the Product (whether contained in Product brochures or
literature or on any Product packaging or labelling or as
otherwise provided to ▇▇▇▇▇▇▇); and
(f) comply with the guarantees set out in the Consumer ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, and any other statutes, regulations, by-laws, standards,
requirements and directions of any national or local authority
having jurisdiction in relation to the sale or use of the Product
in the Territory including, without limitation, all requirements
relating to the registration of the Product.
11.2 Breach of warranty: If any of the Products fail to comply with the
warranties contained in clause 11.1 at the time of delivery to ▇▇▇▇▇▇▇
then, provided that ▇▇▇▇▇▇▇ notifies Senetek of such failure within 30
days from, and inclusive of, the date of receipt of the Products, then
▇▇▇▇▇▇▇ may, in its sole discretion and without prejudice to its other
rights and remedies, require that Senetek replace the relevant Product
(with all freight and other associated costs to be borne by Senetek).
12. INDEMNITY AND INSURANCE
12.1 Indemnification of Senetek: ▇▇▇▇▇▇▇ shall defend, indemnify, and hold
harmless Senetek, its officers, agents, employees and affiliated
companies from any loss, claim, action, damage, expense or liability
(including reasonable defence costs and attorneys' and other
professionals' fees) (collectively, "Claims') arising out of or
related to a breach or alleged breach of any representation, warranty
or covenant made by ▇▇▇▇▇▇▇ herein or the negligence of ▇▇▇▇▇▇▇ in the
handling, possession, packaging, marketing, sale or other use of the
Product, except insofar as
such Claims are related to or arise from any claim for which Senetek
indemnifies ▇▇▇▇▇▇▇ under clause 12.2.
12.2 Indemnification of ▇▇▇▇▇▇▇: Senetek shall defend, indemnify, and hold
harmless ▇▇▇▇▇▇▇, its officers, agents, employees and affiliated
companies from any Claims arising out of or related to a breach or
alleged breach of any representation, warranty or covenant made by
Senetek herein, or Senetek's or its contract manufacturers'
manufacture or handling of the Product to the point of delivery to
▇▇▇▇▇▇▇, except insofar as such Claims are related to or arise from
any Claim for which ▇▇▇▇▇▇▇ indemnifies Senetek under clause 12.1.
12.3 Insurance: Each party shall maintain at its expense commercial general
liability insurance in a principal amount of not less than the
coverage generally maintained by companies of similar size in the
industry, insuring, in each case those matters for which each party
indemnifies the other party in accordance with clause 12.2.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Ownership: ▇▇▇▇▇▇▇ acknowledges and agrees that all right, title and
interest in and to any patents, trade marks, designs, confidential
information, trade secrets, get-up and other intellectual property
relating to:
(a) the Product;
(b) the Trade Marks; and
(c) all information provided by or on behalf of Senetek to ▇▇▇▇▇▇▇
under this agreement; shall belong to and remain with Senetek as
its absolute property.
13.2 Infringement: ▇▇▇▇▇▇▇ shall promptly bring to the knowledge of Senetek
any infringement or threatened infringement of any of Senetek's
intellectual property or any passing-off of the Product. Any legal
proceedings issued by Senetek in respect of such infringement or
threatened infringement shall be conducted at Senetek's sole
discretion and expense. If Senetek fails to take action in relation to
any such infringement and ▇▇▇▇▇▇▇ considers in its sole discretion
that the infringement adversely impacts on ▇▇▇▇▇▇▇' ability to fully
obtain the benefit of this agreement, ▇▇▇▇▇▇▇ may terminate this
agreement either in its entirety or insofar as it applies to those
Product affected by such infringement.
13.3 Indemnity: Without limiting anything contained in clause 12.2, Senetek
shall indemnify ▇▇▇▇▇▇▇ and hold it harmless from and against all
liability, claims, loss, damage, costs and expenses (whether direct or
indirect, and including all reasonable legal, accounting and other
professional fees) awarded against, suffered or incurred by ▇▇▇▇▇▇▇
arising out of or in connection with any claim that the purchase,
distribution, sale or use of the Product infringes the intellectual
property rights of any third party ("third party claim").
13.4 Third party claim: In relation to any third party claim:
(a) if either party becomes aware of a third party claim, it shall
immediately inform the other party;
(b) Senetek shall at its own cost and expense, conduct and/or settle
all negotiations and litigation resulting from such claim; and
(c) ▇▇▇▇▇▇▇ shall afford all reasonable assistance with such
negotiations and litigation, provided that Senetek shall
reimburse ▇▇▇▇▇▇▇ for its staff costs and all other expenses
incurred in providing such assistance.
13.5 Remedies: If at any time ▇▇▇▇▇▇▇ is prevented from importing, holding
or selling any Product as a result of any third party claim, Senetek
must, if requested by ▇▇▇▇▇▇▇:
(a) obtain on behalf of ▇▇▇▇▇▇▇ the right to continue importing,
holding or selling that Product which is the subject of a third
party claim; or
(b) at Senetek's expense, modify the Product, or any packaging of the
Product, so that it becomes non-infringing;
provided that, if ▇▇▇▇▇▇▇ is not satisfied that Senetek has complied
with its obligations under this clause within a reasonable period,
▇▇▇▇▇▇▇ may, without prejudice to any of its other rights and
remedies, terminate this agreement in its entirety or insofar as it
applies to the Product affected by the third party claim.
14. REPORTING
14.1 Reporting: If requested by Senetek from time to time, ▇▇▇▇▇▇▇ shall
provide to Senetek a report setting out details of the volume and
value of Product distributed and other information as Senetek may
reasonably request including, without limitation, a list of
prospective customers and performance forecasts.
15. CONFIDENTIALITY
15.1 Confidentiality: Each party shall treat as confidential, and not use
or disclose to any person, any information relating to the terms of
this agreement, the Product, or the other party and its business
(including any information concerning the financial position of either
party and its business, sales and technical operations or any
information concerning the customers or suppliers of either party),
provided that neither ▇▇▇▇▇▇▇ nor Senetek shall have any obligation
under this clause concerning any information which is in the public
domain, or which subsequently enters the public domain, through no
fault, act or omission of the relevant party.
16. TERMINATION
16.1 Termination by either party: If:
(a) either party fails to comply with any of the terms of this
agreement and does not remedy such breach (if the same is capable
of remedy) within 30 days of receipt of a written notice from the
other party requiring remedy;
(b) either party enters into any composition or arrangement with its
creditors;
(c) either party does anything which would make it liable to be put
into liquidation;
(d) a resolution is passed or an application is made for the
liquidation of either party; or
(e) a receiver or statutory or official manager is appointed over all
or any of either party's assets;
the other party may, without prejudice to any of its other rights or
remedies, terminate this agreement.
16.2 Termination by ▇▇▇▇▇▇▇: If Senetek obtains control of any competitor
of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ may, without prejudice to any of its other rights
or remedies, terminate this agreement by notice in writing to Senetek.
16.3 Termination by Senetek: Senetek may, without prejudice to any of its
other rights or remedies, terminate this agreement by notice in
writing to ▇▇▇▇▇▇▇:
a) if ▇▇▇▇▇▇▇ distributes a product that directly competes with the
Product of Senetek in the Territory; or
b) if ▇▇▇▇▇▇▇ does not comply with the Minimum Sales Requirements as
set forth under clause 8.2
17. EFFECT OF TERMINATION
17.1 Product held by Senetek on termination: ▇▇▇▇▇▇▇ shall have the option
for a period of six months following the expiry or termination of this
agreement to:
(a) fulfill any existing orders for Product received by ▇▇▇▇▇▇▇ on or
prior to the date of expiry or termination of this agreement by
the sale of Product held by ▇▇▇▇▇▇▇ at the date of expiry or
termination; and
(b) in the case of termination by ▇▇▇▇▇▇▇ under clause 16.1. or 16.2.
request Senetek to buy back any or all of the Product held by
▇▇▇▇▇▇▇. The price payable shall be the invoice price to ▇▇▇▇▇▇▇
(together with any freight, insurance and transport charges,
taxes and duties incurred by ▇▇▇▇▇▇▇ in respect of such Product).
17.2 Consequences arising: Upon the expiry or termination of this agreement
all the rights and obligations of the parties under this agreement
shall cease immediately, provided that the expiry or termination of
this agreement shall not operate so as to affect clause 6.4(b), clause
15.1 or clause 17.1 or any other provision of this agreement which is
intended to continue after such expiry or termination.
17.3 Obligations of ▇▇▇▇▇▇▇ on termination: Following the expiry or
termination of this agreement and upon the earlier of:
(a) the expiry of the six month period referred to in clause 17.1; or
(b) the supply by ▇▇▇▇▇▇▇ of the remainder of any Product held by it
to its customers or to Senetek in accordance with clause 17.1;
▇▇▇▇▇▇▇ shall deliver to Senetek or, alternatively, destroy (in
accordance with directions provided to it by Senetek) any and all
copies (whether in digital form or hard copy) of any materials held
Confidential Treatment Requested
--------------------------------
by it relating to the Product which have been provided to it by
Senetek (other than any information or material which is in the public
domain through no fault on the part of ▇▇▇▇▇▇▇).
18. FORCE MAJEURE
18.1 Force majeure: Neither party shall be liable for any act, omission or
failure to perform any obligation under this agreement if such act,
omission or failure arises or continues from any cause beyond the
control of that party, and the relevant party could not take
reasonable measures to prevent such act, omission or failure.
19. ASSIGNMENT
19.1 No assignment: Neither party may assign any of its rights or
obligations under this agreement without the prior written approval of
the other party, such approval not to be unreasonably withheld.
19.2 Change in effective control: Any transfer in the capital of either
party or any holding company of either party without the approval of
the other party which results in a change in the effective ownership
or control shall, for the purpose of clause 19.1, be deemed to be an
assignment of the rights granted under this agreement.
20. RELATIONSHIP OF THE PARTIES
20.1 Independent contractor: ▇▇▇▇▇▇▇' relationship with Senetek during the
Term shall be that of an independent contractor. Neither party has the
power to assume or create any obligation on behalf of the other party
except as expressly provided in this agreement. ▇▇▇▇▇▇▇ and Senetek
are not partners or joint venturers. All contracts and other
obligations undertaken by either party shall be undertaken by that
party on its own behalf and shall not involve any financial or other
responsibility on the part of the other party.
21. LIABILITY 21.1 Mitigation: Each of the parties must take reasonable
steps to mitigate any claim for any damages. 21.2 Consequential
damages: Neither party shall be liable to the other for any indirect
or consequential loss or damages (whether in contract or in tort,
including negligence), including loss or damages comprising, or
resulting from, loss of business or loss of profit, however caused.
21.3 Limitation of liability of ▇▇▇▇▇▇▇: Under no circumstances shall
▇▇▇▇▇▇▇ or any of its affiliated companies have any liability arising
from this agreement in excess of the highest aggregate amount paid by
▇▇▇▇▇▇▇ pursuant to this agreement over the two calendar years
preceding any claim (or, if a claim shall be raised prior to the end
of the second calendar year of the term, in excess of [***] of the
average annualised amount received by Senetek during the Term. Senetek
acknowledges and agrees that, but for the limitation of liability set
forth in this clause, ▇▇▇▇▇▇▇ would not have entered into this
agreement upon the terms set forth herein and that such limitation is
a material part of this agreement
21.4 Limitation of liability of Senetek: Under no circumstances shall
Senetek or its affiliated companies have any liability arising from
this agreement in excess of the highest aggregate amount received by
Senetek pursuant to this agreement over the two calendar years
preceding any claim (or, if a claim shall be raised prior to the end
of the second calendar year of the term, in excess of [***] of the
average annualized amount received by Senetek during the Term. ▇▇▇▇▇▇▇
*** Confidential portions of this materials have been omitted
and filed separately with the Securities and Exchange Commission
acknowledges and agrees that, but for the limitation of liability set
forth in this clause, Senetek would not have entered into this
agreement upon the terms set forth herein and that such limitation is
a material part of this agreement
22. DISPUTE RESOLUTION
22.1 Negotiation: The parties shall use their best endeavours to amicably
resolve any dispute between them which may arise concerning the
interpretation of this agreement or in relation to any matter arising
under this agreement.
22.2 Mediation: If the parties cannot settle amicably and in good faith any
dispute between them, either party may require such dispute to be
referred to the mediation of a single mediator, or to more than one
mediator if the parties so agree, to be appointed by the parties. The
mediator shall conduct the mediation in accordance with the guidelines
set by the parties.
22.3 Arbitration: If settlement is not reached within 60 days after
commencing mediation, the dispute shall be settled by arbitration in
accordance with the rules of conciliation and arbitration of the
International Chamber of Commerce, and shall be held in the United
Kingdom, with the official language of the procedure and arbitration
to be the English language, and the award shall be final and binding
upon the parties.
23. INTERNATIONAL SALE OF GOODS
23.1 Contracting out: The parties agree that the United Nations Convention
on Contracts for the International Sale of Goods does not apply to the
supply of any Product pursuant to this agreement.
24. NOTICES
24.1 Serving of notices: All notices required or authorised to be given or
served under this agreement shall be in writing and may be given or
served by personal service, prepaid registered mail or facsimile to
the party at its address or facsimile number set out at the front of
this agreement, or such other address or facsimile number as one party
may have notified in writing to the other party.
25. GENERAL
25.1 Execution by counterparts and exchange by facsimile: This agreement
may be executed by the parties in one or more counterparts. Such
counterparts may be exchanged by facsimile (provided that each
executed counterpart is transmitted in one complete transmission).
Where there is an exchange of executed counterparts, each party shall
be bound by the agreement notwithstanding that original copies of the
agreement may not be exchanged immediately. The parties shall
co-operate after execution of the agreement and exchange by facsimile
to ensure that each party obtains an original executed copy of this
agreement.
25.2 Governing law and jurisdiction: This agreement shall in all respects
be deemed to be a contract made in England and the construction,
validity and performance of such contract shall be governed by English
law, and the parties shall submit to the non-exclusive jurisdiction of
the courts of England.
25.3 Waiver: No delay, neglect or forbearance by either party in enforcing
against the other any provision of this agreement will be a waiver, or
in any way prejudice any right, of that party.
25.4 Severability: If any clause or any part of any clause contained in
this agreement is declared invalid or unenforceable, all other clauses
or parts of clauses contained in this agreement will remain in full
force and effect and will not be affected by invalidity for the term
of this agreement, unless the commercial intentions of the parties are
thereby frustrated.