DNAPRINT/XXXX XXXXXXX CONSULTING CONTRACT
This Consulting Contract Agreement (this "Agreement") is made and entered into
as of June 12, 2002 (the "Effective Date") by and between DNAprint genomics, a
Utah corporation, (hereinafter "DNAPRINT") and Xxxx Xxxxxxx (hereinafter
"CONSULTANT").
Recitals
DNAPRINT is the patent owner of certain SNP markers and methods, and desires to
collaborate with CONSULTANT to develop a kit product that could be used to infer
Ancestry Admixture Ratios in individual human beings.
CONSULTANT is the inventor of certain compositions and methods useful for
determining Ancestry Admixture Ratios in individual human beings. CONSULTANT is
also the owner of certain DNA samples collected from individuals of various
ancestries, and of certain rights therein. CONSULTANT wishes to commercialize
his compositions and methods.
NOW, THEREFORE, in consideration of these premises, as well as the obligations
herein made and undertaken, the parties hereto do hereby agree to develop a
diagnostic kit for the inference of Ancestry Admixture Ratios in individual
human beings. The goals of the PROJECT will be
1) To create a panel of Ancestry Informative Markers (AIMs) that can be
accurately, specifically and sensitively used to infer the relative
ancestral admixture ratios in individuals, with respect to a list of target
ancestral groups. Definitions of adequate accuracy, specifically,
sensitivity, and target groups will be determined jointly by DNAPRINT and
CONSULTANT.
2) To evaluate the panel for fitness as a commercial product for immediate
development.
3) To obtain a license from a third party manufacturer that will allow
DNAPRINT to efficiently commercialize the product.
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4) To commercialize the product.
5) To provide customer support for the product.
1. SERVICES
1.1 Provision. CONSULTANT will provide DNAPRINT with DNA samples. DNAPRINT
will score genotypes for a panel of Ancestry Informative Markers
(AIMs) agreed to by both parties. DNAPRINT will transfer this data to
CONSULTANT. DNAPRINT will provide all necessary consumables, labor and
equipment for determining and transferring these genotypes. CONSULTANT
will provide all necessary labor and expertise necessary for
evaluating these genotype scores. Both parties will contribute towards
effecting the following plan:
1.1.1 DNAPrint will genotype all AIMs, in groups of 12, in
multiplex. Analyzing the AIMs using DNAPRINT's UHT machine,
a single UHT plate of 12 AIMs for 384 individuals at a time.
Data will be made for all DNAPRINT and CONSULTANT AIMs
together on a single panel of individuals from several
target populations, for example African, African-American,
European, European-American, Native American, Hispanic, East
Asian and South Asian heritage.
1.1.2 CONSULTANT will evaluate the Admixture proportions and the
ability to classify individuals of each ancestral group.
1.1.3 DNAPRINT and CONSULTANT will define a minimum and optimum
set of AIMs necessary for achieving product goals.
1.1.4 DNAPRINT will modify CONSULTANTS existing computer software
programs with the intent of commercializing them to achieve
the goals of the project.
1.1.5 DNAPRINT and CONSULTANT will test the "product" with blind
classifications for a selection of individuals representing
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the target groups used to generate allele frequencies in
1.1.1 above.
1.1.6 DNAPRINT will commercialize the product that results (if
any). DNAPrint will arrange for mass-production of the
plastics and chemicals necessary for use of the kit.
1.1.7 CONSULTANT will assist DNAPRINT in providing customer
support for the product produced by writing documentation
for the method and software and outlining procedures for
troubleshooting.
2. TERMS
2.1. Exclusivity. CONSULTANT agrees that DNAPRINT is the exclusive
beneficiary of his expertise, services, compositions and methods
related to the goals of the project during the term of this agreement.
DNAPRINT agrees that CONSULTANT is the company's exclusive CONSULTANT
for the PROJECT, and that it will not enter into similar relationships
with others during the term of this agreement.
2.2. Payment.
2.2.1. DNAPRINT will provide CONSULTANT with quarterly payments
of $4,000 and 50,000 shares of restricted stock for the term
of this contract.
2.2.2. DNAPRINT will provide CONSULTANT with 5,000 shares of
restricted stock for each $10,000 in net sales that are
realized over the life of the products that are generated as
a result of this collaboration. In the event of sale of
DNAPRINT during the term of this agreement to a party that
elects to continue the project/product, CONSULTANT will be
paid with shares of the purchasing party using the same
stock conversion ratio as used for the purchase. In the
event of sale of DNAPRINT during the term of this agreement
to a party that does not continue the project under the
terms herein, or within one year after the termination date
of this agreement, CONSULTANT will be provided with 50% of
the proportional that proportion of company value of the
company based on attributed by the net present value of the
product(s) created though the efforts of this PROJECT, as of
the day of the payment.
2.3. Transfer. DNAPRINT will physically or electronically transfer data to
CONSULTANT and CONSULTANT will physically or electronically transfer
samples, software and data in a manner agreed upon by both parties.
2.4. Expenses. All travel expenses incurred by the CONSUTANT required to
support this collaboration will be paid by DNAPRINT. All planned
travel expenses will be pre-approved by the management of DNAPRINT
3. CONTINUATION, TERM and TERMINATION.
3.1. Services. The term of the agreement is 2 years. After this term, the
Agreement shall renew for consecutive two year terms unless terminated
by either party prior to the expiration of a term. If DNAPRINT
terminates the agreement independently, CONSULTANT continues to
receive payment as specified in 2.2.2. If CONSULTANT terminates the
agreement independently after the first 2 year term, CONSULTANT
continues to receive payments as specified in paragraph 2.2.2.
However, if the CONSULTANT terminates the agreement independently
prior to the first two years, paragraph 2.2.2., will not apply. In
either the case of independent termination by DNAPRINT or CONSULTANT,
or mutual termination, payments as specified in paragraph 2.2.1. will
cease after termination. Upon termination, payments as specified in
paragraph 2.2.1 will be prorated given the date of termination.
3.2. Termination. In the event that one party wishes to terminate this
agreement a letter of intent will be sent to the other party as
stipulated in Section 8.1. After receipt the other party has two weeks
to respond in writing. One option is to request Mediation and
Arbitration as defined in Section 7. Alternatively, the other party
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could agree to the termination as mutual. Upon discontinuation of the
agreement, CONSULTANT will return all data directly or indirectly
enabled by DNAPRINT's contribution to the project to DNAPRINT.
5. RESTRICTIONS ON USE
5.1 CONSULTANT agrees and understands that any and all data, software
improvements, methods, compositions and commercial rights are the
property of DNAPRINT, and that CONSULTANT acquires no rights therein
and that it can use DNAPRINT data, including any Documentation, only
for legitimate scientific research as previously approved by DNAPRINT,
and for no other purpose whatsoever.
5.2 Privacy. Genotyping data is the property of DNAPRINT, and CONSULTANT
may not sell, loan, disclose or present DNAPRINT data in any manner
whatsoever, unless requested by or agreed to by DNAPRINT.
6. Limited Warranty; Limitation of Liability
6.1 Limited Warranty. DNAPRINT represents and warrants to CONSULTANT that
DNAPRINT has the authority and licenses necessary to use its
equipment, compositions and methods for the goals of this project.
CONSULTANT warrants to DNAPRINT that he is the inventor of record for
the compositions and methods contributed by CONSULTANT to the project.
DNAPRINT and CONSULTANT disclaim all other warranties, express or
implied, with regard to the data, including all implied warranties of
merchantability, fitness for a particular purpose, title, and
non-infringement.
6.2 Limitation on Liability. Neither party shall be liable to the other
for any indirect, consequential, special or incidental damages
(including damages for loss of business profits, business
interruption, loss of business information, and the like) arising out
of this Agreement even if such party has been advised of the
possibility of such damages.
7. Mediation and Arbitration
7.1 Mediation and arbitration approach. The parties agree to select a
mutually agreeable, neutral third party to help them mediate any
dispute that arises under the terms of this Agreement. Costs and fees
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associated with the mediation will be shared equally by the parties.
7.2 Arbitration. If the mediation is unsuccessful, the parties agree that
the dispute will be decided by binding arbitration under the rules of
the American Arbitration Association. The decision of the arbitrators
will be final and binding on the parties and may be entered and
enforced in any court of competent jurisdiction by either party. The
prevailing party in the arbitration proceedings will be awarded
reasonable attorney fees, expert witness costs and expenses, and all
other reasonable costs and expenses incurred in connection with the
proceedings, unless the arbitrators for good cause determine
otherwise.
8. General
8.1 Notices. Any notice required or permitted hereunder must be in
writing, and will be effective on the date of delivery when delivered
personally, the next business day after dispatch when sent by Federal
Express or other recognized overnight courier service, or the fifth
business day after dispatch when sent by certified mail, postage
prepaid, return receipt requested. Notices should be addressed to the
other party at the address shown below or at such other address as a
party may designate by ten days' advance written notice to the other
party:
DNAPRINT GENOMICS, INC. XXXX XXXXXXX.
000 Xxxxxxxx, Xxx. 000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
8.2 Entire Agreement; Modifications. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be
modified or amended only by a writing executed by a duly authorized
representative of each party.
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8.3 Force Majeure. Neither party will be liable to the other for any
failure or delay caused by events beyond such party's control,
including, without limitation, sabotage, terrorism, riots,
insurrections, fires, flood, storm, explosions, war or earthquakes.
However, if such events have a material impact on the satisfaction of
this Agreement, and shall continue for thirty (30) days or more, the
other party shall have the option of terminating this Agreement by
giving written notice of termination.
8.4 Change in Law; Change in Circumstances. No party shall make or receive
any payment or take any action under this Agreement if any judicial
decision, legislative action, or regulatory or other administrative
interpretation, whether federal or state, would render illegal the
conduct of either party under this Agreement. If performance by either
party of any term of this Agreement should be deemed illegal by any
party or third party who is essential to performance of this Agreement
for any such reason, either party shall have the right to require that
the other party renegotiate the terms of this Agreement.
8.5 Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto, their successors and permitted assigns.
Either party may assign this Agreement in its entirety to a successor
corporation upon notice to the other party in the event of a merger or
an acquisition of all or substantially all of the assets of the
assigning party. This agreement between DNAPRINT and CONSULTANT will
survive and insure to the benefit of the other party through any and
all mergers, acquisitions, or change in ownership.
8.6 Governing Law. All questions concerning the validity, operation,
interpretation, and construction of this Agreement will be governed by
and determined in accordance with the laws of the State of Florida,
without regard to its conflict of laws provisions. Application of the
United Nations Convention on Contracts for the International Sale of
Goods is specifically excluded.
8.7 Severability. If a court of competent jurisdiction determines that any
provision of this Agreement is invalid, illegal, or otherwise
unenforceable, such provision shall be replaced with a valid,
enforceable provision as nearly as possible in accordance with the
stated intention of the parties, while the remainder of this Agreement
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shall remain in full force and effect. To the extent any provision
cannot be enforced in accordance with the stated intentions of the
parties, such provision shall be deemed not to be a part of this
Agreement.
8.8 Counterparts. This agreement may be executed in any number of
counterparts, all of which together will constitute one and the same
instrument.
IN WITNESS THEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as set forth below:
DNAPRINT GENOMICS CONSULTANT
By:/s/Xxxx Xxxxxxxx By:/s/Xxxx X. Xxxxxxx
Xxxx Xxxxxxxx, Ph.D. Xxxx X. Xxxxxxx, Ph.D.
CEO
