EXHIBIT 10.14
TASK ORDER AGREEMENT
AGREEMENT NUMBER OP35085
BATTELLE MEMORIAL INSTITUTE, through its COLUMBUS OPERATIONS (BATTELLE) agrees
to provide to ELECTRO-OPTICAL SCIENCES, INC. (CLIENT) technical/research
services through individual Tasks as mutually agreed in writing, under the
following terms and conditions:
1. ACCEPTANCE AND TASK AUTHORIZATIONS
This Agreement will become effective upon BATTELLE's receipt of an executed copy
of this Agreement from CLIENT and will continue until terminated by either
party. BATTELLE will submit separate written proposals for individual Tasks
under this Agreement, and such Task proposals shall become part of this
Agreement upon CLIENT's written acceptance thereof.
2. PAYMENT
CLIENT agrees to pay BATTELLE's charges for labor services and other expenses
for performance in the amount(s) established by mutual written agreement for
each individual Task. CLIENT agrees to pay BATTELLE's charges, without set-off,
as follows:
A. Initial payment of one-third (1/3) of the total estimated cost of the Task
Order, due prior to commencement of Project activities.
B. Thereafter, payment of monthly invoices based upon costs incurred.
CLIENT will not be required to reimburse and BATTELLE will not be required to
incur charges in excess of the estimate established for a Task unless mutually
agreed upon in writing. Invoices not paid within the prescribed payment period
for a Task shall accrue interest at the rate of two percent (2%) per month. The
amount above includes current Federal, state or local taxes levied in the United
States on this Agreement or on the wages paid to BATTELLE U.S. employees. Any
other present or future taxes, duties, tariffs, fees or other charges, including
but not limited to excise, import, purchase, sales, use, turnover, added value,
consular, gross receipts, gross wages or other assessments imposed by the
government of any other country or subdivision thereof shall be the obligation
of CLIENT. Any such amounts paid by BATTELLE shall be added to the estimated
amount above and paid by CLIENT within thirty (30) days of the date of invoice.
Payments shall be made in United States Dollars.
3. INTELLECTUAL PROPERTY
Title to all technical data including, but not limited to, drawings, bills of
material, flow diagrams, layout details and specifications and contents thereof
furnished to BATTELLE by CLIENT shall remain with CLIENT. BATTELLE shall have
the right to use such data as it may receive hereunder from CLIENT only for the
purposes stated herein.
All tangible work product of BATTELLE created under the Project, including, but
no limited to, any drawings, plans, sketches or other documents and any
prototypes (hereafter "Work Product"), shall be exclusive property of CLIENT;
provided that BATTELLE may retain and use copies of the Work Product delivered
under this Agreement for the purposes intended and for archival purposes.
Task Order Agreement No. xxxxxxx
Should BATTELLE develop any novel and useful ideas, innovations, or inventions,
whether or not patentable, directly in the performance of this Project within
the scope of the Project (Project IP), BATTELLE shall so inform CLIENT. BATTELLE
may file for Letters Patent on Project IP, and where the Project IP constitutes
an Improvement (as hereinafter defined), BATTELLE grants CLIENT an exclusive,
paid-up, royalty-free, worldwide license, including the right to sublicense to
all rights under Project IP retained by BATTELLE in the CLIENT Field; and where
the Project IP is not an Improvement, BATTELLE shall negotiate in good faith
with CLIENT regarding an exclusive worldwide license to practice such Project
IP, including the rights to sublicense to all rights under such Project IP in
the CLIENT Field (as defined below).
If BATTELLE does not pursue the patenting of any such Project IP within one (1)
year of the Project final report, either BATTELLE or CLIENT may file for
Letters Patent on any such Project IP. To enable CLIENT to do so, upon CLIENT's
request BATTELLE shall assign to CLIENT all right, title and interest in and to
any such Project IP. CLIENT grants BATTELLE an exclusive, paid-up,
royalty-free, worldwide license, including the right to sublicense, to all
rights under Project IP that is assigned to CLIENT, in all fields outside the
CLIENT Field.
An "Improvement" is defined as Project IP which can be practiced only by using
existing proprietary, non-public CLIENT technical data received by BATTELLE
hereunder.
The "CLIENT Field" is defined as the application of computer vision technology
and related optics to obtaining information relevant to the diagnosis of
diseases to human skin and other epithelial tissues.
The party who has filed or issued a patent application covering Project IP (the
"filing party") shall notify the other party in writing of its intent to
abandon the prosecution or maintenance of any patent application or patent
covering Project IP at least forty-five (45) days prior to the last day on
which action is required to preserve such applications or patents from
abandonment so that the other may, at its option and its own expense, take the
required action or authorize the filing party to take such action.
In the event CLIENT is in material breach of its payment obligations under this
Agreement, or is otherwise in material breach of its obligations under this
Agreement, no rights described in this provision shall accrue to CLIENT.
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 the Office of the General Counsel 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.
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.
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Task Order Agreement No. xxxxxxx
5. CONFIDENTIALITY
BATTELLE agrees not to disclose the specific results of any Task performed
hereunder, 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 rights to
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.
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 PROVIDES 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.
CLIENT assumes all responsibility for its use, misuse, or inability to use the
results of any Task performed pursuant to this Agreement, and in no event shall
BATTELLE have any liability for damages, including but not limited to any
indirect, incidental or consequential damages, arising from or in connection
with this Agreement.
CLIENT agrees to indemnify and hold BATTELLE harmless from any and all
liabilities, suits, claims, demands and damages, and all costs and expenses
in connection therewith, asserted by third parties from any cause whatsoever
arising out of this Agreement or any Task performed pursuant hereto, except
for injury or damage occurring during performance of a Task under this
Agreement on BATTELLE-owned premises where fault of CLIENT is not a
contributing cause.
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 post market
approvals, certifications, registrations, licenses, or permits.
8. PRODUCT LIABILITY INSURANCE/CLINICAL TRIALS 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.
If any work product(s) developed under this agreement are used by CLIENT in
clinical trial(s), CLIENT agrees to maintain adequate clinical trials liability
insurance coverage in amounts customary and prudent for a responsible entity in
its industry in light of the nature of its products. Such insurance shall cover
any CLIENT products that may be developed in whole or in part based on
BATTELLE's work under this
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Agreement and used in a clinical trial. CLIENT shall provide a certificate of
insurance to BATTELLE evidencing such coverage 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. Any such termination shall not
affect any Tasks in progress, unless such Task termination is accomplished as a
separate action. In the event of a Task termination, BATTELLE agrees to provide
CLIENT with all reports, materials, or other deliverable items available as of
the date of 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.
11. U.S. EXPORT CONTROL
CLIENT agrees not to export or re-export any products, materials, items and/or
technical data, or the products(s) thereof, received from Battelle unless CLIENT
has obtained in advance all required licenses, agreements or other
authorizations from the U.S. Government. Exports include, without limitation,
the sending or taking of products, materials, items or technical data out of the
United States in any manner; disclosing or transferring technical data to a
Foreign Person (i.e. any person who is not a lawful permanent resident of the
U.S. or is not a protected individual as defined by 8 U.S.C sections 1101 and
1324) whether in the United States or abroad; or performing services for a
foreign client, whether in the United States or abroad.
12. ENTIRE AGREEMENT
This Agreement, including any Task Proposals now or in the future 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 Task Proposals accepted pursuant to
this Agreement, these terms and conditions shall control.
13. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws and enforced
within the jurisdiction of the State of Ohio, without regard to its principles
of conflicts of law.
14. 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
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Task Order Agreement No. XXXXXXX
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.
ELECTRO-OPTICAL SCIENCES, INC. BATTELLE MEMORIAL INSTITUTE
COLUMBUS OPERATIONS
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxxx Name Xxxx X. Xxxxxx
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Title Vice President Title Contracting Officer
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Date July 13, 2005 Date July 13, 2005
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