MULTIPROJECT DEVELOPMENT AND SUPPLY AGREEMENT
THIS MULTIPROJECTS DEVELOPMENT AND SUPPLY AGREEMENT (this "Agreement") is
made and entered into as of the 20th day of December, 2001 between Clariant Life
Science Molecules (Missouri
) Inc., a Delaware
corporation with an address at
3411 Silverside Road, 200 Rodney Building, Wilmington, Delaware
("Clariant"), and Novirio Pharmaceuticals Inc., a Massachusetts
an address at 125 Cambridge Park Drive, Third Floor, Cambridge, MA 02140, on
behalf of itself and its affiliates, Novirio Pharmaceuticals Limited and Novirio
SARL ("Novirio"). Clariant and Novirio are sometimes hereinafter referred to as
a Party or Parties.
W I T N E S S E T H:
WHEREAS, Novirio is engaged in the discovery and development of new
therapeutics for the treatment of viral diseases;
WHEREAS, from time to time, Novirio may require assistance with the process
development and manufacture of such candidates;
WHEREAS, Clariant is in the business of providing a wide range of process
chemical research, development, regulatory submission, and manufacturing
WHEREAS, Novirio has discussed certain of its areas of interest with
Clariant and is familiar with Clariant's services, and as a result, wishes to
retain Clariant to provide Services and/or Product ("Product", defined generally
below and identified individually in each of the Addenda attached hereto and or
added later by the parties) for use in one or more of Novirio's pharmaceutical
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
undertakings herein set forth, and other good and valuable consideration, due
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, it is agreed by the Parties as follows:
Subject to the terms and conditions of this Agreement, Clariant will from
time to time provide Services or Product as specified by Novirio, agreed to
by Clariant and set forth in one or more Addenda. Each such Addendum shall
contain material terms for Services or Product specifically requested by
Novirio (e.g., product specifications, project objectives, price, term,
schedule, quantity, deliverables, etc.), shall be executed by both parties
and shall reference and be an attachment to this Agreement. In the event of
a variance between the terms and conditions of this Agreement and the terms
and conditions of any Addendum, the terms and conditions of the Addendum
will take precedence for purposes of that Addendum only.
2. PROPRIETARY INFORMATION
As used in this Agreement, the term "Proprietary Information" shall mean
all trade secrets, know-how, technical, scientific, financial or business
or other information of any kind, and all
chemical compounds and other tangible material, supplied by either Party to
the other, and all information derived or generated by the receiving Party
therefrom. The Parties acknowledge that they have entered into a
Confidentiality and Non-Disclosure Agreement dated as of September 26, 2001
("Confidentiality Agreement"), attached hereto as Exhibit A and made a part
hereof, and that the terms of such Confidentiality Agreement shall apply to
the Parties' actions under this Agreement.
3. INTELLECTUAL PROPERTY
Clairant shall promptly and fully disclose to Novirio any and all
inventions, discoveries, know-how or improvements ("Inventions") conceived,
developed or made by Clariant or any of its employees, agents or
representatives in the course or as a result of performing the Services
pursuant to this Agreement or which pertain or relate to Novirio's
Proprietary Information. All such Inventions, whether or not patentable,
shall be the sole and exclusive property of Novirio. Clariant agrees to
execute, without charge to Novirio, irrevocable assignments of all of its
rights, title and interests therein to Novirio, and to secure such
irrevocable assignments from any of its employees, agents or
representatives who have or may have rights, title and interests in such
Inventions. Clariant further agrees to use reasonable efforts to assist
Novirio, at Novirio's request and sole expense, to file patent applications
or other intellectual property protections on such Inventions.
Unless otherwise agreed, any materials produced hereunder shall be packaged
and shipped per Novirio's instructions, at Novirio's expense, and in
compliance with all applicable shipping regulations.
a. Unless otherwise specifically agreed upon as set forth in any
Addendum, Clariant will invoice Novirio monthly for Product, Services
and/or expenses actually incurred. Each such invoice will specify the
costs and expenses attributable to each addendum, and if applicable,
each phase of work in such addendum. Such invoices shall be payable
net thirty (30) days. Upon the expiration of thirty (30) days from the
date of the invoices, Clariant shall retain a right to assess interest
at a rate of one and one half percent (1 1/2%) per month.
b. All prices quoted are exclusive of taxes such as sales, use, value
added or similar taxes. Any such taxes, other than taxes on Clariant's
income or property, whether now in effect or hereafter enacted, shall
be the responsibility of Novirio.
a. Except for negligence on the part of Novirio, Clariant assumes all
responsibility for and holds Novirio harmless from any claims for any
damage or injury resulting from and during the course of Clariant's
b. In the absence of negligence on the part of Clariant, Novirio accepts
full responsibility for any use of or reliance by any third party on
any information or materials resulting
from Clariant's performance hereunder and holds Clariant harmless from
any adverse effects or claims resulting from such use or reliance by
any third party.
c. Novirio shall defend, indemnify and hold Clariant harmless from and
against any and all third party claims that Clariant's operations
hereunder constitute an infringement of said third party's proprietary
rights, if such claim arises from technical information or know-how
provided by or on behalf of Novirio to Clariant.
d. Clariant shall defend, indemnify and hold Novirio harmless from and
against any and all third party claims to the extent Clariant's
operations hereunder constitute an infringement of said third party's
proprietary rights, if such claim arises from technical information
and know-how provided by Clariant, unless developed by Clariant
specifically on Novirio's behalf and at Novirio's direction hereunder.
a. Clariant warrants that its Product will meet the specifications
provided by Novirio and agreed to by Clariant.
b. Clariant warrants that it will exercise reasonable care and a high
standard of professional efforts in rendering the Services and/or
providing the Product to achieve the desired results in accordance
with accepted and agreed to standards and procedures. In the event of
an error or omission on Clariant's part causing its performance to be
unacceptable, and in the absence of gross negligence or intentional
misconduct by Clariant or any of its employees, agents and
representatives, the sole and exclusive remedy of Novirio shall be, at
Novirio's option, either (a) to have the defective performance
corrected at no additional expense or (b) to receive a refund of or
credit for that portion of any monies paid or payable by Novirio which
relates to such defective performance. IN NO EVENT SHALL CLARIANT BE
LIABLE TO NOVIRIO OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES OF ANY TYPE OR AMOUNT ARISING OUT OF ITS
PERFORMANCE OR FAILURE OF PERFORMANCE HEREUNDER.
c. CLARIANT MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR
PURPOSE OR ANY OTHER MATTER WITH RESPECT TO PRODUCT, whether used
alone or in combination with other substances.
a. Unless terminated earlier according to Section 8 (b) or (c), this
Agreement shall continue for a period of five (5) years from the date
hereof and may be extended by mutual written agreement of the parties.
b. Either party may terminate this Agreement and/or any Addendum
hereunder upon not less than thirty (30) days prior written notice to
the other for reason of a material breach or default by the other
party, if such breach or default is not cured within the thirty (30)
day period after receipt of such written notice.
c. Unless otherwise set forth in an Addendum, Novirio may terminate this
Agreement and/or any Addendum at its sole discretion at any time by
giving written notice to Clariant. Such termination shall be effective
upon the expiration of six (6) months from the date such notice is
received by Clariant. In the event of such termination, Novirio agrees
to reimburse Clariant for the following under any terminated Addendum:
(i) 110% of material and project costs already incurred or
irrevocably committed to;
(ii) the portion of Services provided or to be provided through the
effective date of termination, on a pro rata basis; and
(iii) reasonable and unavoidable shutdown, documentation and clean-up
Novirio has the right upon reasonable notice and during business hours to
visit Clariant to observe the progress of the work and inspect any data
relating to the Services.
10. FORCE MAJEURE
Neither Party will be responsible for any failure of or delay in
performance hereunder which may be due, in whole or in part to any
occurrence, cause or causes beyond its reasonable control, including but
the failure of third party suppliers to furnish materials ordered by
Clariant in a timely manner. The performance schedule, if any, shall be
adjusted to account for any such delays.
This Agreement, the obligations arising hereunder and the Services to be
performed by Clariant in accordance herewith, may not be assigned by
Clariant, in whole or in part, without the prior written consent of
Novirio, except to the purchaser of substantially all of Clariant's
business to which this Agreement relates.
12. USE OF NAMES
Neither party shall use or disclose the name of the other in any
advertising, sales, marketing or other promotional material, without the
prior written consent of the other.
13. INDEPENDENT CONTRACTOR
Clariant has not assumed, and during the term hereof, will not assume any
obligations which are inconsistent with this Agreement, shall at all times
perform as an independent contractor, not as an employee or agent of
Novirio and shall have no right or authority to commit or obligate Novirio
unless specifically appointed in writing to do so.
14. INTEGRATION AND WAIVER
Unless otherwise amended by a writing signed by both parties, this
Agreement, any Addenda, and the Confidentiality Agreement represent the
entire understanding of the parties. No waiver of any provision of this
Agreement, whether by conduct or otherwise, in any one or more instances
will be deemed to be or be construed as a further or continuing waiver of
any such provision, or of any other provision or condition of this
Any notices, payments or statements to be made under this Agreement shall
be made to Clariant Corporation, 4000 Monroe Road, Charlotte, NC 28505,
Attention: General Counsel; Clariant Corporation, 3411 Silverside Road,
Wilmington, DE 19810, Attention: Director of Sales; and to Novirio
Pharmaceuticals, Inc. at 125 Cambridge Park Drive, Cambridge, MA 02140,
Attention: Senior Director, Pharmaceutics, with a copy to the attention of
Senior Vice President, Legal & Administration, or to such other address or
person later designated in writing by the other party for such purpose.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement in duplicate
as of the day and date first written above.
Clariant Life Science Molecules Novirio Pharmaceuticals, Inc.
/s/ Mark H. Witterholt /s/ Scot M. Barry
By: ________________________________ By:________________________________
Mark H. Witterholt Scot M. Barry
Director of Sales & Marketing Sr. Director, Pharmaceuticals