Exhibit 10.1
Certain identified information has been excluded from the exhibit because it is both (i) not material and (ii) would likely cause competitive harm to the Company, if publicly disclosed. Double asterisks surrounded by brackets denote omissions.
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Distribution Agreement
This Distribution Agreement (“This “Agreement”), made and entered into as of the 13th day of January, 2020, by and between:
Bionik Laboratories Corp., a Delaware corporation (“Bionik”), having its principal office at 483 Bay Street, Toronto, Ontario, Canada.
and
Curexo Inc., a Republic of Korea corporation (“Curexo”) having its principal office at 4th FL, 577, Gangnam-daero, Seocho-gu, Seoul, 06530, South Korea.
Curexo hereinafter be referred to individually as “Distributor” and Bionik shall hereinafter be referred to individually as “Supplier” and collectively as the “Parties”. Certain capitalized terms used herein are defined in Article 1 below.
WITNESSETH:
WHEREAS,Supplier desires to appoint the otherDistributor as the exclusiveDistributor for the sale of the Products of theSupplier in the Territory, and theDistributor desires to be so appointed.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto agree as follows:
Article 1 (Definitions)
In this Agreement except where the context otherwise requires, the following terms and expressions shall be understood to have the precise meaning as follows:
| 1.1 | “Products” shall mean the products of the type and specification manufactured and packed under the Trade Marks and listed in Schedule 1 and any other products developed by theSupplier and which theSupplier may permit theDistributor, by express notice in writing, to distribute in the Territory. Notwithstanding the foregoing, theSupplier may modify the design and type of the Products or parts thereof (provided the modification does not adversely affect the Products or discontinue any Products at any time if the production of such Products is permanently discontinued for any reason, in its sole discretion). |
| 1.2 | “Territory” shall mean, with respect to each of theDistributors, the countries or areas specified in Schedule 2, as the parties may from time to time vary upon mutual agreement. |
| 1.3 | “Trademarks” shall mean the trademark registrations and applications listed in Schedule 3 and any further trademarks that theSupplier may, by express notice in writing, permit or procure permission for theDistributor to use in the Territory in respect of the Products ofSupplier. |
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Article 2 (Appointment and Acceptance)
| 2.1 | During the term and subject to the conditions herein set forth, eachSupplier hereby appoints theDistributor as the sole and exclusiveDistributor to import, market and distribute the Products in the Territory, and theDistributor hereby accepts such appointment. |
| 2.2 | TheDistributor shall not, directly or indirectly through another party, purchase, import, export, sell, distribute, manufacture or otherwise deal in products competitive with or similar to the Products of theSupplier in the Territory. |
| 2.3 | TheDistributor shall refrain from making active sales of the Products ofSupplier to customers outside of the Territories. For these purposes, “active sales” shall be understood to mean actively approaching or soliciting customers, directly or indirectly, including, but not limited to, the following actions: (a) visits; (b) direct mail, including the sending of unsolicited emails; (c) advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at customers outside of the Territories; (d) online advertisements addressed to customers outside of the Territories and other efforts to be found specifically by users outside of the Territories, including the use of territory based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users outside of the Territories; and (e) advertising or promotion in any form or translation of theDistributor’s website into a language other than an official language of any country forming part of the Territory, that theDistributor would not reasonably carry out but for the likelihood that it will reach customers outside of the Territories. TheDistributor shall not establish, or maintain any branch, sales outlet or distribution depot in any area outside of the Territories for the sale of the Products of theSupplier. |
Article 3 (Orders and Shipment)
In placing orders with theSupplier, theDistributor shall clearly describe the Products ofSupplier and quantity required, and shall include precise instruction for packing, invoicing and shipping. The orders shall not be binding unless and until they are in compliance with Articles 4 and 5.
Article 4 (Price and Payment)
| 4.1 | The prices to be paid by theDistributor to theSupplier for the Products or spare parts ofSupplier are to be theSupplier’s list prices as notified to theDistributor by theSupplier from time to time. TheSupplier shall give theDistributor sixty (60) calendar days’ notice in writing of any rises in the prices for the Products or spare parts ofSupplier. The discount of the price list to theDistributor is to be determined. |
| 4.2 | TheDistributor shall pay the full amount invoiced to it by the Supplier in the United States within ten (10) calendar days of invoice. Within ten (10) calendar days after receipt by the Distributor of Supplier’s confirmation of order, the Distributor shall have an irrevocable letter of credit be issued in favor of the Supplier or its nominees by a first class, international bank satisfactory to the Supplier. |
| 4.3 | Unless otherwise agreed between the parties, currency of payment shall be in USD (United States Dollars) |
| 4.4 | As between theSupplier and theDistributor, theDistributor shall be liable for and shall pay any tax, duty, charge or any other impost of a similar nature imposed upon theSupplier or theDistributor, in respect of the purchase, sale, importation, lease or other distribution of the Products of theSupplier. TheDistributor shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Products of theSupplier. |
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| 4.5 | TheDistributor shall be free to fix its own resale prices for the Products but shall not set those prices so high as may make them uncompetitive in the Territory including any trade discounts or rebates and shall promptly advise theSupplier of any subsequent changes. |
| 4.6 | Except as specifically set forth in this Agreement, theDistributor shall pay for any and all expenses, costs and charges incurred by it in the performance of its obligations under this Agreement as aDistributor (including but not limited to promotion and marketing costs in the Territory), unless theSupplier as such has expressly agreed in advance in writing to pay such expenses, costs and charges. |
| 4.7 | As between theSupplier and theDistributor,Supplier will provide 3 units of InMotion Arm at theSupplier’s own cost. |
| 4.8 | Neither Party may withhold payment of any amount due to the other because of any set-off, counter-claim, abatement, or other similar deduction. |
Article 5 (Forecast; Quantities)
5.1 No later than thirty (30) calendar days prior to (a) each Contract Year as specified below and (b) the six-month anniversary of the commencement of each Contract Year, the Distributor shall notify the Supplier in writing of its forecast of the quantities of each type of Product of Supplier that it expects to buy from the Supplier for delivery during the ensuing six (6) month period.
The First Contract Year minimums as previously agreed to by the Parties pursuant to the Distribution Agreement dated as of March 6, 2018 by and between Bionik and Curexo (the “Original Agreement”), have been met and satisfied as of the execution date of this Agreement, and no further minimum purchases apply thereunder or hereunder.
| Contract Year | Contract Term |
| First Contract Year | From January 13, 2020 – January 12, 2021 |
| Second Contract Year | From January 13, 2021 – January 12, 2022 |
| Third Contract Year | From January 13, 2022 – January 13, 2023 |
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5.2 The Supplier undertakes to use all reasonable endeavors to meet all orders for the Products forwarded to it by the Distributor in accordance with the Supplier’s terms of delivery to the extent the orders do not exceed the forecast for each type of Product given in Section 5.1. The Distributor shall buy the Products for its own account for resale under this Agreement.
For purpose of this Article, the Contract Products shall be considered purchased when shipped by the Supplier, excluding sales returned to the Supplier.
Article 6 (Technical Assistance)
| 6.1 | TheSupplier is obligated to supply theDistributor with reasonably necessary technical assistance, which may include information and illustrated material, and to send advertising material suitable for the promotion and advertising of the Products ofSupplier, in the reasonable opinion of theSupplier. |
| 6.2 | TheSupplier shall train technical personnel ofDistributor to permit theDistributor to satisfy its obligations under this Agreement, including to the extent it becomes necessary due to the introduction of any new Products ofSupplier, or to achieve better installation and maintenance standards. Costs for round trips, meals, lodging and other expenses of theDistributor’s personnel dispatched for training shall be borne by theDistributor, and theSupplier shall bear the above costs and expenses forSupplier personnel who will train theDistributor’s personnel. |
| 6.3 | The Supplier agrees to send one technical representative to the Distributor’s designated South Korea location to conduct a training session focused on technical aspects of the product as well as service and repair information. Supplier shall bear the expense of Supplier staff for this technical training visit. This training session shall be a one-time event. |
| 6.4 | The Distributor agrees to send the appropriate staff to Supplier’s designated US location to receive dedicated sales training and dedicated clinical training. These are two separate training sessions. Distributor shall bear the expense of Distributor staff for such sales and clinical training. |
| 6.5 | The above technical assistance and martials shall be implemented in the English language. |
Article 7 (Spare Parts)
| 7.1 | TheDistributor shall keep a sufficient level of spare parts in order to provide efficient after-sales service. TheSupplier shall also advise theDistributor of the required spare parts. Any stock will be discussed and mutually agreed upon before orders are placed. |
| 7.2 | TheSupplier shall supply to theDistributor spare parts for the Products ofSupplier as long as theDistributor continues to purchase the Products pursuant to the terms and conditions of this Agreement and, in the absence of breach by theDistributor of this Agreement, for 5 years after the last shipment of the Products ofSupplier to theDistributor. |
| 7.3 | With the prior written consent of theSupplier, theDistributor may purchase standard spare parts from theSupplier’s Suppliers directly for 5 years after the last shipment of Products. |
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Article 8 (Inspection and Warranty)
| 8.1 | Promptly after the receipt of the Products, theDistributor shall inspect or shall cause its qualified agent to inspect the Products at the qualified agent to inspect the Products at theDistributor’s cost, to insure that the quality standards have been met as agreed to in writing by the parties. If, upon receipt of the Products after proper and thorough inspection to be performed no later than thirty (30) days after receipt, any of the Products in found not to be in compliance with the quality standards set by theSupplier, theSupplier shall replace the Products or the part of a Products not meeting the quality standards, and shall indemnify theDistributor against any direct damage incurred actually by theDistributor. |
| 8.2 | TheSupplier warrants that the Products ofSupplier shall be free from defects in material and workmanship for a period of one (1) year from the installation date of the Product by the Distributor; provided that any such installation shall be no later than six (6) months from the shipment date. In the event any such installation is subsequent to such six (6) month period, then such warranty shall be for a period of one (1) year from the last day of that six (6) month period. This warranty does not extend to any of the said Products which have been: (1) subjected to misuse, neglect, accident or abuse, (2) improperly repaired, or altered or modified ion any way, and (3) used in violation of instructions furnished by theSupplier. |
| 8.3 | Claims by theDistributor in regard to any defect in the Products shall be in writing and be dispatched by theDistributor with full particulars within 30 days after the receipt of the Products. |
| 8.4 | The parties agree that the implied warranties of merchantability and fitness for a particular purpose and all other warranties or guarantees, express or implied are excluded from this transaction and shall not apply for the products. |
Article 9 (Distributor’s Responsibility)
| 9.1 | TheDistributor agrees and undertakes to diligently and conscientiously, use all reasonable efforts to promote and expand the distribution and sale of the Products of theSupplier in the Territory, including but not limited to regularly and at its own expense distributing promotional literature, conducting multi media advertising and varying out market surveys. |
| 9.2 | TheDistributor shall maintain adequate stocks and inventory of the Products throughout the Territory to meet its customer’s demand in time, and to support the effective demonstration of Products to targeted customers for future sales. TheDistributor shall maintain adequate stocks and inventory of replacement parts, facilities and qualified mechanics throughout the Territory and shall provide reasonable after-sales service to its customers [in accordance with the terms of the service and maintenance manual provided by theSupplier] during the Term and for [six] months after termination, however terminated. |
| 9.3 | TheDistributor shall take all reasonable steps to ensure that the Products of theSupplier are properly transported, handled, stored and secured so as to prevent any damage of theft thereto or thereof.’ |
| 9.4 | TheDistributor shall insure at its own cost with a reputable insurance company all stocks of the Products of theSupplier as are held by it against all risks which would normally be insured against by a prudent businessman to at least their full replacement value and promptly produce to theSupplier on demand full particulars of that insurance and the receipt for the then current premium. TheDistributor shall indemnify and save theSupplier harmless from any claims which may be initiated against theSupplier as a result of any such damage to the Products of theSupplier to the extent that such are not covered by the said insurance. |
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| 9.5 | TheDistributor shall arrange at its own expense, advertisement and sales promotion of the Products and devote its best efforts, but in any case at a minimum to meet minimum sales quantities, toward obtaining the largest sales volume of the Products in the Territory. If necessary, theSupplier supports cooperative advertising executed by theSupplier’s Cooperative Advertising Agreement in a separate contract. The form and nature of advertisement and sales promotion of the Products shall be submitted to theSupplier for the prior approval before publication and unless theSupplier notifies theDistributor that it does not approve of any advertising or sales literature within 7 days of receipt by theSupplier of details of the same theSupplier shall be deemed to have approved such advertisement or sales promotion. |
| 9.6 | Whenever theSupplier shall indicate to theDistributor any complaint concerning the activities of theDistributor as required under this Agreement, theDistributor shall promptly make investigation and take proper action, if any. |
| 9.7 | TheDistributor shall not: (a) represent itself as an agent of theSupplier for any purpose; (b) pledge theSupplier’s credit; (c) give any condition or warranty on theSupplier’s behalf; (d) make any representation on theSupplier’s behalf; (e) commit theSupplier to any contracts; or (f) otherwise incur any liability for or on behalf of theSupplier. TheDistributor shall not, without theSupplier’s prior written consent, make any promises or guarantees about the Products of theSupplier beyond those contained in the promotional material supplied by theSupplier. |
| 9.8 | During the term of this Agreement, theDistributor shall not distribute, sell or market in the Territory any product which competes with any product ofSupplier. |
Article 10 (Request of Information)
TheDistributor shall cooperate withSupplier’s request on the sales of the Products ofSupplier, and theDistributor shall send to theSupplier:
| (a) | A written annual report on its activities in the Territory, such reports to include sales by product including both the value and units, sales by country, recommended retail price lists, advertising and promotion plans for the future and a commentary on the marketing, sales and distribution performance and plans, matters affecting pricing policies and achievements and proposals in respect of major customers. |
| (b) | A written annual report on the stocks of the Products and parts thereof held by theDistributor. |
| (c) | Any other information relating to the performance of its obligations under this Agreement that theSupplier may reasonably require from time to time. |
| (d) | Quarterly forecasts of next 90-day sales projections including product type as well as name and type of customer facility. |
TheDistributor shall keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the products ofSupplier;
TheDistributor shall allow theSupplier, on reasonable notice, access to its accounts and records relating to the Products ofSupplier for inspection.
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Article 11 (Trademark)
| 11.1 | TheSupplier hereby grants to theDistributor the non-exclusive right, in the Territory to use the Trademarks in the promotion, advertisement and sales of the Products ofSupplier, subject to, and for the duration of, this Agreement. TheDistributor acknowledges and agrees that all rights in the Trademarks shall remain in theSupplier, and thatDistributor has and will acquire no right in them by virtue of the discharge of its obligations under this Agreement, except for the right to use the Trademarks as expressly provided in this agreement. TheDistributor shall market and sell the products ofSupplier only under the Trademarks, and not in association with any other trade mark, brand or trade name, except as permitted in any branding manual issued by theSupplier. TheDistributor shall ensure that the appropriate Trademarks shall appear on all Products ofSupplier, containers and advertisements for the Products ofSupplier, followed by the symbol ®, or the letters [TM], as appropriate. |
| 11.2 | When theDistributor uses the Trademark under paragraph 11.1, prior to use, theDistributor shall, inform theSupplier of the manner of such use and submit a sample of any materials including but not limited to, catalogues, leaflets, posters, newspapers, bearing the Trademark for prior inspection and approval by theSupplier. When theDistributor wishes to change the approved use of the Trademark, prior to change theDistributor shall inform theSupplier of the desired change and submit a sample of the materials bearing the altered use of the Trademark of prior inspection and approval by theSupplier. In any event, the manner of use of the Trademark or any change thereof shall be subject to theSupplier’s prior approval and theDistributor shall not use the Trademark in any other manner than approved in advance by theSupplier. TheDistributor shall comply with all rules for the use of the Trademarks issued by theSupplier (including those set out in any branding manual issued by theSupplier) and shall not, without prior written consent of theSupplier, alter or make any addition to the labeling or packaging of the Products ofSupplier displaying the Trade Marks. TheDistributor shall not alter, deface or remove any reference to the Trade Marks, any reference to theSupplier or any other name displayed on the products ofSupplier or their packaging or labeling. |
| 11.3 | TheDistributor recognizes that any of the Trademarks, trade names, designs, copyrights and other proprietary rights, used on or embodied in the Products (“Proprietary Rights”) shall remain the exclusive property of theSupplier. TheDistributor shall not have or acquire any right, title or interest in Proprietary Rights. |
| 11.4 | During the terms of this Agreement and thereafter, theDistributor shall not: |
| (a) | Use the Trademark or similar trademark on any products that is not aSupplier Product, nor let any third party use the Trademark. |
| (b) | Directly or indirectly apply of the registration of the Trademark or any similar trademark with respect to the Products or any other materials in any country or jurisdiction. |
| 11.5 | The Distribution may, with the prior written consent of theSupplier, indicate that it is an authorizedDistributor of the Products. |
| 11.6 | When theDistributor finds that a third party infringes or impairs the Trademark or theSupplier’s goodwill involved therein, or when a third party brings a claim, suit or action against theSupplier or theDistributor on the ground that theDistributor’s use of the Trademark may infringe on the third party’s rights, theDistributor shall promptly inform theSupplier thereof any reasonably co-operate with theSupplier to address the problem. In respect of any such matter, theSupplier shall in its absolute discretion decide what action to take in respect of the matter (if any), and theSupplier shall conduct and have sole control over any consequent action that it deems necessary. |
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| 11.7 | Upon termination of this Agreement for any cause, theDistributor shall cease holding itself out as aDistributor of the Products and cease using, in any way, theSupplier’s name, or its Proprietary Rights or any material similar thereto. TheDistributor shall not at any time sub-license, transfer or otherwise deal with the rights of use of the Trademarks granted under this Agreement. |
| 11.8 | TheSupplier, at its discretion, shall have the right to record the existence of the license hereunder, or require theDistributor to register as a registered user within the Territory. |
| 11.9 | TheDistributor shall not alter, deface, remove, cover or mutilate in any manner the Trademark, serial or model number, brand, orSupplier’s name attached or affixed to any of the products, without the prior written consent of theSupplier. |
| 11.10 | Notwithstanding anything to the contrary in this Article 11, the parties shall negotiate in good faith terms to permit the co-branding of Products in the Territories. |
Article 12 (Status of Distributor)
| 12.1 | This Agreement does not in any way create the relationship of principal and agent between theSupplier and theDistributor; and under no circumstances shall theDistributor be considered to be the agent of theSupplier. TheDistributor shall not act or attempt to act, or represent itself, directly or by implication, as an agent of theSupplier or in any manner assume or create, or attempt to assume or create any obligation, liability, representation, warranty or guarantee on behalf of, or in the name of theSupplier. TheDistributor shall conduct its business in the purchase and resale of the Product as a principal for its own account and at its own expense and risk. |
| 12.2 | TheDistributor shall, at all times, comply with all applicable laws, regulations, and orders of any government of the Territory or political subdivisions thereof, relating to or in any way affecting this Agreement and theDistributor’s performance hereunder, including the obtaining of any required licenses, permits or approvals. TheDistributor shall at all times comply with all applicable laws, statues, regulations, and codes relating to anti-bribery and anti-corruption in the Territory or political subdivisions thereof. |
| 12.3 | TheDistributor shall not disclose to any third party, without the prior written consent of theSupplier, or use for any purpose other than the performance of its obligations under this Agreement, any confidential information concerning the Product or business affairs or technologies of theSupplier (including, but not limited to, prices, discounts, terms and conditions of sale, customers, business affairs, Products or Product specifications) which it acquires or develops in the course of its transaction with theSupplier. Notwithstanding the foregoing, the parties may make such public disclosures as are required under applicable securities laws or the rules and regulations of any stock exchange or interdealer quotation system on which the parties’ capital stocks are then traded or listed. |
Article 13 (Term)
| 13.1 | This Agreement shall become effective upon signing and shall continue in full force and effect for a period of three (3) years from the date hereof, unless earlier terminated pursuant to Article 14. |
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| 13.2 | This Agreement shall be automatically extended for successive 1 year terms, unless three months prior to the expiration of the term or any extension thereof, a notice of intention to finally terminate is given in writing by one party to the other. |
Article 14 (Termination)
| 14.1 | This Agreement may be terminated at the option of either Party, effective immediately upon giving written notice of termination to the other Party, in each of the following events; |
| (a) | Should the other Party become bankrupt or insolvent, or have its business placed in the hand of a receiver, assignee or trustee, whether by voluntary act or otherwise; or |
| (b) | Should the other Party attempt to assign this Agreement or any rights hereunder to a third party without the terminating Party’s prior written consent; or |
| (c) | If the other Party ceases to function as a going concern or to conduct its operations in the normal course of business voluntarily or otherwise; or |
| (d) | If the other Party commits a material breach of any agreement or conditions herein contained and shall not have remedied such breach within 30days of a notice requiring the remedy of such breach. |
TheSupplier may immediately terminate this Agreement should theDistributor be acquired by, or should itself acquire, in whole or in part, a manufacturer of products which in the reasonable judgment of theSupplier competes with the Products;
| 14.2 | Notwithstanding anything contained in this Agreement, either party may terminate this Agreement by a written notice served on the other, effective 3 months from the date of such notice if the objectives of the parties are not being met. |
| 14.3 | All payments owed to theSupplier upon termination shall become immediately due and payable and no cancellation or termination of this Agreement shall serve to release theDistributor or its successors or assignees from any obligations under this Agreement. |
| 14.4 | In cases of termination of this Agreement by either party for any reason, theSupplier may at its sole option repurchase from theDistributor, at the FOB loading port price paid by theDistributor to theSupplier, plus actual freight paid by theDistributor, any or all Products ofSupplier or parts thereof in the possession of theDistributor. If theSupplier chooses not to exercise its option to so repurchase the Products, or purchases only part of theDistributor’s stocks of Products, theDistributor may for a period of six (6) months following termination of this Agreement, sell and distribute any stocks of the Products that it may have in store or under its control at the time. At the end of this period, theDistributor shall promptly return all remaining stocks of the Products to theSupplier at the expense of theDistributor, or dispose of the stocks as theSupplier directs. In any event of expiration or termination, theDistributor shall at theSupplier’s option promptly destroy or return all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers that relate to theSupplier’s business that theDistributor may have in its possession or under its control (other than correspondence between the parties) |
| 14.5 | Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry. |
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Article 15 (Indemnities)
Distributor shall indemnify theSupplier and hold theSupplier harmless from and against, and shall defend against, any and all claims and damages of every kind for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or indirectly, to the conduct, operations, op performance ofDistributor.
Article 16 (Governing Law and Arbitration)
| 16.1 | This Agreement shall be construed and enforced according to the internal laws of the State of New York, without giving effect to the conflicts of laws provisions thereof. |
| 16.2 | Any disputes, controversies or differences which may arise between the parties or in relation to or in connection with this Agreement or for the breach thereof, shall be settled by arbitration in accordance with the Rules of Arbitration of the I.C.C. by one (1) arbitrator appointed in accordance with said Rules. The proceedings shall be seated and located in New York County, New York and conducted in English. The arbitration should be final and binding upon the Parties and shall not be subject to appeal. |
Article 17 (Miscellaneous Provisions)
| 17.1 | This Agreement constitutes the entire understanding of theSupplier and theDistributor with respect to the subject matter hereof. |
| 17.2 | No amendment, modification or alteration of any terms of this Agreement shall be binding on either party unless the same shall be made in writing, dated subsequent to the date hereof and executed by or on behalf of the parties hereto. |
| 17.3 | This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. |
| 17.4 | No assignment of this Agreement shall be valid without the prior written consent of the other party hereto. |
| 17.5 | All waivers hereunder shall be in writing, and the failure of any party at any time to require the other party’s performance of any obligations under this Agreement shall not affect the right subsequently to require performance of the obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision. |
| 17.6 | This Agreement may be executed in English and in other languages (including Korean). In the event of any difference or inconsistency among different versions of this Agreement, the English version shall prevail over in all respect. |
| 17.7 | It is the Parties’ intention to issue a joint news release disclosing the creation of this Agreement in form and substance mutually agreeable to the Parties in good faith. |
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| 17.8 | Subject to the express provisions set forth in This Agreement, in no event shall either Party be liable to the other Party for consequential damages, including but not limited to lost profits, lost market or business opportunities, or lost revenues, or incidental, special or punitive damages arising under, related to, or resulting from The breach of this Agreement, regardless of legal or equitable theory, and despite timely notice of the possibility of such damages. |
| 17.9 | The intention of this Agreement is to amend, restate and replace the Original Agreement in its entirety, and each and every term and provision of the Original Agreement is hereby amended, restated, replaced, and superseded hereby, and the Original Agreement no longer has any force or effect. |
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IN WITNESS WHEREOF, the parties hereto have authorized this Agreement to be executed by their respective duly authorized officers.
| On behalf of Distributor: | | On behalf of Supplier: | |
| | | | |
| Curexo Inc. | | Bionik Laboratories Corp. | |
| | | | |
| | | | |
| Signature: /s/ Jae Jun Lee | | Signature: /s/ Eric Dusseux | |
| | | | |
| Name: | Jae Jun Lee | | Name: | Eric Dusseux | |
| Title: | CEO | | Title: | CEO | |
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SCHEDULE 1
SUPPLIER PRODUCTS AND DISTRIBUTOR PRICING
The Products ofSupplier and the pricing extended to theDistributor,as the date of this Agreement:
| | 2. | InMotion Arm/Hand™ [**] |
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SCHEDULE 2
TERRITORIES
The territories of Curexo, as the Distributor of Bionik’s Products, as of the date of this Agreement:
Republic of Korea (South Korea)
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SCHEDULE 3
TRADEMARKS
