SERVICES AGREEMENT
Exhibit
10.7
This
Services Agreement (Agreement) is entered into by and between The Board of
Governors of The Colorado State University System, acting by and through
Colorado State University, an institution of higher education of the State of
Colorado ("University"), and Apro Bio Pharmaceutical, a Corporation organized
under the laws of the state of Colorado, with a place of business located at
0000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
("Client").
NOW
THEREFORE, in consideration of the above and the mutual promises contained
herein, the parties agree as follows:
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1.
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Independent Contractors. It is understood and agreed by the parties that the University is an independent contractor with respect to the Client and that this Agreement is not intended and shall not be construed to create an employer/employee or a joint venture relationship between the University and the Client. The University shall be free from the direction and control of the Client in the performance of the University's obligations under this Agreement, except that the Client may indicate specifications, standards requirements and deliverables for satisfaction of the University's obligations under this Agreement. |
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2.
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Term.
This Agreement shall be
effective upon execution by both parties ("Effective Date") and shall
terminate 1 year from the Effective Date, unless sooner terminated as
provided herein or extended by written agreement of the
parties.
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3.
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Scope of Work.
The University agrees to perform the services described in the
Scope of Work attached hereto (the "Services") and made a part hereof as
Exhibit A, under the direction and supervision of the Principal
Investigator, Xx. Xxxxx
Xxxxxx-Xxxxxxxxx.
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4.
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Payment.
The Client agrees to pay the University for the Services performed
under this Agreement in a fixed price amount of $38,929 payable 50% upon
execution; 40% at mid-project; 10% upon University's submission of the
final report.
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5.
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Ownership of
Information. At all times during and following the term of this
Agreement, including any extensions or renewals hereof, all records,
information and data provided to the University by the Client or developed
during the performance of the Services under this Agreement by the
University and/or the Client ("Project Records") shall be and remain the
sole property of the Client. Upon the Client's request and at Client's
expense the University and the Principal Investigator shall execute any
documents needed in order to perfect the ownership title of all Project
Records. Except as provided in paragraph 7 of this Agreement, any Project
Records shall be provided to or returned to the Client upon request after
termination of this Agreement.
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6.
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Reporting
Requirements.
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6.1 The
University agrees that all Project Records as defined in the Scope of Work or
detailed description thereof shall be made available to Client at any reasonable
time, subject to the reporting requirements set forth in the Scope of
Work.
6.2
Client shall have the right to audit the records of the University related to
the Services performed under this Agreement, during normal business hours and
upon reasonable notice to University. Such audit may include the financial
records of University relating to the Services. University shall reasonably
cooperate with Client in satisfying any requirement or order
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issued by
any governmental agency or court, including but not limited to the inspection of
University's records or facility.
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7.
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Confidentiality. |
7.1 Each
party has certain documents, data, information, and methodologies that are
confidential and proprietary to that party ("Confidential Information").
Confidential Information of the Client shall also include any information
developed or produced as part of the Services performed under the Scope of Work.
During the term of this Agreement, either party may, as the "Disclosing Party,"
disclose its Confidential Information to the other party (the "Recipient"), in
writing, visually, or orally. Recipient shall receive and use the Confidential
Information for the sole purpose of the performance of this Agreement, and for
no other purpose (except as may be specifically authorized by the Disclosing
Party, in writing). Recipient agrees not to make use of the Confidential
Information except for such Services and agrees not to disclose the Confidential
Information to any third party or parties without the prior written consent of
the Disclosing Party.
7.2
Recipient shall use its reasonable best efforts to preserve the confidentiality
of the Confidential Information (using the same or similar protections as it
would as if the Confidential Information were Recipient's own, and in any event,
not less than reasonable care). Recipient shall obligate its affiliates with
access to any portion of the Confidential Information to protect the proprietary
nature of the Confidential Information.
7.3
"Confidential Information" shall not include, and Recipient shall have no
obligation to refrain from disclosing or using, information which:
7.3.1 is
generally available to the public at the time of this Agreement;
7.3.2
becomes part of the public domain or publicly known or available by publication
or otherwise, not through any unauthorized act or omission of
Recipient;
7.3.3 is
lawfully disclosed to the Recipient by third parties without breaching any
obligation of non-use or confidentiality;
7.3.4 has
been independently developed by persons in Recipient's employ or otherwise who
have no contact with Confidential Information, as proven with written records;
or
7.3.5 is
required to be disclosed by law; provided that, in the event that Recipient is
required to disclose Confidential Information under this subsection 7.3.5, it
will promptly notify the Disclosing Party, and the Disclosing Party may, at its
sole discretion and expense, initiate legal action to prevent, limit or
condition such disclosure.
7.3.6 no
portion of Client's Information shall be construed as coming within exceptions
7.3.1 to 7.3.4, solely on the basis that more generalized information embracing
such portion of Client's Information falls within any of the exceptions or on
the basis that elements of such portion of the Client's Information are
independently within any of the exceptions.
7.4
Notwithstanding any other provision of this Agreement, a party may retain one
copy of the other party's Confidential Information in its confidential files,
for the sole purpose of establishing compliance with the terms
hereof.
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8.
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Publication.
The University, as a state institution of higher education, engages
only in research that is compatible, consistent, and beneficial to its
academic role and mission. Therefore, significant results of research
activities must be reasonably available for publication. The parties
acknowledge that the
University shall have the right to publish results. The University agrees,
however, that during the term of this Agreement and for 6 months
thereafter, the Sponsor shall have 60 days to review and comment on any
proposed publication. In addition, the University agrees to delays, upon
the Client's request, such publication(s) to the extent reasonable to
permit the Client to file U.S. and foreign patent applications comprising
the results. The University further agrees that any proprietary
information supplied to it by the Sponsor during the course of research
performed by the University will not be included in any published material
without prior approval by the
Sponsor.
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9.
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Equipment.
Unless otherwise provided in the Scope of Work or in a writing
signed by the parties, all equipment purchased with funds provided under
this Agreement for use in connection with this Agreement shall be the
property of the University, and shall be dedicated to providing Services
under this Agreement while this Agreement is in
effect.
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10.
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Liability; Insurance.
Each party hereto agrees to be responsible for its own wrongful or
negligent acts or omissions, or those of its officers, agents, or
employees to the full extent allowed by law. Liability of the University
is at all times herein strictly limited and controlled by the provisions
of the Colorado government Immunity Act, C.R.S. secs. 00-00-000, et
seq. as now
or hereafter amended. Nothing in this Agreement shall be construed
as a waiver of the protections of said Act. During the term hereof each
party represents that it maintains general liability insurance covering
itself and its employees in the performance of this contract, in an
aggregate amount of not less than one million dollars ($1,000,000.00), all
or part of which may be self-insured. A party will furnish the other party
a certificate evidencing such insurance upon written
request.
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11.
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Exclusive Warranty; Disclaimer.
University warrants that all deliverables provided under this
Agreement will be provided substantially in accordance with the Scope of
Work and/or written protocol provided by Client. All other warranties,
express and implied, are hereby expressly disclaimed INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
University shall not be liable for any indirect, special,
incidental, consequential or punitive loss or damage of any kind,
including but not limited to lost profits (regardless of whether or not
University knows or should know of the possibility of such loss or
damages). The liability of either party under this Agreement shall not
exceed the amount paid or payable to the University under this
Agreement.
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12.
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Use
of Tradenames and Service
Marks. Neither party obtains by this Agreement any right, title, or
interest in, or any right to reproduce or to use for any purpose, the
name, tradenames, trade- or service marks, or logos (the "Marks"), or the
copyrights of the other party. Neither party will include the name of the
other party or of any employee of that party in any advertising, sales
promotion, or other publicity matter without the prior written approval of
that other party. In the case of the University, prior written approval is
required from the University Vice President for Research. In the case of
the Client, prior written approval is required from an authorized
representative of the Client.
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13.
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Termination.
Either party may terminate this Agreement, without cause, upon not
less
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than
sixty (60) days' written notice, given in accordance with the Notice provisions
of this Agreement. Termination of this Agreement shall not relieve a party from
its obligations incurred prior to the termination date. Upon early termination
of this Agreement by Client, except in the case of a material breach by
University, Client shall pay all costs accrued by University as of the date of
termination including non-cancelable obligations for the term of this Agreement,
which shall include all appointments of staff incurred prior to the effective
date of the termination. University shall exert its best efforts to limit or
terminate any outstanding financial commitments for which Client is to be
liable. University shall furnish, within ninety (90) days of the effective
termination, a final
report of all costs incurred and all funds received and shall reimburse Client
for payments which may have been advanced in excess of total costs incurred with
no further obligations to Client.
Any
Confidential Information disclosed during the term of this Agreement (including
any extensions hereof) shall be subject to Section 7 for a period of three (3)
years from the date of disclosure irrespective of any termination of this
Agreement.
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14.
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Default.
A party will be considered in default of its obligations under this
Agreement if such party should fail to observe, to comply
with, or to perform any term, condition, or covenant contained in this
Contract and such failure continues for thirty (30) days after the
non-defaulting party gives the defaulting party written notice thereof. In
the event of default, the non-defaulting party, upon written notice to the
defaulting party, may terminate this Contract as of the date specified in
the notice, and may seek such other and further relief as may be provided
by law. Notwithstanding the foregoing, in the event of a breach or
threatened breach of paragraph 7 orl 1 of this Agreement, the
non-defaulting party may terminate the Agreement immediately without
affording the defaulting party the opportunity to cure, and may seek an
injunction or restraining order as required to prevent unauthorized
disclosures of Confidential Information or unauthorized use of its Marks
or copyrights.
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15.
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Notices.
All notices and other correspondence related to this Agreement shall be in
writing and shall be effective when delivered by: (i) certified mail with
return receipt, (ii) hand delivery with signature or delivery receipt
provided by a third party courier service (such as FedEx, UPS, etc.),
(iii) fax transmission if verification of receipt is obtained, or (iv)
email with return receipt, to the designated representative of the party
as indicated below. A party may change its designated representative for
notice purposes at any time by written notice to the other party. The
initial representatives of the parties are as
follows:
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To
University:
Xxxxx
Xxxxxxxxx
Office
of
Sponsored Programs
Campus
Delivery 0000
Xxxxxxxx
Xxxxx Xxxxxxxxxx
Xxxx
Xxxxxxx, XX 00000-0000
Tele:
000-000-0000
Fax:
000-000-0000
Xxxxx.xxxxxxxxx
xxxxxxxx.xxxXxxxxx.xxx
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A copy of
any notice concerning a
breach,
alleged breach, or dispute
arising
under this Agreement shall also be sent to:
Office of
the General Counsel
01
Administration Building
0006
Campus Delivery
Colorado
Xxxxx Xxxxxxxxxx
Xxxx
Xxxxxxx, XX 00000-0000
Tel:
000-000-0000
To
Client:
Xxxxx
Xxxxx
Apro Bio
Pharmaceutical
0000 X.
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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16.
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Legal Authority. Each party to this Agreement warrants that it possesses the legal authority to enter into this agreement and that it has taken all actions required by its procedures, bylaws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this agreement and to bind it to its terms. The person(s) executing this agreement on behalf of a party warrant(s) that such person(s) have full authorization to execute this agreement. This Agreement shall not be binding upon Colorado State University, its governing board or the State of Colorado unless signed by the University Vice-President for Research or his/her authorized delegate. |
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17.
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Entire
Agreement. This Agreement constitutes the entire agreement between
the parties, and supersedes any previous contracts, understandings, or
agreements of the parties, whether verbal or written, concerning the
subject matter of this Agreement.
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18.
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Amendment.
No amendment to this Agreement shall be valid unless it is made in
a writing signed by the authorized representatives of the
parties.
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19.
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Severability. In the event that any provision of this Agreement is held unenforceable for any reason, the remaining provisions of this Agreement shall remain in full force and effect. |
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20.
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21.
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Assignment.
This Agreement shall not be assigned without the prior written
consent of the other party, which consent shall not be unreasonably
withheld or delayed, provided however, such consent shall not be required
in the case of a sale or transfer to a third party of all or substantially
all of a Party's business. Subject to the foregoing, this Agreement shall
inure to the benefit of and be binding on the successors and permitted
assigns of the parties.
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IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year
written below.
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The
Board of Governors of the Colorado
State
University System, acting
by
and
through Colorado State University:
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Client
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(LJ)
By: /s/ Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title: Director,
Special Programs
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By:
/s/Xxxxx X.
Xxxxx
Name:
Xxxxx Xxxxx
Title:
President and CEO
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Date:
5/23/07
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Date: 6/18/07
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