EX-10.21
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g05278a3exv10w21.htm
EX-10.21
SUPPLY AND LICENSE AGREEMENT
NOTE: Portions of this exhibit indicated by [*] are subject to a confidential treatment
request, and have been omitted from this exhibit. Complete, unredacted copies of this exhibit have
been filed with the Securities and Exchange Commission as part of the Company’s confidential
treatment request.
SUPPLY AND LICENSE AGREEMENT
This
Supply and License Agreement (“Agreement”) is made and entered into as of this
7th day of June, 2007 (the “Effective Date”), by and between BioLife Solutions, Inc.
(“BioLife”), and Bioheart, Inc. (“Customer”).
RECITALS
The parties desire to enter into an agreement pursuant to which (i) BioLife shall supply
Customer with all its requirements for BioLife Products (as defined below) to Customer, (ii)
Customer shall purchase all its requirements for BioLife Products from BioLife, and (iii) BioLife
shall place certain of its proprietary technology and know how into escrow, and agree to grant
Customer a license to use such technology and know how in the event a Release Condition (as defined
below) occurs under the escrow agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms which are used but not defined elsewhere in this Agreement
or in the Development Agreement shall have the meanings set forth below.
a. “BioLife Products” means BioLife’s preservation media products marketed under the brand
name “HypoThermosol®,” and improvements thereon which are considered to be the same products for
regulatory purposes.
b. “Confidential Information” has the meaning given to it in Section 10(a).
c. “cGMP” means a body of United States Food and Drug Administration guidelines related to
control and management of manufacturing and quality pharmaceutical products. “Customer Products”
means Customer’s cell therapy products, including, control testing of medical devices, biologics,
and without limitation, Customer’s cell therapy product known as
“MyoCell®,” and its related initial
and intermediate biologic source material, and improvements thereon which are considered to be the
same products for regulatory purposes.
d. “Disclosing Party” has the meaning given to it in Section 10(b).
e. “Forecast” has the meaning given to it in Section 2(c).
f. “Intellectual Property Rights” means patent applications, patents (including reissues,
divisions, continuations, and extensions), utility models, copyrights, trade secrets, author’s
rights, contract and licensing rights, and any other form of intellectual property right afforded
protection by law such as inventions, designs, and technical information as may exist now and/or
hereafter come into existence, and all applications, renewals and extensions thereof, regardless of
whether any of such rights arise under common law, the laws of the United States or the laws of any
other state, country or jurisdiction.
g. “Product Specification” means the specifications for each
BioLife Product (including manufacturing standards, analytical testing
requirements, product labeling and related packaging, shipping and storage specifications) as
set out in Exhibit C and as such specifications may be amended by BioLife from time to time.
BioLife will inform Customer of any changes to the Product Specifications in writing within 5 days
of such change being made.
h. “Purchase Order” has the meaning given to it in Section 2(d).
i. “Quality Agreement” means the quality agreement relating to BioLife Products to be entered
into by the parties within 90 days of the Effective Date pursuant to Section 2(b).
j. “Release Conditions” has the meaning given to it in Section 5(b).
k.
“Recipient” has the meaning given to it in Section 10(b).
l. “Warranty Period”
shall have the meaning set forth in Section 7(a.iii).
2. Supply.
a. Sale and Purchase. Customer hereby agrees to purchase from BioLife, and BioLife hereby
agrees to sell to Customer, BioLife Products to fulfill all of Customer’s requirements for
hypothermic storage of Customer Products during the term of this Agreement. BioLife reserves the
right to manufacture BioLife Products or have BioLife Products manufactured by third party
subcontractors.
b. Quality. All quantities of BioLife Products supplied hereunder shall be manufactured in
accordance with the applicable Product Specifications and the Quality Agreement. The Parties shall
execute the Quality Agreement within 90 days of the Effective Date.
c. Forecasts. On the Effective Date, and thereafter no later than the fifth day of each
calendar quarter during the term of this Agreement, Customer will provide to BioLife, in a format
reasonably acceptable to BioLife, a rolling forecast specifying Customer’s anticipated requirements
for BioLife Products by calendar quarter for the following eighteen (18) months (“Forecast”).
Against the Forecast Customer will place orders for the quantities of BioLife Products in
accordance with the process described in Section 2(d). Customer shall have a binding commitment to
purchase the quantity of BioLife Products detailed in the first calendar quarter of each Forecast
from BioLife on the terms and conditions of this Agreement. The amounts set forth in the following
five (5) calendar quarters of each Forecast shall constitute Customer’s non-binding, good faith
estimate of Customer’s requirements for quantity of BioLife Products for such periods; provided,
however, that in relation to the quantity set forth for the second calendar quarter when such
calendar quarter becomes the first calendar quarter of the next Forecast the amounts set forth in
such first calendar quarter shall not be less than eighty per cent (80%) nor shall BioLife be
obligated to supply greater than one hundred and twenty per cent (120%) of the amounts set forth in
the immediately preceding Forecast for such calendar quarter unless otherwise expressly approved by
BioLife. Customer and BioLife shall negotiate in good faith in an effort to determine mutually
agreeable quarterly manufacturing schedules after BioLife receives each such Customer Forecast.
d. Purchase Orders. Customer will order BioLife Products by submitting written orders to
BioLife for the quantity of BioLife Products to be purchased by Customer
during the period specified in the order. All Purchase Orders will reference this Agreement,
state the quantities and descriptions of BioLife Products ordered, applicable fees, shipping
instructions and requested delivery dates (“Purchase Order”).
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i. For purposes of this Agreement,
the order date will be the date on which BioLife receives Customer’s Purchase Order. BioLife will
respond in writing to each Purchase Order within ten (10) days following the order date indicating
acceptance or denial of the quantities and delivery schedule set forth in the Purchase Order and,
if denied, the quantities and delivery schedule which BioLife can accept.
ii. BioLife shall make commercially reasonable efforts to ship the BioLife Products to
Customer in accordance with the delivery dates specified in the Purchase Order, provided that no
Purchase Order or group of Purchase Orders shall exceed Customer’s Forecast by more than twenty
percent (20%) unless otherwise expressly approved by BioLife. If BioLife denies its ability to
supply the quantity of BioLife Products set out in the Purchase Order and/or to supply such
quantity by the requested date, BioLife shall give Customer an explanation in writing of the cause
of such failure to supply and the duration for which BioLife reasonably expects such circumstances
to continue.
iii. Except for terms related to quantity, type of BioLife Product and shipping dates, any
terms and conditions of any Purchase Orders which are inconsistent with the terms and conditions of
this Agreement will be deemed stricken from such Purchase Order and the terms and conditions of
this Agreement shall prevail, notwithstanding any acknowledgment or acceptance of such Purchase
Order.
e. Shipment, Insurance and Delivery. For purposes of this Agreement, “delivery” means the
date when BioLife or its third party manufacturer transfers BioLife Products to a carrier
designated by Customer to transport quantities of BioLife Products to Customer’s chosen location.
BioLife will ship BioLife Products to Customer in the manner and by such carriers as Customer shall
specify. Customer shall pay for all shipping charges and insurance. Title, risk of loss and/or
damage to BioLife Products will pass to Customer on delivery to any carrier designated by Customer
to transport quantities of BioLife Products to Customer’s premises. BioLife will pack all BioLife
Products for shipment in accordance with the Product Specifications, applicable legal requirements
(to the extent agreed to by the Parties), BioLife’s standard operating procedures for shipment,
which shall at least conform to standard commercial practices utilized in the industry. Each
delivery of BioLife Products supplied under this Agreement shall be accompanied by (i) a written
certificate of analysis confirming that such delivered quantities of BioLife Products conform to
the relevant Product Specifications, and (ii) all other documentation which is required to
accompany such shipment to comply with all applicable U.S. laws or the laws of the country to which
the Biolife Product will be shipped.
3. Acceptance.
a. Time to visually examine shipment. Following delivery of a shipment of BioLife Products to
Customer’s premises, and during the time BioLife Products are located at the Customer’s premises
Customer will comply with the storage requirements listed in the Product Specification and have a
period of ten (10) days in which to visually examine the quantities of BioLife Products delivered:
(i) for substantial conformity with the Purchase Order and the Product Specifications and (ii) to
ensure that such delivery to BioLife Products is accompanied by a certificate of analysis, and if
Customer determines (acting reasonably) that the shipment does not pass such visual examination it
shall promptly notify rejection of the shipment to BioLife in writing. Subject to Section 3(b),
Customer shall be deemed to have accepted each shipment of BioLife Products unless it notifies
BioLife in writing of its rejection of the BioLife Products
within such period. For the purposes of this Agreement, “visual examination” shall mean:
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i. comparing the applicable Purchase Order against the documentation accompanying the shipment to
verify that the identity, quantity and exterior shipment packaging and labeling comply with the
Purchase Order;
ii. verifying that the certificate of analysis for the shipment states that the BioLife
Products conform in all material respects to the Product Specifications; and
iii. visually inspecting the exterior of the shipment of BioLife Products to verify that the
shipment appears to be in good condition.
b. For the avoidance of doubt, visual examination does not include laboratory analysis.
c. Latent defects. Notwithstanding the foregoing, BioLife shall remain liable to Customer to
the extent provided in Sections 3(c) and 3(d) for any latent defect that subsequently is discovered
within the Warranty Period. Customer shall use its commercially reasonable efforts to inform
BioLife of such defect and rejection of the relevant shipment not later than ten (10) days from the
date that it discovers such latent defect.
d. Returns. Within ten (10) days of receipt by BioLife of a notice of rejection from Customer
in accordance with Section 3(a) or Section 3(b) BioLife shall indicate in writing to Customer
whether BioLife is issuing a return authorization or not. In the event that a return authorization
is so issued Customer shall package and return in accordance with the requirements listed in
Product Specification to BioLife at BioLife’s expense the quantity of BioLife Products in question
and BioLife shall replace such quantity as soon as reasonably practicable thereafter. If the
payment in respect of such quantity of BioLife Products is outstanding, it shall be postponed until
such replacement quantities are received and accepted by Customer in accordance with this Section
3.
e. Dispute resolution. After receipt of any rejection notice from Customer pursuant to
Section 3(a) or Section 3(b) if BioLife issues a return authorization under Section 3(c), BioLife
shall analyze any quantity of BioLife Products rejected by Customer for non conformity with the
Product Specifications within ten (10) days of receipt of such returned BioLife Products and
present its findings with respect to such quantity of BioLife Products to Customer. If such tests
confirm non-conformity with the relevant Product Specifications BioLife shall promptly supply to
Customer at BioLife’s cost and expense a conforming quantity of BioLife Products in the same
quantity as the rejected BioLife Products and shall reimburse Customer for any shipping charges in
relation to such non-conforming quantity of BioLife Products. If the Parties cannot agree on
whether the quantity of BioLife Products in question conform to the relevant Product
Specifications, an independent qualified laboratory reasonably acceptable to both Parties, and at a
cost shared equally by both Parties, shall analyze both Customer’s and BioLife’s samples of the
BioLife Products in question, and the definitive results of such laboratory shall be binding on the
Parties. If the quantity of BioLife Products in question is determined to be non-conforming, such
non-conforming BioLife Products shall be held for BioLife’s disposition, or shall be returned to
BioLife, in each case at BioLife’s expense, as directed by BioLife no later than ten (10) days
following such determination. BioLife shall replace each non-conforming quantity of BioLife
Products with a conforming quantity of BioLife Products (at BioLife’s cost and expense) promptly
following such determination and shall reimburse Customer for any shipping charges in relation to
such non-conforming quantity of BioLife Products. If the quantity of BioLife Products in question
is determined to be conforming
and provided that the certificate of analysis accompanying such quantity of BioLife Products
did not indicate it to be non-conforming, such quantity of BioLife Products shall be returned to
Customer at Customer’s cost and expense.
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4. BioLife Product Pricing; Annual Fee.
a. Prices for Commercial Products. Customer shall pay to BioLife the following discounted
prices for BioLife Products. Pricing for any order will be discounted by the percentage deducted
from the prevailing list price for BioLife Product ordered in an amount based on the accumulated
volume of purchases in a given calendar year.
i. Annual Cumulative Order Discount Table
| | | |
| Current Year Cumulative Orders | | Per Order Discount |
| $1 - $100,000
| | [*] |
| $100,001 - $250,000
| | [*] |
| $250,001 - $500,000
| | [*] |
| $500,001 - $1,000,000
| | [*] |
| $1,000,001 +
| | [*] |
b. Annual License Fee. As additional consideration for the obligations of BioLife under this
Agreement, Customer shall pay BioLife, on the Effective Date and on each of the next nine (9)
anniversaries of such date, a fee equal to [*].
c. Audits/Inspections. Upon prior notice (minimally four (4) weeks) Customer has the right to
audit the manufacture and quality of BioLife Products at BioLife’s or it’s third party manufacturer
facilities in order to ensure that the quality responsibilities are being carried out in accordance
with cGMP guidelines. BioLife is to advise Customer of any observations/deficiencies related to
BioLife’s responsibilities or activities, arising from inspections of BioLife’s facilities carried
out by regulatory authorities relating to the manufacture, storage, shipment and general
application of cGMP guidelines to BioLife Products. BioLife agrees that Customer may review all
regulatory findings or communications between BioLife and a regulatory agency that directly affect
BioLife Products. Customer will be allowed one business day to review responses to questions
related to Customer Products, prior to submission by BioLife. The wording and submission of the
final response is the responsibility of BioLife.
The Customer must advise BioLife immediately of any activities or communications that may
result in an inspection of the manufacturing facilities of BioLife or it’s third party
manufacturer.
Any regulatory authority inspections of BioLife’s facilities will be managed by the BioLife.
BioLife will notify Customer within twenty-four (24) hours of any regulatory inspections directly
involving Customer’s Product. For inspections not involving Customer Products, the Customer will
receive notification of the inspection within two (2) weeks post-inspection. If any regulatory
authority schedules or conducts an unannounced inspection of Customer’s facilities, Customer will
provide notification to BioLife within two (2) weeks post-inspection.
d. Invoices. BioLife will provide an invoice to Customer by mail and/or facsimile for the
BioLife Products shipped to Customer, showing the quantity, type, and prices of such BioLife
Products. All Invoices shall be due any payable by Customer within thirty (30) days after
acceptance of the quantity of BioLife Products in question by Customer.
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e. Payments. Payments shall be without deduction or discount, by check or by wire transfer to such U.S.
bank account as BioLife may designate.
f. Taxes and Duties. The prices for BioLife Products are expressed to be exclusive of any
sales or value added tax which may be due on any supply of BioLife Products and Customer shall pay
to BioLife in addition all such sales and value added tax applicable to Customer’s purchase of the
BioLife Products. All payments under this Agreement shall be made free and clear of and without
set off, deduction or deferment in respect of any taxes, disputes or claims whatsoever unless
required by law or practice of any applicable tax authority. Customer shall be responsible for any
import or export licenses that may be required.
5. Escrow; License Grant.
a. Escrow. The parties shall enter into an Escrow Agreement in the form of Exhibit B attached
hereto with the escrow agent named therein (the “Escrow Agent”), pursuant to which BioLife shall
deposit into escrow (the “Escrow”) documents describing the formulation and manufacturing process
for the BioLife Products, which shall be updated by Biolife promptly after Biolife implements any
changes to the formulation and manufacturing process for the BioLife Products (the “Escrow
Materials”). During the term of this Agreement, before any such Release may occur, Customer shall
make no attempt to reverse engineer, modify, alter in any way, or learn the formulation and/or
manufacturing process for BioLife Products.
b. Release from Escrow. The Escrow Agent shall be permitted to release the Escrow Materials
to Customer only upon the occurrence of one of the following conditions (“Release Conditions”):
i. Customer terminates this Agreement pursuant to Section 13(b)(i) or Customer or BioLife
terminates this Agreement pursuant to Section 14(g) as a result of a Contingency that prevents
BioLife from producing the BioLife Product; or
ii. BioLife is unable to supply Customer with the quantities of the BioLife Products requested
by Customer and as set forth in the Forecast in any two calendar quarters during the Term of this
Agreement;
iii. BioLife ceases business operations.
c. Escrow Costs. The costs of the Escrow shall be paid by Customer in accordance with the
Escrow Agreement.
d. Confidentiality of Escrow Materials. Customer acknowledges and agrees that the Escrow
Materials are Confidential Information of BioLife subject to the restrictions set forth in Section
10 below.
e. Verification of Escrow Materials. BioLife agrees to allow Customer to validate, through
BioLife’s Regulatory and Quality Consultant, that the Escrow Materials are sufficient to enable
Customer to make or have made BioLife Products to the Product Specifications in accordance with
BioLife’s manufacturing practices from time to time.
f. Non-Exclusive License Grant to Customer. On the occurrence of a Release Condition BioLife
hereby grants to Customer a non-transferable, non-exclusive,
worldwide, fully paid-up, royalty free license (the “License”) in, under and to the Escrow
Materials and the BioLife Intellectual
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Property Rights, to manufacture and have manufactured the BioLife Products solely for Customer’s
use, and not for resale. Customer may sublicense the foregoing rights to a third party contract
manufacturer for the purpose of manufacturing BioLife Products for Customer’s use, provided that
such third party shall be subject to the confidentiality and other restrictions set forth herein.
6. Mutual Representations and Warranties. BioLife and Customer each represent and warrant to
the other that (i) it has the authority to enter into and perform this Agreement, (ii) its
execution, delivery and performance of this Agreement will not conflict with the terms of any other
agreement to which it is or becomes a party or by which it is or becomes bound, and (iii) its
compliance with the terms and conditions of this Agreement will not violate any U.S. federal, state
or local laws, regulations, export laws or ordinances. BioLife and Customer each covenant to not
enter into any agreement that will conflict with the terms of this Agreement.
7. BioLife Representations and Warranties.
a. Limited Warranty. BioLife represents and warrants to Customer that as of the Effective
Date and at all times during the Term of this Agreement:
i. all BioLife Products supplied to Customer by BioLife will be free and clear of all liens
and encumbrances at the time of delivery;
ii. all BioLife Products supplied to Customer by BioLife will be manufactured in accordance
with all applicable U.S. laws and cGMP manufacturing practices;
iii. at the time of delivery to Customer’s premises and for a period equal to the expiration
dating of the product following receipt of BioLife Products by Customer at its premises (the
“Warranty Period”), the BioLife Products ordered pursuant to any Purchase Order shall meet the
Product Specifications and be free from defects in materials and workmanship, so long as Customer
provides written documentation, that during the Warranty Period, Customer, it’s third party
manufacturers, and clinical users of Customer Products have complied with all use, transportation,
and storage requirements for BioLife Products as listed in Exhibit C Product Specifications.
BioLife or its third party contract manufacturers are in material compliance with all applicable
U.S. laws with respect to each facility to be used in manufacture of BioLife Products and, to
BioLife’s knowledge, there are no circumstances or conditions which would reasonably be expected to
prevent such compliance from continuing.
iv. BioLife owns or has the right to use pursuant to license, sublicense, agreement, or
permission all Intellectual Property Rights necessary for the production of the BioLife Product,
and as of the Effective Date of this Agreement, BioLife Products do not interfere with, infringe
upon, misappropriate, or otherwise come into conflict with the Intellectual Property Rights of any
person, and BioLife has not received any charge, complaint, claim, demand, or notice alleging any
such interference, infringement, misappropriation, or violation.
b. Escrow Materials. BioLife represents and warrants to Customer at the Effective Date that
the Escrow Materials existing at the Effective Date are sufficient to enable Customer to make or
have made BioLife Products to the Product Specifications existing at the
Effective Date and in accordance with the manufacturing process used by BioLife at the
Effective date. BioLife Customer shall promptly update the Escrow Materials from time to time as
may be necessary to reflect changes to the Product Specifications and manufacturing processes so
that at all times the Escrow Materials are sufficient to enable Customer to make or have made
BioLife Products to the then current Product Specifications and in accordance with the then current
manufacturing process. In the event of a release of
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the Escrow Materials in accordance with this
Agreement, BioLife shall ensure that the Escrow Materials include the most recent updates to the
manufacturing process and Product Specification and shall certify to Customer that the Escrow
Materials are sufficient to enable Customer to make or have made BioLife Products to the then
current Product Specifications and in accordance with the then current manufacturing process.
c. Exclusive Remedy. In the event any BioLife Products do not conform to the warranties set
forth in Section 7(a) (i) to Section 7(a)(iii), BioLife will (at Customer’s option) (i) promptly
correct, at no cost to Customer, any non-conforming BioLife Products by repair or replacement; or
(ii) allow Customer to return non-conforming BioLife Products to BioLife (at its expense) and
recover from BioLife a full refund therefore together with all costs associated with making any
such return. With respect to a failure of BioLife Products to conform to the warranty set forth in
Section 7(a) (iii) there shall be no warranty coverage after the Warranty Period. Customer
acknowledges and agrees that the foregoing warranties are for the benefit of Customer only.
8. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6 (“MUTUAL
REPRESENTATIONS AND WARRANTIES”), AND SECTION 7 (“BIOLIFE REPRESENTATIONS AND WARRANTIES”), NEITHER
PARTY MAKES, AND HEREBY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND ARISING THROUGH USAGE OF TRADE OR COURSE OF
DEALING.
9. Recalls. Customer shall bear the cost of all recalls, market withdrawals or corrections of
Customer Products. Customer shall maintain records of all sales of Customer Products and Customers
for the period mandated by all applicable laws in sufficient detail to allow Customer to adequately
administer a recall.
10. Confidentiality.
a. Confidential Information. For the purposes of this Agreement “Confidential Information”
means the following, subject to the exceptions set forth in Section 10(c): (i) the terms and
conditions of this Agreement, for which each party will be considered a Disclosing party and a
Recipient; (ii) any information provided by BioLife to Customer, for which BioLife will be
considered the Disclosing party and Customer will be considered the Recipient, (iii) any
information provided by Customer to BioLife for which Customer will be considered the Disclosing
party and BioLife will be considered the Recipient, and (iv) any other non-public information,
whether or not patentable, disclosed or provided by one party to the other party in connection with
this Agreement, including, without limitation, information regarding such party’s strategy,
business plans, objectives, research, technology, products, business affairs or finance including
any non-public data relating to commercialization of any product and other information of the type
that is customarily considered to be confidential information by parties
engaged in activities that are substantially similar to the activities being engaged in by the
parties under this Agreement, for which the party making such disclosure will be considered the
Disclosing party. Confidential Information will include all information in tangible or intangible
form that is marked or designated as confidential, or that under the circumstances of its
disclosure should be considered confidential.
b. Obligation of non-use and non-disclosure. Except to the extent expressly authorized by
this Agreement including in Sections 10(c) and 10(d) or otherwise agreed in writing, each party in
possession of Confidential Information (“Recipient”) of the other party (“Disclosing party”) shall
maintain such Confidential Information as confidential and use it only for the purposes of this
Agreement
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in accordance with this Section 10(b). The term of maintaining confidentiality of all
such information and the limitations on use shall be for a period equal to the longer of (i) five
(5) years after the date of expiration or termination of this Agreement; or (ii) for so long as the
exceptions set out below in the next subsequent paragraph do not apply to the relevant Confidential
Information. Each party shall guard such Confidential information using the same degree of care as
it normally uses to guard its own confidential, proprietary information of like importance, but in
any event no less than reasonable care.
Notwithstanding the foregoing, the Recipient shall be relieved of the confidentiality and
limited use obligations of this Agreement to the extent that the Receiving party establishes by
written evidence that:
i. the Confidential Information was previously known to the Recipient from sources other than
the Disclosing party at the time of disclosure and other than under an obligation of
confidentiality;
ii. the Confidential Information was generally available to the public or otherwise part of
the public domain at the time of its disclosure; or
iii. the Confidential Information became generally available to the public or otherwise part
of the public domain after its disclosure to the Recipient other than through any act or omission
of the Recipient in breach of this Agreement; or
iv. the Confidential Information is acquired in good faith in the future by the Recipient from
a Third party who has a lawful right to disclose such information and who is not under an
obligation of confidence to the Disclosing party with respect to such information; or
v. the Confidential Information is subsequently developed by or on behalf of the Recipient
without use of the Disclosing party’s Confidential Information.
c. Notwithstanding the above obligations of confidentiality and non-use a Recipient may:
i. disclose Confidential Information to a regulatory authority as reasonably necessary to
obtain regulatory approval for a Customer Product in a particular jurisdiction to the extent
consistent authorised under the terms of this Agreement;
ii. disclose Confidential Information: (i) to the extent such disclosure is reasonably
necessary to comply with the order of a court; or (ii) to the extent such disclosure is required to
comply with a legal requirement, including to the extent such disclosure
is required in publicly filed financial statements or other public statements under stock
exchange rules (e.g., the rules of the U.S. Securities and Exchange Commission, NASDAQ, NYSE, or
any other stock exchange on which securities issued by either party may be listed); provided, to
the extent possible bearing in mind such legal requirements and subject to the next subsequent
sentence of this Section 10(c), such party shall provide the other party with a copy of the
proposed text of such statements or disclosure five (5) business days in advance of the date on
which the disclosure is to be made to review and provide comments, unless a shorter review time is
reasonably necessary under the circumstances or agreed. If the compliance with the disclosure
requirements of a securities exchange or its regulatory body requires filing of this Agreement, the
filing party shall seek confidential treatment of portions of this Agreement from the securities
exchange or body and shall provide the other party with a copy of the proposed filings at least ten
(10) business days prior to filing for the other party to review any such proposed filing. Each
party agrees that
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it will obtain its own legal advice with regard to its compliance with
securities laws and regulations, and will not rely on any statements made by the other party
relating to such securities laws and regulations.;
iii. disclose Confidential Information to such Recipient’s employees, affiliates,
distributors, licensees, agents, advisors, consultants, clinical investigators, collaborators or
contractors as such Recipient reasonably determines is necessary to receive the benefits of this
Agreement or to fulfill its obligations pursuant to this Agreement; provided, however, any such
persons must be obligated to substantially the same extent as set forth in Section 9(b) to hold in
confidence and not make use of such Confidential Information for any purpose other than those
permitted by this Agreement.
iv. disclose Confidential Information: (i) to its actual or potential investment bankers and
to lenders for the purpose of obtaining financing for its business; (ii) to potential investors in
connection with an offering or placement of securities for purposes of obtaining financing for its
business; and (iii) to bona fide potential acquirer or merger partner for the purposes of
evaluating entering into a merger or acquisition, provided, however, any such persons must be
obligated to substantially the same extent as set forth in Section 9(b) to hold in confidence and
not make use of such Confidential Information for any purpose other than those permitted by this
Agreement.
For clarity, nothing in this Section 10(c) restricts either party from using or disclosing any
of its own Confidential Information for any purpose whatsoever.
d. Except as permitted in Section 10(c), neither party shall make any public announcement or
statement to the public containing Confidential Information without the prior consent of the other.
All such public announcements or statements shall not be made without the prior review and consent
of appropriate individual designated for the purpose by the other party.
11. Indemnity.
a. BioLife Indemnification Obligations. BioLife agrees to defend, indemnify and hold harmless
Customer, and its officers, directors, employees and Customers (collectively the “Customer”) from
and against any and all claims, losses, damages, costs and expenses (including, without limitation,
reasonable attorneys’ fees) arising from or related to (i) any claims for death or personal injury
made by a third party resulting from Customer’s use of BioLife Products in the manufacture of, or
the incorporation of BioLife Products into, Customer Products where it is proved such BioLife
Products did not meet the Product Specifications during the Warranty Period and where Customer
provides written documentation, that during the
Warranty Period, Customer, it’s third party manufacturers, and clinical users of Customer
Products have complied with all use, transportation, and storage requirements for BioLife Products
as listed in Exhibit C Product Specifications; (ii) the material breach by BioLife of its
representations, warranties or obligations under this Agreement, (iii) any negligent act or
omission or willful misconduct of BioLife or its agents or employees; and (iv) any claim that any
BioLife Product infringes the patent, copyright, trade secrets or any intellectual property right
of any third party, provided, however, BioLife shall not be obligated to defend or be liable for
costs and damages pursuant to (iv) above to the extent that infringement, or a claim thereof,
arises out of or is related to (a) Customer’s use or combination of the BioLife Products with
technology or products and materials not provided by BioLife, but only if such claim is based upon
such use or combination.
b. Customer Indemnity. Customer hereby agrees to indemnify, defend and hold harmless BioLife
and its directors, officers, employees, and agents from and against any claims, losses,
liabilities, damages, expenses, costs and fees (including reasonable attorney’s fees and court
costs) to the extent arising from or related to (i) any claims for death or personal injury made by
a third party resulting from the manufacture, or use or sale of any Customer Product, except to the
extent covered by BioLife’
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indemnity obligations under Section 11(a) above; (ii) the material
breach by Customer of its representations, warranties or obligations under this Agreement; or (iii)
any negligent act or omission or willful misconduct of Customer or its agents or employees.
c. Insurance. Each party shall maintain (at its own expense) general commercial liability
insurance coverage in an amount of at least $5,000,000 for product liability. Each policy shall
name the other party as an additional insured party. Each policy shall provide that it may not be
cancelled or reduced without giving at least thirty (30) days’ prior written notice to the other
party.
d. Indemnification Procedures. The Indemnifying Party’s indemnification obligations are
contingent upon (i) the Indemnified Party providing prompt written notice of the existence of the
claim, suit, action or proceeding to the Indemnifying Party, (ii) the Indemnified Party granting
sole control over the defense or settlement of the claim to the Indemnifying Party, (iii) the
Indemnified Party providing reasonable assistance at the Indemnifying Party’s expense in defending
the claim or suit, and (vi) that the Indemnified Party has not entered into a settlement of the
claim. Notwithstanding the foregoing, the Indemnified Party may participate in the defense and/or
settlement of any such claim, suit, action or proceeding at its own expense, with counsel of its
own choosing. Upon notice of any claim of infringement, or upon reasonable belief of the
likelihood of such a claim, an Indemnifying Party will have the right, in its discretion, (a) to
obtain the right to continued use of the allegedly infringing item, (b) substitute other suitable,
functionally-equivalent, non-infringing items, or (c) replace or modify the allegedly infringing
item or its design with a suitable, functionally-equivalent item so that it is no longer
infringing.
12. Limitation of Liability. EXCEPT WITH RESPECT TO CLAIMS UNDER SECTIONS 11(a) OR SECTION
11(b), NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR
PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION ARISING THEREFROM, INCLUDING,
WITHOUT LIMITATION, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, LOST PROFITS, AND BUSINESS
INTERRUPTION, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, AND IRRESPECTIVE OF WHETHER EITHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. Term and Termination.
a. Term. Subject to Section 13(b), this Agreement shall commence on the Effective Date and
shall remain in effect up to and including the tenth (10th) anniversary of the Effective Date (the
“Initial Term”). At the end of the Initial Term, or any subsequent term pursuant to a renewal
under this Section (a “Renewed Term”), this Agreement may be renewed for a period of one year by
either party serving a notice offering such a renewal upon the other not later than forty five (45)
days prior to the expiry of the Initial Term or the Renewed Term (as the case may be) and the other
party serving upon the first party a counter-notice accepting such renewal, not later than thirty
(30) days prior to the expiry of the Initial Term or the Renewed Term (as the case may be).
b. Termination for Cause. Notwithstanding any of the other provisions in this Section 13
regarding termination of this Agreement, either party is entitled to terminate this Agreement by
notice given in writing to the other if:
i. the other party commits any material breach of any of the provisions of this Agreement and
(in the case of a breach which is capable of remedy) fails to remedy the same within thirty (30)
days after receipt of a written notice giving full particulars of the breach and requiring it to be
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so remedied; except that if the allegedly breaching party in good faith disputes such material
breach or disputes the failure to cure or remedy such material breach and provides written notice
of that dispute to the other party within the above time periods, then the matter will be addressed
under the provisions in Section 14(i), and the notifying party may not terminate this Agreement
until it has been finally determined under Section 14(i) that the allegedly breaching party is in
material breach of this Agreement.
c. Effects of termination or Expiration. Subject to Section 14(b), expiration or termination
of this Agreement shall terminate all rights granted hereunder but shall not relieve the Parties of
any obligation accruing prior to such expiration or termination (including, but not limited to, the
Customer’s payments to BioLife). Each party shall have sixty (60) days from the date on which the
expiration or termination of this Agreement shall take effect to send to the other party all
documents and other materials and all copies thereof relating to the Confidential Information of
the other party. Notwithstanding the expiration or termination of this Agreement, in the event the
Escrow Materials have been release to Customer under Section 5(b), the License granted to Customer
under Section 5(f) shall survive such expiration or termination.
14. General Provisions.
a. Relationship of the Parties. The parties agree that each party is acting as an independent
contractor and not as an agent, partner or joint venturer with the other party for any purpose.
Neither party will have the right, power, or authority to act or create any obligations, express or
implied, by contract or otherwise, on behalf of the other party.
b. Survival. Sections 5 (but only where the Escrow Materials have been released to Customer
pursuant to Section 5(b)), 10, 11, 12, 13(c), 14(b), 14(d), 14(i), 14(j) and 14(m) and such other
provisions herein which by their nature require performance following termination will survive the
termination or expiration of this Agreement.
c. Assignment. Neither party may assign this Agreement to any third party without the prior
written consent of the other party, provided, however, that the either party may assign this
Agreement to (a) any successor entity which has purchased substantially all of its assets or
outstanding capital stock, or pursuant to any merger, consolidation or reorganization and (b) any
of its subsidiaries or affiliates, without the consent of the other party, except where that party
can document that the assignee is a current competitor. Subject to the foregoing, this Agreement
will bind and inure to the benefit of the parties, and their respective successors and permitted
assigns. Any attempted or purported assignment without the required consent will be void.
d. Notices. Any notice required or permitted by this Agreement will be in writing and will be
given by reputable overnight courier to the addresses set forth on the signature blocks on the
signature page of this Agreement. Notices will be deemed effective on the day of delivery or a
party’s refusal to accept delivery.
e. Severability. In the event a court of competent jurisdiction determines that any provision
of this Agreement is invalid or unenforceable, that provision (or part thereof) will be limited or
eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full
force and effect.
f. Waivers; Modifications. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement will operate as a waiver of any such right, power or remedy.
No waiver or modification of any provision of this Agreement will be effective unless in writing
and signed by both parties. Any waiver by either party of any provision of this Agreement will not
be
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construed as a waiver of any other provision of this Agreement, nor will such waiver operate as
or be construed as a waiver of such provision respecting any future event or circumstance.
g. Force Majeure. Neither party will be liable for any loss or damage or be deemed to be in
breach of this Agreement to the extent that performance of such party’s obligations or attempts to
cure any breach under this Agreement are delayed or prevented as a result of any event or
circumstance beyond its reasonable control, including without limitation, war, invasion, electrical
shortages, “▇▇▇▇▇-outs,” labor strikes or other industrial dispute, or acts of God (“Contingency”).
The parties agree to extend the performance obligations under this Agreement for the duration of a
Contingency, or a period of ninety (90) days, whichever is shorter upon written notice. If the
Contingency lasts more than ninety (90) days, either party may, in its discretion, terminate this
Agreement upon written notice.
h. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of
which will be deemed an original, and all of which will constitute one and the same instrument.
i. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of
New York, without regard to conflict of laws principles. BioLife and Customer hereby agree to
submit to the jurisdiction of any State or Federal Court in
New York City,
New York.
j. Attorneys Fees. The substantially prevailing party in any action or proceeding to enforce
or interpret any party of this Agreement will be entitled to recover its reasonable expenses,
including, without limitation, attorneys fees (including fees on any appeal) from the
non-prevailing party.
k. The provisions of this Agreement are for the sole benefit of the parties and their
successors and permitted assigns. This Agreement shall not confer any rights or remedies upon any
person other than BioLife and Customer and their respective successors and permitted assigns except
as otherwise expressly provided in Section 11. Except as expressly provided in Section 11, no
person who is not a party to this Agreement (including any employee, officer, agent, representative
or subcontractor of either party) shall have the right to enforce any terms of this Agreement which
expressly or by implication confers a benefit on that Person without the prior written agreement of
the Parties which agreement must refer to this Section 14(k).
l. Amendment. The parties may only amend this Agreement and the Schedules hereto, by a
mutual, subsequently dated written amendment signed on behalf of both parties by their duly
authorized representatives.
m. Entire Agreement. This Agreement, together with all attachments and future attachments
hereto, and all attachments and future attachments thereto, constitutes the entire agreement and
understanding of the parties relating to the subject matter hereof and supersedes all prior and
contemporaneous agreements, negotiations and understandings between the parties, both oral and
written.
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IN WITNESS HEREOF, the parties enter into this Agreement effective as of the date first above
written.
| | | | | | | |
| BioLife Solutions, Inc. | | Bioheart, Inc. |
|
| | | | | | |
| By:
| |
| | By:
| | |
|
| |
| | | | |
| Title: | | Title: CEO & President |
|
| | | | | | |
| ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ North | | ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ |
| ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ | | ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
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EXHIBIT B
Three-Party Escrow Service Agreement
Deposit Account Number:
| 1. | | Introduction. |
| |
| | | This Three Party Escrow Service Agreement (the “Agreement”) is entered into by and between and
its Affiliates, as defined below (the “Depositor”), and by and its Affiliates (the “Beneficiary”)
and by
Iron Mountain Intellectual Property Management, Inc. (“Iron Mountain”) on this
day of ,
200 (the “Effective Date”).
Depositor, Beneficiary, and Iron Mountain may be referred to individually as a “Party” or
collectively as the “Parties” throughout this Agreement. |
| | (a) | | The use of the term services in this Agreement shall refer to Iron Mountain services that
facilitate the creation, management, and enforcement of software or other technology escrow
accounts as described in Exhibit A attached hereto (“Services”). A Party shall request Services
under this Agreement by submitting a work request for certain Iron Mountain Services (“Work
Request”) via written instruction or the online portal maintained at the website located at
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or other websites owned or controlled by Iron Mountain that
are linked to that website (collectively the “Iron Mountain Website”). |
| |
| | (b) | | The Beneficiary and Depositor have, or will have, entered into a license agreement or other
agreement conveying intellectual property rights to the Beneficiary, and the Parties intend this
Agreement to be considered as supplementary to such agreement, pursuant to Title 11 United
States [Bankruptcy] Code, Section 365(n). |
| 2. | | Depositor Responsibilities and Representations. |
| | (a) | | Depositor shall make an initial deposit that is complete and functional of all
proprietary technology and other materials covered under this Agreement (“Deposit
Material”) to Iron Mountain within thirty (30) days of the Effective Date. Depositor may
also update Deposit Material from time to time during the Term of this Agreement provided a
minimum of one (1) complete and functional copy of Deposit Material is deposited with Iron
Mountain at all times. At the time of each deposit or update, Depositor will provide an
accurate and complete description of all Deposit Material sent to Iron Mountain using the
form attached hereto as Exhibit B. |
| |
| | (b) | | Depositor represents that it lawfully possesses all Deposit Material provided to Iron
Mountain under this Agreement free of any liens or encumbrances as of the date of their
deposit. Any Deposit Material liens or encumbrances made after their deposit will not
prohibit, limit, or alter the rights and obligations of Iron Mountain under this Agreement.
Depositor warrants that with respect to the Deposit Material, Iron Mountain’s proper
administration of this Agreement will not violate the rights of any third parties. |
| |
| | (c) | | Depositor represents that all Deposit Material is readable and useable in its then
current form; if any portion of such Deposit Material is encrypted, the necessary
decryption tools and keys to read such material are deposited contemporaneously. |
| |
| | (d) | | Depositor agrees, upon request by Iron Mountain, in support of Beneficiary’s request
for verification Services, to promptly complete and return the Escrow Deposit Questionnaire
attached hereto as Exhibit Q. Depositor consents to Iron Mountain’s performance of any
level(s) of verification Services described in Exhibit A attached hereto and Depositor
further consents to Iron Mountain’s use of a subcontractor to perform verification
Services. Any such subcontractor shall be bound by the same confidentiality obligations as
Iron Mountain and shall not be a direct competitor to either Depositor or Beneficiary. Iron
Mountain shall be responsible for the delivery of Services of any such subcontractor as if
Iron Mountain had performed the Services. Depositor represents that all Deposit Material is
provided with all rights necessary for Iron Mountain to verify such proprietary technology
and materials upon receipt of a Work Request for such Services or agrees to use
commercially reasonable efforts to provide Iron Mountain with any necessary use rights or
permissions to use materials necessary to perform verification of the Deposit Material.
Depositor agrees to reasonably cooperate with Iron Mountain by providing reasonable access
to its technical personnel for verification Services whenever reasonably necessary. |
| 3. | | Beneficiary Responsibilities and Representations. |
| | (a) | | Beneficiary acknowledges that, as between Iron Mountain and Beneficiary,
Beneficiary assumes all responsibility for the completeness and functionality of
all Deposit Material. |
| |
| | (b) | | Beneficiary may submit a verification Work Request to Iron Mountain for one or more of
the Services defined in Exhibit A attached hereto and further consents to Iron Mountain’s
use of a subcontractor if needed to provide such Services. Beneficiary warrants that Iron
Mountain’s use of any materials supplied by Beneficiary to perform the verification
Services described in Exhibit A is lawful and does not violate the rights of any third
parties. |
| 4. | | Iron Mountain Responsibilities and Representations. |
| | (a) | | Iron Mountain agrees to use commercially reasonable efforts to provide the Services
requested by Authorized Person(s) (as
identified in the “Authorized Person(s)/Notices Table” below) representing the Depositor or
Beneficiary in a Work Request. Iron |
| | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 1 of 11 |
| | | | Mountain may reject a Work Request (in whole or in part) that does not contain all
required information at any time upon notification to the Party originating the Work
Request. |
| |
| | (b) | | Iron Mountain will conduct a visual inspection upon receipt of any Deposit Material and
associated Exhibit B. If Iron Mountain determines that the Deposit Material does not match
the description provided by Depositor represented in Exhibit B attached hereto, Iron
Mountain will notify Depositor of such discrepancies and notate such discrepancy on the
Exhibit B. |
| |
| | (c) | | Iron Mountain will provide notice to the Beneficiary of all Deposit Material that is
accepted and deposited into the escrow account under this Agreement. |
| |
| | (d) | | Iron Mountain will work with a Party who submits any verification Work Request for
Deposit Material covered under this Agreement to either fulfill any standard verification
Services Work Request or develop a custom Statement of Work (“SOW”). Iron Mountain and the
requesting Party will mutually agree in writing to an SOW on the following terms and
conditions that include but are not limited to: description of Deposit Material to be
tested; description of Verification testing; requesting Party responsibilities; Iron
Mountain responsibilities; Service Fees; invoice payment instructions; designation of the
paying Party; designation of authorized SOW representatives for both the requesting Party
and Iron Mountain with name and contact information; and description of any final
deliverables prior to the start of any fulfillment activity. After the start of fulfillment
activity, each SOW may only be amended or modified in writing with the mutual agreement of
both Parties, in accordance with the change control procedures set forth therein. |
| |
| | (e) | | Iron Mountain will hold and protect Deposit Material in physical or electronic vaults
that are either owned or under the control of Iron Mountain, unless otherwise agreed to by
the Parties. |
| |
| | (f) | | Upon receipt of written instructions by both Depositor and Beneficiary, Iron Mountain
will permit the replacement or removal of previously submitted Deposit Material. The Party
making such request shall be responsible for getting the other Party to approve the joint
instructions. |
| 5. | | Payment. |
| |
| | | The Party responsible for payment designated in Exhibit A (“Paying Party”) shall pay to Iron
Mountain all fees as set forth in the Work Request (“Service Fees”). Except as set forth below,
all Service Fees are due within thirty (30) calendar days from the date of invoice in U.S.
currency and are non-refundable. Iron Mountain may update Service Fees with a ninety (90)
calendar day written notice to the Paying Party during the term of this Agreement. The Paying
Party is liable for any taxes related specifically to Services purchased under this Agreement or
shall present to Iron Mountain an exemption certificate acceptable to the taxing authorities.
Applicable taxes shall be billed as a separate item on the invoice. Depositor and Beneficiary
agree that if this Agreement terminates during the term for any reason, other than for the fault
of Iron Mountain, all prepaid fees shall be non-refundable. Any Service Fees not collected by
Iron Mountain when due shall bear interest until paid at a rate of one percent (1%) per month
(12% per annum) or the maximum rate permitted by law, whichever is less. Notwithstanding, the
non-performance of any obligations of Depositor to deliver Deposit Material under the License
Agreement or this Agreement, Iron Mountain is entitled to be paid all Service Fees that accrue
during the Term of this Agreement. |
| |
| 6. | | Term and Termination. |
| | (a) | | The “Term” of this Agreement is for a period of one (1) year from the Effective Date
(“Initial Term”) and will automatically renew for additional one (1) year terms (“Renewal
Term”) and continue in full force and effect until one of the following events occur: (i)
Depositor and Beneficiary provide Iron Mountain with sixty (60) days’ prior written joint
notice of their intent to terminate this Agreement; (ii) Beneficiary provides Iron Mountain
and Depositor with sixty (60) days’ prior written notice of their intent to terminate this
Agreement; (iii) the Agreement terminates under another provision of this Agreement; or
(iv) any time after the Initial Term, Iron Mountain provides a sixty (60) days’ prior
written notice to the Depositor and Beneficiary of Iron Mountain’s intent to terminate this
Agreement. If the Effective Date is not specified in the Introduction section, then the
last date noted on the signature blocks of this Agreement shall be the Effective Date. |
| |
| | (b) | | Unless the express terms of this Agreement provide otherwise, upon termination of this
Agreement, Iron Mountain shall return the Deposit Material to the Depositor. If reasonable
attempts to return the Deposit Material to Depositor are unsuccessful, Iron Mountain shall
destroy the Deposit Material. |
| |
| | (c) | | In the event of the nonpayment of undisputed Service Fees owed to Iron Mountain, Iron
Mountain shall provide all Parties to this Agreement with written notice of Iron Mountain’s
intent to terminate this Agreement. Any Party to this Agreement shall have the right to
make the payment to Iron Mountain to cure the default. If the past due payment is not
received in full by Iron Mountain within thirty (30) calendar days of the date of such
written notice, then Iron Mountain shall have the right to terminate this Agreement at any
time thereafter by sending written notice to all Parties. Iron Mountain shall have no
obligation to perform the Services under this Agreement (except those obligations that
survive termination of this Agreement) so long as any undisputed Service Fees due Iron
Mountain under this Agreement remain unpaid. |
| 7. | | General Indemnity. |
| |
| | | Subject to Section 10 and 11, each Party shall defend, indemnify and hold harmless the others,
their corporate affiliates and their respective officers, directors, employees, and agents and
their respective successors and assigns from and against any and all claims, losses,
liabilities, damages, and expenses (including, without limitation, reasonable attorneys’ fees),
arising under this Agreement from the negligent or intentional acts or omissions of the
indemnifying Party or its subcontractors, or the officers, directors, employees, agents,
successors and assigns of any of them. |
| | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 2 of 11 |
| | (a) | | IRON MOUNTAIN WARRANTS ANY AND ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A
WORKMANLIKE MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS,
REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY,
AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE
HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. AN AGGRIEVED PARTY MUST NOTIFY
IRON MOUNTAIN PROMPTLY OF ANY CLAIMED BREACH OF ANY WARRANTIES AND SUCH PARTY’S SOLE AND
EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE RETURN OF THE PORTION OF THE FEES PAID TO
IRON MOUNTAIN BY PAYING PARTY FOR SUCH NON-CONFORMING SERVICES. THIS DISCLAIMER AND
EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS
OF ITS ESSENTIAL PURPOSE. THE WARRANTY PROVIDED IS SUBJECT TO THE LIMITATION OF LIABILITY
SET FORTH IN THIS AGREEMENT. |
| |
| | (b) | | Depositor warrants that all Depositor information provided hereunder is accurate and
reliable and undertakes to promptly correct and update such Depositor information during
the Term of this Agreement. |
| |
| | (c) | | Beneficiary warrants that all Beneficiary information provided hereunder is accurate
and reliable and undertakes to promptly correct and update such Beneficiary information
during the Term of this Agreement. |
| |
| | (d) | | Ownership Warranty. Depositor warrants that it is the owner or legal custodian of the
Deposit Material and has full authority to store the Deposit Material and direct their
disposition in accordance with the terms of this Agreement. Depositor shall reimburse Iron
Mountain for any expenses reasonably incurred by Iron Mountain (including reasonable legal
fees) by reason of Iron Mountain’s compliance with the instructions of Depositor in the
event of a dispute concerning the ownership, custody or disposition of Deposit Material
stored by Depositor with Iron Mountain. |
| 9. | | Confidential Information. |
| |
| | | Iron Mountain shall have the obligation to reasonably protect the confidentiality of the Deposit
Material. Except as provided in this Agreement Iron Mountain shall not disclose, transfer, make
available or use the Deposit Material. Iron Mountain shall not disclose the terms of this
Agreement to any third Party. If Iron Mountain receives a subpoena or any other order from a
court or other judicial tribunal pertaining to the disclosure or release of the Deposit
Material, Iron Mountain will notify the Parties to this Agreement unless prohibited by law.
After notifying the Parties, Iron Mountain may comply in good faith with such order. It shall be
the responsibility of Depositor or Beneficiary to challenge any such order; provided, however,
that Iron Mountain does not waive its rights to present its position with respect to any such
order. Iron Mountain will cooperate with the Depositor or Beneficiary, as applicable, to support
efforts to quash or limit any subpoena, at such party’s expense. Any party requesting additional
assistance shall pay Iron Mountain’s standard charges or as quoted upon submission of a detailed
request. |
| |
| 10. | | Limitation of Liability. |
| |
| | | NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT , ALL LIABILITY, IF ANY, WHETHER ARISING IN
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OF ANY PARTY TO THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT EQUAL TO ONE YEAR OF FEES PAID OR OWED TO IRON MOUNTAIN UNDER THIS
AGREEMENT. IF CLAIM OR LOSS IS MADE IN RELATION TO A SPECIFIC DEPOSIT OR DEPOSITS, SUCH
LIABILITY SHALL BE LIMITED TO THE FEES RELATED SPECIFICALLY TO SUCH DEPOSITS. THIS LIMIT SHALL
NOT APPLY TO ANY PARTY FOR: (I) ANY CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK
OR OTHER PROPRIETARY RIGHT; (II) LIABILITY FOR DEATH OR BODILY INJURY; (III) DAMAGE TO TANGIBLE
PROPERTY (EXCLUDING THE DEPOSIT MATERIAL); (IV) THEFT; OR (V) PROVEN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. |
| |
| 11. | | Consequential Damages Waiver. |
| |
| | | IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANOTHER PARTY FOR ANY INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR INFORMATION, ANY COSTS
OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT DAMAGES, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EVEN IF THE POSSIBILITY THEREOF
MAY BE KNOWN IN ADVANCE TO ONE OR MORE PARTIES. |
| |
| 12. | | General. |
| | (a) | | Incorporation of Work Requests. All valid Depositor and Beneficiary Work Requests
are incorporated into this Agreement. |
| |
| | (b) | | Purchase Orders. In the event that the Paying Party issues a purchase order or
other instrument used to pay Service Fees to Iron Mountain, any terms and conditions set
forth in the purchase order which constitute terms and conditions which are in addition to
those set forth in this Agreement or which establish conflicting terms and conditions to
those set forth in this Agreement are expressly rejected by Iron Mountain. |
| | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 3 of 11 |
| | (c) | | Right to Make Copies. Iron Mountain shall have the right to make copies of all
Deposit Material as reasonably necessary to perform the Services. Iron Mountain shall copy
all copyright, nondisclosure, and other proprietary notices and titles contained on Deposit
Material onto any copies made by Iron Mountain. Any copying expenses incurred by Iron
Mountain as a result of a Work Request to copy will be borne by the Party requesting the
copies. Iron Mountain may request Depositor’s reasonable cooperation in promptly copying
Deposit Material in order for Iron Mountain to perform this Agreement. |
| |
| | (d) | | Choice of Law. The validity, interpretation, and performance of this Agreement
shall be controlled by and construed under the laws of the Commonwealth of Massachusetts,
USA, as if performed wholly within the state and without giving effect to the principles
of conflicts of laws. |
| |
| | (e) | | Authorized Person(s). Depositor and Beneficiary must each authorize and
designate one person whose actions will legally bind such party (“Authorized Person” who
shall be identified in the Authorized Persons (s) Notices Table of this Agreement) and who
may manage the Iron Mountain escrow account through the Iron Mountain website or written
instruction. The Authorized Person for each the Depositor and Beneficiary will maintain the
accuracy of their name and contact information provided to Iron Mountain during the term of
this Agreement. |
| |
| | (f) | | Right to Rely on Instructions. Iron Mountain may act in reliance upon any
instruction, instrument, or signature reasonably believed by Iron Mountain to be genuine
and from an Authorized Person(s), officer, or other employee of a Party. Iron Mountain may
assume that such representative of a Party to this Agreement who gives any written notice,
request, or instruction has the authority to do so. Iron Mountain will not be required to
inquire into the truth or evaluate the merit of any statement or representation contained
in any notice or document reasonably believed to be from such representative. With respect
to Release and Destruction of Deposit Materials, Iron Mountain shall rely on an Authorized
Person(s). |
| |
| | (g) | | Force Majeure. No Party shall be liable for any delay or failure in performance
due to events outside the defaulting Party’s reasonable control, including without
limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, acts
of terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond
its reasonable control. The obligations and rights of the excused Party shall be extended
on a day-to-day basis for the time period equal to the period of the excusable delay. |
| |
| | (h) | | Notices. All notices regarding Exhibit C (release) shall be sent by commercial
express mail or other commercially appropriate means that provide prompt delivery and
require proof of delivery. All other correspondence, including invoices, payments, and
other documents and communications, may be sent electronically or via regular mail. The
Parties shall have the right to rely on the last known address of the other Parties. Any
correctly addressed notice to last known address of the other Parties that is relied on
herein and that is refused, unclaimed, or undeliverable because of an act or omission of
the Party to be notified as provided herein shall be deemed effective as of the first date
that said notice was refused, unclaimed, or deemed undeliverable by electronic mail, the
postal authorities by mail, through messenger or commercial express delivery services. |
| |
| | (i) | | No Waiver. No waiver of rights under this Agreement by any Party shall
constitute a subsequent waiver of this or any other right under this Agreement. |
| |
| | (j) | | Assignment. No assignment of this Agreement by Depositor or Beneficiary or
any rights or obligations of Depositor or Beneficiary under this Agreement is permitted
without the written consent of Iron Mountain, which shall not be unreasonably withheld or
delayed. Iron Mountain shall have no obligation in performing this Agreement to recognize
any successor or assign of Depositor or Beneficiary unless Iron Mountain receives clear,
authoritative and conclusive written evidence of the change of parties. |
| |
| | (k) | | Severability. In the event any of the terms of this Agreement become or are
declared to be illegal or otherwise unenforceable by any court of competent jurisdiction,
such term(s) shall be null and void and shall be deemed deleted from this Agreement. All
remaining terms of this Agreement shall remain in full force and effect. If this paragraph
becomes applicable and, as a result, the value of this Agreement is materially impaired for
any Party, as determined by such Party in its sole discretion, then the affected Party may
terminate this Agreement by written notice to the others. |
| |
| | (l) | | Independent Contractor Relationship. Depositor and Beneficiary understand,
acknowledge, and agree that Iron Mountain’s
relationship with Depositor and Beneficiary will be that of an independent contractor and
that nothing in this Agreement is intended to or should be construed to create a partnership,
joint venture, or employment relationship. |
| |
| | (m) | | Attorneys’ Fees. In any suit or proceeding between the Parties relating to this
Agreement, the prevailing Party will have the right to recover from the other(s) its costs
and reasonable fees and expenses of attorneys, accountants, and other professionals
incurred in connection with the suit or proceeding, including costs, fees and expenses upon
appeal, separately from and in addition to any other amount included in such judgment. This
provision is intended to be severable from the other provisions of this Agreement, and
shall survive and not be merged into any such judgment. |
| |
| | (n) | | No Agency. No Party has the right or authority to, and shall not, assume or
create any obligation of any nature whatsoever on behalf of the other Parties or bind the
other Parties in any respect whatsoever. |
| |
| | (o) | | Disputes. Any dispute, difference or question relating to or arising among any
of the Parties concerning the construction, meaning, effect or implementation of this
Agreement or the rights or obligations of any Party hereof will be submitted to, and
settled by arbitration by a single arbitrator chosen by the corresponding Regional Office
of the American Arbitration Association in accordance with the Commercial Rules of the
American Arbitration Association. The Parties shall submit briefs of no more than 10 pages
and the arbitration hearing shall be limited to two (2) days maximum. The arbitrator shall
apply Massachusetts law. Unless otherwise agreed by the Parties, arbitration will take
place in Boston, Massachusetts, U.S.A. Any court having jurisdiction over the matter may
enter judgment on the award of the arbitrator. Service of a petition to confirm the
arbitration award may be made by |
| | | | |
| | | | | |
| 3P-09/01/2006 NA
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 4 of 11 |
| | | | regular mail or by commercial express mail, to the attorney for the Party or, if unrepresented,
to the Party at the last known business address. If however, Depositor or Beneficiary refuse to
submit to arbitration, the matter shall not be submitted to arbitration and Iron Mountain may
submit the matter to any court of competent jurisdiction for an interpleader or similar action.
Unless adjudged otherwise, any costs of arbitration incurred by Iron Mountain, including
reasonable attorney’s fees and costs, shall be divided equally and paid by Depositor and
Beneficiary. |
| |
| | (p) | | Regulations. All Parties are responsible for and warrant, to the extent of their
individual actions or omissions, compliance with all applicable laws, rules and regulations,
including but not limited to: customs laws; import; export and re-export laws; and government
regulations of any country from or to which the Deposit Material may be delivered in
accordance with the provisions of this Agreement. |
| |
| | (q) | | No Third Party Rights. This Agreement is made solely for the benefit of the Parties
to this Agreement and their respective permitted successors and assigns, and no other person
or entity shall have or acquire any right by virtue of this Agreement unless otherwise agreed
to by all the parties hereto. |
| |
| | (r) | | Entire Agreement. The Parties agree that this Agreement, which includes all the
Exhibits attached hereto and all valid Work Requests submitted by the Parties, is the
complete agreement between the Parties hereto concerning the subject matter of this Agreement
and replaces any prior or contemporaneous oral or written communications between the Parties.
There are no conditions, understandings, agreements, representations, or warranties,
expressed or implied, which are not specified herein. Each of the Parties herein represents
and warrants that the execution, delivery, and performance of this Agreement has been duly
authorized and signed by a person who meets statutory or other binding approval to sign on
behalf of its business organization as named in this Agreement. This Agreement may only be
modified by mutual written agreement of the Parties. |
| |
| | (s) | | Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one instrument. |
| |
| | (t) | | Survival. Sections 6 (Term and Termination), 7 (General Indemnity), 8 (Warranties),
9 (Confidential Information), 10 (Limitation of Liability) 11(Consequential Damages Waiver),
and 12 (General) of this Agreement shall survive termination of this Agreement or any Exhibit
attached hereto. |
| |
| | (u) | | Affiliates. “Affiliates”, as used herein, shall mean those entities controlled by, or
under common control with, a party of this Agreement. For purposes of the foregoing definition “control” (including “controlled by” and
“under common control”) shall mean ownership of, or the right to acquire; (a) not less than
fifty percent (50%) of the voting stock of a corporation, (b) the right to vote not less than
fifty (50%) of the voting stock of a corporation, or (c) not less than fifty percent (50%)
ownership interest in a partnership or other business entity. It is the intention of the parties
(i) that each Affiliate shall be bound by the terms and conditions of this Agreement, (ii) that
all of the services provided under this Agreement be made available to each Affiliate, (iii)
each Affiliate shall be entitled to enforce this Agreement against Iron Mountain and that (iv)
each Affiliate shall be a third party beneficiary of this Agreement. |
Note: If contracting electronically via the online portal, clicking the “I Accept button displayed
as part of the ordering process, evidences agreement to the preceding terms and conditions (the
‘Agreement”). If you are entering into this Agreement via the online portal on behalf of a company
or other legal entity, you represent that you have the authority to bind such entity to these terms
and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not
have such authority, or if you do not agree with these terms and conditions, you must select the “I
Decline” button.
DEPOSITOR
| | | | | | |
| | Company Name: | | |
| |
| | Signature: | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Date: | | |
| |
| | Email Address: | | |
| |
| |
BENEFICIARY
| | | | | | |
| | Company Name: | | |
| |
| | Signature: | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Date: | | |
| |
| | Email Address: | | |
| |
| |
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
| | | | | | |
| | Signature: | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Date: | | |
| |
| | Email Address:: | | | ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
| |
| |
| | | | |
| | | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 5 of 11 |
DEPOSITOR — Authorized Person(s)/Notices Table
Provide the name(s) and contact information of the Authorized Person(s) under this Agreement.
All notices will be sent to the person(s) at the address(es) set forth below. This is required
information.
| | | | | | |
| | Company: | | |
| |
| | Administrative Contact | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Email Address | | |
| |
| | Address 1 | | |
| |
| | Address 2 | | |
| |
| | City/State/Province | | |
| |
| | Postal/Zip Code | | |
| |
| | Phone Number | | |
| |
| | Fax Number | | |
| |
| |
BENEFICIARY — Authorized Person(s)/Notices Table
Provide the name(s) and contact information of the Authorized Person(s) under this Agreement.
All notices will be sent to the person(s) at the address(es) set forth below. This is required
information.
| | | | | | |
| | Company: | | |
| |
| | Administrative Contact | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Email Address | | |
| |
| | Address 1 | | |
| |
| | Address 2 | | |
| |
| | City/State/Province | | |
| |
| | Postal/Zip Code | | |
| |
| | Phone Number | | |
| |
| | Fax Number | | |
| |
| |
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
All notices should be sent to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ OR
Iron Mountain Intellectual Property Management, Inc., Attn: Client Services
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
| | | | |
| | | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 6 of 11 |
Billing Contact Information Table
Please provide the name and contact information of the Billing Contact under this Agreement. All
Invoices will be sent to this individual at the address set forth below.
DEPOSITOR
| | | | | | |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Email Address | | |
| |
| | Street Address | | |
| |
| | Province/City/State | | |
| |
| | Postal/Zip Code | | |
| |
| | Phone Number | | |
| |
| | Fax Number | | |
| |
| | Purchase order # | | |
| |
| |
BENEFICIARY
| | | | | | |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Email Address | | |
| |
| | Street Address | | |
| |
| | Province/City/State | | |
| |
| | Postal/Zip Code | | |
| |
| | Phone Number | | |
| |
| | Fax Number | | |
| |
| | Purchase order # | | |
| |
| |
| | | | | | |
| | Signature: | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Date: | | |
| |
| | Email Address | | |
| |
| |
| | | | | | |
| | Signature: | | |
| |
| | Print Name: | | |
| |
| | Title: | | |
| |
| | Date: | | |
| |
| | Email Address: | | |
| |
| |
| | | | |
| | | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
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MUST BE COMPLETED Exhibit A - Escrow Service Work Request — Deposit Account Number: _______________________________________
| | | | | | | | | | | | | | | | | | | |
| |
| | | | | | | | | | | | | | | | | | PAYING PARTY | |
| | | | | SERVICE DESCRIPTION— | | | | | | | | | | | | | Check box to | |
| | SERVICE | | | THREE PARTY ESCROW AGREEMENT | | | | | | | | | | | | | identify the Paying | |
| | Check boxes to | | | All services are listed below. Services in shaded tables are required for every new escrow | | | | | | | | | | | | | Party for each | |
| | order service | | | account set up. Some services may not be available under the Agreement. | | | ONE-TIME FEES | | | ANNUAL FEES | | | service below | |
| | Setup Fee
| | | Iron Mountain will setup a new escrow deposit account using a standard escrow agreement.
Custom contracts are subject to the Custom Contract Fee noted below.
| | | $ | 1,050 | | | | | | | | | o Depositor — OR -
o Beneficiary | |
| |
Deposit Account
Fee-including
Escrow
Management
Center Access
| | |
Iron Mountain will setup one deposit account to manage and administrate access to
Deposit Material that will be securely stored in controlled medical vaults. Furthermore,
Iron Mountain will provide account services that include unlimited deposits, electronic
vaulting, access to Iron Mountain Connect™ Escrow Management Center for secure
online account management, submission of electronic Work Requests, and
communication of status. A Client Manager will be assigned to each deposit account
and provide training upon request to facilitate secure Internet access to the account and
ensure fulfillment of Work Requests. An oversize fee may apply.
| | | | | | | |
$ |
950 | | | |
o Depositor — OR -
o Beneficiary | |
| |
Beneficiary Fee
including
Escrow
management
Center Access
| | |
Mountain will fulfill a Work Request to add a Beneficiary to an escrow deposit account
and manage access rights associated with the account. Beneficiary will have access to
Iron Mountain Connect™ Escrow Management Center for secure online account
management, submission of electronic Work Requests, and communication of status. A
Manager will be assigned to each deposit account and provide training upon request to
facilitate secure Internet access to the account and ensure fulfillment of Work Requests.
| | | | | | | |
$ |
650 | | | |
o Depositor — OR -
o Beneficiary | |
| | Add Deposit
Tracking
Notification
| | | At least semi-annually, Iron Mountain will send an update reminder to Depositor. Thereafter,
Beneficiary will be notified of last deposit.
| | | | N/A | | | | $ | 350 | | | | o Depositor — OR -
o Beneficiary | |
| | Add File
Comparison
and Analysis
Test
| | | Iron Mountain will fulfill a Work Request to perform a File Comparison and Analysis Test,
which includes analyzing deposit media readability, file listing, creation of file
classification
table, virus scan, assurance of completed deposit questionnaire, and analysis of completed
deposit questionnaire. A final report will be sent to the Paying Party regarding the Deposit
Material to ensure consistency between Depositor’s representations (i.e., Exhibit B and
Supplementary Questionnaire) and stored Deposit Material.
| | | $ | 2,500 | | | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| | Add
Deposit
Compile Test
| | | Iron Mountain will fulfill a Work Request to perform a Deposit Compile Test, which
includes the File Comparison and Analysis Test as described above plus recreating the
Depositor’s software development environment, compiling source files and modules,
linking libraries and recreating executable code, pass/fail determination, creation of
comprehensive build instructions with a final report sent to the Paying Party regarding the
Deposit Material. The Paying Party and Iron Mountain will agree on a custom Statement of
Work (“SOW”) prior to the start of fulfillment.
| | | Based on SOW
| | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| | Add Deposit
Usability Test
Binary
Comparison
| | | Iron Mountain will fulfill a Work Request to perform one Deposit Compile Test Binary
Comparison which includes a comparison of the files built from the Deposit Compile Test to
the actual licensed technology on the Beneficiary’s site to ensure a full match in file
size, with
a final report sent to the Requesting Party regarding the Deposit Material. The Paying Party
and Iron Mountain will agree on a custom Statement of Work (“SOW”) prior to the start of
fulfillment.
| | | Based on SOW
| | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| | Add Deposit
Usability Test
Full Usability
Test
| | | Iron Mountain will fulfill a Work Request to perform one Deposit Compile Test Full
Usability which includes a confirmation that the built applications work properly when
installed. A final report will be sent to the Paying Party regarding the Deposit Material.
The
Paying Party and Iron Mountain will agree on a custom Statement of Work (“SOW”) prior to
the start of fulfillment.
| | | Based on SOW
| | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| | Add
Dual/Remote
Vaulting
| | | Iron Mountain will fulfill a Work Request to store deposit materials in one additional
location as defined within the Service Agreement. Duplicate storage request may be in the
form of either physical media or electronic storage.
| | | | N/A | | | | $ | 500 | | | | o Depositor — OR -
o Beneficiary | |
| | Release
Deposit
Material
| | | Iron Mountain will process a Work Request to release Deposit Material by following the
specific procedures defined in Exhibit C “Release of Deposit Materials” the Escrow Service
Agreement.
| | | $ | 500 | | | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| | Add
Custom
Services
| | | Iron Mountain will provide its Escrow Expert consulting based on a custom SOW mutually
agreed to by all Parties.
| | | $150/hour
| | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| | Custom
Contract Fee
| | | Custom contracts are subject to the Custom Contract Fee, which covers the review and
processing of custom or modified contracts.
| | | $ | 500 | | | | | N/A | | | | o Depositor — OR -
o Beneficiary | |
| |
Note: Parties may submit Work Requests via written instruction or electronically through the online portal.
| | | | |
| | | | | |
| 3P-09/01/2006 NA
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 8 of 11 |
Exhibit B
Deposit Material Description
Company Name: _________________________________ Escrow Account Number: __________________________________
Deposit Name _____________________________ and Deposit Version ___________________________________
(Deposit Name will appear in account history reports)
Deposit Media (Please Label All Media with the Deposit Name Provided Above)
| | | | | | | | | | | | |
| |
| | MEDIA TYPE | | | QUANTITY | | | MEDIA TYPE | | | QUANTITY | |
| | o CD-ROM / DVD
| | | | | | o 3.5” Floppy Disk | | | | |
| | o DLT Tape
| | | | | | o Documentation | | | | |
| | o DAT Tape
| | | | | | o Hard Drive / CPU | | | | |
| |
| | | | | | o Circuit Board | | | | |
| |
| | | | | | | | | | | | |
| |
| | | | | Total Size of Transmission | | | | | | | |
| | | | | (SPECIFY IN BYTES) | | | # of Files | | | # of Folders | |
| | o Internet File Transfer
| | | | | | | | | | |
| | o Other (please describe below):
| | | | | | | | | | |
| |
Deposit Encryption (Please check either “Yes” or “No” below
and complete as appropriate)
Is the media or are any of the files encrypted? ? Yes or ? No
If yes, please include any passwords and decryption tools description below. Please also
deposit all necessary encryption software with this deposit.
Encryption tool name ________________________________________ Version _____________________________
| | |
| Other required information | |
|
Deposit Certification (Please check the box below to Certify and Provide your Contact
Information)
| | | | | | |
| | o I certify for Depositor that the above described Deposit Material has been
transmitted electronically or sent via commercial express mail carrier to
Iron Mountain at the address below.
| | | o Iron Mountain has inspected and accepted the above described Deposit
Material either electronically or physically. Iron Mountain will notify
Depositor of any discrepancies. | |
| | Name:
| | | Name: | |
| | Print Name:
| | | Print Name: | |
| | Date:
| | | Date: | |
| | Email Address:
| | | | |
| | Telephone Number:
| | | | |
| | Fax Number:
| | | | |
| |
Note: If Depositor is physically sending Deposit Material to Iron Mountain, please label all
media and mail all Deposit Material with the appropriate Exhibit B via commercial express carrier
to the following address:
| | |
| Iron Mountain Intellectual Property Management, Inc.
| | Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile: ▇▇▇- ▇▇▇-▇▇▇▇
|
| Attn: Vault Administration | | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | | |
| ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | | |
| | | | | |
| |
| | FOR IRON MOUNTAIN USE ONLY: (NOTED DISCREPANCIES ON VISUAL INSPECTION) | |
| |
| | | | |
| | | | | | |
| |
| | | | |
| | | | | |
| 3P-09/01/2006 NA ▲
| | This proposal is valid for 180 days from September 01, 2006.
| | Page 9 of 11 |
Exhibit C
Release Of Deposit Materials
Deposit Account Number: __________________________________
Iron Mountain will use the following procedures to process any Beneficiary Work Request to
release Deposit Material. All notices under this Exhibit C shall be sent pursuant to the
terms of Section 12(h) Notices.
| 1. | | Release Conditions. The Depositor and Beneficiary agree that a Work
Request for the release of the Deposit Material shall be based solely on one or more of the following conditions (defined as “Release
Conditions”): |
| | (i) | | Depositor’s breach of the license agreement or other agreement between the Depositor and the
Beneficiary regulating the use of the Deposit Material covered under this Agreement; or |
| |
| | (ii) | | Failure of the Depositor to function as a going concern or to operate in the ordinary course;
or |
| |
| | (iii) | | Depositor is subject to voluntary or involuntary bankruptcy. |
| 2. | | Release Work Request. A Beneficiary may submit a Work Request to Iron
Mountain to release the Deposit Material covered under this Agreement. Iron Mountain
will send a written notice of this Beneficiary Work Request within five (5) business
days to the Depositor’s Authorized Person(s). |
| |
| 3. | | Contrary Instructions. From the date Iron Mountain mails written notice
of the Beneficiary Work Request to release Deposit Material covered under this
Agreement, Depositor authorized representative(s) shall have ten (10) business days to
deliver to Iron Mountain contrary instructions. Contrary instructions shall mean the
written representation by Depositor that a Release Condition has not occurred or has
been cured (“Contrary Instructions”). Contrary Instructions shall be on company
letterhead and signed by an authorized Depositor representative. Upon receipt of
Contrary Instructions, Iron Mountain shall promptly send a copy to Beneficiary’s
Authorized Person(s). Additionally, Iron Mountain shall notify both Depositor and
Beneficiary Authorized Person(s) that there is a dispute to be resolved pursuant to the
Disputes provisions of this Agreement. Iron Mountain will continue to store Deposit
Material without release pending (i) joint instructions from Depositor and Beneficiary
with instructions to release the Deposit Material; or (ii) dispute resolution pursuant
to the Disputes provisions of this Agreement; or (iii) receipt of an order from a court
of competent jurisdiction. |
| |
| 4. | | Release of Deposit Material. If Iron Mountain does not receive Contrary
Instructions from an authorized Depositor representative, Iron Mountain is authorized
to release Deposit Material to the Beneficiary or, if more than one Beneficiary is
registered to the deposit, to release a copy of Deposit Material to the Beneficiary.
Iron Mountain is entitled to receive any undisputed, unpaid Service Fees due Iron
Mountain from the Parties before fulfilling the Work Request to release Deposit
Material covered under this Agreement. Any Party may cure a default of payment of
Service Fees. |
| |
| 5. | | Termination of Agreement Upon Release. This Agreement will terminate
upon the release of Deposit Material held by Iron Mountain. |
| |
| 6. | | Right to Use Following Release. Beneficiary has the right under this
Agreement to use the Deposit Material for the sole purpose of continuing the benefits
afforded to Beneficiary by the License Agreement. Notwithstanding, the Beneficiary
shall not have access to the Deposit Material unless there is a release of the Deposit
Material in accordance with this Agreement. Beneficiary shall be obligated to maintain
the confidentiality of the released Deposit Material. |
| | | | |
| | | | | |
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| | This proposal is valid for 180 days from September 01, 2006.
| | Page 10 of 11 |
EXHIBIT Q
Escrow Deposit Questionaire
Introduction
From time to time, technology escrow beneficiaries may exercise their right to perform verification
services. This is a service that Iron Mountain provides for the purpose of validating relevance,
completeness, currency, accuracy and functionality of deposit materials.
Purpose of Questionnaire
In order for Iron Mountain to determine the deposit material requirements and to quote fees
associated with verification services, a completed deposit questionnaire is requested. It is the
responsibility of the escrow depositor to complete the questionnaire.
Instructions
Please complete the questionnaire in its entirety by answering every question with accurate data.
Upon completion, please return the completed questionnaire to the beneficiary asking for its
completion, or e-mail it to Iron Mountain to the attention of ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Escrow Deposit Questionnaire
General Description
| | 1. | | What is the general function of the software to be placed into escrow? |
| |
| | 2. | | On what media will the source code be delivered? |
| |
| | 3. | | What is the size of the deposit in megabytes? |
Requirements for the Execution of the Software Protected by the Deposit
| | 1. | | What are the system hardware requirements to successfully execute the software? (memory, disk
space, etc.) |
| |
| | 2. | | How many machines are required to completely set up the software? |
| |
| | 3. | | What are the software and system software requirements, to execute the software and verify
correct operation? |
Requirements for the Assembly of the Deposit
| | 1. | | Describe the nature of the source code in the deposit. (Does the deposit include
interpreted code, compiled source, or a mixture? How do the different parts of the deposit
relate to each other?) |
| |
| | 2. | | How many build processes are there? |
| |
| | 3. | | How many unique build environments are required to assemble the material in the escrow
deposit into the deliverables? |
| |
| | 4. | | What hardware is required for each build environment to compile the software? (including
memory, disk space, etc.) |
| |
| | 5. | | What operating systems (including versions) are used during compilation? Is the
software executed on any other operating systems/version? |
| |
| | 6. | | How many separate deliverable components (executables, share libraries, etc.) are built?
|
| |
| | 7. | | What compilers/linkers/other tools (brand and version) are necessary to build the
application? |
| |
| | 8. | | What, if any, third-party libraries are used to build the software? |
| |
| | 9. | | How long does a complete build of the software take? How much of that time requires
some form of human interaction and how much is automated? |
| |
| | 10. | | Do you have a formal build document describing the necessary steps for system configuration
and compilation? |
| |
| | 11. | | Do you have an internal QA process? If so, please give a brief description of the testing
process. |
| |
| | 12. | | Please list the appropriate technical person(s) Iron Mountain may contact regarding this set
of escrow deposit materials. |
Please provide your technical verification contact information below:
| | | | | | |
| | COMPANY:
| | | | |
| | SIGNATURE:
| | | | |
| | PRINT NAME:
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| | ADDRESS 1:
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| | ADDRESS 2:
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| | CITY, STATE, ZIP
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| | TELEPHONE:
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| | EMAIL ADDRESS:
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For additional information about Iron Mountain Technical Verification Services,
please contact Manager of Verification Services at 978-667-3601 ext. 100 or by e-mail
at mailto: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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| 3P-09/01/2006 NA
▲
| | This proposal is valid for 180 days from September 01, 2006.
| | Page 11 of 11 |