CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.7
MASTER AGREEMENT
#_______
BETWEEN
DNA SCIENCES, INC.
AND
THE UNIVERSITY OF UTAH
This Agreement ("Agreement") is entered into and effective as of December
29, 2000 by and between DNA SCIENCES, INC., a Delaware corporation (tax ID #
____________) ("Company") and the University of Utah, a body politic and
corporate of the State of Utah, on behalf of the University of Utah
("University").
RECITALS
WHEREAS, Company wishes from time to time to have certain research and
services performed by University;
WHEREAS, the performance of such research and services is consistent and
compatible with, and beneficial to the academic role and mission of University
as an institution of higher education; and,
WHEREAS, University is qualified to provide such research and services.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
conditions and undertakings herein set forth, the parties agree as follows:
1. TERM. This Agreement shall commence as of 12/29/00 and shall remain in
effect for a term of five (5) years or, in the event any Task Orders (as
hereinafter defined) are outstanding at the time of expiration of such five-year
period, until such later reasonable date as all obligations thereunder have been
completed and discharged including completion of applicable Task Orders.
2. RESEARCH PROGRAM. Company desires to sponsor clinical research at the
University involving the identification in humans of genetic variants associated
with certain
1
diseases of interest to Company, with the intent to utilize such information in
combination with other genetic studies to be conducted by Company (the "Company
Studies"), to develop therapeutic, diagnostic and pharmacogenomic products for
such diseases. The Sponsored PIs (as defined in Section 3h), in collaboration
with the Company, will input formulated queries to databases maintained by the
University that contain historical, geneological and phenotypic records, to
identify potential participants in the Company Studies. Through a procedure
approved by the Institutional Review Board of the University, the University
will then obtain blood and tissue samples ("Tissue Samples") from such
identified individuals. The research to be conducted pursuant to this Agreement
shall be the "Research Program."
3. TASK ORDERS. Under the Research Program, Company intends to sponsor
clinical research by University faculty relating to cancer, type II diabetes,
hypertension, cardiovascular disease and multiple sclerosis. All professional
research and services to be provided hereunder shall be as authorized and
defined in mutually agreed upon "Task Orders" to be executed by the parties
which shall reference this Agreement and become a part hereof. Each such Task
Order shall, at a minimum, contain the following:
(a) a detailed description of the scope of the work to be performed
by University personnel under the Task Order ("Work");
(b) the disease to which such research is targeted (the "Field of
Use");
(c) applicable specifications for the Work;
(e) a detailed budget for the Work to be performed;
(e) a schedule for payment of amounts due to the University (for
example, whether the University is to be reimbursed [ * ];
(f) deliverables and reporting requirements;
(g) project start and end dates; and
(h) the identity of University Principal Investigators (the
"Sponsored PIs").
4. SUPERVISION BY UNIVERSITY. The Sponsored PIs designated in a Task Order
will have primary responsibility for supervision of the performance of the Work
on behalf of University. Neither party shall replace or substitute for the
Sponsored PIs in the supervisory responsibilities hereunder without the prior
written approval of the other party, which may be granted or withheld at such
other party's sole discretion.
5. ASSIGNMENTS/SUBCONTRACTS. Neither party shall assign this Agreement or
any Task Order issued pursuant to the terms hereof, or assign or subcontract any
of its obligations under this Agreement or any such Task Order, except to an
affiliate, or in connection with the sale of all or substantially all of the
assets of such party relating to the substance of this Agreement, without the
express written consent of the other party, which consent shall not be
unreasonably withheld.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
2
6. PLACE OF PERFORMANCE. It is anticipated that substantially all of the
Work under this Agreement will be performed by University at University's place
of business. However, at the request of Company, University's personnel may,
from time to time, be required to travel and work at Company's offices operated
by Company or Company's affiliated and associated companies (as designated in
the applicable Task Order). Company shall, where necessary or appropriate for
the performance of Work under this Agreement, provide such University personnel
with reasonable working space including necessary office furniture and
telephones, stationery supplies and materials, typing services, document
reproduction and mail distribution services at such other office and/or
facilities.
7. RESEARCH LICENSE. University shall grant to Company a biological
materials use license ("BMUL") for each library of Tissue Samples created in the
course of performing the Work described in a given Task Order (each a "Sample
Library"). Such license shall grant Company the exclusive right to use the
tissues from the Sample Library provided to Company to perform commercial
research in the Field of Use of the Task Order under which the applicable Sample
Library was collected, to develop therapeutic, diagnostic and pharmacogenomic
products and services useful to treat, prevent or diagnose human diseases and
conditions.
8. UNIVERSITY'S RIGHTS TO TISSUE SAMPLES. The University will own all
Tissue Samples and will provide to Company an adequate portion of each Tissue
Sample obtained for Company's commercial use under the terms set forth below.
The University will retain all rights to the Tissue Samples and related
intellectual property other than those rights granted to Company with respect
thereto, specifically including but not limited to the right to use the Tissue
Samples for academic purposes within the applicable Field of Use and for any
purpose outside the applicable Field of Use. The University hereby grants
Company an exclusive right of first negotiation to obtain the right to
commercialize products and services based upon or containing any inventions made
by the University through use of Tissue Samples outside the scope of the
Research Program ("University Inventions") in the Field of Use of the Task Order
under which the applicable Sample Library was collected as follows:
University shall notify DNAS as soon as practically possible upon the
discovery of an invention made by an employee, student or contractor of the
University made in whole or in part through use of the Tissue Samples outside
the scope of the Research Program within the five (5) year period immediately
following the receipt by Company of the first Tissue Sample collected under the
applicable Task Order, which is not also a University Invention as defined in
Section 10 ("Tissue Inventions"). University will grant to Company the exclusive
first right to negotiate an exclusive, world-wide license with the right to
grant sublicenses, to make, use, sell, offer for sale and import products based
upon or containing such Tissue Invention and all related intellectual property
rights (i.e., a right of first negotiation). Following receipt of such notice,
Company will have [ * ] days to notify University that Company is exercising its
right of first negotiation with respect to such Tissue Invention. Once Company
has exercised its right of first negotiation, the Parties shall negotiate in
good faith the terms of an agreement governing such a license on commercially
reasonable terms. Such negotiations shall continue until the parties reach
agreement, except that in no event shall University be obligated to continue
negotiations for more than [ * ] days. If Company does not respond to
University's notice of the discovery of a Tissue Invention within [ * ] days of
receipt thereof, or the negotiation period ends without an
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
3
agreement being reached, University shall be free to offer and enter into such a
license with a third party without further obligation to Company.
9. At any point after [ * ] after the execution of each BMUL, the
University may request the Company's written permission to use the Tissue
Samples for commercial research activities within the applicable Field of Use on
a case by case basis and such permission shall not be unreasonably withheld.
9.1 PAYMENT FOR WORK. Payment for Work rendered will be made [ * ] in
accordance with the terms set forth in each Task Order issued hereunder.
In the event that the Task Order provides for payment to be made in
accordance [ * ] University shall be compensated at the rate(s) specified in the
applicable Task Order. Unless otherwise stated in the Task Order, University
will invoice Company on a monthly basis.
In the event that the Task Order provides for payment [ * ] unless
otherwise stated in the Task Order, Company will pay University [ * ] within [ *
] stated in the Task Order, [ * ] at [ * ], as set forth in the applicable Task
Order, and [ * ] within [ * ]. Such fees shall be nonrefundable and
non-creditable.
Except as otherwise expressly provided below, or in the applicable Task
Order, Company will also reimburse University for actual and reasonable costs
incurred for travel expenses, associated living expenses and other out-of-pocket
expenses incurred in connection with its performance under the Research Program,
in accordance with University's Travel Policy and Procedures. Invoices received
by Company are due and payable within thirty (30) days of receipt.
9.2 BMUL FEES. In consideration of the license grant in Section 8,
Company shall pay to University:
(a) an annual License Fee of [ * ] for the BMUL [ * ] due upon the
effective date of the applicable Task Order and on or before each anniversary
thereof, for a period of five ( 5) years;
(b) an annual License Fee of [ * ] for each BMUL [ * ], due upon
the effective date of the applicable Task Order and on or before each
anniversary thereof, for a period of five (5) years.
(c) a milestone payment of [ * ] within [ * ] days after the first
commercial sale of a product developed using a Tissue Sample ("Product"); and,
(d) [ * ] of Net Sales of Products sold within the [ * ] period
immediately following the first Net Sales of the Product, with such payments
being made to the University of Utah Research Foundation.
Net Sales for the purpose of calculating BMUL Fees will be defined as
follows: "Net Sales" means the gross revenue actually received by Company for
the sale to a third party of
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
4
Product in finished product form by Company, its affiliates or its sublicensees,
as applicable, less the following deductions:
(i) Amounts repaid or credited by reason of timely rejections,
returns or recalls;
(ii) Taxes, excises or other governmental charges upon or measured
by the production, sale, transportation, delivery or use of goods;
(iii) Transportation and delivery charges actually incurred,
including shipping insurance and packing costs;
(iv) Normal and customary trade, cash and quantity discounts and
allowances granted to third parties, including products provided free of
charge and mandatory rebates to governmental agencies, but expressly
excluding discounts or allowances offered as part of a package of Products
and other products sold by Company or its sublicensees.
In the event a Product is sold in combination with other apparatus or
product, as part of a kit, or in any other combination, and the Product is not
separately valued on the invoice or other document evidencing such sale, the Net
Sales of the Product shall be (i) the then current list price for the Product
when sold separately, or if it is not sold separately, then (ii) an amount
calculated by multiplying the aggregate selling price of the combination by a
fraction the numerator of which shall be Company's standard costs for the
Product and the denominator of which shall be Company's standard cost for the
total combination at the time of the sale; provided, however, that if both the
Product and other products included in such combination have separate list
prices but are being sold at a combination price which is less than the total of
the separate list prices, then the Net Sales of the Product shall be determined
by multiplying the invoice price charged for the combination by the ratio of the
list price of the Product to the sum of the list prices of the Product and such
other products.
Amounts received by Company or its sublicensees for the sale of Products
between or among Company, its affiliates or its sublicensees for resale shall
not be included in the computation of Net Sales hereunder.
9.3 AUDIT RIGHTS. Notwithstanding any other conditions of this
Agreement, the books and records of University hereunder will be made
available upon request, at the University's regular place of business, for
audit by personnel authorized by the Company. Additionally, the books and
records pertaining to this Agreement and any Task Orders shall be retained by
the University for a period of three years following final payment.
The period of access and examination described above, for the records which
relate to (a) litigation or settlement of claims arising out of the performance
of this Agreement or (b) costs and expenses of this Agreement as to which
exception has been taken by the parties shall continue until such litigation,
claims, or exceptions have been disposed of.
Company shall keep complete and accurate records pertaining to the sale or
other disposition of the Product and of the royalty payments and other amounts
payable under this
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
5
Agreement in sufficient detail to permit University and/or its licensors to
confirm the accuracy of all payments due hereunder and provided herein.
University shall have the right to cause an independent, certified public
accountant to audit such records and Work done to confirm Company's Net Sales
and royalty payments for the preceding year. Information obtained during such an
audit shall be the Confidential Information of Company as defined in Section 15.
Such audit rights may be exercised no more often than once a year, within three
(3) years after the calendar quarter to which such records relate, upon
reasonable notice to Company and during normal business hours. University will
bear the full cost of such audit unless such audit discloses an underpayment of
more than [ * ] from the amount of royalty payments due. In such case, Company
shall bear the full cost of such audit. Within thirty (30) days of the
completion of such audit, Company shall pay to University the amount of any
underpayment disclosed in such audit, or University shall pay to Company the
amount of any overpayment disclosed in such audit, as applicable.
The audit rights of both parties shall survive any termination or
expiration or termination of this Agreement for a period of three (3) years.
10. USE OF DATA AND COMPANY IP. It is contemplated that Company may
transfer Company proprietary information to the University and the Sponsored PIs
in the course of the performance of this Agreement. This proprietary information
may consist of materials, know-how, or information and materials covered by
trade secrets or patent rights, which Company has created under its prior and
concurrent research efforts, or which it has licensed from third parties
necessary or useful for performing the Work and which Company has provided to
the Sponsored PIs (collectively "Company IP").
Outside the scope of the Work performed under the applicable Task Order,
the University may use the data generated through performance of the Work
("Data") and Company IP to the extent it is integrated in the Data, independent
of Company, for its internal non-commercial research purposes only, subject to
the grant to Company of an "Option," as further described below, to inventions
made using Data or Company IP. University shall notify Company as soon as
practically possible upon the discovery of an invention made by an employee,
student or contractor of the University made in whole or in part through use of
the Data or the Company IP outside the scope of the Research Program within five
(5) years from the date that Company receives the first Tissue Sample under the
applicable Task Order ("University Inventions"). University hereby grants to
Company the exclusive first right to negotiate an exclusive, world-wide license,
with the right to grant sublicenses, to make, use, sell, offer for sale and
import products or services based upon or incorporating such University
Invention (an "Option"). Following receipt of a notice that a University
Invention has been made, Company will have [ * ] days to notify University that
Company is exercising its Option with respect to such University Invention
("Election Notice"). Once Company has so exercised its option, the Parties shall
negotiate in good faith the terms of an agreement governing such a license on
commercially reasonable terms. If the parties are unable to reach agreement on
the terms of such a license agreement within [ * ] days after the University
receives an Election Notice and they commence negotiations therefore, either
party may request that the parties seek the advice of an objective third party
mediator with respect to outstanding issues. Within [ * ] days after any such
request, the parties shall agree upon a third party with at least ten (10) years
experience in the pharmaceutical or biotechnology industry at a senior
management position to mediate their
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
6
discussions. If the parties do not agree upon the remaining terms of such a
license within thirty (30) days after the mediator's first meeting, then the
parties shall submit such unresolved issues for resolution by binding
arbitration in a location mutually agreed upon by the parties pursuant to the
then-applicable rules of JAMS/Endispute.
11. PATENTS AND INVENTIONS. Ownership of intellectual property rights
relating to inventions made in the course of performing under the Research
Program shall be determined in accordance with United States laws of
inventorship. The University shall have the first right, but not the obligation
to file, prosecute and maintain patent applications for such inventions invented
solely by University personnel (each a "University Sole Invention"). Company
shall have the right to file, prosecute and maintain any such patent
applications that the University decides not to file or continue to prosecute.
Company shall have the first right, but not the obligation, to file, prosecute
and maintain patent applications for such inventions that are invented solely by
Company PERSONNEL. The parties shall confer regarding whether to seek patent
protection on any joint discovery made by the parties under the Research Program
("Joint Inventions"). The parties will co-operate in seeking patent prosecution
on Joint Inventions and will appoint a lead party, with the other party being
allowed to review, comment and consent to all patent prosecution activities.
12. COMMERCIALIZATION LICENSE.
12.1 OPTION. The University hereby grants to Company an exclusive
option for a period of [ * ] following disclosure of each University Sole
Invention or Joint Invention to Company to obtain a worldwide, royalty-bearing,
exclusive license, with the right to grant sublicenses, to make, use, sell,
offer for sale and import products made using, based upon or incorporating such
Joint Invention or any University Sole Invention, and all intellectual property
rights relating thereto, for use in therapeutic, diagnostic and pharmacogenomic
products and services in the Field of Use of the applicable Task Order (the
"Option"). The Option period may be extended by Company for each invention for
up to an additional [ * ] period (the "Extension Period") upon the reimbursement
by Company of all accrued patent costs incurred by the University with respect
to the patent applications and patents that are the subject of such option prior
to the date of extension of the Option (i.e., the date upon which the Option
would otherwise have expired) until the end of the Extension Period. The
commercial terms of the license(s) granted upon exercise of the Option shall be
negotiated in good faith by the parties within a [ * ] day period from the date
Company notifies University of its intention to exercise the Option. Such
license(s) shall include a royalty obligation in the range set forth in Section
12.3 below, the milestone provisions set forth in Section 12.2 below and other
commercially reasonable terms and conditions typically contained in agreements
governing the license of similar technology of similar market potential. The
Option shall apply on an invention by invention basis.
If the parties are unable to reach agreement on the remaining terms of such
a license agreement within [ * ] days after they commence negotiations
therefore, either party may request that the parties seek the advice of an
objective third party mediator. Within [ * ] days after any such request, the
parties shall agree upon a third party with at least ten (10) years experience
in the pharmaceutical or biotechnology industry at a senior management position
to mediate their discussions. If the parties do not agree upon the remaining
terms of such a license within thirty (30) days after the mediator's first
meeting, then the parties shall submit such unresolved issues
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
7
for resolution by binding arbitration in a location mutually agreed upon by the
parties pursuant to the then-applicable rules of JAMS/Endispute.
12.2 MILESTONE PAYMENTS. In partial consideration for the
license(s) to the University's interest in Joint Inventions or University
Sole Inventions, as the case may be, Company will pay to the University a
milestone payment with respect to the first commercial sale of a product
which is covered by a valid claim of a patent or patent application claiming
a Joint Invention or University Sole Invention. The amount of such milestone
payments shall be negotiated on a per license basis and shall be due within
thirty (30) days of such first commercial sale.
12.3 ROYALTIES. In partial consideration for the license(s) to the
University's interest in Joint Inventions or University Sole Inventions, as
the case may be, Company shall pay to the University royalties on net sales
of products covered by a valid claim of a patent application or a patent
claiming Joint Invention or a University Sole Invention, at a royalty to be
determined in each license agreement, which shall be within the range of [ * ]
percent [ * ]for products [ * ], and [ * ] percent [ * ] for products [ * ].
The terms of such license agreement will contain [ * ] to the [ * ].
13. EQUIPMENT. All equipment, instruments and materials purchased or used
by University in connection with performance of the Work shall at all times
remain the sole control and ownership of University.
14. PUBLICATION. In furtherance of University's role as a public
institution of higher education, it is necessary that significant results of
Work activities be reasonably available for publication by the University, and
Company acknowledges that University may publish the results of the Work
conducted in connection with this Agreement. Notwithstanding the foregoing,
University agrees that it shall not publish the results of the Work conducted in
connection with this Agreement without the prior written consent of Company,
until the expiration of six (6) months following the first to occur of either
the termination of this Agreement or submission of the final written report
required by the applicable Task Order (such date, the "Publication Date"). In
the event University wishes to publish Work results prior to the Publication
Date, University shall first provide to Company written notice of University's
intent to publish and a draft of such publication. Company shall have sixty (60)
days after receipt of the draft publication to request in writing the removal of
portions deemed by Company to contain Confidential Information of Company, or to
request a delay in submission of the draft for publication pending Company's
application for patent protection on inventions disclosed therein. In either
event, University shall have no obligation to delay publication of the draft for
longer than six (6) months following delivery of University's notice to Company
of intent to publish. If University does not receive Company's written response
to the notice of intent to publish within the sixty (60) day period, then
Company shall be deemed to have consented to such publication. Other than the
Data, in no event may the University publish any Confidential Information of
Company without Company's prior written permission.
15. CONFIDENTIALITY. Company acknowledges that University is a governmental
entity and thus subject to the Utah Governmental Records Access Management Act,
Section 63-2-101 et seq., Utah Code ▇▇▇. (1997 and supp 1998 as amended)
("GRAMA") and Section 53B-16-301 et seq., this Agreement, and confidential GRAMA
and Section 53B-
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
8
16-301 et seq., this Agreement, and confidential information provided pursuant
hereto, may be subject to public disclosure. Any person who provides University
with records that such person believes should be protected from disclosure for
business reasons must, pursuant to Section 63-2-308 of GRAMA and Section
53B-16-304, provide University with a written claim of business confidentiality
and a concise statement of reasons for supporting such claim. Subject to such
regulations, and the fulfillment of the requirements thereunder by Company, the
parties agree to the following with respect to confidentiality:
Company and University acknowledge that each party may receive confidential
technical and business information of the other party ("Confidential
Information") during the term of this Agreement. Subject to Sections 10 and 14,
Company IP shall be considered Confidential Information of Company and Data
shall be considered Confidential Information of Company and University. Company
may use the Data that is not also covered by a University Invention, Tissue
Invention or a University Sole Invention for any purpose.
Each party to this Agreement agrees during the term of this Agreement and
for a five (5) year period thereafter, to maintain in strict confidence all
Confidential Information received from the other party whether in oral, written,
graphic or electronic form. Each party hereto agrees (i) not to use Confidential
Information of the other party, and (ii) not to disclose Confidential
Information of the other party to third parties, without the express written
permission of the other party, except as expressly permitted under this
Agreement. Notwithstanding the foregoing, each party may disclose Confidential
Information to its employees, officers and independent contractors requiring
access thereto for the purposes of this Agreement provided each such employee,
officer or independent contractor is bound by a written agreement to maintain
Confidential Information in confidence and not to use it for purposes other than
those permitted in this Agreement. The parties will take all steps necessary to
ensure that its employees, officers and independent contractors comply with the
terms and conditions of this Agreement.
The obligations of this Section 15 shall not pertain to any information
which, to the extent that the party receiving Confidential Information of the
other party can establish by competent written proof:
(a) at the time of disclosure is in the public domain;
(b) after disclosure, becomes part of the public domain by
publication or otherwise, except by breach of an obligation of
confidentiality with respect thereto;
(c) was in party's possession at the time of disclosure, or was
subsequently and independently developed by party's employees, officers or
independent contractors who had no knowledge of or access to the Confidential
Information; or
(d) is received by the party from a third party without breach of
an obligation of confidentiality with respect thereto.
In the event that Confidential Information is required to be disclosed
pursuant to a court order or as required by law or regulation, the receiving
party may disclose such Confidential
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
9
Information, provided that such party shall give notice to the other party and
shall make a reasonable effort to obtain a protective order requiring that the
Confidential Information be disclosed only to the extent required by such order,
law or regulation, and that it be used only for the purposes for which the
order, law or regulation requires such disclosure to be made.
16. INDEMNIFICATION.
16.1 INDEMNIFICATION BY UNIVERSITY. University is a governmental
entity and is subject to the Utah Governmental Immunity Act, Section 63-30-1 et
seq., Utah Code ▇▇▇. (1993 and Supp. 1999 as amended) ("Act"). Subject to the
provisions of the Act, University shall indemnify, defend and hold harmless
Company, its directors, officers, agents and employees against any actions,
suits, proceedings, liabilities and damages that may result from the negligent
acts or omissions of University, its officers, agents or employees in connection
with this Agreement or the use of the Tissue Samples by the University or its
officers, directors, employees or agents, up to the limits of the Utah
Governmental Immunity Act, provided, however, that such indemnity shall not
extend to events attributable to or arising from either the negligence, wrongful
act(s), or wrongful failure to act on the part of University or an any employee,
officer, or agent of Company.
16.2 INDEMNIFICATION BY COMPANY. Company shall indemnify, defend and
hold harmless University, its directors, officers, agents and employees against
any actions, suits, proceedings, liabilities and damages that may result from
the negligent acts or omissions of Company, its officers, agents or employees in
connection with this Agreement or the use of the Tissue Samples by the
University or its officers, directors, employees or agents, provided, however,
that such indemnity shall not extend to events attributable to or arising from
either the negligence, wrongful act(s), or wrongful failure to act on the part
of University or an any employee, officer, or agent of University.
17. TERMINATION. This Agreement or any Task Order may be terminated by
either party at any time and from time to time, by giving written notice thereof
to the other party. Such termination shall be effective thirty (30) days after
receipt of such notice. Termination shall not relieve either party of any
obligation or liability accrued hereunder prior to such termination, or rescind
or give rise to any right to rescind any payments made prior to the time of such
termination. Termination of this Agreement will terminate all Task Orders
existing at the time of termination. Sections 7, 8, 9.3, 10, 11, 12, 13, 14, 15,
16, 17 18 and 22 shall survive termination of this Agreement.
18. NO WARRANTIES. Company expressly disclaims and excludes any and all
warranties for Company IP provided to University hereunder, express or implied,
either in fact or by operation or law, statutory or otherwise, and Company
specifically disclaims any implied warranty or merchantability, fitness for a
particular purpose or non-infringement.
19. COMPLIANCE WITH LAWS. In performance of the Work, University shall
comply with all applicable federal, state and local laws, codes, regulations,
rules and orders.
20. RELATIONSHIP OF THE PARTIES. In assuming and performing the obligations
of this Agreement, University and Company are each acting as independent parties
and neither shall be
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
10
considered or represent itself as a joint venture, partner, agent or employee of
the other. Neither party shall use the name or any trademark of the other party
in any advertising, sales promotion or other publicity matter without the prior
written approval of the other party.
21. UNCONTROLLABLE FORCES. Neither Company nor University shall be
considered to be in default of this Agreement if delays in or failure of
performance shall be due to uncontrollable forces the effect of which, by the
exercise of reasonable diligence, the nonperforming party could not avoid. The
term "uncontrollable forces" shall mean any event which results in the
prevention or delay of performance by a party of its obligations under this
Agreement and which is beyond the control of the nonperforming party. It
includes, but is not limited to, fire, flood, earthquakes, storms, lightening,
epidemic, war, riot, civil disturbance, sabotage, inability to procure permits,
licenses, or authorizations from any state, local, or federal agency or person
for any of the supplies, materials, accesses, or services required to be
provided by either Company or University under this Agreement, strikes, work
slowdowns or other labor disturbances, and judicial treatment.
22. MISCELLANEOUS.
22.1 ENTIRE AGREEMENT. This Agreement, with its attachments,
constitutes the entire agreement between the parties regarding the subject
matter hereof and supersedes any other written or oral understanding of the
parties. This Agreement may not be modified except by written instrument
executed by both parties.
22.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors and permitted assigns.
22.3 NOTICES. Except as provided in Section 9.1 hereof regarding
payment of invoices, any notice or other communication required or permitted to
be given to either party hereof shall be in writing and shall be deemed to have
been properly given and effective: (a) on the date of delivery if delivered in
person during recipient's normal business hours; or (b) on the date of delivery
if delivery by courier, express mail service or first-class mail, registered or
certified mail, return receipt requested. Such notice shall be sent or delivered
to the respective addresses given below, or to such other address as either
party shall designated by written notice given to the other party:
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
11
In the case of Company:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., CEO
DNA Sciences, inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In the case of University:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
UNIVERSITY OF UTAH
OFFICE OF SPONSORED PROJECTS
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
22.4 ORDER OF PRECEDENCE. In the event of any conflict,
inconsistency or discrepancy amount, the Agreement and all any other
documents listed below shall be resolved by giving precedence in the
following order.
(a) Task Orders with Appendices
(b) This Agreement
22.5 GOVERNING LAW AND DISPUTES. This Agreement shall be
interpreted and construed in accordance with the laws of the State of Utah,
without application of any principles of choice of laws.
22.6 NONWAIVER. A waiver by either party of any breach of this
Agreement shall not be binding upon the waiving party unless such waiver is
in writing. In the event of a written waiver, such a waiver shall not affect
the waiving party's right with respect to any other or further breach.
22.7 ATTORNEY FEES. The prevailing Party in any action or suit to
enforce the terms or conditions of this Agreement shall be entitled to
recover its costs of court and reasonable attorneys' fees incurred in
enforcing this Agreement.
22.8 SEVERABILITY. If any term, condition or provision of this
Agreement is held to be unenforceable for any reason, it shall, if possible,
be interpreted to achieve the intent of the parties to this Agreement to the
extent possible rather than voided. In any event, all other terms, conditions
and provision of this Agreement shall be deemed valid and enforceable to the
full extent.
22.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
12
IN WITNESS WHEREOF, the parties have caused this agreement to be executed by
their duly authorized representatives effective as of the day and year first
written above.
DNA SCIENCES, INC. UNIVERSITY OF UTAH
"Company" "University"
By: /S/ ▇. ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
(Signature) (Signature)
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
(Please print) (Please print)
Title: CHIEF BUSINESS OFFICER Title: DIRECTOR, SPONSORED PROJECTS
----------------------------- ------------------------------
Date: 12/29/00 Date: 12/29/00
------------------------------ -------------------------------
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
13