Design Services Contract
This
Agreement is entered into this 26 day of May, 2010, by and between Wi Inc. (hereinafter referred
to as “Wi”), whose
address is ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇., ▇▇▇. ▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
Sensivida Medical Technologies, Inc. (hereinafter referred to “Client”), doing
business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Recitals
WHEREAS,
the Client desires to engage Wi to perform various services
for the Client, pursuant to the terms and conditions set forth in this
Agreement;
WHEREAS,
the parties, in the course of their dealings, may furnish to each other
proprietary information (as defined in Section 4 below) and do not wish to
convey any interest therein to the other or make such proprietary information
public or common knowledge;
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
covenants herein contained, the parties agree as follows:
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1.
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Services
Provided by Wi
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1.1 Wi will perform design
services on the allergen device, in accordance with the outline of work set
forth in the scheduling and progress of work to be performed, attached hereto
and incorporated herein by reference as Exhibit A. If
new project information, instructions, or lead times are received, or if changes
Wi deems significant
arise during the course of the project, Wi will notify Client in
writing and provide a document outlining the Change of Scope of the services to
be performed (COS). The COS shall revise the relevant costs,
milestones or other material elements of the services. Client will be
required to sign the COS prior to the change of scope work
proceeding.
1.2 Wi will deliver to Client
design documentation, prototyping documentation and prototyping assistance for
the allergen device, and any other prototype(s) developed during the performance
of services under this Agreement.
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2.
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Compensation
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2.1 Client
agrees to pay Wi $ 135
per hour for all services performed as set forth in Exhibit A. Time
spent traveling on Client’s behalf and as reasonably necessary in the
performance of services will also be billed at $ 135 per hour.
2.2 Client
shall reimburse Wi for
expenses incurred in connection with the performance of services under this
Agreement at cost, plus 15%, provided that, for individual expenses over $1000,
Wi will obtain prior
approval in writing from Client. Client will have the option of
providing required materials directly at actual cost, provided
that it notifies Wi of
its intent to do so in advance of Wi incurring expenses for such
materials.
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2.3 Wi will invoice Client for
hourly fees and expenses incurred set forth above, every two
weeks. Client agrees to pay all invoices within 30 days of
receipt.
2.4 Wi will not be liable to
Client for any claims or damages resulting from any delays caused by changes
required to the services performed, delays by Client in approving COS, or any
other schedule revisions which may result in delays to Wi.
2.5 Client
shall provide a retainer in the amount of $25,000 prior to the commencement of
services hereunder. This retainer shall be applied to the last
invoice. Additional retainers may be required in the future from time
to time at the discretion of Wi in the event
that a COS (defined in Section 1.1) is executed. In the event of
termination under Section 8 of this Agrement, the balance of this retainer shall
be returned to the Client.
2.6 Client
shall be charged, in addition to any outstanding balance, an interest charge of
one and one-half percent (1.5%) per month from the due date of such outstanding
balance until paid.
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3.
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Independent Contractor
Status
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Wi’s status under this
Agreement shall be that of an Independent Contractor, and not an agent or
employee of Client. Neither Wi nor any of its employees,
agents or representatives shall be required to work exclusively for the Client,
but may also enter into contractual relationships with other persons during the
course of this Agreement. Wi has sole right to control
and direct the means, manner and method by which services required by this
Agreement will be performed, has the right to perform the services required by
this Agreement at any place or location, and at such times as Wi may determine, provided
that no additional expenses other than pursuant to this Agreement are incurred
for the Client, and shall be responsible for paying all ordinary and necessary
expenses of its employees, agents or representatives.
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4.
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Mutual Protection of
Proprietary
Information
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4.1 The
term “Proprietary Information” shall mean any and all confidential and/or
proprietary knowledge, data, or information belonging to the disclosing party
(whether or not reduced to writing or other tangible medium of expression, and
whether or not patentable capable of trade secret protection or protected as an
unpublished or published work under the United States Copyright Act of 1976, as
amended), including, but not limited to (a) designs and drawings, including
sketches or computer aided drawings or other graphics or drawings prepared on
behalf of the disclosing party, (b) information regarding plans for research,
development, new products, marketing or selling of products, business plans,
budgets, forecasting, cash flow models, and pricing and cost information,
suppliers and customers; (c) financial and profit and loss statements, published
or unpublished, audited or unaudited; (d) information regarding skills and
compensation of employees of the disclosing party; and (e) any other trade
secrets of the disclosing party. Notwithstanding the foregoing,
Proprietary Information does not include information which (i) was already known
to the receiving party prior to its contact with the disclosing party, (ii) is
or becomes generally available to the public other than through a breach of this
Agreement; or (iii) is at any time furnished to the receiving party by a third
party who is lawfully in possession of such information and who lawfully conveys
such information.
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4.2 Each
party, on behalf of itself and its employees and agents agrees that, during the
period of its discussions and or business relationship and for the term of this
Agreement, and for so long thereafter as any information received by it remains
Proprietary Information: (a) it shall not at any time disclose to any person or
use for its own benefit or the benefit of any third party such Proprietary
Information without the prior written consent of the disclosing party (which
consent may be withheld in the disclosing party’s sole and absolute discretion),
and (b) it shall disclose such Proprietary Information only to those of its
employees and agents who: (i) have a need for such Proprietary Information in
the performance of their duties associated with the business discussions or any
resulting relationship including this Agreement, and (ii) have been informed of
the obligations of this Agreement and agree in writing to abide by the terms and
conditions of this Agreement and maintain such Proprietary Information in
confidence.
4.3 Except
for the limited right to use the Proprietary Information for the limited
purposes herein, nothing in this Agreement shall be construed to convey to the
party receiving Proprietary Information any right to or license to use, sell,
exploit, copy or further develop such information. This Agreement
does not in any way bind either party to enter into or continue a business
relationship of any type with the other beyond the requirements set forth in
this Agreement.
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5.
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Ownership of Work
Product
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5.1 During
the performance of this Agreement, Wi will create certain works
for the Client. All work performed by Wi pursuant to the terms of
this Agreement and all property and devices, including design documentation,
prototyping documentation, and prototyping assistance, along with any and all
other designs, ideas, inventions, improvements or materials conceived, developed
or authored by Wi while
performing services for the Client under the terms of this Agreement [this will vary based on the type and
scope of work], shall remain the property of Wi, until such time that this
Agreement is completed according to the terms set forth in Section
8..
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5.2 At
such time as this Agreement has completed according to the terms set
forth in Section 8, all information, materials, reports and other work product
that Wi creates or
develops for clients’ exclusive use as a part of the services provided hereunder
shall be the property of the Client. Additionally, any idea, invention or
improvement that generates intellectual property whether patentable or not, as a
result of work performed shall be the property of the Client. Client will grant
Wi a paid-for, royalty-free non-exclusive license to such intellectual property
in those applications outside the scope of Client’s interests. The scope of
Client’s interest is defined as applications of microneedle technology to
medical diagnostics. Client does not provide or imply any warranty or
indemnification regarding the licensed intellectual property and/or other 3rd party
claims against it.
5.3
Provided that such information and property is not the
Proprietary Information of Client, to the extent any previous inventions,
technologies, reports, memoranda, studies, writings, articles, plans, designs,
specifications, exhibits or other materials which are accessible from public or
other sources to which Wi has access are utilized by
Wi in the performance
of services under this Agreement, Wi shall have the right to
disclose, use, lecture on, or publish such information without obtaining any
authority or permission from the Client. However, Wi will have no such right in
regard to any materials produced under this Agreement, except in the event
Wi obtains prior
written approval by Client, or in the event Client fails to make full payment
for services rendered under the terms of this Agreement.
5.4
Wi processes, specialized manufacturing equipment or design features utilized in
the manufacturing, design and/or development of Client’s project or devices are
meant expressly for use by the Client on the product developed. Any knowledge
gained by the client including but not limited to techniques, design features,
manufacturing equipment, processes, shall be treated as confidential
information and in no way transferred outside the Client need to know personnel,
utilized to develop projects outside the client core product or used to compete
against Wi. Any use or implementation of this acquired information requires the
written consent of Wi executive management.
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6.
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Warranty of
Performance
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6.1 The
parties acknowledge that the Services are for custom design services for a new,
innovative product or product modifications, and that the success of the
Services in designing the product or product modifications cannot be guaranteed
or warranted. Wi DISCLAIMS ALL WARRANTIES REGARDING THE SERVICES AND THE
PRODUCTS OR PRODUCT MODIFICATIONS DESIGNED PURSUANT TO THE SERVICES, WHETHER
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
6.2 Under
no circumstances will Client be entitled to recover indirect, special,
incidental, consequential, multiple or punitive damages, lost profits, or
opportunity costs related to any claim against Wi in connection with this
Agreement, whether such claims is based upon breach of contract, warranty or
negligence, and whether grounded in tort, contract, civil law, or any other
theory of liability, including strict liability. In no event shall Wi’s total liability hereunder
exceed the fees paid to Wi under this
Agreement.
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7.
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Indemnification
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The Client agrees to indemnify and hold
harmless Wi, or any of
its employees, agents or representatives, for any and all claims that may be
asserted against Wi, or
its employees, agents or representatives, by any third parties arising, directly
or indirectly, out of the services performed hereunder, whether or not such
claim is based upon negligence, gross negligence, or any other alleged action or
inaction on the part of Wi, its employees, agents or
representatives, and for any attorneys’ fees or other costs incurred by Wi in conjunction with, or
arising out of any defense against, any claim raised by such third
party.
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8.
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Term
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8.1 This
Agreement shall be in effect from the date execution hereof, and shall remain in
effect until all services are performed by Wi hereunder and are fully
paid for by the Client, unless previously terminated in accordance with terms
and conditions of this Agreement.
8.2 Notwithstanding
the above, either party may terminate this Agreement at any time, for any
reason, upon 30 days written notice to the other party. The Termination Date
shall be the date at the end of this 30 day period.
8.3 This
Agreement shall be terminated, regardless of any prior written notice, in the
following event: (i) either of the parties behaves in a fraudulent
manner during the performance of this Agreement, (ii) either of the parties is
legally banned from engaging in any industrial or commercial activity, (iii) the
suspension, dissolution or winding up of any of the parties’ businesses, (iv)
any of the parties insolvency, or its inability to pay debts, (v) the
institution of bankruptcy, reorganization, liquidation, or such other
proceedings by or against either of the parties, or the appointment of a
custodian, trustee, receiver or similar person for any of the parties’
properties or businesses, (vi) an assignment by either of parties of any of its
assets for the benefit of its creditors, and any action of the parties for the
purpose of effecting or facilitating any of the foregoing.
8.4 Notwithstanding
any termination of this Agreement, the Client shall remain obligated to provide
payment to Wi for any
services performed up to and including the Termination Date hereunder consistent
with the terms and conditions of paragraph 2 above.
8.5 Upon
termination of this Agreement for whatever reason, each party agrees, upon
request of the disclosing party, to deliver promptly to such other party any
documents or other tangible materials reflecting Proprietary Information of such
other party and any copies thereof which the party receiving such Proprietary
Information may have made, may have access to, or may receive or possess during
the period of its discussions and/or business relationship with the other party,
including this Agreement. Upon termination of this Agreement, the
party receiving such Proprietary Information shall promptly delete all
electronic, magnetic and computer records of such Proprietary Information from
any medium recorded or stored by the receiving party. The work product, defined
as all work performed by Wi pursuant to the terms of
this Agreement and all property and devices, including design documentation,
prototyping documentation, and prototyping assistance, along with any and all
other designs, ideas, inventions, improvements or materials conceived, developed
or authored by Wi while
performing services for the Client under the terms of this Agreement (see
Section 5.1) shall not be subject to this requirement.
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9.
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No
Authority to Bind Client
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Wi has no authority to enter
into contracts or agreements on behalf of Client. This Agreement does
not create any partnership or joint venture between the parties in conjunction
with of the services to be performed by Wi.
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10.
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Waiver
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The waiver of either party of the
breach of any provision of this Agreement shall not operate, or be construed, as
a waiver of a subsequent breach.
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11.
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Attorneys’
Fees
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In the event of any breach of this
Agreement by either party, the substantially prevailing party in any litigation
or arbitration involving such breach shall be entitled to an award of reasonable
attorneys’ fees and costs incurred in presenting or defending against such
litigation or arbitration, including any reasonable fees and costs incurred in
conjunction with any appeal of such proceeding, or in conjunction with any
effort to collect or secure any remedy which may have been awarded in
conjunction with such proceeding.
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12.
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Modification
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No change, modification or waiver of
any term of this Agreement, the scope of work outlined in Exhibit A, or the form
of payment outlined in paragraph 2 herein, shall be valid unless it is in
writing and signed by both Wi and the
Client.
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13.
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Applicable Law and Choice of
Venue
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This Agreement shall be governed by,
and construed and enforced in accordance with the laws of Colorado without
regard to any conflict of law principles, and the exclusive venue for resolution
of any dispute arising out of the terms and conditions of this Agreement shall
be the District Court for the City and County of Denver, State of
Colorado.
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14.
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Entire
Agreement, Time
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This Agreement supersedes all previous
agreements, and constitutes the entire agreement between the parties as to the
services, and all transactions between the parties will be governed exclusively
by this Agreement. Time is of the essence to this Agreement.
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15.
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Notices
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Any notice given in connection with
this Agreement shall be given in writing and shall be delivered either by hand
delivery to the other party or by certified mail, return receipt requested, to
the other party if the other party’s address stated herein. Either
party may change its address stated herein by giving notice to the change in
accordance with this paragraph.
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16.
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Headings
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The headings have been inserted for
convenience only and are not to be considered when interpreting the provisions
of this Agreement.
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Wi Inc
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Client:
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Print Name:
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Title:
Chief Operating Officer
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Title:
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President
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Exhibit
A
4/30/2010
Proposal Rev D provide by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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