EXHIBIT 10.19
AGREEMENT
Between
XXXXXX, INC.
hereinafter called
XXXXXX
and
SMITHKLINE XXXXXXX CORPORATION
hereinafter called
CLIENT
Xxxxxx agrees to provide Client with services for the design and development of
a Point of Care Diagnostic Analyzer substantially in accordance with Xxxxxx'x
proposal dated September 15, 1995 (the "Proposal"), which is incorporated
herein, subject to the following terms and conditions (the "Project"):
1. TERM
Xxxxxx will begin work on the Project within thirty (30) days of receipt of this
Agreement executed by Client and will continue for a period of seven (7) months,
from Phase 0 through Phase 4, subject to the terms and conditions of this
Agreement.
2. PAYMENT
Xxxxxx estimates that the price to the Client for performance of the Project
will be One Hundred Sixty-Seven Thousand Five Hundred Dollars ($167,500.00) as
set forth in the Fee Schedule. To initiate the Project, Client shall advance
Eight Thousand Dollars ($8,000) which amount shall be deducted from the final
invoice and Client shall provide Xxxxxx with a purchase order and executed
Authorization to Proceed. Prior to each Phase, Client shall provide Xxxxxx with
a purchase order or, to the extent same is not feasible, an Authorization to
Proceed executed by an authorized officer of Client. Xxxxxx shall present
invoices at the earlier of the end of each month or the end of each Phase which
shall be payable fifteen (15) days from the invoice date. If Client shall not
have paid any invoice twenty-two (22) days from the invoice date, Xxxxxx may
discontinue the Project until such invoice is paid in full and Xxxxxx'x
commitment to delivery dates shall be adjusted accordingly. In the event Client
fails to make payment with the applicable twenty-two (22) day period with
respect to at least two invoices, Xxxxxx may re-evaluate the noted payment
terms. Client shall not be required to
reimburse, and Xxxxxx shall not be required to incur, any charges for
performance in excess of the above price, unless mutually agreed upon in
writing. If Client or Xxxxxx requests activities that constitute a change of
scope from the Proposal or if additional information is discovered which
increases the complexity of the Project, Xxxxxx shall provide a work change
order ("WCO") which must be approved by Client. Pending approval of the WCO,
Xxxxxx shall not implement a change of scope. Upon termination of the Project,
and after all costs are available, any balance of payments by Client in excess
of actual costs and fees incurred shall be credited or refunded to Client,
unless said refund shall be less than One Hundred Dollars ($100.00). Certain
designated expenses are not included in the above estimated price and, when
authorized by Client, will be invoiced seperately when incurred as follows: (i)
travel time at a 50% rate, (ii) travel expenses at cost, (iii) marketing
expenses at cost, and (iv) materials and outside services at cost plus 15%.
3. OWNERSHIP
The parties agree that all Work (which shall include for purposes of this
Section all ideas, processes, methodologies, software, algorithms, formulae,
notes, outlines, paragraphs, inventions, improvements and other information and
work product developed or generated by or on behalf of Xxxxxx during the course
of its performance of the Project pursuant to this Agreement) shall be
considered "works made for hire" within the meaning of the Copyright Act of
1976, 17 U.S.C.(SS)101, and that Client is and shall be the sole author of the
Work, and the sole owner of all rights therein, including but not limited to all
rights of copyright. In the event any of the Work is deemed not to be a "work
made for hire," then Xxxxxx hereby transfers to Client, without further
consideration, all right, title, and interest to such Work, including any and
all patents, copyrights, trade secrets and other proprietary rights related
thereto. Xxxxxx agrees to promptly execute and deliver, or cause to be promptly
executed and delivered, all documents and instruments requested by Client to
evidence the foregoing assignment. Xxxxxx hereby irrevocably appoints Client as
Xxxxxx'x attorney-in-fact for the purpose of executing such documents and
instruments in Xxxxxx'x name. Xxxxxx represents and warrants that it has the
right to grant to Client sole right, title and interest in and to the Work, and
that ownership or use of the Work by Client will not constitute an infringement
of any third-party patent, copyright, trade secret or other proprietary right.
4. INVENTIONS
If Xxxxxx employees conceive and first actually reduce to practice an invention
within the scope of the Project while working on the Project, Xxxxxx will
promptly notify Client of the invention and shall be deemed to have assigned to
Client any and all of its rights to such invention. Upon request, within sixty
(60) days of the notification, Xxxxxx will also assist Client in preparing and
prosecuting an application for Letters Patent. The costs of providing such
assistance are not included in the Project estimate stated in Section 2
-2-
above, and Client agrees to pay such costs in addition to any other amounts
payable under this Agreement.
5. CONFIDENTIALITY
Xxxxxx acknowledges that it may be exposed or have access to trade secrets and
other confidential business information of Client or other entities with which
Client has business relationships. Such information, referred to hereinafter as
"Confidential Data," shall include all information concerning the business or
affairs or Client that is not known by or generally available to third parties,
including, without limitation, existing systems and programs and those in
development, customer lists, customer needs and requirements, employee lists,
salaries and benefits, and all data received in confidence by Client from third
parties. Xxxxxx agrees that during its business dealings with Client and
thereafter (i) it will hold all Confidential Data in the strictest confidence
and will not copy or disclose any portion thereof to any person or entity,
except its employees who have a need to know, without the prior written consent
of Client; (ii) it will comply, and cause each of its employees to comply, with
Client's policies on data and information security; (iii) it will not make any
use whatsoever of any Confidential Data except to perform services in connection
with the Work pursuant to this Agreement; and (iv) upon termination of its
business dealings with Client or at any time upon Client's request, it will
immediately return to Client all Confidential Data in its possession or in the
possession of its employees.
6. REPORTS AND USE OF RESULTS BY CLIENT
Xxxxxx agrees to render to Client written reports of its findings and progress
made during the term of the Agreement, at intervals agreed upon by the parties.
Client may use the results of the Projects as Client sees fit.
Xxxxxx will provide a high standard of professional service. Xxxxxx warrants
that services provided hereunder shall be performed in a competent and
workmanlike manner and that each item of Work furnished to Client pursuant to
this Agreement shall conform with its description and specifications as set
forth in the Proposal.
7. INDEPENDENT CONTRACTORS
Client and Xxxxxx are independent contractors, are not related and shall not be
construed as co-employers, joint venturers, partners or otherwise. Xxxxxx shall
be responsible for payment of all wages and/or salaries and benefits due to its
employees. Notwithstanding the above, Client will, if appropriate, deduct
applicable taxes from Xxxxxx'x compensation for services performed under this
Agreement. Upon Client's request, Xxxxxx will provide Client with certificates
of insurance evidencing that its employees are covered by; (i) general liability
insurance with a minimum limit of $1
-3-
million combined single limit bodily injury and property damage; and (ii)
workmen's compensation insurance in the state in which each Xxxxxx employee is
employed.
8. INDEMNITY
Client agrees to indemnify and hold Xxxxxx harmless from any and all claims or
suits, and all costs and expenses in connection therewith, for or arising out of
Xxxxxx'x performance under this Agreement, other than for injury or damage
occurring (i) as a result of a breach of this Agreement by Xxxxxx, or (iii) as a
result of the negligence or improper act or omission of Xxxxxx or any employee
or agent thereof. Notwithstanding the foregoing, Client's indemnity of Xxxxxx is
contingent upon Xxxxxx promptly notifying Client of any claim and/or suit
whereby Client may conduct and control the defense thereof with the cooperation
of Xxxxxx and may defend or settle such suit or claim in its discretion.
9. FORCE MAJEURE
Neither Client nor Xxxxxx shall be liable in any way for failure to perform any
provision of this Agreement (except the 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 contract upon thirty (30)
days' written notice. In the event of early termination, Xxxxxx agrees to: (i)
provide Client with all reports, materials, or other deliverable items available
as of the date of termination, and (ii) refund the applicable pro rata portion
of the estimated payment as set forth in Section 2. In any event, Client agrees
to pay all appropriate and reasonable costs incurred or committed by Xxxxxx
including costs of termination, within thirty (30) days of receipt of a final
invoice, which invoice is subject to review and approval by Client.
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11. GENERAL
This Agreement and the Proposal incorporated herein represent the entire
Agreement of the parties, and may be modified or amended only by mutual
agreement in writing. This Agreement shall not be assigned by either party
without the prior written consent of the other party, except that Client may
assign this Agreement to an affiliate without the prior written consent of
Xxxxxx. This Agreement shall be governed by and is to be construed in accordance
with the laws of and enforced within the jurisdiction of Pennsylvania.
SMITHKLINE XXXXXXX XXXXXX,INC.
CORPORATION
By /s/ X. Xxxxxxx Stoughton By /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------
Title President Title Vice President
------------------------ --------------------
Date 2/28/96 Date 12/7/95
-------------------- --------------------
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CONSENT TO ASSIGNMENT
The undersigned hereby consents to the assignment by SmithKline Xxxxxxx
Corporation, a Pennsylvania corporation ("SB"), to Exigent Diagnostics, Inc., a
Delaware corporation ("Assignee"), of all of the rights of SB under the
Agreement by and between the undersigned and SB dated as of February 28, 1996,
(the "Agreement"). For purposes of this consent, "Effective Time of the
Assignment" means the effective time of the closing of Assignee's purchase of
the assets of SmithKline Xxxxxxx Diagnostic Systems Co., a Pennsylvania limited
liability company. In executing this consent, the undersigned agrees that SB
will be responsible for obligations arising under the Agreement prior to the
Effective Time of the Assignment and Assignee will be responsible for any
obligations arising under the Agreement after the Effective Time of the
Assignment.
XXXXXX.XXX
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Xxxxxx. Inc.
