Exhibit 10.7 Agreement with Sequence Sciences, LLC
INDEPENDENT CONSULTANT AGREEMENT
This INDEPENDENT CONSULTANT AGREEMENT (this "Agreement"), dated this 26th
day of December, 2001 ("Effective Date"), is between Sequence Sciences, LLC
("Sequence"), a Missouri limited liability company and GenoMed, LLC, a limited
liability company("GenoMed").
WHEREAS, GenoMed desires to engage Sequence to provide services as set
forth in this Agreement and Sequence desires to be so engaged;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Consultant Services Sequence shall develop a list (the "List") for GenoMed of
as many promoter (5' region) single nucleotide polymorphisms ("Promoter SNPs")
as possible from certain freely accessible public databases (the "Project"). A
Promoter SNP is defined, for purposes of this Agreement, as a single nucleotide
polymorphism within 2 kilobases upstream of the 5'-end of a gene. Sequence shall
make its best efforts to compile the List for as many genes as possible as
defined in Online Mendelian Inheritance in Man ("OMIM") and as defined in the
GenoMed Gene Information list dated 12/20/01, a copy of which has been
previously provided by GenoMed to Sequence. Sequence shall compile the List by
configuring a computer system to access and interrogate the relevant public
databases. Exhibit A attached hereto sets forth the public databases which will
be interrogated by Sequence and the contents of each entry in the List. GenoMed
acknowledges that the number of Promoter SNPs and genes ultimately included in
the List is wholly dependent upon the available data and that Sequence has no
control over the final results.
2. Payment In consideration of the services provided by Sequence, GenoMed shall
pay Sequence the following fees:
a. Upon the execution of this Agreement, GenoMed shall pay to Sequence, in
cash or certified funds, the amount of $5,000 (the "First Payment")
b. Upon completion and delivery of the List in accordance with the terms of
this Agreement, GenoMed shall pay to Sequence, in cash or certified funds, the
amount of $5,000 (the "Second Payment").
3. Ownership of Intellectual Property Sequence agrees that it is providing
consulting and research services only and is not functioning as an inventor.
Sequence shall not make a claim now or in the future with respect to any
intellectual property that may derive from this project, including specifically
the List or any future disease associations that may arise from the use of the
List. Sequence further agrees that GenoMed shall be the sole owner of any
intellectual property generated by this project, including especially the List.
Notwithstanding the foregoing, however, GenoMed specifically waives any
ownership or claim to any computer programs, source code or software written or
created by Sequence in the course of performing this project and compiling the
List.
4. Confidentiality The parties may request from each other certain documents and
other pertinent material related to the project, including, without limitation,
data, computer print-outs, future plans and other information which the parties
consider to be confidential. Except as may be required by applicable law(s) or
as the parties may from time to time consent in writing, the parties shall not,
at any time, disclose any confidential information, or any part thereof,
specifically including the List, to any person, firm. corporation, association,
or other entity for any reason or purpose whatsoever. In the event either party
takes any action or fails to take any action in contravention of this Section 4,
that party shall indemnify and hold harmless the other party from any damage or
claim that may arise as a result of such action or inaction. In addition, that
party shall be entitled to collect from the other party all costs incurred in
obtaining such indemnification, including all attorney and court fees. The
parties shall take any and all legal actions necessary to minimize any damages
resulting from such disclosure, to retrieve such disclosed information, and to
return same to the other party upon their direction. Each party shall be
responsible for any action or inaction in contravention of this Section 4 by
their personal representatives, employees, agents, independent contractors,
successors, and assigns.
5. Relationship of Parties The parties are independent contractors. Nothing in
this Agreement is intended to or shall be construed to constitute or establish
any agency, joint venture or partnership. Neither party shall have the right or
authority to bind the other party nor shall either party be responsible for the
acts or omissions of the other.
6. Assignment GenoMed may not assign this Agreement. Sequence may assign any net
sums due or to become due to Sequence hereunder, but may not assign any other
rights or obligations under this Agreement.
7. LIMITATION OF LIABILITY THE AGGREGATE LIABILITY OF SEQUENCE TO GENOMED FOR
DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID TO SEQUENCE BY GENOMED AS
OF THE DATE SUCH CLAIM IS FINALLY RESOLVED. IN NO EVENT SHALL SEQUENCE BE LIABLE
TO GENOMED FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED,
UNDER ANY THEORY OF LIABILITY.
8. Force Majeure Except as otherwise provided in this Agreement, in the event
that a delay or failure of a party to comply with an obligation, other than a
payment obligation, created by this Agreement is caused by a Force Majeure
condition, that obligation shall be suspended during the continuance of the
Force Majeure condition. Force Majeure means any event beyond the control of the
parties, including, without limitation, failures of computers, computer related
equipment, hardware or software, fire, flood, riots, strikes, epidemics, war
(declared or undeclared and including the continuance, expansion or new outbreak
of any war or conflict now in existence), embargos and government actions or
decrees.
9. Notices Any notice or communication required or permitted to be given under
this Agreement shall be in writing and shall be deemed given when delivered by
hand or mailed by registered or certified mail, return receipt requested,
postage prepaid (such notice sent by mail to be effective three business days
after sending) or sent by telefax (such notice sent by telefax to be effective
one business day after sending, if immediately confirmed by certified or
registered mail as aforesaid), in each case properly addressed to the address
indicated below or at such other address as may be furnished, in writing by
either party in accordance with this section. No notice may be given by mail
during a real or apprehended mail strike.
If to Sequence, the notice shall be provided to:
Sequence Sciences, LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
If to GenoMed, the notice shall be provided to:
GenoMed, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
10. Waivers The waiver by either party of a breach or default under any
provision under this Agreement or the failure of such party to exercise its
rights under this Agreement in any instance shall not operate or be construed as
a continuing waiver or a waiver of any subsequent breach or default. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar).
11. Choice of Law/Entire Agreement This Agreement is subject to and will be
construed in accordance with the laws of the State of Missouri applicable to
agreements wholly to be performed therein, merging all prior representations and
collateral understandings, memorandums and agreements, and constitutes the
entire understanding between Sequence and GenoMed concerning the subject matter
hereof. No party hereto will be bound by any modification of this Agreement
unless signed by the party against whom the modification is to be enforced. All
headings are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
12. Arbitration Any claim arising out of or related to this Agreement, or a
breach hereof, is to be settled by arbitration in accordance with the procedures
set forth in this Section 12. The parties agree that, in the event of a dispute
among them relating to or arising out of this Agreement, the affected parties
will submit such dispute to binding arbitration as provided herein. All
arbitrations will be conducted in St. Louis, Missouri, pursuant to the
Commercial Arbitration Rules of the American Arbitration Association except as
provided herein. The panel used will be selected from arbitrators employed by
the American Arbitration Association and the decisions of the arbitrators are
final and binding on all parties thereto. All arbitrations will be undertaken
pursuant to the Federal Arbitration Act, where applicable, and the decision of
the arbitrator is enforceable in any court of competent jurisdiction. The
parties agree to waive their respective rights to further appeal or redress in
any other court or tribunal except solely for the purpose of obtaining execution
of the decision resulting from the arbitration proceeding. In the event of any
arbitration or other legal proceeding brought by any party against another party
with regard to any matter arising out of or related to this Agreement, each
party hereby expressly agrees that the final award decision will also provide
for an allocation and division between or among the parties to the arbitration.
of (i) legal fees and expenses; and (ii) all other costs and expenses of the
dispute, including court costs and arbitrators' fees, reasonable accountants'
and expert witness fees, costs and expenses (including disbursements) incurred
in connection with such proceedings, on a basis which is just and equitable
under the circumstances. The arbitrator is directed by this Agreement to conduct
the arbitration hearing no later than three months from the service of the
statement of claim and demand for arbitration unless good cause is shown
establishing that the hearing cannot fairly and practically be so convened.
Depositions will be taken only as deemed appropriate by the arbitrator and only
where good cause is shown. The parties to the arbitration will be entitled to
conduct document discovery by requesting production of documents. Responses or
objections will be served 20 days after receipt of a request. The arbitrator
will resolve any discovery disputes by such pre-hearing conferences as may be
needed. All parties agree that the arbitrator and any counsel of record to the
proceeding have the power of subpoena process as provided by law. Notices of
demand for arbitration must be filed in writing with the parties in accordance
with Section 9 this Agreement. A demand for arbitration is to be made within a
reasonable time after the claim has arisen, but in no event later than the date
when institution of legal or equitable proceedings based on such claim would be
barred by the applicable statute of limitations. The award rendered by the
arbitrators, including as to legal fees, is final, and judgment may be entered
upon it in accordance with law in any court of competent jurisdiction.
13. Further Assurances The parties will execute and deliver such further
instruments and do such further acts and things as may be required to carry out
the intent and purpose of this Agreement.
14. Counterparts This Agreement may be executed by the parties on any number of
separate counterparts, and all such counterparts so executed constitute one
agreement binding on all the parties notwithstanding that all the parties are
not signatories to the same counterpart.
15. Signature Warranty Each Person executing this Agreement warrants that (s)he
is authorized to do so on behalf of the party for whom (s)he signs this
Agreement.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first-above written.
ACCEPTED AND AGREED BY:
Sequences Sciences, LLC GenoMed, LLC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D., Member ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D., Member
EXHIBIT A
Public Databases to be Interrogated by Sequence
1. Ensembl
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2. OMIM
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇.▇▇▇.▇▇▇/▇▇▇▇/
3. NCBI dbSNP (version 2001-08-04)
▇▇▇://▇▇▇.▇▇▇▇.▇▇▇.▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇/▇▇_▇▇▇▇▇
Contents of Each Entry in the List
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1. Gene Name
2. Identifier
3. Description
4. Gene Location
5. Protein Information
6. OMIM ID
7. Disease Description
8. RefSNP ID
9. SNP class
10. validated
11. allele
12. SNP location
13. ▇▇▇ ▇▇
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