EXHIBIT 10.1
AGREEMENT FOR RESEARCH SERVICES
THIS CONTRACT, effective this 1st day of February, 2006, entered into by and
between Pressure BioSciences, Inc., 000 Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxxx, XX
00000 (hereinafter referred to as "SPONSOR") and the UNIVERSITY OF NEW
HAMPSHIRE, a non-profit educational institution incorporated under the laws of
the State of New Hampshire (hereinafter referred to as "UNH").
WITNESSETH:
WHEREAS, the Project contemplated by this CONTRACT is of mutual interest and
benefit to UNH and SPONSOR, and will further the instructional, research and
public service mission of UNH in a manner consistent with its status as a
non-profit, tax-exempt, institution of higher education, and may derive benefits
for both SPONSOR and UNH
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree to the following:
Article 1 - Definitions
As used herein, the following terms will have the following meanings:
1.1 "Project" will mean the description of the project as described in
Appendix A which is incorporated and made part of this CONTRACT, under the
direction of Xx. Xxxxxx Xxxxx, hereinafter referred to as Principal
Investigator.
1.2 "Period of Performance" will mean the period commencing on February 1,
2006 and ending on December 31, 2006.
1.3 "Intellectual Property" means inventions and/or discoveries conceived
and/or made in performance of this Project and resulting patents, divisions,
continuations, or substitutions of such applications and all reissues thereof,
upon which a UNH employee or agent is a named inventor.
1.4 "Proprietary Information" means any written information and data marked
proprietary, or non-written information and data disclosed which is identified
at the time of disclosure as proprietary and is reduced to writing and
transmitted to the other party within thirty (30) days of such non-written
disclosure.
Article 2 - Project Work
2.1 UNH will commence work on the Project no sooner than the first day of
the Period of Performance and will use reasonable best efforts to perform such
Project substantially in accordance with the terms and conditions of this
CONTRACT. Anything in this CONTRACT to the contrary notwithstanding, SPONSOR and
UNH may at any time amend Project by mutual written agreement.
2.2 In the event that the Principal Investigator becomes unavailable to
continue Project, and a mutually acceptable substitute is not available, UNH
and/or SPONSOR will have the option to terminate said Project pursuant to
Article 9.
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Article 3 - Fiscal Considerations
3.1 In consideration of the Project to be performed, total expense to
SPONSOR will be the sum of $157,850, hereinafter referred to as "Cost" (Appendix
B). During the Period of Performance, the Principal Investigator will have the
flexibility to re-budget the Costs within a cumulative amount not to exceed 5
percent of the total project Costs. The prior approval of the SPONSOR will be
required if the cumulative amount of re-budgeted Costs exceeds the 5 percent
threshold.
3.2 Payments to UNH by SPONSOR will be made upon receipt of a monthly
invoice. The invoice will reflect actual costs incurred by major budget
category. SPONSOR will be assessed a 1.5% late payment penalty for any payments
more than 30 days past due. For the duration of this CONTRACT, SPONSOR will
select one of the two payment methods itemized below by checking the appropriate
box. For purposes of identification, each wire or check will reference the
Project Title, Project ID and name of UNH Principal Investigator.
A. [ ] Either domestic wire transfer to:
Citizen's Bank,
Xxx Xxxxxxxxx Xxxxx,
Xxxxxxxxx XX 00000
Account # 330007829
ABA # (for wires) 115001203
ABA # (for ACH) 000000000
B. X[ ]X Or by check made payable to:
The University of New Hampshire,
The Office of Sponsored Research
Service Building, 00 Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
3.3 The parties estimate that the specified Cost is sufficient to support
the Project as outlined in Appendix A. UNH may submit to SPONSOR a revised
budget requesting additional funds if expenses may reasonably be projected to
exceed the Cost. SPONSOR will not be liable for any payment in excess of the
Cost except upon SPONSOR's written consent.
3.4 In the event of early termination of this CONTRACT pursuant to Article
9 hereof, SPONSOR will pay all reasonable costs and non-cancelable obligations
incurred by UNH as of the date of termination.
Article 4 - Equipment
4. Any equipment acquired under this CONTRACT will be owned by UNH.
Article 5 - Reports and Conferences
5.1 On behalf of UNH, the Principal Investigator will submit a final report
to SPONSOR within ninety (90) days of the conclusion of the Period of
Performance, or early termination of this CONTRACT.
5.2 For as long as this CONTRACT remains in effect, representatives of
SPONSOR may meet with representatives of UNH at times and places mutually agreed
upon to discuss the progress and results, as well as ongoing plans, or changes
therein, of Project to be performed hereunder.
Article 6 - Proprietary Information Transfers
6.1 During the term of this CONTRACT, the parties hereto may exchange
Proprietary Information. Proprietary Information from SPONSOR must be sent to
the Principal Investigator only, who will have primary responsibility for
maintaining SPONSOR's Proprietary Information. Each party agrees to treat
Proprietary Information received from the other with the same degree of secrecy
with which it treats its own Proprietary Information and further agrees not to
disclose such Proprietary Information to a third party without prior written
consent from the disclosing party.
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6.2 No information will be within the protection of this provision where
such information:
A. Is or becomes publicly available;
B. Is released by the originating party to anyone without
restrictions;
C. Is rightfully obtained from third parties; or
D. Is known to the receiving party at the time of receipt, as
shown by its prior written records; or
E. Is required to be disclosed by law or regulation.
6.3 This nondisclosure obligation will survive for a period not to exceed
two (2) years following termination of this CONTRACT. Notwithstanding anything
herein to the contrary, UNH will not be liable to SPONSOR or anyone claiming by
or through SPONSOR for any failure of the Principal Investigator, associates,
coworkers, staff or students to preserve the confidentiality of any such
Proprietary Information
Article 7 - Publications
7.1 SPONSOR recognizes that under UNH policy, the results of Project must
be publishable and agrees that personnel engaged in Project will be permitted to
present at symposia, national, or regional professional meetings, and to publish
in journals, theses or dissertations, or otherwise of their own choosing,
methods and results of Project, provided, however, that SPONSOR will have been
furnished copies of any proposed publication or presentation at least thirty
(30) days in advance of the submission of such proposed publication or
presentation.
7.2 SPONSOR will have thirty (30) days, after receipt of said copies, to
review and comment upon proposed presentation or publication because there is
patentable subject matter or inadvertent disclosure of SPONSOR's Proprietary
Information which needs protection. If SPONSOR determines that a patent
application should be filed, the publication or presentation will be delayed an
additional sixty (60) days or until a patent application is filed, whichever is
sooner; otherwise SPONSOR will not make any editorial changes without the
consent of the UNH except that SPONSOR may delete from the manuscript any
Proprietary Information of which Principal Investigator has been made aware
pursuant to the terms of this CONTRACT. At the end of thirty (30) day working
period, UNH will have the right at its discretion to have said manuscript
published as so amended by SPONSOR.
7.3 The obligation to submit for review any such manuscript under this
Article will end one (l) year from the termination of this CONTRACT pursuant to
the terms hereof. If SPONSOR so elects, UNH agrees to include in any publication
of the results of the Project, acknowledgment of SPONSOR's financial and
technical support.
Article 8 - Rights to Intellectual Property
8.1 Licensable Technology means the technology, know-how, inventions and
improvements developed, discovered or created pursuant to this CONTRACT and
includes Intellectual Property as defined in Article 1.3 of the CONTRACT.
8.2 Licensable Patents means any and all U.S. patent applications,
including reissue, divisional, continuation and reexamination applications,
together with any and all corresponding U.S. and foreign patents and patent
applications based on inventions which relate to and are usable with the
Licensable Technology and made in performance of the CONTRACT by employees of
UNH, either alone or jointly with employees of SPONSOR.
8.3 All rights and title to Licensable Technology and Licensable Patents
developed, discovered or created pursuant to the CONTRACT solely by employees of
UNH ("UNH IP") shall belong to UNH. All rights and title to Licensable
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Technology and Licensable Patents developed, discovered or created solely by
employees of SPONSOR ("SPONSOR IP") shall belong to SPONSOR and are excluded
from this Agreement. All rights and title to Licensable Technology and
Licensable Patents developed, discovered or created jointly by employees of UNH
and SPONSOR ("Joint IP") shall be jointly owned. Each party shall have the right
to use the jointly-owned Licensable Technology and jointly-owned Licensable
Patents for its own purposes, so long as it continues to be joint, with the
exception that UNH may only use for non-commercial purposes.
8.4 UNH hereby grants to SPONSOR an option (the "Option") to an irrevocable
world-wide, royalty-free exclusive license, with the right to sub-license, to
UNH IP or UNH's interest in Joint IP with terms and conditions to be negotiated
upon SPONSOR election to Option, and based upon usual and customary terms and
conditions for such an agreement. SPONSOR may exercise the Option by written
notice to UNH's Office of Intellectual Property Management at any time during
the CONTRACT. The Option will expire six (6) months after receipt of the final
technical report referred to in Article 5 of the CONTRACT. Should SPONSOR fail
to exercise the Option within such six month period, UNH shall be free to
license the UNH IP or its interest in the Joint IP specified in the notice to
any third party. UNH shall pay one-half of all royalty payments and other fees
for such license to SPONSOR after UNH has recovered its expense associated with
such license. UNH agrees that until the expiration of the Option, as provided
herein, UNH shall not transfer, license or xxxxx any interest in UNH IP or Joint
IP. Upon exercise of the Option, UNH shall execute all documents and do all acts
reasonably necessary to convey to SPONSOR and evidence the rights set forth
herein. However, should UNH license the UNH IP or its interest in the Joint IP
to any third party, such license shall not be interpreted as giving the third
party any rights to inventions made by SPONSOR prior to the performance of the
project or outside the scope of the Project.
8.5 In the event SPONSOR elects to file patent applications for UNH IP or
Joint IP, SPONSOR agrees to pay for all costs associated with the preparation,
filing, prosecution and maintenance of U.S. and foreign application(s) and
patent(s), using counsel chosen by SPONSOR for this purpose. Title to patent(s)
shall be in accordance with Article 8.3. Further, SPONSOR agrees to keep UNH's
Office of Intellectual Property Management advised as to all developments with
respect to application(s) owned by UNH, alone or jointly with SPONSOR and will
promptly supply to UNH's Office of Intellectual Property Management copies of
all papers received and filed in connection with the prosecution thereof in
sufficient time for UNH's Office of Intellectual Property Management to comment
thereon. UNH agrees to cooperate with SPONSOR at SPONSOR request, as may be
reasonably deemed necessary by SPONSOR and to secure patent protection on
inventions within the scope of the Licensable Technology.
8.6 Title to data (which is herein defined as including, but not limited
to, software, writings, sound recordings, pictorial reproductions, drawings or
other graphical representations, reports, blueprints and works of any similar
nature) first produced or composed by UNH employees in the performance of work
under this CONTRACT will be the sole and exclusive property of UNH, who will
have the sole right to determine the disposition of copyrights or other rights
resulting therefrom, provided, however, that UNH will grant to SPONSOR a
royalty-free, non-exclusive license to reproduce, modify and use all such data
for its own purposes. UNH agrees to only use the data for education, research,
and non-commercial purposes.
8.7 If SPONSOR elects not to exercise its option as defined in Article 8.4
or decides to discontinue the financial support of the prosecution or
maintenance of the protection, UNH will be free to file or continue prosecution
or maintain any such application(s), and to maintain any protection issuing
thereon in the U.S. and in any foreign country at UNH's sole expense.
8.8 Nothing in this CONTRACT will be interpreted as giving either party any
rights to inventions made by the other party prior to performance of Project or
outside the scope of Project.
8.9 UNH reserves the right to practice the technology developed by UNH from
this project for its own bona fide research.
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Article 9 - Term and Termination
9.1 This CONTRACT will become effective upon the date first hereinabove
written and will continue in effect for the full duration of the Period of
Performance unless sooner terminated in accordance with the provisions of this
Article. The parties hereto may, however, extend the term of the CONTRACT for
additional periods as desired under mutually agreeable terms and conditions
which the parties reduce to writing and sign. Either party may terminate this
CONTRACT upon ninety (90) days prior written notice to the other.
9.2 In the event that either party hereto commits any breach of or default
in any of the terms or conditions of this CONTRACT, and also fails to remedy
such default or breach within sixty (60) days after receipt of written notice
thereof from the other party hereto, the party giving notice may, terminate this
CONTRACT by sending notice of termination in writing to the other party to such
effect, and such termination will be effective as of the date of the receipt of
such notice.
9.3 Anything herein to the contrary notwithstanding, in the event of early
termination of this CONTRACT by SPONSOR, SPONSOR will pay all costs accrued by
UNH as of the date of termination, which includes all non-cancellable contracts,
fellowships, graduate student or post-doctoral associate appointments called for
in Appendix A, incurred prior to the effective date of termination. After
termination, any obligation of SPONSOR for fellowships, graduate students or
postdoctoral associates will end no later than the end of UNH's academic year
following termination. After termination, UNH will submit a final report of all
Costs incurred and all funds received under this CONTRACT. The report will be
accompanied by a check for any funds remaining, or an invoice for any funds due
UNH, if any, after allowable Costs and non-cancelable commitments have been
paid.
9.4 Subject to Article 8, termination of this CONTRACT by either party for
any reason will not affect the rights and obligations of the parties accrued
prior to the effective date of termination of this CONTRACT. No termination of
this CONTRACT, however effectuated, will affect the SPONSOR's rights and duties
under Article 8 hereof, or release the parties hereto from their rights and
obligations under Articles 3, 4, 5, 6, 7, 8, 10, 11 and 14.
Article 10 - Disclaimers. Liabilities, Indemnity and Warranties
10.1 SPONSOR agrees to defend, waiver, indemnify and hold harmless UNH,
including its officers, agents, employees and students from any liability, loss
or damage suffered as a result of claims, demands, costs or judgments arising
out of the activities to be carried out pursuant to the obligations of this
CONTRACT, including, but not limited to, the use by SPONSOR of the results
obtained from the activities performed by UNH under this CONTRACT; provided,
however, that any such liability, loss or damage resulting from the following
Subsections "A" or "B" is excluded from this agreement to indemnify and hold
harmless:
A. the negligent failure of UNH to substantially comply with any
applicable federal or other governmental requirements; or
B. the negligence or willful malfeasance of any officer, agent,
employee or student of UNH.
10.2 UNH makes no warranties, express or implied, as to any matter
whatsoever, including, without limitation, the results of the Project or any
invention, process or product, whether tangible or intangible, conceived,
discovered, or developed under this CONTRACT; or the ownership, merchantability,
or fitness for a particular purpose the results of the Project or any such
invention or product. UNH will not be liable for any direct, consequential, or
other damages suffered by SPONSOR, any licensee, or any others including, but
not limited to, damages arising from loss of data or delay or termination of the
Project, or from the use of the results of the Project, or any such invention or
product. The provisions of this clause will survive termination of this
CONTRACT.
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Article 11 - Use of Names
11. Neither UNH nor Sponsor will identify the other in any products,
publicity, promotion, promotional advertising, or other promotional materials to
be disseminated to the public, or use any trademark, service xxxx, trade name,
logo, or symbol that is representative of the other party or its entities,
whether registered or not, or use the name, title, likeness, or statement of any
faculty member, employee, or student, without the other party's prior written
consent. Any use of names shall be limited to statements of fact and shall not
imply endorsement by one party of the other party's research, products, or
services.
Article 12 - CONTRACT Modification
12. Any agreement to change the terms of this CONTRACT in any way will be
valid only if the change is made in writing and approved by mutual agreement of
authorized representatives of the parties hereto.
Article 13 - Notices
13. Notices, invoices, communications, modifications and payments hereunder
will be deemed made if given by registered or certified envelope, postage
prepaid, and addressed to the party to receive such notice, invoice, or
communication at the address given below, or such other address as may hereafter
be designated by notice in writing:
SPONSOR: Name: Xxxxxxx X. Xxxxxxxxxx
Title: President and CEO
Address: Pressure BioSciences, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
UNH: Name: Xxxxxx Xxxxxx
Title: Senior Grant and Contract Administrator
Address: University of New Hampshire
Office of Sponsored Research
Service Building, 00 Xxxxxxx Xx
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
FAX: (000) 000-0000
Technical
Matters: Name: Xxxxxx Xxxxx, PhD
Title: Research Assistant Professor
Address: Biochemistry Department
University of New Hampshire
Xxxxxx Xxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
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Article 14 - Assignment
14.1 Neither party may assign, transfer or delegate its rights, duties or
obligations hereunder without the prior written consent of the other, and any
assignment, transfer or delegation in violation of this provision will be void.
Subject to the terms of this provision, this CONTRACT will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
14.2 This CONTRACT is assignable to any division of SPONSOR, any majority
stockholder of SPONSOR, and/or any subsidiary of SPONSOR in which more than
fifty (50) percent of the outstanding stock is owned by SPONSOR.
Article 15. - FORCE MAJEURE
15. UNH will not be liable for any failure to perform as required by this
CONTRACT, if the failure to perform is caused by circumstances reasonably beyond
UNH's control, such as 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, explosions, failure of utilities, mechanical breakdowns,
material shortages, disease, thefts, or other such occurrences.
Article 16. - MISCELLANEOUS PROVISIONS
16.1 This CONTRACT is subject to all applicable local, state and federal
laws and regulations
16.2 It is expressly agreed by the parties hereto that UNH and SPONSOR are
independent CONTRACTORS and nothing in this CONTRACT is intended to create an
employer relationship, joint venture, or partnership between the parties.
Neither party has the authority to bind the other.
16.3 SPONSOR acknowledges that the Project is a scientific undertaking and,
consequently, UNH does not guarantee that the Project will yield any particular
outcome.
16.4 This CONTRACT will not be construed to limit the freedom of individuals
participating in this Project to engage in any other Project.
16.5 In the event of any inconsistency between the terms of this CONTRACT
and the documents referenced or incorporated herein, the terms of this CONTRACT
will prevail.
16.6 If any provisions of this CONTRACT will be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions of this CONTRACT will not be impaired thereby.
16.7 The failure of any party hereto to insist upon strict performance of
any provision of this CONTRACT or to exercise any right hereunder will not
constitute a waiver of that provision or right
16.8 All rights and remedies hereunder will be cumulative and not
alternative, and this CONTRACT will be construed and governed by the laws of the
State of New Hampshire. Any legal action involving this CONTRACT or the Project
under it will be adjudicated in the State of New Hampshire.
16.9 Any dispute between the parties in connection with this CONTRACT which
cannot be resolved by mutual agreement will be finally settled under the Rules
of Conciliation and Arbitration of the American Arbitration Association by one
or more arbitrators appointed in accordance with the Rules. Arbitration will be
held in Dover, New Hampshire, or at any other mutually agreeable location.
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16.10 This CONTRACT represents the entire agreement and understanding between
the parties with respect to its subject matter and supersedes any prior and/or
contemporaneous discussions, representations, or contracts, whether written or
oral, of the parties regarding this subject matter.
IN WITNESS WHEREOF, the parties have caused this CONTRACT to be executed in
duplicate as of the most current day and year written below.
THE UNIVERSITY OF NEW HAMPSHIRE PRESSURE BIOSCIENCES, INC.
Signature: /s/ XXXXXX X. XXXX Signature: /s/ XXXXXXX X. XXXXXXXXXX
----------------------- -------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------- -----------------------------
Title: Manager, Sponsored Title: President and CEO
Programs Contract Services -----------------------------
and Export Control
---------------------------
Date: February 1, 2006 Date: January 19, 2006
--------------------------- -----------------------------
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