Agreement between the “Company” and ARYBALLE S.A., a French corporation having its registered office at 7, rue des Arts et Métiers, Grenoble, France 38000 (“AT”). Each of Company and AT is referred to herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined herein have the meaning assigned to such terms in the Agreement.
WHEREAS, AT designs, manufactures and sells a range of hardware devices configured, in association with embedded and platform-based software, data and models, to detect, identify, classify and/or quantify doses of chemical/organic compounds or mixtures, such hardware devices, software, data and models (respectively the “AT Hardware”, the “AT Software”, the “AT Data” and the “AT Models”, as defined below) based on proprietary technology (the “AT Technology”, as defined below);
WHEREAS, Company has held prior discussions with AT and performed technical reviews that led it to determine that a combination of AT Hardware , AT Software, AT Data and AT Models was most likely fit to meet its technical and business goals at the point of review; and
WHEREAS, Company has decided to purchase from AT and AT has accepted to sell to Company some pieces of AT Hardware, and Company has consequently decided to license in from AT and AT has accepted to license out some pieces of AT Software, AT Data and AT Models.
NOW, THEREFORE, in consideration of the covenants and obligations expressed herein, and intending to be legally bound, the Parties hereto agree as follows:
1.1. “Affiliate” means, any Person that, directly or indirectly, controls, is controlled by or is under common control with a Party. As used herein, the term “control’ means the direct or indirect ownership of fifty percent (50%) plus one share or more of the stock having the right to vote for directors thereof; for the purpose of this Agreement, Affiliates do not include controlled companies that have an activity in the field of olfactory sensors or software.
1.2. “AT Data” means data representative of an Odorous Material (OM) that is generated at an output of an AT Product, an AT Platform, an AT Software or an AT Model or any copy thereof.
1.3. “AT Hardware” means an assembly of pieces of hardware purchased from AT or from a licensed Third Party that is functional to detect, identify, classify and/or quantify doses of one or more OM above some limits of detection with defined parameters of performance such as Repeatability, Reproducibility, Selectivity, Sensitivity and/or Specificity, when operated according to an AT User Manual with AT Hardware, AT Software, AT Data and AT Models provided by AT or a licensed Representative.
1.4. “AT Machine Learning as a Service” or “AT MLaaS” means a service that may be subscribed by Company whereby Company, that is also the licensee of an AT Model, is allowed to improve the AT Model by uploading AT Data generated by processing CPOMs and/or Company Enriched AT Data with an adequate AT Hardware.
1.5. “AT Model” means a combination of AT Software and AT Data that is configured to be used in combination with AT Hardware and/or an AT Platform to generate one or more of Enriched AT Data or new AT Data.
1.6. “AT Platform” means a server, physical or virtual, operated by AT or a Representative thereof, to which Company is granted access to operate an AT Software licensed to Company.
1.7. “AT Product” means a combination of one or more of AT Hardware, AT Software, AT Data or AT Model that is specified to detect, identify, classify and/or quantify doses of one or more OM above some limits of dilution with defined parameters of performance such as Repeatability, Reproducibility, Selectivity, Sensitivity and/or Specificity.
1.8. “AT Proprietary Odorous Material” or “ATPOM” means an original OM that AT has created or has rightfully acquired rights thereon, wherein the composition of matter is protected by an AT trade secret.
1.9. “AT Software” means a collection of lines of executable code that is configured to perform, when executed on a piece of AT Hardware on which it is embedded or on a platform, one or more functions that contribute to detect, identify, classify and/or quantify doses of one or more OM, or more generally are used to process other pieces of one or more of AT Software, an output of AT Hardware, AT Data or an AT Model; AT Software may comprise Third Party lines of code that are licensed to AT.
1.10. “AT Spare Parts” means pieces of AT Hardware that are provided by AT to replace corresponding original pieces of the AT Hardware purchased by Company.
1.11. “AT Technology” means one or more of:
– a gas or liquid functionalized ligands-based sensing device and the sensing device uses one of a Surface Plasmonic Resonance, a Mach Zender Interferometer or a Capacitive Micromachined Ultrasonic Transducer, the sensing device possibly comprising preprocessing and/or postprocessing accessories,
– a signal or data processing software module, or
– a database module primarily configured to process the output of the sensing device to detect, identify, classify and/or quantify doses of OM.
1.12. “AT User Manual” means a piece of documentation describing how to operate separately, or in combination, selected pieces of one or more of AT Data, AT Hardware, AT Models, AT Product or AT Software that is made available to Company off-line or on-line.
1.13. “Company Proprietary Odorous Material” or “CPOM” means an original OM that Company has created or has rightfully acquired rights thereon, wherein the composition of matter is protected by a Company trade secret.
1.14. “Enriched AT Data” or “EATD” means AT Data where one or more fields are added to some or all datasets, said one or more fields comprising attributes that are imported from a database, computed and/or filled in by a user; EATD may be generated by AT or a Representative thereof, or by Company, in which case it is termed “Company Enriched AT Data” or “CEATD”.
1.15. “Odorous Material” or “OM” means a combination of one or more chemical/organic compounds that has a characteristic odor trace; under this Agreement, OM may be a Company Proprietary Odorous Material, an AT Proprietary Odorous Material or a Publicly Available Odorous Material.
1.16. “Odor Universe Compendium” or “OUC” means a collection of one or more databases that comprise information on OM from a same family; an OUC may be proprietary to Company, in which case, it will be termed Company Odor Universe Compendium.
1.17. “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity, including a governmental authority.
1.18. “PO” means a purchase order placed by Company.
1.19. “Publicly Available Odorous Material” or “PAOM” means an OM, wherein the composition of matter is publicly available.
1.20. “Repeatability” means comparability of measured information over time within Devices.
1.21. “Representative” means a Party’s director, officer, employee, consultant, contractor, agent, representative, advisor or sublicensee.
1.22. “Reproducibility” means comparability of measured information across Devices.
1.23. “Security Measures” means any of the following: technological measures under the Digital Millennium Copyright Act, copyright protection measures, application enabling mechanisms, passwords, key codes, encryption or other security devices.
1.24. “Selectivity” means detection of a specific compound in a high background.
1.25. “Sensitivity” means limit of detection of a compound in a low background.
1.26. “Specificity” means reliable separation of chemicals with high structural similarity.
1.27. “Third Party” means any party other than a Party to this Agreement and such Party’s Affiliate.
2. PURPOSE AND PRINCIPLES
2.1. This Agreement defines the terms and conditions under which all AT Products or pieces of AT Hardware, or AT Spare Parts are purchased by Company from AT, and the AT Data, AT Software AT Models and/or access to an AT Platform are licensed by Company from AT.
2.2. All accepted POs are governed by this Agreement. Any stipulation in a PO that does not comply to this Agreement is void.
2.3. A PO will only be accepted by AT if it conforms with a quote provided by AT.
2.4. Any warranty provided by AT or contractual or statutory liability under this Agreement is conditional upon Company’s use of the purchased or licensed goods complying with the AT User Manual or other prescription that is provided by AT either with the goods or on-line, as amended from time to time. In particular, any item for which a lifetime is specified in the User Manual should be replaced before expiration of its lifetime by an original AT Spare Part.
2.5. An AT Product comprising the AT Hardware can only be properly operated using the last available version of the relevant AT Software and AT Data.
2.6. The last available version of the relevant AT Software and AT Data is only provided to Company for a term after delivery of the AT Product that is specified in the corresponding accepted PO, subject to any renewal of the license granted by AT to Company of said AT Software and AT Data.
3. CONDITIONS APPLICABLE TO THE AT HARDWARE PURCHASED BY COMPANY
3.1. The version and configuration of the AT Hardware that is purchased by Company is defined by the PO and is operable under the conditions defined in the User Manual that is made available to Company and updated from time to time.
3.2. ORDER CANCELLATION OR REDUCTION
All cancellation notifications or stop-work requests must be received in writing not less than 60 days before the scheduled ship date and may be refused or accepted by AT at its sole discretion, and if accepted, all canceled products may be subject to restocking/handling fee. All sales of special-order products are sold on a final, non- cancellable, non-returnable, non-refundable basis.
The prices mentioned are based on the economic terms and AT’s rates in force. Any taxes, duties, fees or other assessments or expenses shall be paid by Company. All shipping and transportation charges will be paid directly by Company. In the event that AT pays any such taxes, duties, fees or assessments, then they shall be invoiced to Company.
All delivery or shipment dates are on a reasonable effort basis and AT shall not be liable for any delay in delivery. AT shall make good faith efforts to give Company notice of any delay in delivery (before or after the scheduled delivery date), advising of the new anticipated shipping or delivery date. Buyer shall accept shipment or delivery at the time provided in the notice. Company understands AT Product availability is a function of constantly changing market and manufacturing conditions, AT cannot guarantee availability. At any time when AT does not have sufficient capacity to fill all customer orders on a timely basis, AT may at its sole discretion allocate production and delivery among AT’s customers.
All AT Products are sold as Ex Works AT, Grenoble, France. No claim could be set against AT, the customs broker or the forwarder for the losses or the damages of the goods if a survey report – being the indisputable voucher and force of law – has not been sent to the forwarder or the customs broker within a maximum 2-days’ time limit and formally notified to AT within same deadline. The accessibility and the fitting of the premises where the heavy and bulky goods are to be received, are to be addressed in due time by Company and, in no case, will AT have to deal with that matter. Prices are meant ex-works, carriage and packing to be charged at prevailing rates subject to any prior special agreement.
3.6. RETURN OF GOODS
No AT Products may be returned without prior agreement of AT. Only AT Products that have not been modified or altered,and are in the original packaging from AT, may be returned. Company is responsible for shipping expenses and possible restocking fees. AT’s sole obligation to Company shall be limited to replacing or repairing, at its option, any nonconforming Product that has been properly returned to AT.
3.7. RESERVATION OF INTELLECTUAL PROPERTY RIGHTS AND RIGHT OF USE
By selling an AT Product to Company, AT does not grant Company any license to exploit commercially or otherwise any patent, trademark, copyright, design, database, trade secret or any other proprietary right, except as explicitly provisioned in this Agreement.
4. CONDITIONS APPLICABLE TO THE AT SOFTWARE, AT DATA AND AT MODELS LICENSED BY COMPANY FROM AT
4.1. All intellectual property rights in the AT Hardware, AT Software, AT Data, Enriched AT Data, including CEATD and AT Models remain with or, when created pursuant to this Agreement, vest in AT and are conditionally licensed to Company as defined below.
4.2. AT grants Company a license under AT’s worldwide copyrights and database rights to use, as authorized in this agreement, the AT Software in machine readable, object code form, the AT Data, Enriched AT Data and or the AT Models designated on a PO, on the AT Hardware and the AT Platform designated on the PO, for the period mentioned on the PO but not exceeding the term of this Agreement.
4.3. The license fee is as set forth on the accepted PO.
4.4. The license is restricted to the uses listed below:
– detect, identify classify and/or quantify doses of one or more OM designated on the accepted PO that may or may not comprise CPOMs;
– in case an MLaaS option has been subscribed in the accepted PO, generate AT Models that may represent or apply to PAOMs, ATPOMs or CPOMs.
4.5. The license is not transferable, except with the prior written authorization of AT.
4.6. The license is non-exclusive for all OM except for the AT Data and AT Models generated from CPOMs and the CEATD, where it is sole, being understood that any use by AT of these AT Data or AT Models is restricted to improving any of the AT Models.
4.7. The license is not sublicensable, except for the AT Data or AT Models representing CPOMs. When the license is sublicensable, any and all sublicensees must be declared in writing to AT prior to the grant of such sublicense, and the sublicense is only valid insofar as Company’s sublicensee has undertaken in writing to comply with the provisions of Sections 4 through 6 of this Agreement and Company agrees to be liable to AT for any breach or non-compliance by its sublicensee.
4.8. The PO and the AT User Manual define the conditions under which technical support is provided to Company to provide corrections and/or improvements to the AT Software, AT Data and AT Models during the term of the license.
4.9. Company is not authorized to copy, transfer on another machine, except as a spare copy, or reverse engineer the licensed AT Software, AT Data or AT Models and does not acquire any ownership or derived rights on the data produced by the AT Software or from using the AT Data. Company is nevertheless authorized to use AT Data as enabling material for its own publications or patent applications as long as this use does not contradict the confidentiality provisions or other restrictions contained in this Agreement.
4.10. Company agrees that it will not attempt to defeat a Security Measure that protects the licensed AT Software, AT Data or AT Models and that would constitute a violation under applicable law related to the circumvention of technological measures that protect software, copyrighted works, or other intellectual property rights.
4.11. All intellectual property rights in the Company Odor Universe Compendium remain with Company and are licensed to AT only to generate EATD.
5.1. CONFIDENTIAL INFORMATION.
“Confidential Information” shall mean information, other than trade secrets, regarding the disclosing Party’s business, operations, employees or affairs, including, without limitation, confidential, proprietary or commercially sensitive information relating to its products, formulations, protocols, processes, designs, test methods, evaluation techniques, patents, know-how, trade secrets, scientific or technical data, the terms and existence of this Agreement, AT Technology and any other information specifically designated as Confidential Information regardless of the form in which it is maintained or provided (whether provided orally or in writing and in any media (paper, digital, electronic or otherwise) and whether prepared by the disclosing Party or otherwise, together with all analyses, compilations, notes and other documents prepared by the receiving Party or any of the receiving Party’s Representatives.
5.2 “Trade Secrets” shall mean information, without regard to form, belonging to a Party or licensed by it including, but not limited to, technical or nontechnical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers of suppliers which is not commonly known by or available to the public and which information: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons or entities who can obtain economic value from their disclosure or use; and (b) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.
5.3 Confidential Information and Trade Secrets shall not include any information (i) that was publicly available, published or in the public domain prior to the date of this Agreement or thereafter becomes publicly available without any violation of this Agreement on the part of the receiving Party or any of its Representatives; (ii) that was known by the receiving Party or its Representatives prior to its disclosure to the receiving party or its Representatives by the disclosing Party as demonstrated by objective evidence; (iii) becomes available to the receiving Party or its Representatives from a person other than the disclosing Party or its Representatives which is not, to the receiving Party’s (or its applicable Representative’s) knowledge or reasonable belief, subject to any legally binding or fiduciary obligation to keep such information confidential; or (iv) that, as shown by written evidence, is independently developed by or on behalf of the receiving Party, without reliance on Confidential Information received hereunder.
5.2. CONFIDENTIALITY OBLIGATIONS
The Parties will not disclose or use the other Party’s Confidential Information or Trade Secrets, or Confidential Information or Trade Secrets relating to the subject matter of this Agreement, except to the extent such disclosure or use is expressly permitted by the terms of this Agreement or such disclosure or use is necessary for the exercise of such Party’s rights or the performance of such Party’s obligations under this Agreement, including any disclosures required to obtain regulatory approvals. Each Party will protect the confidentiality of the other Party’s Confidential Information and Trade Secrets, and Confidential Information and Trade Secrets relating to the subject matter of this Agreement, with the same degree of care it uses to protect its own Confidential Information and Trade Secrets, which measures will, at a minimum, be in accordance with generally accepted business standards for protecting confidential and proprietary business information. Each Party will and will cause its Representatives to limit the distribution and disclosure of such Confidential Information and Trade Secrets to only those of its Representatives who have a need to know such Confidential Information and Trade Secrets for purposes of this Agreement or performing their obligations and/or exercising their rights under this Agreement. The Party disclosing Confidential Information and Trade Secrets to its Representatives will (i) ensure that such Representatives personally adhere to and comply with all terms and obligations of confidentiality, use and protection of the Confidential Information and Trade Secrets set forth in this Agreement and (ii) be liable if such Representatives do not adhere to such requirements.
5.3. TERM OF THE CONFIDENTIALITY OBLIGATIONS
These Confidentiality Obligations with respect to Confidential Information will last for five (5) years after the Term of this Agreement. The Confidentiality Obligations with respect to Trade Secrets will last for as long as such information remains Trade Secret.
5.4. RESTRICTION TO COMPANY’S ABILITY TO FILE FOR PATENT PROTECTION
Company, its Affiliates and Representatives have no right to file for patent protection on any element comprised in the AT Technology or that would otherwise limit the right of AT to make, have made, use, offer to sell, sell, import or export the AT Technology and agrees that, during the term of the confidentiality provision, to grant an irrevocable, worldwide, non-exclusive, royalty free and fully paid up license to any patent applied for and obtained by Company after the date of this agreement, but only to the extent such patent would impact on the rights of AT vis-à-vis the AT Technology.
5.5. LEGAL PROCEEDINGS; REQUIRED DISCLOSURES
In the event either Party is required, based on advice of legal counsel, in any legal proceeding, by any governmental regulatory body, by law, or pursuant to applicable securities laws or requirements of a national securities exchange, to disclose any Confidential Information or Trade Secrets regarding the subject matter of this Agreement or regarding the other Party, received pursuant to this Agreement, the Party required to make such disclosure shall give prompt notice to the other Party of such request or requirement so that the other Party may seek an appropriate protective court order. If a Party is compelled to disclose any such Confidential Information or Trade Secrets without a protective order in place covering such disclosure, it may disclose such information without liability hereunder; provided, that the Party required to make such disclosure gives the other Party written notice of the information to be disclosed as far in advance of its disclosure as is reasonably practicable and, upon the other Party’s request, shall use its reasonable efforts to obtain assurances that confidential treatment will be accorded such information and shall consider the other Party’s comments in any such disclosure. Whether or not subject to a protective order, the Party being compelled to disclose Confidential Information or Trade Secrets shall limit such disclosure to that which is reasonably necessary to comply with such disclosure obligation.
5.6. RETURN OF MATERIAL
All Confidential Information and Trade Secrets, in written form, and all written documents, presentations or other records into which Confidential Information and Trade Secrets are incorporated, shall at the disclosing party’s request be returned to it or destroyed by the receiving party. Notwithstanding the foregoing, receiving party shall not be required to erase any computer records or files containing Confidential Information or Trade Secrets that have been created pursuant to its standard archiving or back-up procedures, and if and to the extent required by applicable law, rule or regulation, one (1) copy may be retained by counsel of the receiving party for the sole purpose of ensuring compliance with such law, rule or regulation.
6. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
Company represents that, before purchasing the AT Product that is the subject matter of any PO, it has checked that the said AT Product is capable of fulfilling Company’s specification, this representation being fundamentally part of AT’s willingness to provide an AT Product to Company. Company bears full responsibility for making its own determination as to the suitability of the purchased AT Product, both commercially qualified and engineering samples, or for getting independent recommendations or advice for Company’s own particular use. AT makes no warranty or guarantee, express or implied, as to results obtained in end-use, nor of any design incorporating AT Product, nor any recommendation or advice given by AT Representatives. Company must identify and perform all tests and analyses necessary to assure that its finished application-incorporating AT Product will be safe and suitable for use under end-use conditions. Company also acknowledges that the AT Product may be subject to export restrictions. Due to the rules in force, Company expressly undertakes to obtain the written AT’s agreement and the competent Government authorities’ agreement as well, prior to exporting or re-exporting the goods out of the territory where it was delivered. AT shall not be liable for any expenses, damages or penalty resulting from failure to obtain the appropriate authorizations.
6.2. AT PRODUCT WARRANTY
AT warrants for a period of three (3) months after delivery, or any other longer period explicitly applicable by virtue of a statute or an accepted PO, that the AT Product is free from defects in materials and workmanship and that the AT Product will meet AT’s published specifications on the date of shipment. AT’s sole obligation to Company shall be limited to, at AT’s option, replacing, repairing, or providing AT Spare Parts, for any nonconforming AT Product that has been properly returned to AT by Company.
6.3. EXCLUSIONS OF WARRANTY
AT provides no warranty or guarantee against any defect or failure to perform resulting from misapplication, improper installation, improper operation, operation under inappropriate environmental conditions (including operation outside of any temperature range that is specified by AT) abuse or contamination, the use of replacement or consumable parts not supplied by AT, or any use that does not comply with the provisions of this Agreement, and AT shall have no liability of any kind for failure related thereto. The warranties provided herein do not cover the replacement or consumable parts beyond the expected useful life of such parts, alterations or accidents due to carelessness; of failure of supervision, maintenance or warehousing; of non-proper handling or use per AT’s or supplier’s specifications. The warranty will not apply when a repair or any operation has been performed by an unauthorized Third Party. AT will have no obligation to replace, repair or give credit for any AT Product that is employed in a manner that AT, in its sole discretion, determines is nonconforming.
6.4. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AT MAKES NO REPRESENTATION OR WARRANTY, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY PRODUCTS, MATERIALS, INFORMATION, SERVICES OR LICENSES PROVIDED PURSUANT TO THIS AGREEMENT.
6.5. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO EACH PARTIES’ CONFIDENTIALITY OBLIGATIONS HEREIN, AT SHALL UNDER NO CIRCUMSTANCE BE LIABLE TO COMPANY, ITS AFFILIATES OR REPRESENTATIVES FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PRODUCTION TIME, PROFITS, REVENUES, OR BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, OR THE TERMINATION OF THIS AGREEMENT, OR ARISING OUT OF OR ALLEGED TO HAVE ARISEN OUT OF BREACH OF THIS AGREEMENT. THIS LIMITATION APPLIES REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT BASED ON BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY. AT’S AGGREGATE LIABILITY IN DAMAGES FOR A DEFECTIVE AT PRODUCT SHALL IN NO EVENT EXCEED THE AMOUNT COLLECTED BY AT FOR THE PURCHASE OR THE LICENSE OF SAID DEFECTIVE PRODUCT.
6.6. HOLD HARMLESS
COMPANY HOLDS AT AND ITS REPRESENTATIVES HARMLESS AND WILL INDEMNIFY THE SAME FOR ANY DAMAGE TO ITSELF, COMPANY OR THIRD PARTIES RESULTING FROM ANY USE OF AN AT PRODUCT THAT DOES NOT CONFORM TO THE AT USER MANUAL OR THAT IS PERFORMED IN VIOLATION OF CONTRACTUAL OR STATUTORY OBLIGATIONS.
7. TERM AND TERMINATION
7.1. This Agreement shall commence on the Effective Date and shall continue until midnight on December 31st after the second anniversary of the said Effective Date, unless earlier terminated or renewed as provided herein (the “Term”).
7.2. Each Party may terminate this Agreement in case of breach or non-performance of an obligation of the other Party under this Agreement. Notice of termination may be served on the defaulting Party sixty (60) calendar days after a notice to cure said breach or non-performance was served.
7.3. Both Parties may agree to renew this Agreement by cosigning a renewal at least thirty (30) calendar days before its term. Renewal will then be for three (3) years after the Term.
7.4. Rights and obligations under this Agreement that by nature have a term that is longer than the Term will survive expiration of this Agreement, in particular clauses of Sections 5, 6, 8 through 10 and 14.
8. DISPUTE RESOLUTION
Unless otherwise set forth in this Agreement, in the event of any dispute in connection with this Agreement, such dispute shall be referred to the respective executive officers of the Parties designated below or their designees, for good faith negotiations attempting to resolve the dispute. If the designated executive officers are not able to resolve a dispute within thirty days, either Party shall be entitled to submit the Dispute for resolution pursuant to Section 9.
8.2. INJUNCTIVE RELIEF
Each Party agrees that the other Party would be irreparably injured by a material breach of the confidentiality provisions of this Agreement by the breaching Party, and that monetary remedies would be inadequate to protect the non-breaching Party against any actual or threatened material breach of such provisions. Accordingly, without prejudice to any other rights and remedies otherwise available to the non-breaching Party, the breaching Party agrees, upon proof of any such actual or threatened material breach, to appropriate equitable relief, including injunctive relief and specific performance in any court of competent jurisdiction.
9. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of France, the State of New York, United States of America or Switzerland applicable to agreements made and to be performed respectively in France, the United States of America or any other jurisdiction without regard to conflicts of law principles. Any disputes arising out of or in connection with this Agreement shall be finally settled in compliance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed according to said rules. The arbitration proceedings shall be held in, respectively, Paris (France), New York (USA) or Geneva, Switzerland. The language of the Arbitration shall be English.
In case a US Court could have jurisdiction: EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM THEREIN.
Any notice required to be given under this Agreement shall be given in the English language by sending such notice by postage-prepaid certified mail with return receipt or electronic mail with return receipt, for Aryballe to the signing executive at the address mentioned on the first page of this Agreement, for Company to the signing executive at the address mentioned with the signature
Either Party may notify the other Party of a different address to receive the other Party’s notices in accordance with the manner described in this Section 10.
In the case where any notice is sent by airmail, such notice shall be sent with return receipt requested and is deemed to be received by the other Party upon endorsement, by an employee or agent of the other Party of such receipt.
11. FORCE MAJEURE
Neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses on account of failure of performance by the defaulting Party if the failure is occasioned by government action, war, earthquake, fire, explosion, flood, strike, lockout, embargo, act of God, or any other cause beyond the control of the defaulting Party, provided that the Party claiming force majeure has exerted all reasonable efforts to avoid or remedy such force majeure; provided, however, that in no event shall a Party be required to settle any labor dispute or disturbance.
Neither Party will sell, transfer, assign, delegate, pledge or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party, provided, that either Party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the consent of the other Party (a) to any Affiliate of such Party, or (b) to any Third Party with which it merges or consolidates, or to which it transfers all or substantially all of its assets related to this Agreement. The assigning Party (unless it is not the surviving entity) will remain jointly and severally liable with, and will guarantee the performance of, the relevant Affiliate or Third Party assignee under this Agreement, and the relevant Affiliate assignee, Third Party assignee or surviving entity will assume in writing all of the assigning Party’s obligations under this Agreement. Any assignment not in accordance with this Section 12 shall be void.
This text of this Agreement in the English language shall be the original text, and any text in another language, even if such a text is made by translation of the text in English language or prepared by any of the Parties hereto for the purpose of its own convenience, shall have no meaning for any purpose between the Parties hereto.
14. ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the Parties hereto concerning the subject matter hereof and shall supersede any other agreements, whether oral or written, express or implied, and may not be changed or modified or revised except as specifically agreed upon by the Parties in writing. No Party is relying on any oral or written statements by the other Party or its representatives unless expressly set forth in this Agreement.
15. INVALID PROVISIONS
If any provision of this Agreement is held by any court or authority having jurisdiction over the Agreement or either of the parties to be illegal, invalid or unenforceable, and if the rights or obligations of any Party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provisions or by its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement, a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.
16. INDEPENDENT CONTRACTORS; NO PARTNERSHIP
The Parties hereto are independent contractors. In making and performing this Agreement, the Parties are acting, and intend to be treated, as independent entities performing a contract, and nothing contained in this Agreement is to be construed or implied or deemed to create an agency, partnership, joint venture or an employee/employer relationship between Company and AT. This Agreement is not, and will not be deemed to be, a partnership agreement or joint venture agreement, expressly or by implication. Employees of each Party remain employees of said Party and will be considered at no time agents of or owing a fiduciary duty to the other Party. Neither Party hereto will have any implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any other contract, agreement or undertaking with any Third Party.
The Parties hereto may amend, modify or alter any of the provisions of this Agreement, but such amendment, modification or alteration will be valid and binding on either Party only if memorialized by a written instrument that explicitly refers to this Agreement and is duly executed by both Parties hereto.
18. WAIVER, CUMULATIVE REMEDIES
The failure of any Party to enforce, or the delay by any Party in enforcing, any of its rights and remedies hereunder shall not be deemed a continuing waiver or a modification thereof, and any Party may, within the time provided by applicable law, commence appropriate or legal proceedings to enforce any and all of such rights. All rights and remedies provided for herein shall be cumulative and in addition to any other rights or remedies such Parties may have at law or in equity. Any Party may employ any of the remedies available to it with respect to any of its rights hereunder without prejudice to the use by it in the future of any other remedy with respect to any of such rights.
19. NO THIRD PARTY BENEFICIARIES
No person, firm or corporation, other than the Parties hereto, shall be deemed to have acquired any rights by reason of anything contained in this Agreement.
This Agreement may be executed by the Parties in one or more identical counterparts, all of which together will constitute this Agreement. If this Agreement is executed in counterparts, no signatory hereto will be bound until both Parties have duly executed a counterpart of this Agreement.