TECHNICAL SERVICES AGREEMENT
For Research and Development
AGREEMENT NUMBER CP044223
LABOR AND MATERIALS Type
Battelle Memorial Institute, through its Commercial Business Operations
(BATTELLE) agrees to provide to Volu-Sol, Inc. (CLIENT) technical research
services, substantially in accordance with BATTELLE's Proposal No. CP044223,
(the Project) and the Memorandum-of-Understanding to be executed within 30 days
of the execution of this Agreement, both incorporated herein by reference, under
the following terms and conditions:
1. ACCEPTANCE AND COMMENCEMENT
BATTELLE's Proposal may be accepted within sixty (60) days from the date of
BATTELLE's signature below. BATTELLE will begin work within thirty (30) days of
receipt of this Agreement executed by CLIENT. The Project period is estimated as
five (5) months from commencement.
2. PAYMENT
CLIENT agrees to pay BATTELLE's charges for labor services, estimated at Eight
Hundred Thousand Dollars and No Cents ($800,000.00) plus charges for other
expenses incurred in the performance of the Project, without set-off, payable
within thirty (30) days of the date of semimonthly invoices. CLIENT agrees to
make payment to BATTELLE in the form of a check for 50% of the invoiced labor
charges, and the remaining 50% from CLIENT under an arrangement to be determined
within five (5) days after execution of this Agreement. CLIENT will not be
required to reimburse, and BATTELLE shall not be required to incur any charges
in excess of the estimate stated above, unless mutually agreed upon in writing.
Invoices not paid within thirty (30) days of the date of invoice shall accrue
interest at the rate of two (2) percent per month. In the event the parties do
not execute and enter into the Memorandum of Understanding within 30 days of the
execution of this Agreement, then BATTELLE will be entitled to a reduced equity
position based upon the amount of charges incurred.
Travel, materials, consultants, and other non-labor charges will be billed in
addition to the above amount.
CLIENT will provide a check for deposit prior to commencement of work in the
amount of $100,000.00. The deposit amount will be returned to CLIENT upon
receipt of final payment, or applied to the final invoice, at CLIENT's option.
3. INTELLECTUAL PROPERTY
All intellectual property rights for this program will be established by mutual
agreement in the MOU. In the event the parties do not execute and enter into the
Memorandum-of-Understanding within 30 days of the execution of this Agreement,
then BATTELLE and CLIENT will have joint ownership to inventions and
Intellectual Property developed under the Phase I program only, and either party
may use the Intellectual Property royalty free and without further obligation to
the other, and any background information, Intellectual Property, or proprietary
information of either party will remain the property of that party.
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4. NO ENDORSEMENT/LITIGATION
BATTELLE does not endorse products or services. Therefore, CLIENT agrees that it
will not use or imply BATTELLE's name, or use BATTELLE's reports, for
advertising, promotional purposes, raising of capital, recommending investments,
or any way that implies endorsement by BATTELLE, except with prior written
approval of an officer of BATTELLE.
BATTELLE does not undertake Projects for the purposes of litigation or to assign
fault or blame and does not provide expert witness services. Therefore, CLIENT
agrees not to use any Project results in any dispute, litigation, or other legal
action, except for the prosecution and litigation of patents resulting from
inventions assigned to CLIENT hereunder and except defensively in disputes,
litigation, or other legal action not pending or contemplated at the time of
execution of this Agreement.
In any event, if, at any time, BATTELLE or its employees are required to respond
to any subpoenas, orders for attendance at depositions, hearings or trials,
document requests, or other legal proceedings as a result of or relating to
BATTELLE's work on the Project, CLIENT agrees to reimburse BATTELLE, in addition
to any other amounts payable under this Agreement, BATTELLE's labor charges,
attorney time and/or fees, travel, photocopying and other miscellaneous
expenses.
5. CONFIDENTIALITY
BATTELLE agrees not to disclose the specific results of the Project as embodied
in reports and correspondence transmitted to CLIENT, and not available to the
public generally, without CLIENT's written consent, except as required by law,
or except as necessary to protect BATTELLE's intellectual property rights, such
as filing for patent(s). Acceptance of this Agreement does not preclude
BATTELLE's undertaking work in this general field for others.
If proprietary information other than Project results is disclosed by either
party to the other in connection with the performance of this Agreement, the
receiving party agrees that such information shall be maintained in confidence
for a period of five (5) years from the date of termination of this Agreement as
may be amended, provided that such information is clearly identified in writing
as proprietary. Oral disclosures of proprietary information must be identified
as proprietary at the time of disclosure and must be followed by written
confirmation within two (2) weeks. The parties shall not be liable for
disclosures made inadvertently or by mistake, providing the parties exercise the
same standard of care to protect the information received as they do to protect
their own proprietary information. These obligations with respect to handling
proprietary information shall not be applicable to the following: (a)
information that is now in, or hereafter enters, the public domain through no
fault of the receiving party; (b) information that was previously known by the
receiving party independently of the disclosing party; (c) information that is
independently developed by the receiving party; (d) information that is
disclosed with the written approval of the other party; or (e) information that
is received from a third party without a duty of confidentiality.
No license to the other party, under any trademark, patent, or copyright is
either granted or implied by conveying information to that party. None of the
information that may be submitted or exchanged by the respective parties shall
constitute any representation, warranty, assurance, guarantee or inducement by
either party to the other with respect to infringement of trademarks, patents,
copyrights or any right of privacy, or other rights of third persons. The
confidentiality obligations of this paragraph shall survive the termination or
expiration of this Agreement.
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6. LIMITATION OF LIABILITY
BATTELLE will provide a high standard of professional service on a best efforts
basis. However, BATTELLE, as a provider of such services, cannot guarantee
success; thus BATTELLE MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY, FOR ANY REPORT, DESIGN, ITEM, SERVICE, OR OTHER RESULT TO BE
DELIVERED UNDER THIS AGREEMENT.
Except for liability for injury to persons or damage to property occurring
during performance of the Project on BATTELLE-owned premises where fault of
CLIENT is not a contributing cause, CLIENT agrees: 1) to assume all
responsibility for CLIENT's use, misuse, or inability to use the Project
results; 2) to release BATTELLE from any liability to CLIENT for damages,
including but not limited to any indirect, incidental or consequential damages,
arising from or in connection with this Agreement and any services provided
under it; and 3) to indemnify and hold BATTELLE harmless from any and all
liabilities, suits, claims, demands and damages, and all costs and expenses in
connection therewith, in any manner relating to this Agreement or its
performance, asserted by third parties from any cause whatsoever.
7. NATURE OF SERVICES
CLIENT agrees that BATTELLE is an independent contractor and specifically
acknowledges that BATTELLE is a service provider, not a manufacturer,
distributor or supplier. CLIENT retains all final decision making authority and
all responsibility for the formulation, design, manufacture, assembly,
packaging, marketing, distribution and sale of CLIENT's products, including,
without limitation, product labeling, warnings, instructions to users, reporting
and for obtaining any governmental or other pre- or postmarket approvals,
certifications, registrations, licenses, or permits.
8. PRODUCT LIABILITY INSURANCE
CLIENT shall maintain adequate product liability insurance coverage in amounts
customary and prudent for a responsible entity in its industry in light of the
nature of its product(s). Such insurance shall specifically cover any CLIENT
products that may be developed in whole or in part based on BATTELLE's work
under this Agreement, and CLIENT shall provide evidence of such insurance upon
request.
9. FORCE MAJEURE
Neither CLIENT nor BATTELLE shall be liable in any way for failure to perform
any provision of this Agreement (except payment of monetary obligations) if such
failure is caused by any law, rule, or regulation, or any cause beyond the
control of the party in default.
10. EARLY TERMINATION
Either party shall have the right to terminate this Agreement upon thirty (30)
days written notice for any good-faith basis. Not withstanding the foregoing, in
the event the parties do not execute and enter into the MOU within 30 days of
the execution of this Agreement, then BATTELLE may terminate this Agreement on
notice. In the event of early termination, other than for failure to execute and
enter into an
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Memorandum-of-Understanding within 30 days of the execution of this Agreement,
BATTELLE agrees to provide CLIENT with all reports, materials, or other
deliverable items available as of the date of the termination, provided that
CLIENT is not in default of its obligations under this Agreement. In any event,
CLIENT agrees to pay all charges incurred or committed by BATTELLE, including
costs of termination, within thirty (30) days of receipt of a final invoice. In
the event the parties do not execute and enter into the
Memorandum-of-Understanding within 30 days of the execution of this Agreement,
then all jointly developed materials, reports or other deliverable items will be
dispersed in conjunction with the terms of Section 3 above.
11. ENTIRE AGREEMENT
This Agreement, including the Proposal incorporated herein, represents the
entire Agreement of the parties and supersedes any prior discussions or
understandings, whether written or oral, relating to the subject matter hereof.
This Agreement may be modified or amended only by mutual agreement in writing.
No course of dealing, usage of trade, waiver, or non-enforcement shall be
construed to modify or otherwise alter the terms and conditions of this
Agreement. In the event of any conflict or inconsistency between these terms and
conditions and the Proposal, these terms and conditions shall control.
12. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of
and enforced within the jurisdiction of the State of Ohio.
13. MISCELLANEOUS
This Agreement may not be assigned in whole or in part without the prior written
approval of both parties. In any event, however, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by and against the successors,
assigns and transferees of the parties. If any part of this Agreement shall be
held invalid or unenforceable, such invalidity and unenforceability shall not
affect any other part of this Agreement. Captions used as headings in this
Agreement are for convenience only and are not to be construed as a substantive
part of this Agreement.
Volu-Sol, Inc. BATTELLE MEMORIAL INSTITUTE
Commercial Business Operations
By By
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Name Name
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Title Title
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Date Date
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