EXHIBIT 10(c)
BETWEEN
MARC PHARMACEUTICALS, INC.
(SPONSOR)
AND
WEILL MEDICAL COLLEGE OF CORNELL UNIVERSITY
(WMC)
XX. XXXX X. XXXXXX
This ("AGREEMENT") is made as of the 21st
day of January 2004 by and between Cornell University for its Weill Medical
College ("WMC"), a non-profit corporation of the State of New York, with offices
located at 0000 Xxxx Xxxxxx, X000, Xxx Xxxx, Xxx Xxxx 00000, and MARC
Pharmaceuticals, Inc., a corporation organized and existing under the laws of
the State of Delaware ("SPONSOR"), with offices located at 000 Xxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000.
WHEREAS, SPONSOR and WMC have entered into, on June 19, 2002, a
with Xx. Xxxx X. Xxxxxx as Principal Investigator
(the "ORIGINAL RESEARCH AGREEMENT");
WHEREAS, SPONSOR desires to fund additional research of Xx. Xxxx X.
Xxxxxx as Principal Investigator with the assistance of Xx. Xxxxxxx Xxxxxxxx of
WMC in certain specific areas;
WHEREAS, SPONSOR desires to support such research conducted by WMC
under the terms and conditions of this AGREEMENT; and
WHEREAS, the research program described in this AGREEMENT is of mutual
interest to SPONSOR and WMC and furthers the educational and research objectives
of WMC as a nonprofit, tax-exempt educational institution, and may benefit both
SPONSOR and WMC through the creation of new inventions.
NOW, THEREFORE, in consideration of the promises and covenants
contained in this AGREEMENT, and intending to be legally bound, the parties
agree as follows:
1. DEFINITIONS
1.1 INTELLECTUAL PROPERTY means all patentable inventions conceived
and/or reduced to practice in the conduct of the SPONSORED RESEARCH during the
term of this AGREEMENT, including all United States and foreign patent
applications claiming said patentable inventions,
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including inventions in the field of HIV/AIDS, including any divisional,
continuation, continuation-in-part (to the extent that the claims are directed
to said patentable inventions), and foreign equivalents thereof, as well as any
patents issued thereon or reissues or reexaminations thereof. INTELLECTUAL
PROPERTY also means all copyrightable works of authorship created in the conduct
of the SPONSORED RESEARCH during the term of this AGREEMENT.
1.2 WMC INTELLECTUAL PROPERTY means INTELLECTUAL PROPERTY conceived
and/or reduced to practice solely by one or more WMC personnel. Notwithstanding
anything in this AGREEMENT to the contrary, inventorship of WMC INTELLECTUAL
PROPERTY shall be determined in accordance with the laws of the United States.
1.3 SPONSOR INTELLECTUAL PROPERTY means INTELLECTUAL PROPERTY conceived
and/or reduced to practice solely by one or more SPONSOR personnel.
Notwithstanding anything in this AGREEMENT to the contrary, inventorship of
SPONSOR INTELLECTUAL PROPERTY shall be determined in accordance with the laws of
the United States.
1.4 JOINT INTELLECTUAL PROPERTY means INTELLECTUAL PROPERTY conceived
and/or reduced to practice jointly by one or more WMC personnel and one or more
SPONSOR personnel. Notwithstanding anything in this AGREEMENT to the contrary,
inventorship of JOINT INTELLECTUAL PROPERTY shall be determined in accordance
with the laws of the United States.
1.5 PRINCIPAL INVESTIGATOR is Xx. Xxxx X. Xxxxxx, who is responsible
for supervision and administration of the SPONSORED RESEARCH.
1.6 RESEARCH RESULTS means all data and information which are generated
in the performance of the SPONSORED RESEARCH during the term of this AGREEMENT.
RESEARCH RESULTS expressly excludes WMC INTELLECTUAL PROPERTY, SPONSOR
INTELLECTUAL PROPERTY and JOINT INTELLECTUAL PROPERTY.
1.9 SPONSORED RESEARCH means the research program described in Attachment A to
this AGREEMENT, as said research program may be revised from time to time by
mutual written agreement of the parties, as provided herein.
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1.10 EXCLUSIVE LICENSE AGREEMENT means the Exclusive License Agreement
dated as of even date herewith by and between SPONSER and WMC.
1.11 EFFECTIVE DATE means April 1, 2004, unless SPONSOR delays the
EFFECTIVE DATE for up to ninety (90) days pending the receipt of funding under
its initial public offering.
2. SPONSORED RESEARCH
2.1 WMC shall begin the SPONSORED RESEARCH within sixty (60) days after
the EFFECTIVE DATE, provided that SPONSOR has timely made the FIRST SPONSORSHIP
PAYMENT required hereunder. WMC agrees to use diligent efforts to conduct the
SPONSORED RESEARCH in accordance with the terms and conditions of this
AGREEMENT. SPONSOR acknowledges that WMC and the PRINCIPAL INVESTIGATOR shall
have the freedom to conduct and supervise the SPONSORED RESEARCH in a manner
consistent with WMC's educational and research missions.
2.2 SPONSOR may terminate this AGREEMENT for any reason at any time
after ninety (90) days after the EFFECTIVE DATE, effective immediately upon
written notice to WMC and subject to the provisions of Paragraph 9.3 hereof. In
addition WMC may terminate this AGREEMENT for any reason upon ninety (90) days
prior written notice to the SPONSOR.
2.3 If the services of the PRINCIPAL INVESTIGATOR become unavailable to
WMC for any reason, WMC and SPONSOR shall negotiate in good faith the
designation of another member of WMC's faculty to serve as the PRINCIPAL
INVESTIGATOR of the SPONSORED RESEARCH. If the parties are unable to agree upon
a substitute PRINCIPAL INVESTIGATOR within sixty (60) days after the original
PRINCIPAL INVESTIGATOR ceases his or her services under this AGREEMENT, either
party may terminate this AGREEMENT upon written notice to the other party and
subject to the provisions of Paragraph 9.3 hereof.
2.4 The parties may, from time to time and at any time, by mutual
written agreement, make changes to the general scope of the SPONSORED RESEARCH,
including but not limited to the following: (a) adding to or deleting portions
of the work to be done; (b) revising the schedule for performance; or (c)
increasing or decreasing the amount of SPONSORSHIP PAYMENTS.
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3. TERM OF AGREEMENT
3.1 The term of this AGREEMENT shall begin on the EFFECTIVE DATE and
continue for a period of three (3) years thereafter unless terminated sooner
pursuant to Paragraphs 2.2, 2.3, 9.1 or 9.2 hereof. This AGREEMENT may be
extended or renewed only by mutual written agreement executed by duly authorized
representatives of the parties.
4. SPONSORSHIP PAYMENTS, REIMBURSEMENT OF COSTS
4.1 SPONSOR shall make payments to WMC for a total of One Million
Dollars ($1,000,000), inclusive of 25% of overhead costs for a three (3) year
period as follows:
$187,500 on the EFFECTIVE DATE
$187,500 within one hundred and eighty (180) days after the
EFFECTIVE DATE
$312,500 within sixty (60) days after the first anniversary of the
EFFECTIVE DATE
$312,500 within sixty (60) days after the second anniversary of the
EFFECTIVE DATE
4.2 Any payments by SPONSOR to WMC that are not made on or before
thirty (30) days after the date such payments are due under this AGREEMENT shall
bear interest at a rate equal to one percent (1%) per month, or the maximum
allowed by law, whichever is less, calculated from the date such payment was
due.
4.3 SPONSOR shall not be required to reimburse any costs of WMC,
including, without limitation, any additional overhead costs.
5. RECORDS AND REPORTS
5.1 PRINCIPAL INVESTIGATOR shall maintain records of the results of the
SPONSORED RESEARCH and shall provide SPONSOR with written monthly reports within
ten (10) days after the end of each month during the term of this Agreement and
with a written final report within ninety (90) days of the expiration or earlier
termination of this Agreement, detailing the work actually carried out under,
progress and results of the SPONSORED RESEARCH.
5.2 PRINCIPAL INVESTIGATOR shall make available to SPONSOR for
inspection, review, and copying at any time(s) during the term of this AGREEMENT
and upon reasonable notice to PRINCIPAL INVESTIGATOR and WMC from SPONSOR, all
RESEARCH RESULTS and WMC
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INTELLECTUAL PROPERTY created, invented, discovered, or generated, in whole or
in part, in the conduct of the SPONSORED RESEARCH.
5.3 PRINCIPAL INVESTIGATOR, during the term of this AGREEMENT, shall
copy SPONSOR on all correspondence, reports, and submissions to WMC concerning
or relating to, in whole or in part, RESEARCH RESULTS and WMC INTELLECTUAL
PROPERTY conceived, reduced to practice, invented, discovered, or generated, in
whole or in part, in the conduct of the SPONSORED RESEARCH.
5.4 WMC, during the term of this AGREEMENT, shall copy SPONSOR on all
correspondence, reports, and submissions to PRINCIPAL INVESTIGATOR concerning or
relating to, in whole or in part, RESEARCH RESULTS and WMC INTELLECTUAL PROPERTY
created, invented, discovered, or generated, in whole or in part, in the conduct
of the SPONSORED RESEARCH.
6. SPONSOR'S RIGHTS IN RESEARCH RESULTS AND REPORTS
6.1 Subject to SPONSOR's obligations under Paragraph 8.2, SPONSOR shall
have the royalty-free right to use RESEARCH RESULTS disclosed to SPONSOR in
records and reports and under Article 5 for any reasonable purpose. However,
SPONSOR shall need to obtain a license to use RESEARCH RESULTS from WMC if such
use would infringe any WMC INTELLECTUAL PROPERTY.
6.2 WMC and the PRINCIPAL INVESTIGATOR hereby grant SPONSOR a
royalty-free, nontransferable, non-exclusive right to copy, reproduce and
distribute any research reports or any other information furnished to SPONSOR
under this AGREEMENT. SPONSOR may not charge fees for said research reports, use
said research reports for advertising or promotional activities, or alter or
modify the substantive content of said research reports without the prior
written permission of WMC.
7. INTELLECTUAL PROPERTY
7.1 WMC shall retain all right, title and interest in and to the WMC
INTELLECTUAL PROPERTY and any patents, copyrights and other intellectual
property protections of WMC INTELLECTUAL PROPERTY, subject to Paragraphs 7.5 and
7.8 of this AGREEMENT.
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7.2 SPONSOR shall retain all right, title and interest in and to the
SPONSOR INTELLECTUAL PROPERTY. Responsibility for preparing, filing, prosecuting
and maintaining all patent applications and patents relating to SPONSOR
INTELLECTUAL PROPERTY shall be with the SPONSOR. WMC shall have a perpetual,
non-exclusive license to practice any SPONSOR INTELLECTUAL PROPERTY arising from
the SPONSORED RESEARCH for its own internal academic, non-commercial research
purposes only. For SPONSOR INTELLECTUAL PROPERTY, SPONSOR has the sole right to
grant licenses, subject to WMC's right to use the SPONSOR INTELLECTUAL PROPERTY
for internal academic research purposes as set forth in this Paragraph. Whenever
WMC becomes aware of any infringement or threatened infringement of any patent
relating to SPONSOR INTELLECTUAL PROPERTY, WMC shall notify SPONSOR as soon as
possible.
7.3 JOINT INTELLECTUAL PROPERTY shall be jointly owned by WMC and
SPONSOR. Each of WMC and SPONSOR shall hold an undivided equal interest in the
JOINT INTELLECTUAL PROPERTY.
7.4 PRINCIPAL INVESTIGATOR shall promptly provide to WMC and to SPONSOR
a complete written disclosure upon the creation of any WMC INTELLECTUAL
PROPERTY. SPONSOR shall advise WMC in writing, no later than forty-five (45)
days after receipt of such disclosure, whether it requests WMC to file and
prosecute patent applications related to any such WMC INTELLECTUAL PROPERTY. If
SPONSOR does not request WMC to file and prosecute such patent applications, WMC
may proceed with such preparation and prosecution at its own cost and expense;
but such patent applications shall be excluded from SPONSOR's first right of
negotiation under Paragraph 7.8. WMC shall file all copyright registrations that
may be appropriate with respect to WMC INTELLECTUAL PROPERTY.
7.5 WMC shall control the preparation and prosecution of all patent
applications and the maintenance of all patents related to WMC INTELLECTUAL
PROPERTY. SPONSOR shall reimburse WMC upon receipt of invoices for all
reasonable documented expenses actually incurred by WMC in connection with the
filing and prosecution of the patent applications and maintenance of the patents
that SPONSOR has requested WMC to prosecute and obtain under Paragraph 7.4. In
the event that WMC anticipates the possibility of any extraordinary expenditures
arising from the preparation, filing, prosecution or defense of any patent
application or patent contemplated by this AGREEMENT, WMC
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shall provide SPONSOR with full particulars and shall discuss with SPONSOR a
mutually acceptable course of action prior to incurring such expenditures.
7.6 WMC shall determine whether or not to exercise its rights in JOINT
INTELLECTUAL PROPERTY and shall notify SPONSOR in writing within thirty (30)
days of such decision. If WMC exercises its rights in the JOINT INTELLECTUAL
PROPERTY, WMC shall control the preparation and prosecution of all patent
applications and the maintenance of all patents related thereto, and SPONSOR
shall reimburse WMC upon receipt of invoices for fifty percent (50%) of all
reasonable documented expenses actually incurred by WMC in connection with the
filing and prosecution of the patent applications and maintenance of the patents
in the JOINT INTELLECTUAL PROPERTY that WMC shall have prosecuted and obtained
hereunder. If WMC fails to so notify SPONSOR in writing that WMC has determined
to exercise its rights in any JOINT INTELLECTUAL PROPERTY, SPONSOR may give
notice to WMC that SPONSOR desires that WMC make a decision with respect to such
JOINT INTELLECTUAL PROPERTY. If within ten (10) days after such notice from
SPONSOR, WMC fails to notify SPONSOR in writing that WMC has determined to
exercise its rights in such JOINT INTELLECTUAL PROPERTY, or if WMC determines
not to exercise its rights therein, SPONSOR shall control the preparation and
prosecution of all patent applications and the maintenance of all patents
related to the JOINT INTELLECTUAL PROPERTY at SPONSOR's sole cost and expense.
In such event, SPONSOR shall own all right, title and interest in the JOINT
INTELLECTUAL PROPERTY and WMC shall have no further rights in or to the same,
and WMC shall execute any assignments necessary to transfer full title in the
JOINT INTELLECTUAL PROPERTY to SPONSOR.
7.7 PRINCIPAL INVESTIGATOR shall provide WMC and SPONSOR a written
disclosure of any copyrightable works conceived and/or reduced to practice in
the conduct of the SPONSORED RESEARCH during the term of this AGREEMENT.
7.8 WMC shall promptly notify SPONSOR of any WMC INTELLECTUAL PROPERTY
conceived or reduced to practice in whole or in part during the course of the
SPONSORED RESEARCH. In consideration of SPONSOR's funding of the SPONSORED
RESEARCH and payment for intellectual property expenses as provided for in
Paragraph 7.5, WMC grants SPONSOR a first right to acquire a royalty-bearing
license to practice the WMC INTELLECTUAL PROPERTY and WMC's rights in JOINT
INTELLECTUAL PROPERTY. SPONSOR shall notify WMC of its intent to acquire such a
license within thirty (30) days of WMC's notice to SPONSOR identifying the WMC
INTELLECTUAL
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PROPERTY. SPONSOR shall have the right, exercisable within thirty (30) days of
WMC's notice with respect to each item of WMC INTELLECTUAL PROPERTY and their
rights in the JOINT INTELLECTUAL PROPERTY for which SPONSOR agrees to make the
payments for intellectual property expenses as provided in Paragraph 7.5, to
include such WMC INTELLECTUAL PROPERTY and WMC's rights in JOINT INTELLECTUAL
PROPERTY in the EXCLUSIVE LICENSE AGREEMENT on the same terms and conditions as
apply generally to other WMC INTELLECTUAL PROPERTY under the license agreement.
7.9 Any license granted to SPONSOR pursuant to Paragraph 7.8 hereof
shall be subject to WMC's right to use WMC INTELLECTUAL PROPERTY for internal
educational and research purposes only and, if applicable, to the rights of the
United States government reserved under Public Laws 96-517, 97-256 and 98-620,
codified at 35 U.S.C. 200-212, and any regulations issued thereunder. However,
in such event, WMC shall not, under any circumstances, use or permit others to
use the WMC INTELLECTUAL PROPERTY to commercialize any product or service or to
import, make, have made, offer, use or sell any product or service in return for
payment.
8. CONFIDENTIALITY, PUBLICATION, USE OF NAME
8.1 WMC shall not be obligated to accept any confidential information
from SPONSOR. If SPONSOR desires to furnish any confidential information to the
PRINCIPAL INVESTIGATOR, SPONSOR may request the PRINCIPAL INVESTIGATOR to sign
the "Agreement between SPONSOR and PRINCIPAL INVESTIGATOR concerning SPONSOR's
Confidential Information" that is attached as Attachment C. WMC bears no
responsibility for maintaining the confidentiality of any confidential
information of SPONSOR provided under such an individual agreement.
8.2 In order to preserve the patentability of WMC INTELLECTUAL
PROPERTY, SPONSOR shall maintain WMC INTELLECTUAL PROPERTY and information
provided pursuant to the SPONSORED RESEARCH (whether oral or written) as
confidential and shall not disclose such information to any third party until
the publication of such information by the PRINCIPAL INVESTIGATOR or until WMC
provides SPONSOR with written verification that a patent application has been
filed for all patentable inventions, whichever occurs sooner.
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8.3 WMC shall be free to publish, present or otherwise disclose
RESEARCH RESULTS or other information and material resulting from the SPONSORED
RESEARCH for any purpose. WMC shall furnish the SPONSOR with a copy of any
proposed publication or presentation at least thirty (30) days in advance of the
submission of said proposed publication in order for SPONSOR to review and
comment on said proposed publication, to identify patentable subject matter, and
to identify any inadvertent disclosure of the SPONSOR's proprietary information.
SPONSOR shall notify WMC if such proposed publication contains SPONSOR
CONFIDENTIAL INFORMATION (as that term is defined in the AGREEMENT BETWEEN
SPONSOR AND PRINCIPAL INVESTIGATOR CONCERNING SPONSOR CONFIDENTIAL INFORMATION,
annexed to this AGREEMENT as Attachment "B"), and WMC shall remove any such
SPONSOR CONFIDENTIAL INFORMATION from such proposed publication prior to
submission for publication.. If necessary to permit the preparation of and
filing of U.S. patent applications, the PRINCIPAL INVESTIGATOR shall withhold
submission of such publication for an additional period not to exceed sixty (60)
days. Any further extension will require the mutual agreement of WMC and
SPONSOR.
8.4 WMC shall not use SPONSOR's name, including without limitation in
any advertising or other form of publicity without SPONSOR's prior written
consent except that WMC may acknowledge SPONSOR's funding of the SPONSORED
RESEARCH in scientific publications and in listings of sponsored research
projects. SPONSOR shall not use WMC's name, or the name of any trustee, officer,
faculty member, student or employee thereof, including without limitation in any
advertising or other form of publicity, without the prior written consent of
both WMC's Xxxx and Xxxxxxx University's Counsel.
9. TERMINATION
9.1 In addition to the termination right set forth in Paragraphs 2.2
and 2.3 hereof, either party may terminate this AGREEMENT effective upon written
notice to the other party, if the other party breaches any of the terms or
conditions of this AGREEMENT and fails to cure such breach within sixty (60)
days after receiving written notice of the breach.
9.2 Intentionally Omitted.
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9.3 In the event of termination of this AGREEMENT prior to its stated
term, whether for breach or for any other reason whatsoever, WMC shall be
entitled to retain from the payments made by SPONSOR prior to termination any
non-cancelable expenses for which a legally binding commitment was made prior to
the receipt, or issuance, by WMC of the notice of termination. In the event of
termination, WMC shall submit a final report of all allowable costs incurred and
all funds received under this AGREEMENT within sixty (60) days after the
effective termination date. The report shall be accompanied by a check in the
amount of any excess of funds advanced over the cost of non-cancelable
commitments incurred. In case of a deficit of funds, SPONSOR shall pay WMC the
amount needed to cover costs of non-cancelable commitments incurred by WMC under
this AGREEMENT.
9.4 Expiration or earlier termination of this AGREEMENT shall not
affect the rights and obligations of the parties accrued prior thereto. The
provisions of ARTICLE 4, entitled SPONSORSHIP PAYMENTS, ARTICLE 6, entitled
SPONSOR'S RIGHTS IN RESEARCH RESULTS AND REPORTS; ARTICLE 7, entitled
INTELLECTUAL PROPERTY; ARTICLE 8 entitled CONFIDENTIALITY, PUBLICATION, USE OF
NAME, ARTICLE 10, entitled DISCLAIMER OF WARRANTIES, INDEMNIFICATION, INSURANCE;
and ARTICLE 11, entitled ADDITIONAL PROVISIONS, shall survive such termination.
9.5 Expiration or earlier termination of this AGREEMENT shall not
affect the rights and obligations of the parties under the EXCLUSIVE LICENSE
AGREEMENT which shall survive the expiration or any earlier termination of this
AGREEMENT. In addition, the provisions of this Paragraph 9.5 shall survive the
expiration or earlier termination of this AGREEMENT.
10. DISCLAIMER OF WARRANTIES, INDEMNIFICATION, INSURANCE
10.1 WMC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES WITH RESPECT TO THE
CONDUCT, COMPLETION, SUCCESS OR PARTICULAR RESULTS OF THE SPONSORED RESEARCH, OR
THE CONDITION, OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
OF THE SPONSORED RESEARCH OR ANY WMC INTELLECTUAL PROPERTY OR RESEARCH RESULTS
THAT MAKE USE OF THE WMC INTELLECTUAL PROPERTY OR THAT RESEARCH RESULTS WILL NOT
INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT
OF A THIRD
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PARTY. WMC SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE
OR OTHER DAMAGES SUFFERED BY SPONSOR OR ANY OTHER PERSON RESULTING FROM THE
SPONSORED RESEARCH OR THE USE OF ANY WMC INTELLECTUAL PROPERTY, ANY RESEARCH
RESULTS OR ANY PRODUCTS RESULTING THEREFROM.
10.2 SPONSOR shall defend, indemnify and hold harmless WMC, the
PRINCIPAL INVESTIGATOR and any of WMC's faculty, students, employees, trustees,
officers, affiliates and agents (hereinafter referred to collectively as the
"INDEMNIFIED PERSONS") from and against any and all liability, claims, lawsuits,
losses, damages, costs or expenses (including reasonable attorneys' fees), which
the INDEMNIFIED PERSONS may hereafter incur, or be required to pay as a result
of SPONSOR's use of the results of SPONSORED RESEARCH or any WMC INTELLECTUAL
PROPERTY, or as a result of any breach of this AGREEMENT or any act or omission
of SPONSOR, its employees, affiliates, contractors, licensees or agents. WMC
shall notify SPONSOR in a timely manner upon learning of the institution or
threatened institution of any such liability, claims, lawsuits, losses, damages,
costs and expenses and WMC shall cooperate with SPONSOR in every proper way in
the defense or settlement thereof at SPONSOR's request and expense. If notice
according to this paragraph is not timely received by SPONSOR and SPONSOR
suffers any detrimental effect due to delay of notice, SPONSOR shall not be
required to defend, indemnify, or hold harmless any INDEMNIFIED PARTY to the
extent, as determined in good faith by SPONSOR, of any detrimental effect due to
delay of notice.
10.3 SPONSOR shall provide evidence that SPONSOR has sufficient
liability insurance and other adequate forms of protection, in the amount of
$10,000,000 in the annual aggregate covering the ORIGINAL RESEARCH AGREEMENT and
this Agreement. Such evidence shall be in the form of a certificate of
insurance, or, in the case of self-insurance, a letter accompanying SPONSOR's
audited financial statements in which an authorized official of SPONSOR
indicates that SPONSOR has sufficient assets to cover potential losses that
might arise in connection with SPONSOR's indemnification obligations. WMC shall
promptly inform SPONSOR whether SPONSOR's evidence of insurance (or other form
of protection) and the adequacy thereof are acceptable; provided however, that
if WMC deems SPONSOR's evidence or adequacy of insurance or of other protection
to be unacceptable, WMC shall specify the reason or reasons for such
unacceptability.
11. ADDITIONAL PROVISIONS
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11.1 This AGREEMENT and the rights of SPONSOR hereunder may be assigned
by SPONSOR, directly or by merger or other operation of law. No assignment shall
relieve SPONSOR of responsibility for the performance of any accrued obligations
that it has prior to such assignment.
11.2 A waiver by either party of a breach or violation of any provision
of this AGREEMENT will not constitute or be construed as a waiver of any
subsequent breach or violation of that provision or as a waiver of any breach or
violation of any other provision of this AGREEMENT.
11.3 Nothing herein shall be deemed to establish a relationship of
principal and agent between WMC and SPONSOR, nor any of their agents or
employees, nor shall this AGREEMENT be construed as creating any form of legal
association or arrangement which would impose liability upon one party for the
act or failure to act of the other party. Nothing in this AGREEMENT, express or
implied, is intended to confer on any person other than the parties hereto or
their permitted assigns, any benefits, rights or remedies.
11.4 Notices, payments, statements, reports and other communications
under this AGREEMENT shall be in writing and shall be deemed to have been
received as of the date dispatched if personally delivered or sent by public
overnight courier (e.g., FedEx) or registered mail, postage prepaid, return
receipt requested, and addressed as follows, or at such other address as a party
shall have given notice of pursuant hereto:
If to WMC: with a copy to:
Senior Director for Grants & Contracts Xxxxx X. Xxxxx, Ph.D., Vice President
Office of Research & Sponsored Programs Cornell Research Foundation, Inc.
Weill Medical College of Cornell University Weill Medical College of Cornell University
0000 Xxxx Xxxxxx, Xxxx A-131 000 Xxxx 00xx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
If to SPONSOR:
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MARC Pharmaceuticals, Inc. Xxxxxxx Xxxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxxxxxxx Helpern Syracuse & Hirschtritt LLP
Xxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Attn: Xxxx Xxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000 Telephone: 212) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
11.5 This AGREEMENT shall be construed and governed in accordance with
the laws of the State of New, without giving effect to conflict of law
provisions. The parties hereby submit to the exclusive jurisdiction of and venue
in any state or federal courts located within the State of New York with respect
to any and all disputes concerning the subject of this AGREEMENT.
11.6 WMC and SPONSOR shall not discriminate against any employee or
applicant for employment because of race, color, sex, sexual or affectional
preference, age, religion, national or ethnic origin, handicap, or because he or
she is a disabled veteran or veteran of the Vietnam Era.
11.7 Other than as provided in Paragraph 2.3, neither party shall be
liable for any failure to perform as required by this AGREEMENT to the extent
such failure to perform is due to circumstances reasonably beyond such party's
control, including, without limitation, labor disturbances or labor disputes of
any kind, accidents, failure of any governmental approval required for full
performance, civil disorders or commotions, acts of aggression, acts of God,
energy or other conservation measures imposed by law or regulation, explosions,
failure of utilities, mechanical breakdowns, material shortages, disease, or
other such occurrences.
11.8 SPONSOR shall comply with all laws, regulations and other legal
requirements applicable to SPONSOR in connection with this AGREEMENT, including
but not limited to any legal requirements applicable to SPONSOR's use of the
results of the SPONSORED RESEARCH or any WMC INTELLECTUAL PROPERTY.
11.9 It is understand that WMC is subject to United States laws and
regulations controlling the export of technical data, computer software,
laboratory prototypes and other commodities, and that its obligations hereunder
are contingent on compliance with applicable U.S. export laws and regulations
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(including the Arms Export Control Act, as amended, and the Export
Administration Act of 1979). The transfer of certain technical data and
commodities may require a license from the cognizant agency of the United States
Government and/or written assurances by the SPONSOR that the SPONSOR will not
re-export data or commodities to certain foreign countries without the prior
approval of the cognizant government agency. WMC shall cooperate with SPONSOR in
securing any license that a cognizant agency deems necessary in connection with
this AGREEMENT.
11.10 This AGREEMENT together with EXCLUSIVE LICENSE AGREEMENT,
embodies the entire understanding between the parties relating to the subject
matter hereof and supersedes all prior understandings and agreements, whether
written or oral. In the event of a conflict between this AGREEMENT and the
EXCLUSIVE LICENSE AGREEMENT, each agreement shall governed in accordance with
its terms. This AGREEMENT may not be varied except by a written document signed
by duly authorized representatives of both parties.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereby execute this AGREEMENT as of the EFFECTIVE DATE.
CORNELL UNIVERSITY MARC PHARMACEUTICALS, INC.
By:___________________________ By:______________________________
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxx
Title: Associate Xxxxxxx Title: President
Date:_________________________ Date:_____________________________
I have read and agreed to abide by the terms of this AGREEMENT and to the
responsibilities of the PRINCIPAL INVESTIGATOR:
By:___________________________ Date:______________________________
Xx. Xxxx X. Xxxxxx
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Schedule A
Attachment A
Research Program
See Attached
2
Attachment B
Agreement between Sponsor and Principal Investigator
Concerning Sponsor Confidential Information
The free publication and dissemination of research results and
information is an essential and long-standing policy of the Weill Medical
College of Cornell University ("WMC") Accordingly, WMC will permit the Principal
Investigator to accept CONFIDENTIAL INFORMATION of a Sponsor under the terms and
conditions of the agreement ("this Agreement") between the Sponsor and the
Principal Investigator stated below.
In connection with research to be conducted at WMC in participation
with Marc Pharmaceuticals, Inc. ("Sponsor") and relating to Preparation of
Betulinol Derivatives Directed Towards the Treatment of HIV/AIDS (the "SPONSORED
RESEARCH"), Sponsor desires to provide Xx. Xxxxxxx Xxxxxxxx ("Principal
Investigator") with certain information that Sponsor considers confidential.
1. "Confidential Information" means and includes all technical information,
inventions, developments, discoveries, software, know-how, methods, techniques,
formulae, data, processes and other proprietary ideas, whether or not patentable
or copyrightable, that the disclosing party identifies in writing as
confidential or proprietary at the time it is delivered or communicated to the
receiving party. Initial information not designated as confidential by the
Sponsor can be designated as confidential by the Sponsor until 30 days after
disclosure to Principal Investigator therefore Principal Investigator agrees to
maintain as confidential any information disclosed by the Sponsor and not
designated as confidential for at least 30 days after disclosure subject to the
provisions of this Paragraph. Information can not be Confidential Information
if, for example, and the foregoing obligations of confidentiality shall not
apply to:
(a) information that is in the public domain through publication or
otherwise prior to disclosure hereunder;
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(b) information that is known to the receiving party or
independently developed by to the receiving party prior to the time of
disclosure by the Sponsor, in each case, to the extent evidenced by written
records;
(c) information disclosed to the receiving party by a third party
that has a legal right to make such disclosure;
(d) information that becomes patented, published or otherwise part
of the public domain through no act or fault or to the receiving party; or
(e) information that is required to be disclosed by law or by order
of United States governmental authority or a court of competent jurisdiction;
provided that to the receiving party must use reasonably diligent efforts to
obtain confidential treatment of such information by the agency or court.
2. In the event the Investigator does accept any Confidential
Information, for a period of five (5) years after Principal Investigator's
acceptance of Confidential Information, Principal Investigator agrees to use
efforts no less than those Principal Investigator employs with respect to
Investigator's own confidential information:
(a) not to disclose the Confidential Information to third parties
without Sponsor's consent to such disclosure; and
(b) to use the Confidential Information only in furtherance of the
Sponsored Research.
3. The obligations of this Agreement are cumulative to those of any
other agreements between Sponsor and Principal Investigator. This Agreement may
not be changed or supplemented in any way except by a written agreement duly
executed by both Sponsor and Principal Investigator and approved by WMC. This
Agreement shall be governed by, enforced, and interpreted in accordance with the
laws of the State of New York without giving effect to its principles of
conflict of laws.
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Signatures appear on the following page...
PRINCIPAL INVESTIGATOR MARC PHARMACEUTICALS, INC.
By:___________________________ By:______________________________
Name:Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title:________________________ Title: President
Date:_________________________ Date:____________________________
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