EXHIBIT 10.3
RESEARCH AGREEMENT #2
This Research Agreement ("Agreement") is entered into by and between PerArdua
Corporation, a Missouri Corporation ("Sponsor") and the UNIVERSITY OF SOUTHERN
CALIFORNIA ("University"), a California nonprofit educational institution
incorporated under the laws of the State of California.
RECITALS:
WHEREAS, the research project contemplated by this Agreement is of mutual
interest and benefit to UNIVERSITY and to SPONSOR, will further the
instructional, scholarship and research objectives of UNIVERSITY in a manner
consistent with its status as a nonprofit, tax-exempt, educational institution,
and may derive benefits for both SPONSOR and UNIVERSITY through inventions,
improvements and discoveries;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree to the following:
1. DEFINITIONS
1.1 "Research" shall mean the project as described in Appendix A hereof, under
the direction of Xx. Xxxxxxx X. XxXxxxx as Principal Investigator.
1.2 "University Intellectual Property" shall mean individually and collectively
all inventions, improvements and discoveries, whether or not covered by
intellectual property protection, which are conceived or made by one or more
employees of UNIVERSITY in performance of the Research.
2. RESEARCH WORK
2.1 UNIVERSITY shall use reasonable efforts to perform such Research
substantially in accordance with the terms and conditions of this Agreement.
Anything in this Agreement to the contrary notwithstanding, SPONSOR and
UNIVERSITY may at any time amend the Research by mutual written agreement.
2.2 In the event that the Principal Investigator becomes unable or unwilling to
continue the Research, and a mutually acceptable substitute is not available,
UNIVERSITY or SPONSOR shall have the option to terminate this Agreement.
2.3 Nothing in the Agreement shall be construed to limit the freedom of
researchers, whether participants in this Agreement or not, from engaging in
similar research inquiries made independently under other grants, contracts or
agreements with parties other than SPONSOR.
3. PERIOD OF PERFORMANCE
3.1 The period of performance of this Agreement is October 1, 1996 through
September 30, 1997. This Agreement shall become effective upon the date of last
signature hereto and shall continue in effect for the full duration of the
period of performance.
3.2 No-cost extension. Principal investigator may, at his option, expend
residual funds as of September 30, 1997 during a 8-month period at no additional
cost to SPONSOR, in the interests of the proposed research. Funds unexpended on
expiration of the extension period will be returned to SPONSOR.
3.3 Renewal. Principal Investigator may, at the invitation of SPONSOR, submit a
request for renewal of funding on October 1, 1997 for a specified period of not
less than one year.
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4. REPORTS
On March 1, 1997 and every 6 months thereafter, UNIVERSITY shall furnish SPONSOR
a letter report summarizing the work conducted. A final report setting forth the
accomplishments and significant research findings shall be prepared by
UNIVERSITY and submitted to SPONSOR within sixty (60) days of the expiration of
the Agreement. At option of Sponsor and by mutual agreement with P.I., interim
reports may be presented to Sponsor in oral form.
5. COSTS, XXXXXXXX AND OTHER SUPPORT
5.1 It is agreed and understood by the parties hereto that, subject to Article
2, total costs to the SPONSOR hereunder shall not exceed the amount of $177,000,
or the "Total Costs" specified in the Budget presented in Appendix A, whichever
is less. The entire payment shall be made by SPONSOR in advance of the period of
performance.
5.2 Checks shall be made payable to University of Southern California and sent
to:
Attn: Xxxx Xxxxxxx
University of Southern California
Department of Contracts and Grants
Xxxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
5.3 In the event of termination of this Agreement pursuant to Article 12 hereof,
SPONSOR shall pay all costs accrued by UNIVERSITY as of date of termination,
including noncancellable obligations. Such obligations shall include all
graduate stipends, postdoctoral appointments, and P.l. summer support called for
in Appendix A. After termination, any obligation of the SPONSOR for graduate
fellowships and appointments shall end one year from the date of appointment or
September 30, 1997, whichever is later, but not later than June 1, 1998.
5.4 P.I. budget authority. P.I. shall have the right to transfer funds from one
budget category to another without prior permission of SPONSOR, in an amount up
to 25% of the larger of the two categories affected. Transfer of funds exceeding
this amount will require written agreement of SPONSOR. P.I. may disburse
budgeted funds within categories in a flexible manner using the detailed
budgetary plan given in the Appendix as a reasonable guideline.
5.5 Any interest accrued on unexpended funds provided by SPONSOR to UNIVERSITY
will be added quarterly to the account containing these funds, to be budgeted by
P.I. for the purposes of this project.
6. PUBLICITY
Neither party shall use the name, trade name, trademark or other designation of
the other party in connection with any products, promotion or advertising
without the prior written permission of the other party.
7. PUBLICATIONS
UNIVERSITY shall have the right, at its discretion, to release information or to
publish any material resulting from the Research. UNIVERSITY shall furnish
SPONSOR with a copy of any proposed publication thirty (30) days prior to
submission for publication. If SPONSOR decides to request UNIVERSITY to file
patent protection for information contained in the proposed publication under
Articles 9 and 10 herein, SPONSOR may request UNIVERSITY to delay publishing
such proposed publication
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for a maximum of an additional forty-five (45) days in order to protect the
potential patentability of any invention described therein.
8. CONFIDENTIALITY
8.1 During the course of this agreement, SPONSOR may provide UNIVERSITY with
certain information, data, or material in writing which SPONSOR has clearly
marked as confidential or proprietary in nature. UNIVERSITY shall receive and
hold such information in confidence and agrees to use its reasonable efforts to
prevent disclosure to third parties of said information in the manner UNIVERSITY
treats its own similar information.
8.2 UNIVERSITY shall not consider information disclosed to it by SPONSOR
confidential which: (1) is now common knowledge or subsequently becomes such
through no breach of this Agreement; (2) is rightfully in UNIVERSITY's
possession prior to SPONSOR's disclosure as shown by written records; (3) is
disclosed to UNIVERSITY by an independent third party; or (4) is independently
developed by or for UNIVERSITY without benefit of confidential information
received from SPONSOR.
9. INTELLECTUAL PROPERTY
9.1 All rights and title to University Intellectual Property conceived under the
Research shall belong to UNIVERSITY and shall be subject to the terms and
conditions of this Agreement.
9.2 UNIVERSITY will promptly notify SPONSOR of any University Intellectual
Property conceived or made in the performance of work under this Agreement.
SPONSOR shall, upon reviewing such notification, determine whether to request
UNIVERSITY to file, prosecute and maintain any patent application or application
for other intellectual property protection, domestic or foreign, in UNIVERSITY's
name. SPONSOR shall bear all reasonable costs incurred in connection with such
preparation, filing, prosecution and maintenance directed to said University
Intellectual Property. UNIVERSITY shall keep SPONSOR advised as to all
developments with respect to such applications and SPONSOR shall be given an
opportunity to review and comment thereon.
9.3 If SPONSOR elects not to exercise its option in accordance with Article 10
herein or decides to discontinue the financial support of the application for
intellectual property protection, UNIVERSITY shall be free to file or continue
prosecution and maintenance on any such application, at UNIVERSITY's sole
expense If SPONSOR elects to discontinue the financial support of the
application for intellectual property protection prior to issuance of a valid
patent, SPONSOR thereby waives and gives up any right it may have under Section
10 below to license University Intellectual Property.
10. TRANSFER OF RIGHTS
UNIVERSITY granted SPONSOR's predecessor, Per Ardua L.P., an option to a license
to University Intellectual Property on commercially reasonable terms and
conditions, including reasonable royalties, with a right to sublicense, as was
mutually agreed upon in a separate writing, "Option and License Agreement". The
right, title and interest in and to this Agreement has been sold, assigned,
transferred and conveyed to SPONSOR by PerArdua L.P. under a separate writing of
Assignment, Assumption and Consent, to which UNIVERSITY was a party, wherein the
Option and License Agreement appears as Exhibit A.
11. COPYRIGHTS
All rights to copyrightable materials, including computer software, first
created during performance of the work funded under this Agreement shall vest in
UNIVERSITY, with a royalty-free license to SPONSOR for its internal
non-commercial use. UNIVERSITY grants SPONSOR an option to license any such
material(s) it wishes to develop for commercial purposes on reasonable terms and
conditions, including
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commercially reasonable royalties, as the parties mutually agree in a separate
writing. such option shall extend for six (6) months from the first date of
disclosure to SPONSOR by UNIVERSITY that such material exists.
12. TERMINATION
12.1 parties may terminate this agreement only by mutual written agreement.
12.2 Termination of this Agreement by either party for any reason shall not
affect the rights and obligations of the parties accrued prior to the effective
date of termination.
13. WARRANTIES
13.1 UNIVERSITY makes no warranties as to its ability to accomplish the
Research, as to the validity of the Research developed under this Agreement, or
as to the condition of any invention or product, tangible or intangible,
conceived, discovered or developed under this Agreement.
13.2 UNIVERSITY makes no warranties, express or implied, of merchantability or
fitness for a particular purpose of the Research or any invention or product
conceived, discovered or developed under this Agreement. Neither the Principal
Investigator, SPONSOR, nor any other person is authorized to gin/e any such
warranty in the name of or on behalf of UNIVERSITY.
13.3 SPONSOR agrees that it will not rely solely upon technical information
provided by UNIVERSITY or the Principal Investigator in developing any invention
or product, but will independently test, analyze and evaluate all inventions and
products prior to manufacture and distribution of such inventions and products.
14. INSURANCE AND INDEMNIFICATION
14.1 UNIVERSITY agrees to maintain adequate liability insurance, such protection
being applicable to Officers, employees and agents while acting within the scope
of their employment by UNIVERSITY.
14.2 SPONSOR agrees to hold harmless, indemnify and defend UNIVERSITY and
Principal Investigator from all liabilities, demands, damages, expenses and
losses arising out of performance of this Agreement (except to the extent of
UNIVERSITY's active negligence or willful misconduct), SPONSOR's use of the
Research, or SPONSOR's use, manufacture or sale of products or inventions made
by use of the results of the Research performed hereunder. The provisions of
this paragraph shall survive termination of this Agreement.
15. INDEPENDENT CONTRACTOR
UNIVERSITY is an independent contractor under this Agreement and not an agent,
servant, employee, associate, joint venturer or partner of SPONSOR.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of
the State of California. Jurisdiction and venue of any dispute arising out of
this Agreement shall lie with any court of competent jurisdiction within the
County of Los Angeles.
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17. ATTORNEYS' FEES
In the event litigation or arbitration is commenced to enforce any of the terms
of this Agreement, the prevailing party shall recover, as part of the award and
judgment, its reasonable attorneys' fees and costs of such litigation or
arbitration from the non-prevailing party.
18. ASSIGNMENT
Neither party shall assign this Agreement except with the prior written consent
of the other party.
19. WAIVER AND SEVERABILITY
19.1 No waiver by either party of any breach of any provision hereof shall
constitute a waiver of any other breach of that or of any other provision
hereof.
19.2 In the event a court or governmental agency of competent jurisdiction holds
any provision of this Agreement to be invalid, such holding shall have no effect
on the remaining provisions of this Agreement, and they shall continue in full
force and effect. Upon such holding, the parties shall, within a reasonable
period of time, determine whether the severed provision(s) detrimentally and
materially affect the obligations or performance of either or both parties. If
so affected, the parties shall, within a reasonable period of time, negotiate in
good faith to modify this Agreement to relieve such effects. If such
negotiations do not result in mutually agreeable modification to this Agreement,
notwithstanding the provisions of Article 12 herein either effected party may
terminate this Agreement upon providing the other party with thirty (30) days
written notice of such termination.
20. AGREEMENT MODIFICATION
This Agreement may be modified or amended, including extension of the term of
this Agreement, at any time only by a written amendment executed by both
parties.
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21. NOTICES
Any notices given under this Agreement shall be in writing and delivered to the
following addresses by return receipt mail, postage prepaid, or by overnight
courier service. Such notices shall be effective upon the third business day
following mailing, if by mail, or upon receipt, if by courier.
FOR UNIVERSITY:
FOR SPONSOR:
Xxxx Xxxxxxx
Xx. Xxxxxx X. Xxxxx, Xx. Department of Contracts and Grants
(Director & Treasurer, Per Ardua Corporation) Xxxxxxx Xxxx Xx. 330
00 Xxxxx Xxxxxx Xx. Xxxxxxxxxx xx Xxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000-0000
COPY TO PI:
Xx. Xxxxxxx X. XxXxxxx
Department of Chemistry
Organic Chemistry Wing Rm. 201
University of Southern California
Xxx Xxxxxxx, XX 00000-0000
22. THIRD PARTY RIGHTS
This Agreement shall not create any rights, including without limitation
third-party beneficiary rights, in any person or entity not a party to this
Agreement.
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2 3. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties hereto
and there are no collateral, oral or written agreements or understandings.
IN WITNESS WHEREOF, the parties have executed this Agreement in two or more
counterparts, each as an original and ail together as one instrument as of the
date of last signature below written.
PERARDUA CORPORATION UNIVERSITY OF SOUTHERN CALIFORNIA
By: /s/ Xxxxxx X. Xxxxx, Xx. By: /s/ Xxxxx Xxxxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxx. Jr. Name: Xxxxx Xxxxxxxxx. Jr.
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Title: Director & Treasurer Title: Xxxxxxx and Senior V.P.,
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Academic Affairs
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Date: January 7, 1997 Date: October 24, 1996
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ATTACHMENT: Appendix A (Statement of Work)
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