EX-10.1 2 d46244dex101.htm EX-10.1
Exhibit 10.1
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
AMENDED AND RESTATED NANTOMICS EXCLUSIVE RESELLER AGREEMENT
This Amended and Restated NantOmics Exclusive Reseller Agreement (this “Agreement”) is made as of May 9, 2016, with an effective date as of June 19, 2015 (the “Effective Date”), by and between NantOmics, LLC, a Delaware limited liability company (“NantOmics”), and Nant Health, LLC, a Delaware limited liability company (“NantHealth”). NantOmics and NantHealth are sometimes referred to herein as a “Party” and collectively as the “Parties.”
WHEREAS, NantHealth and NantOmics are parties to that certain NantOmics Exclusive Reseller Agreement (the “Original Agreement”), effective as of June 19, 2015, under which NantHealth obtained the right to market and resell such services on an exclusive basis in the Commercial Field of Use (defined below);
“Affiliate” means, with respect to a Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person. For purposes of this Agreement, (i) NantHealth and its Subsidiaries shall not be deemed to be Affiliates of NantOmics and (ii) NantOmics and its Affiliates shall not be deemed to be Affiliates of NantHealth.
“Claim” means any claim, action, suit, or proceeding.
“Commercial Field of Use” means the marketing, sale and provision of Omics Services on a fee basis to Institutional Customers, in each case, for use in connection with the information provided to an Institutional Customer. For the avoidance of doubt, the “Commercial Field of Use” does not include Omics Services provided primarily for research or educational purposes or for consumer applications or primarily for the discovery, development, evaluation, trial, analysis or regulatory approval of any pharmaceutical or therapeutic product or treatment, or any companion diagnostic, biomarker, neoantigen or neoepitope.
“Confidential Information” means non-public information of a Disclosing Party or its Affiliates, including (a) any trade secrets and any information relating to the Disclosing Party’s current and planned products and services, technology, source code, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists, business forecasts, and marketing; (b) any information disclosed in writing that is clearly marked “confidential” or with a similar proprietary notice at the time of disclosure; (c) any information disclosed verbally that is identified as “confidential” or similarly at the time of disclosure, or which, by its nature, a reasonable person would consider confidential; (d) the terms and conditions of this Agreement; and (e) Omics Data.
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“Control” means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Customer Agreement” means an agreement that is accepted and agreed to by an Institutional Customer for the provision Omics Services sold by NantHealth or its Subsidiary under this Agreement.
“Institutional Customer” means an insurer, payor, self-insured health plan or healthcare provider that pays for, or agrees to pay for, Omics Services. For the avoidance of doubt, “Institutional Customers” do not include research, academic or educational institutions, pharmaceutical or biotechnology companies or individual patients or consumers.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“License Agreement” means that certain License Agreement between NantHealth and NantOmics of even date herewith, in form attached hereto as Exhibit A.
“Loss” means all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.
“NantOmics Marks” means the trade names, trade dress, trademarks, service marks, logos, brand names and other identifiers of NantOmics or otherwise used in connection with any Omics Services, including any applications, registrations, and renewals thereof.
“Omics Data” means [***].
“Omics Platform” means the hardware, software, systems, tools, database processes, reporting methodology, testing procedures and other technology utilized by or for NantOmics in the operation or provision of Omics Services.
“Omics Report” means the final, clinical report issued by NantOmics via the Omics Services hereunder for delivery to the applicable requisitioning physician.
“Omics Services” means whole genome sequencing, whole exome sequencing, RNA-Seq and quantitative proteomics, and computational and data management and bioinformatics services, made commercially available by NantOmics to NantHealth for NantHealth to resell to Institutional Customers during the Term in accordance with this Agreement.
“Other Services” means consulting and other professional services that may be provided by or on behalf of NantOmics to NantHealth, its Subsidiaries or an Institutional Customer from time to time in connection with this Agreement.
“Person” means any natural person, corporation, limited liability company, general partnership, limited partnership, trust, proprietorship, joint venture, business organization, or government, political subdivision, agency or instrumentality.
Amended and Restated NantOmics Exclusive Reseller Agreement CONFIDENTIAL | Page 2 of 20 |
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“Representatives” means a with respect to a Party or its Affiliates, each of their respective employees, officers, directors, partners, shareholders, agents, attorneys, and third-party advisors.
“Services” means the Omics Services and Other Services, collectively.
“Subsidiary” means, with respect to a Person, any other Person that is directly or indirectly, through one or more intermediaries, Controlled by such Person.
“Term” has the meaning set forth in Section 13 hereof.
“Territory” means the entire world.
2. | Appointment as Reseller. |
2.1 Appointment. Subject to the restrictions and obligations set forth in this Agreement, NantOmics hereby appoints NantHealth, during the Term, as an exclusive reseller of the Omics Services in and for the Commercial Field of Use, with the exclusive right to market and sell Omics Services in the Territory to and for Institutional Customers in and for the Commercial Field of Use.
2.2 Exclusivity. The rights granted to NantHealth under Section 2.1 are exclusive. Accordingly, during the Term and except to the extent otherwise agreed by the Parties on a case-by-case basis: (i) NantOmics will not provide or otherwise make available Omics Services to other Persons in or for the Commercial Field of Use and will not authorize or grant any other Person the right to market or sell Omics Services in or for the Commercial Field of Use and (ii) the Omics Services will be the only whole genome sequencing, whole exome sequencing, RNA-Seq and quantitative proteomics, and computational and data management and bioinformatics services marketed, sold or otherwise made available by NantHealth and its Subsidiaries. For the avoidance of doubt, the foregoing exclusivity does not apply, and NantOmics reserves the right to offer and make Omics Services available, outside the Commercial Field of Use.
2.3 Customer Engagement, Billing and Order Processing. NantHealth will (i) provide and manage, in its reasonable discretion, relationships relating to the Omics Services, including patient engagement, communication with Institutional Customers and, in coordination with NantOmics, order processing and tissue and blood sample collection and (ii) manage billing, payments, billing inquiry, collections and other transaction related processes for the Omics Services via direct interaction with Institutional Customers (which may include the delivery of general reports to Institutional Customers regarding Omics Services provided to/for such Institutional Agreements) (collectively, “Omics Transactional Activities”).
2.4 Order Fulfillment Process. The Parties will work together in good faith to develop and implement mutually agreeable processes and systems for communicating and processing Omics Service orders and the delivery of Omics Service reports and results, including access by NantOmics to NantHealth CRM solutions used for order tracking and access and/or integration with laboratory information management systems utilized by NantOmics.
2.5 Branding. The Omics Services (including sample collection kits) will be branded under the NantOmics Marks and/or other branding selected by NantOmics; provided that NantHealth shall be identified as the reseller of such services in a mutually agreeable manner.
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2.6 Marketing and Promotion.
(a) The Parties will work together in good faith to develop marketing strategies, plans and materials to be used for the promotion and sale of Omics Services under this Agreement and NantHealth agrees that it will only use marketing materials that have been mutually agreed by the Parties. Further, the Parties shall cooperate in good faith to coordinate marketing and sales activities, including in the development of sales proposals and forecasts and in capacity planning for Omics Services.
(b) NantOmics will provide commercially reasonable sales and marketing support to NantHealth regarding the Omics Services, which may include: (i) providing commercially reasonable training to NantHealth’s sales personnel; (ii) participating in sales meetings with NantHealth’s sales personnel; and (iii) reasonably cooperating with NantHealth in responding to requests for proposals or related sales discussions regarding the Omics Services and requests regarding specific requirements in Customer Agreements that relate to the Omics Services.
(c) NantHealth shall: (i) use commercially reasonable efforts to market and actively promote the Omics Services in a professional manner that brings credit to NantOmics and enhances the reputation of NantOmics and the Omics Services; (ii) refrain from making claims or representations concerning Omics Services, other than as set forth in the mutually agreed upon marketing materials; and (iii) consult with NantOmics regarding any marketing or trade practice that might affect the good name, trademarks, goodwill or reputation of NantOmics or the Omics Services.
2.7 Provision and Quality of Services. NantOmics will use its commercial reasonable efforts to provide the Services in a timely, skillful, professional and workmanlike manner by qualified personnel exercising care, skill and diligence consistent with industry standards, and in accordance with the terms and conditions of this Agreement.
2.8 Customer Agreements. NantHealth will only exercise its rights under Section 2.1 if: (i) NantHealth obtains appropriate authorization and the informed consent from the applicable patient under an informed consent document provided by or otherwise approved by NantOmics (which informed consent document shall provide NantOmics with rights to Omics Data as contemplated in this Agreement) and (ii) with respect to any Institutional Customer, such Intuitional Customer executes a Customer Agreement with terms and conditions no less protective of NantOmics and its service providers than the applicable terms and conditions related to NantHealth’s own products and services and, with respect to the Omics Services, reasonable warranty disclaimers and liability limits for services of this type and rights to Omics Data as contemplated in this Agreement.
2.9 Subsidiaries. NantHealth may authorize its Subsidiaries to exercise the rights granted to NantHealth under Section 2.1, provided that such Subsidiaries agree to comply with the terms and conditions of this Agreement to the same extent that they apply to NantHealth. NantHealth shall be responsible for the acts and omissions of such Subsidiaries which, for purposes of this Agreement, shall be deemed to be the acts and omissions of NantHealth.
2.10 Personnel. Each Party will use a reasonably adequate number of qualified personnel with suitable training, education, experience and skill to enable such Party to perform under this Agreement. The Parties agree to use their reasonable efforts to promptly resolve any good faith complaints regarding any of the other Party’s personnel, or otherwise concerning the value or efficacy of any Services or other functions performed by or on behalf of a Party in connection with this Agreement.
2.11 Other Services. The Parties may agree, from time to time, for NantOmics to provide Other Services to NantHealth or an Institutional Customer, in which case the Parties shall discuss in good faith and mutually agree upon the applicable rates for such Services.
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3. | Revenue Share and Payment Terms. |
[***]
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customary office policies and procedures. NantOmics shall be entitled to one audit per calendar year during the Term and during the two (2) years thereafter. Upon the conclusion of an audit, the period covered during such an audit may not be reexamined in any subsequent audit. If an audit discloses that NantHealth has underpaid NantOmics an amount that is more than five percent (5%) of the amount actually due under this Agreement during any 6 month period, then NantHealth shall pay all reasonable expenses of the Auditor directly incurred by NantOmics Party for such audit in addition to the underpaid amount disclosed through such audit and due under this Agreement.
4.1 | Licenses and Intellectual Property Ownership. |
(a) Subject to the terms and conditions of this Agreement, NantOmics hereby grants to NantHealth and its Subsidiaries a non-exclusive, non-transferable (except in accordance with Section 16.4) right and license to use the NantOmics Marks in connection with the marketing, sale and provision of Omics Services hereunder and to otherwise fulfill the terms of this Agreement.
(b) NantHealth’s and its Subsidiaries’ use of the NantOmics Marks must be in accordance with the NantOmics’ trademark use guidelines and instructions, if any, furnished in writing from time to time. NantOmics will give NantHealth written notice of any changes to such specifications or guidelines, and will give NantHealth a reasonable time to modify its use of the NantOmics Marks to comply therewith.
(c) All goodwill in and to the NantOmics Marks will inure solely to the benefit of NantOmics.
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marketing materials or Omics Service reports any titles, trademarks, or copyright, patent or other proprietary or restrictive legends or notices, or any end user warning or advisory, affixed to or contained therein or thereon; (c) release to a third party the results of any evaluation or testing of any Omics Services without NantOmics prior written approval; (d) otherwise market or sell any Omics Service or use any NantOmics Marks or NantOmics marketing materials except as expressly set forth this Agreement or otherwise agreed in writing.
5. | Other Covenants. |
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6. | Force Majeure. |
7. | Regulatory Matters. |
(a) If and to the extent any Omics Service is subject to regulation by the FDA or other governmental authority, NantOmics shall fulfill, and NantHealth shall provide reasonable assistance and cooperation so that NantOmics can fulfill, all corresponding regulatory requirements, including compliance with all applicable Laws related to premarket clearance or approval, marketing, sale and distribution of the Omics Service (and upon NantHealth’s request, NantOmics will provide NantHealth with any such clearance or approval documentation to support the marketing of the Omics Service).
(b) Unless expressly agreed by NantOmics in writing on a case-by-case basis, NantHealth will not seek any licenses, permits or approvals or make any determinations that may result in imposition of any obligations or limitations on NantOmics with respect to the regulatory status of any of Omics Service.
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(c) If NantOmics decides to seek, or permits NantHealth to seek, any licenses, permits, or approvals or to take any action that may result in any Omics Service being deemed regulated by the FDA or that may otherwise materially impact the regulatory status of any Omics Offering, then NantOmics will inform NantHealth and the Parties will work together to minimize the effect of such regulation, obligation or limitation, to the extent reasonably practicable.
8. | Confidentiality. |
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
regulations of a stock exchange or similar self-regulatory authority, to disclose any of the Disclosing Party’s Confidential Information, then the Receiving Party agrees, to the extent legally permissible and as soon as reasonably practicable, to provide the Disclosing Party with written notice of the event so that the Disclosing Party may, at the Disclosing Party’s expense, seek a protective order or other remedy. The Receiving Party or its Representative (as applicable) will use its commercially reasonable efforts to consult with the Disclosing Party with respect to any effort by the Disclosing Party to resist or narrow the scope of such requirement or request, or to seek such protective order or other remedy. If such protective order or other remedy is not obtained, then the Receiving Party or its Representative (as applicable): (a) may, without liability, disclose that portion of the Disclosing Party’s Confidential Information that it is required to disclose; and (b) will use its commercially reasonable efforts to have confidential treatment accorded to the Confidential Information so disclosed. Furthermore, Section 8 will not apply to the disclosure of Confidential Information if such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Any information disclosed pursuant to this Section 8.3 will retain its confidential status for all other purposes.
9. | Public Announcements. |
10. | Representations and Warranties. |
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executed and delivered by it, this Agreement will constitute its legal, valid, and binding obligation, enforceable against it in accordance with its terms; and (e) its execution, delivery, and performance of its obligations under this Agreement does not and will not violate any judgment, order, decree, or applicable Law, nor does it or will it violate any agreement to which it is a party.
11. | Indemnification. |
(a) any violation of applicable Law by the Indemnifying Party;
(b) any gross negligence or willful misconduct in connection with its performance of any covenant or agreement applicable to Indemnifying Party contained in this Agreement (including the performance of the Services), including any personal injury, death, or damage to tangible personal or real property; except any of the foregoing based on allegations of medical malpractice or liability arising out of delivery of (or a failure to deliver) medical care;
(c) taxes assessed or claimed against any of the Indemnified Persons that are obligations of the Indemnifying Party in connection with this Agreement or which result from the breach of this Agreement by the Indemnifying Party; and
(d) any Claims that the Indemnifying Party’s services, products, marketing materials or any use, promotion, marketing, distribution, sale or delivery thereof as permitted and in accordance with this Agreement, infringe, misappropriate, or violate any intellectual property or other rights of a third party, including any damages suffered by Indemnified Persons’ customers as a result thereof for which the Indemnified Persons are liable.
(a) In the event of a Claim that the Indemnifying Party’s services, products, or marketing materials, or any use, promotion, marketing, distribution, sale or delivery thereof in accordance with this Agreement, infringe, misappropriate, or violate any intellectual property right of a third party, or if any use of any of such item (or any respective component thereof) is enjoined or threatened to be enjoined, then the Indemnifying Party will, at its sole cost and expense, (i) procure for the Indemnified Persons the right to continue to receive and use such item to the full extent contemplated by this Agreement; or (ii) modify or replace the elements that infringe or are alleged to infringe to make them non-infringing while providing reasonably equivalent services, features and/or functionality (as applicable).
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(b) If, in Indemnifying Party’s discretion, none of the options set forth in Section 11.2(a) are commercially practicable, then either Party will have the right to terminate this Agreement with respect to the applicable products or services immediately.
(c) The remedies set forth in this Section 11.2 are in addition to, and not in lieu of, all other remedies that may be available to the Indemnified Persons under this Agreement or otherwise, including the Indemnified Persons’ right to indemnification pursuant to Section 11.1.
11.4 Indemnification Procedure.
(a) A Person seeking defense and indemnification under this Section 11 (the “Indemnified Person”) will promptly notify the Party from whom defense and indemnification is being sought (the “Indemnifying Party”) in writing, describing the circumstances, in reasonable detail, for which it seek defense and indemnification.
(b) Upon notice of a Claim, the Indemnifying Party will immediately assume the investigation and defense of such Claim, and, in connection therewith, will employ counsel of its own choosing at its sole cost and expense. At the Indemnifying Party’s request and expense, the Indemnified Person will provide reasonable cooperation in connection with the investigation and defense of such Claim; provided, however, that the Indemnified Person will not be required to disclose any confidential information which it does not have the right to disclose or to waive any privilege. The Indemnified Person may also participate in and observe (but not control) the investigation and defense of such Claim, at its own cost and expense and with counsel of its choosing.
(c) If the Indemnifying Party fails to defend a Claim hereunder within a reasonable amount of time after receiving notice thereof, the Indemnified Person will have the right, but not the obligation, and without waiving any of its other rights hereunder, to undertake the defense of and to compromise or settle such Claim, on behalf of and at the risk and expense of the Indemnifying Party.
(d) The Indemnifying Party will not settle any Claim in a manner that adversely affects the rights or assets, or restrains or interferes with the business or operations of, the Indemnified Person or its Affiliates, or which involves an admission of liability of behalf of the Indemnified Person or its Affiliates, or imposes any obligation upon the Indemnified Person that the Indemnifying Party does not discharge, in each case without the Indemnified Person’s prior written consent (which shall not be unreasonably withheld).
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(e) An Indemnified Person’s failure to perform any obligations under this Section 11.4 will not diminish an Indemnifying Party’s obligations hereunder, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.
12. | Limitation of Liability. |
12.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. EXCEPT AS OTHERWISE SET FORTH IN SECTION 12.3, IN NO EVENT WILL ANY PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POTENTIAL FOR SUCH DAMAGES, OR WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, TORT, OR OTHERWISE.
13. | Term. |
(a) If NantHealth meets the applicable Renewal Threshold set forth below for the Initial Term, NantHealth may, at its option, renew this Agreement (with exclusivity under Section 2.2) for an additional three (3) years (i.e., through December 31, 2023) by providing NantOmics with written notice of its election to renew at least ninety (90) days prior to the end of the Initial Term (the “Initial Exclusive Renewal Term”).
(c) Following the Initial Exclusive Renewal Term, NantHealth may, at its option, renew this Agreement (with exclusivity under Section 2.2) for up to two (2) additional three (3) year periods (i.e., through December 31, 2026 for the first renewal option and through December 31, 2029 for the second renewal option) (each, an “Additional Exclusive Renewal Term”) by providing NantOmics with written notice at least ninety (90) days prior to the end of the then-current renewal term, if NantHealth meets the applicable Renewal Threshold for the then-current renewal term. The Initial Exclusive Renewal Term and each Additional Exclusive Renewal Term are collectively referred to as the “Exclusive Renewal Terms.”
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(d) The “Renewal Threshold” for the Initial Term and each Exclusive Renewal Term is set forth in the table below:
Renewal Threshold | ||
Initial Term | 300,000 Omics Service tests completed between the Effective Date and June 30, 2020 | |
First Exclusive Renewal Term | 570,000 Omics Service tests completed between July 1, 2020 and June 30, 2023 | |
Second Exclusive Renewal Term | 760,000 Omics Service tests completed between July 1, 2023 and June 30, 2026 |
(e) If this Agreement is not renewed for an Exclusive Renewal Term as provided above, then NantHealth may, at its option at the end of the Initial Term or the first or second Exclusive Renewal Term (as applicable), renew this Agreement on a non-exclusive basis for one additional three (3) year term (the “Non-Exclusive Renewal Term”) by providing NantOmics with written notice at least ninety (90) days prior to the end of the Initial Term or such Exclusive Renewal Term, in which case the exclusive rights granted to NantHealth under Section 2.2 shall not renew and shall automatically terminate as of the last day of the Initial Term or such Exclusive Renewal Term.
(f) For the avoidance of doubt, this Agreement shall automatically expire (i) at the end of the Initial Term or the first or second Exclusive Renewal Term, unless renewed by NantHealth as expressly provided above or (ii) in any case, at the end of the third Exclusive Renewal Term or Non-Exclusive Renewal Term.
14. | Termination. |
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(a) The termination of this Agreement will not have the effect of terminating any Customer Agreement entered into prior to the effective date of termination. Each Party will continue to honor commitments made under the terms and conditions of each such Customer Agreement for up to three (3) years after the effective date of termination of this Agreement, including the provision of Services to/for such Institutional Customers for such three (3) year period. NantHealth will continue to make payments to NantOmics with respect to each Customer Agreement still in effect in accordance with this Agreement.
(b) Upon termination of this Agreement, except in connection with the rights and obligations set forth in this Section 14.6, (i) NantHealth shall promptly cease all use of the NantOmic’s Marks and all marketing and sales-related efforts with respect to the Omics Services; (ii) NantHealth will promptly cease to solicit or procure orders/transactions for Omics Services; (iii) NantHealth shall promptly deliver a copy of all Omics Data in its possession and return to NantOmics all copies of NantOmic’s marketing and related materials; (iv) NantHealth shall promptly discontinue its use of Omics Data and delete and otherwise remove or destroy all other copies of any Omics Data that is in NantHealth’s possession or control; and (v) each Party will provide reasonable cooperation and assistance to the other Party in transitioning Institutional Customers to NantOmics for the continued provision of Omics Services.
16. | Miscellaneous. |
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16.8 Governing Law. This Agreement will be governed by and construed in accordance with the Laws of the State of California applicable to agreements made and to be performed wholly within that State without regard to its conflicts of laws provisions.
(i) With respect to any Dispute referred to arbitration pursuant to this Section 16.9, the Parties and the Arbitrator shall use all reasonable efforts to complete any such arbitration within three (3) months from the issuance of notice of a referral of any such Dispute to arbitration. The Arbitrator shall determine what discovery will be permitted, consistent with the goal of limiting the cost and time which the Parties must expend for discovery; provided that the Arbitrator shall permit such discovery as he or she deems necessary to permit an equitable resolution of the Dispute.
(ii) The decision of the Arbitrator shall be the sole, exclusive, and binding remedy between them regarding the Dispute presented to the Arbitrator. Any decision of the Arbitrator may be entered in a court of competent jurisdiction for judicial recognition of the decision and an order of enforcement. The arbitration proceedings and the decision of the Arbitrator shall not be made public without the joint consent of the Parties, and each Party shall maintain the confidentiality of such proceedings and decision.
(iii) Unless otherwise agreed by the Parties, the arbitration proceedings shall be conducted in Los Angeles, California. The Parties shall share equally the cost of the arbitration filing and hearing fees, the cost of the independent expert retained by the Arbitrator, and the cost of the Arbitrator and administrative fees of AAA. Each Party shall bear its own costs and attorneys’ and witnesses’ fees and associated costs and expenses.
Amended and Restated NantOmics Exclusive Reseller Agreement CONFIDENTIAL | Page 17 of 20 |
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
16.10 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
[Signature Page Follows]
Amended and Restated NantOmics Exclusive Reseller Agreement CONFIDENTIAL | Page 18 of 20 |
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
NantOmics, LLC | Nant Health, LLC | |||||||
By: | /s/ Xxxxxxx Xxx | By: | /s/ Xxxxxx Xxxxxx | |||||
Name: | Xxxxxxx Xxx | Name: | Xxxxxx Xxxxxx | |||||
Title: | General Counsel | Title: | President | |||||
Address for Notices: | Address for Notices: | |||||||
0000 Xxxxxxxxx Xxxx. | 0000 Xxxxxxxxx Xxxx. | |||||||
Xxxxxx Xxxx, XX 00000 | Xxxxxx Xxxx, XX 00000 | |||||||
Attention: General Counsel | Attention: President |
Amended and Restated NantOmics Exclusive Reseller Agreement CONFIDENTIAL | Page 19 of 20 |
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT A
LICENSE AGREEMENT
Attached
Amended and Restated NantOmics Exclusive Reseller Agreement CONFIDENTIAL | Page 20 of 20 |