1
Exhibit 10.13
[LOGO] UNIVERSITY OF PITTSBURGH
Office of Research
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
000-000-0000
Fax: 000-000-0000
PREAMBLE
THIS AGREEMENT entered into on this the 5th day of May 1998, by and between the
University of Pittsburgh (hereinafter referred to as University) with a
principal office at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 and Cellomics, Inc.
(hereinafter referred to as Subcontractor); and constituting Agreement Number
100552 under (agency name) NIH Prime Agreement (or Contract depending upon
award) No. 1 P01 CA78039-01 between the Government and University, which
Agreement provides for the project entitled: "Combinatorial Approaches for Novel
Anticancer Agents".
WITNESSETH THAT:
WHEREAS, the University is desirous of obtaining the services of the
Subcontractor;
WHEREAS, the Subcontractor represents that Subcontractor has the knowledge,
skill and ability to perform the desired services for the University;
NOW, THEREFORE, the parties hereto, intending to be legally bound, covenant and
agree as follows:
SCHEDULE
ARTICLE 1. Statement of Work
1.1 The Subcontractor shall provide the necessary personnel, supplies,
equipment and facilities to perform the services specified in the
Statement of Work attached as Exhibit A, which by this reference is made
a part hereof.
1.2 For the period of this Agreement, the Subcontractor will utilize
personnel for the approximate time indicated:
Personnel Percent of Effort
--------- -----------------
D. Lansing Xxxxxx, Ph.D. (Principal Investigator) 5%
Xxxxxxx X. Xxxxxxxx (Senior Scientist) 30%
Xxxxxx Xxxxxxx (Research Scientist) 30%
Xxxxxx Xxxxxxxx (Laboratory Director) 30%
2
1.3 The Subcontractor agrees to use its best efforts to accomplish all the
services specified in the Statement of Work referenced above. Its
obligation will be deemed complete if the services are performed in
accordance with high standards of scientific and professional skill and
the approximate time has been substantially applied, except, however, all
other requirements must be met including delivery of reports and
materials as may be required under the Agreement. (See ARTICLE 3)
1.4 The University Principal Investigator for the project will advise the
Subcontractor in the performance of the required services. The designated
Principal Investigator for the University is Xx. Xxxx X. Xxxx.
ARTICLE 2. Key Personnel
2.1 The Subcontractor will assign Xx. X. Xxxxxxx Xxxxxx to perform services
under this Agreement and shall not replace said key personnel without the
prior written approval of the University Principal Investigator and an
authorized official of the University.
ARTICLE 3. Delivery or Performance Schedule
3.1 The Subcontractor shall furnish and deliver the material and/or perform
the services required by Exhibit A, Statement of Work.
3.2 The period of performance under this Agreement is specified as May 15,
1998 through February 28, 1999, for which period funds are available and
allotted.
ARTICLE 4. Allowable Costs and Payment
4.1 Estimated Cost
The estimated cost of the performance of this Agreement is $190,000.
4.2 Budget
A budget which is agreed to by the parties to this Agreement is
hereby attached as Exhibit B and made a part of this Agreement.
4.3 Allowable Costs
For the purpose of determining the amounts payable to the Subcontractor
under this Agreement, allowable costs shall be determined in accordance
with (a) the cost principles applicable to the Subcontractor, and (b)
the terms of this Agreement.
a. Direct Costs: $130,000
b. Indirect Costs (Overhead): $ 60,000
The indirect cost rates established for the performance period of
this Agreement are 50% of Direct Costs minus equipment.
However, any amount to be recovered as indirect cost may not exceed
the total indirect cost budget unless provided for in the University
Prior Approval System of the funding agency.
c. Payment
(1) The Subcontractor shall submit invoices, at approximately thirty
(30) day intervals following commencement of services, in the form
attached hereto as Exhibit C, to the University for
2
3
payment of costs incurred during the preceding calendar month.
Invoices should be sent to the following address:
Xxx Xxxxxxxxx
University of Pittsburgh
Department of Pharmacology
W1340 BSTWR
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(2) Payment for performance under this Agreement shall be made by the
University to the Subcontractor on a cost reimbursable basis when
invoiced. Any payments so made shall be in accordance with the
approved budget referenced above and attached as Exhibit B.
If required under the Prime Agreement, final Contractor's Release
and Assignment or Rebates, Refunds and Credits per FAR, Section
52.232-7(g) documents must be submitted to the University with
the Final Invoice.
The Federal government requires a recipient of Federal funds of
$300,000 or more to provide the University with a copy of its
most recent annual audit report within thirty (30) days after
termination date of the Agreement. Accompanying the audit report
must be a statement or other evidence that corrective action has
been taken in instances of non-compliance with Federal laws and
regulations which bear directly on the performance of this
Agreement.
Payment of the final invoice will be withheld until the audit
report is received and all progress payments will be subject to
return to the University if the audit report and other required
documentation is not provided or action to correct non-compliance
with Federal laws and regulations is not taken within six (6)
months from date of submission of audit report. Subcontractor is
required to complete Exhibit F, Subcontractor's Compliance with
A-133, which is attached and made a part hereof.
(3) Subcontractor shall reimburse the University a sum of money
equivalent to the amount of any expenditures disallowed should
the funding agency or the cognizant audit agency rule through
audit exception or some other appropriate means, that
expenditures from funds allocated to the Subcontractor for direct
and/or indirect costs were not made in compliance with the
regulations of the funding agency or the provisions of this
Agreement.
(4) A non-profit recipient of Federal funds that receives $300,000 or
more under this Agreement is subject to compliance with Office of
Management and Budget (OMB) Circular A-133 and must meet the
audit requirements of that circular.
ARTICLE 5. General Provisions
5.1 Independent Contractor
Nothing contained in this Agreement is to be construed to constitute
Subcontractor and University as partners or joint venturers of each
other, or to constitute the employees, agents or representatives of
either party as the employees, agents or representatives of the other
party, it being intended that the relationship between Subcontractor and
University shall at all times be that of independent contractors. Neither
party hereto shall have any express or implied right or authority to
assume or create any obligations on behalf of, or in the name of, the
other party; or to bind the other party to any contract agreement, or
undertaking of any third party. Subcontractor agrees, warrants and
represents to University, with the intention that University may rely
thereon, that University does not now exercise, and will not be permitted
during the terms of this Agreement to exercise any significant degree of
control over Subcontractor's method of operation.
3
4
5.2 Records/Reports
The books of account, documents, papers, files and other records of
the Subcontractor which are applicable to this Agreement shall at all
reasonable times be available for inspection, review and audit, if
required, to determine the proper application and use of all funds paid to
or for the account or for the benefit of the Subcontractor; in addition,
the Subcontractor shall provide such special reports as requested by the
University to permit evaluation of progress of the project.
5.3 Termination
This Agreement may be terminated by either party upon thirty (30) days
written notice to the other party, or in accordance with the Prime
Agreement. In the event of a conflict, the terms of the Prime Agreement
shall govern.
5.4 Liability
The University shall not be responsible or liable for any injuries or
losses which may result from the implementation or use by Subcontractor or
others of the results from the project or research data generated by
Subcontractor.
The Subcontractor shall indemnify, defend and hold harmless University,
its trustees, officers, agents and employees with respect to any expense,
claim, liability, loss, damage or costs (including attorneys' fees) in
connection with or in any way arising out of the negligent acts of the
Subcontractor's officers, employees, agents and/or contractors involved in
the Statement of Work.
The Subcontractor shall be solely responsible for any and all third party
liability incurred by it in connection with the performance of this
Agreement.
This obligation to defend and indemnify University shall survive the
termination of this Agreement.
5.5 Severability
If any provision of this Agreement as applied to either party shall be
adjudged by a court to be void or unenforceable, the same shall not have
any effect on any other provision of this Agreement or the validity or
enforceability of this Agreement.
5.6 Insurance
The Subcontractor shall provide the necessary employment related insurance
coverage, including but not limited to, Worker's Compensation and
Employer's Liability insurance, for its employees involved in this project
in amounts consistent with the laws of its place of business or the
jurisdiction where the Work will be performed.
5.7 Taxes
The Subcontractor agrees that it is responsible for withholding and paying
to appropriate taxing bodies, all taxes that are applicable to
Subcontractor's personnel to be supported under this Agreement.
5.8 Governing Law
This Agreement shall be deemed to be a contract under, and shall be
governed by, construed and enforced in accordance with the laws of the
COMMONWEALTH OF PENNSYLVANIA.
5.9 Forum/Jurisdiction
The parties agree that all claims, disputes, and controversies arising out
of or relating to this Agreement shall be litigated in and before a court
in Pittsburgh, Pennsylvania and hereby consent and submit to jurisdiction
therein.
4
5
5.10 Assignment
This Agreement may not be assigned in whole or in part without the
prior consent of the University.
5.11 Changes
This Agreement may not be and shall not be construed to have been
modified, amended, rescinded, canceled or waived, in whole or in part,
except in writing signed by the parties hereto and making specific
reference to this Agreement.
ARTICLE 6. Special Provisions
6.1 Equipment
The University shall retain title to equipment purchased by the
Subcontractor pursuant to the terms of this Agreement, and the equipment
shall be returned to the University upon the termination of this
Agreement, unless other disposition is mutually agreed upon and
permitted under terms of the Prime Agreement. If requested under the
Prime Agreement, property inventory listings must be submitted to the
University.
6.2 Patents and Inventions
If required under the Prime Agreement, Patent and Invention Reports must
be submitted to the University within thirty (30) days after the
termination date of the Agreement.
6.3 Subcontractor Certifications
The Subcontractor is required to complete and mail to the appropriate
address Exhibit F, Subcontractor Certifications, which is attached and
made a part hereof.
6.4 Cost Accounting Standards
This Agreement is subject to the Cost Accounting Standards as they apply
to Educational Institutions (FAR 52.230-5) and OMB Circular A-21.
Alternatively, if the Subcontractor is subject to other Cost Accounting
Standards as set forth in FAR 52.230-2, those standards will take
precedence.
ARTICLE 7. Incorporation of Applicable Provisions of Prime Agreement
7.1 All applicable provisions contained in the Prime Agreement between the
University and the funding agency shall be binding upon the
Subcontractor, and the Subcontractor hereby agrees to comply with same.
A copy of the Prime Agreement is attached to this Agreement as Exhibit
D and made a part hereof by this reference.
7.2 As used in the aforesaid applicable provisions as modified and
supplemented, the term "Contracting Officer" and "Government" shall mean
either the "University or the Government Contracting Officer" who has
cognizance over the University's Prime Agreement and either the
"University or Government" as may be applicable and determined by the
University. Copies of all notices or reports required to be furnished
shall be furnished to the University.
ARTICLE 8. Entire Understanding
8.1 This Agreement contains the entire understanding with respect to the
subject matter hereof and supersedes all prior agreements or
understandings, written or oral, prior to the execution of this
Agreement.
5
6
IN WITNESS WHEREOF, the parties hereto execute this Agreement.
UNIVERSITY OF PITTSBURGH CELLOMICS, INC.
By By
------------------------------- -------------------------------
Typed Name Xxxxxxx X. Xxxxxx Typed Name
----------------------- -----------------------
Title Director, Office of Research Title
---------------------------- ----------------------------
Date Date
----------------------------- -----------------------------
6
