EXHIBIT 10.17
UNITED MEDICAL MANUFACTURING COMPANY
hereinafter called
UMM
and
SMITHKLINE XXXXXXX CORPORATION
hereinafter called
CLIENT
UMM agrees to provide Client with services for the development and manufacture
of a multi-analyte reflectance diagnostic instrument substantially in accordance
with UMM's proposal dated May 10, 1995 (the "Proposal"), which is incorporated
herein, subject to the following terms and conditions (the "Project"):
1. TERM
UMM will begin work on the Project within thirty (30) days of receipt of this
Agreement executed by Client and will continue for a period of three (3) months
through Phases I and II of the Proposal (unless extended by mutual written
agreement), subject to the terms and conditions of this Agreement.
2. PAYMENT
UMM estimates that the price to the Client for performance of the Project will
be Two Hundred Thirteen Thousand Eight Hundred Dollars ($213,800.00) and Client
agrees to provide UMM with a purchase order within fifteen (15) days of signing
this Agreement. Client shall not be required to reimburse, and UMM shall not be
required to incur, any charges for performance in excess of the above price,
unless mutually agreed upon in writing. Client, through its representative Xx.
Xxxxxx Xxxxx or his designee, shall approve in advance any equipment purchases
or significant material purchases. Upon termination of the Project, and after
all costs are available, any balance of payments by Client in excess of actual
costs and fees incurred shall be credited or refunded to Client, unless said
refund shall be less than One Hundred Dollars ($100.00). Client shall authorize
in advance the incurrence of expenses listed in Appendix C to the Proposal and
attached hereto, which expenses shall be invoiced separately when incurred in
accordance with the terms and conditions set forth in Appendix C.
3. OWNERSHIP
The parties agree that all Work (which shall include for purposes of this
Section all ideas, processes, methodologies, software, algorithms, formulae,
notes, outlines, photographs, inventions, improvements and other information and
work product developed or generated by or on behalf of UMM during the course of
its performance of the Project pursuant to this Agreement) shall be considered
"works made for hire" within the meaning of the Copyright Act of 1976, 17 U.S.
C. (s)101, and that Client is and shall be the sole author of the Work, and the
sole owner of all rights therein, including but not limited to all rights of
copyright. In the event any of the Work is deemed not to be a "work made for
hire," then UMM hereby transfers to Client, without further consideration, all
right, title, and interest to such Work, including any and all patents,
copyrights, trade secrets and other proprietary rights related thereto. UMM
agree to promptly execute and deliver, or cause to be promptly executed and
delivered, all documents and instruments requested by Client to evidence the
foregoing assignment, UMM hereby irrevocably appoints Client as UMM's
attorney-in-fact for the purpose of executing such documents and instruments in
UMM's name. UMM represents and warrants that it has the right to grant to Client
sole right, title and interest in and to the Work, and that ownership or use of
the Work by Client will not constitute an infringement of any third-party
patent, copyright, trade secret or other proprietary right.
4. INVENTIONS
If UMM employees conceive and first actually reduce to practice an invention
within the scope of the Project while working on the Project, UMM will promptly
notify Client of the invention and shall be deemed to have assigned to Client
any and all of its rights to such invention. Upon request, within sixty (60)
days of the notification, UMM will also assist Client in preparing and
prosecuting an application for Letters Patent. The costs of providing such
assistance are not included in the Project estimate stated in Section 2 above,
and Client agrees to pay such costs in addition to any other amounts payable
under this Agreement.
5. CONFIDENTIALITY
UMM acknowledges that it may be exposed or have access to trade secrets and
other confidential business information of Client or other entities with which
Client has business relationships. Such information, referred to hereinafter as
"Confidential Data," shall include all information concerning the business or
affairs or Client that is not known by or generally available to third parties,
including, without limitation, existing systems and programs and those in
development, customer lists, customer needs and requirements, employee lists,
salaries and benefits, and all data received in confidence by Client from third
parties. UMM agrees that during its business dealings with Client and thereafter
(i) it will hold all Confidential Data in the strictest confidence and will not
copy or disclose any portion thereof to any person or entity, except its
employees who
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have a need to know, without the prior written consent of Client; (ii) it will
comply, and cause each of its employees to comply, with Client's policies on
data and information security; (iii) it will not make any use whatsoever of any
Confidential Data except to perform services in connection with the Work
pursuant to this Agreement; and (iv) upon termination of its business dealings
with Client or at any time upon Client's request, it will immediately return to
Client all Confidential Data in its possession or in the possession of its
employees.
6. REPORTS AND USE OF RESULTS BY CLIENT
UMM agrees to render to Client written reports of its findings and progress made
during the term of the Agreement, at intervals agreed upon by the parties.
Client may use the results of the Project as Client sees fit.
UMM will provide a high standard of professional service. UMM warrants that
services provided hereunder shall be performed in a competent and workmanlike
manner and that each item of Work furnished to Client pursuant to this Agreement
shall conform with its description and specifications as set forth in the
Proposal. UMM further warrants that it is, and will be, in compliance with good
manufacturing practices as required by the Food & Drug Administration.
7. INDEPENDENT CONTRACTORS
Client and UMM are independent contractors, are not related and shall not be
construed as co-employers, joint venturers, partners or otherwise. UMM shall be
responsible for payment of all wages and/or salaries and benefits due to its
employees. Notwithstanding the above, Client will, if appropriate, deduct
applicable taxes from UMM's compensation for services performed under this
Agreement. Upon Client's request, UMM will provide Client with certificates of
insurance evidencing that its employees are covered by: (i) general liability
insurance with a minimum limit of $1 million combined single limit bodily injury
and property damage; and (ii) workmen's compensation insurance in the state in
which each UMM employee is employed.
8. FORCE MAJEURE
Neither Client nor UMM shall be liable in any way for failure to perform any
provision of this Agreement (except the payment of monetary obligations) if such
failure is caused by any law, rule or regulation, or any cause beyond the
control of the party in default.
9. EARLY TERMINATION
Either party shall have the right to terminate this contract upon thirty (30)
days' written notice. In the event of early termination, UMM agrees to: (i)
provide Client with all reports, materials, or other deliverable items available
as of the date of termination, and
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(ii) refund the applicable pro rata portion of the estimated payment as set
forth in Section 2. In any event, Client agrees to pay all appropriate and
reasonable costs incurred or committed by UMM including costs of termination,
within thirty (30) days of receipt of a final invoice, which invoice is subject
to review and approval by Client.
10. FURTHER ASSURANCES
Each of UMM and Client agree to work in good faith to execute a formal Supplier
Agreement between the parties prior to termination of the initial term of this
Agreement.
11. GENERAL
This Agreement and the Proposal incorporated herein represent the entire
Agreement of the parties, and may be modified or amended only by mutual
agreement in writing. This Agreement shall not be assigned by either party
without the prior written consent of the other party, except that Client may
assign this Agreement to an affiliate without the prior written consent of UMM.
This Agreement shall be governed by and is to be construed in accordance with
the laws of and enforced within the jurisdiction of Pennsylvania.
SMITHKLINE XXXXXXX CORPORATION UNITED MEDICAL
MANUFACTURING COMPANY
By /s/ W. V. Stoughton By /s/ Xxxx X. Xxxxxxx
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Title Title President
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Date Date December 12, 1995
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EXIGENT DIAGNOSTICS, INC.
X. XXXXXXX STOUGHTON
CHAIRMAN AND CEO
CONSENT TO ASSIGNMENT
The undersigned hereby consents to the assignment by SmithKline
Xxxxxxx Corporation, a Pennsylvania corporation ("SB"), to Exigent Diagnostics,
Inc., a Delaware corporation ("Assignee"), of all of the rights of SB under the
Preliminary Agreement by and between the undersigned and SB dated as of May 10,
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1995 (the "Agreement"). For purposes of this consent, "Effective Time of the
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Assignment" means the effective time of the closing of Assignee's purchase of
the assets of SmithKline Xxxxxxx Diagnostic Systems Co., a Pennsylvania limited
liability company. In executing this consent, the undersigned agrees that SB
will be responsible for obligations arising under the Agreement prior to the
Effective Time of the Assignment and Assignee will be responsible for any
obligations arising under the Agreement after the Effective Time of the
Assignment.
UNITED MEDICAL MANUFACTURING COMPANY
By:/s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
CONSENT TO ASSIGNMENT
The undersigned hereby consents to the assignment by SmithKline
Xxxxxxx Corporation, a Pennsylvania corporation ("SB"), to Exigent Diagnostics,
Inc., a Delaware corporation ("Assignee"), of all of the rights of SB under the
Preliminary Agreement by and between the undersigned and SB dated as of August
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27, 1996, (the "Agreement"). For purposes of this consent, "Effective Time of
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the Assignment" means the effective time of the closing of Assignee's purchase
of the assets of SmithKline Xxxxxxx Diagnostic Systems Co., a Pennsylvania
limited liability company. In executing this consent, the undersigned agrees
that SB will be responsible for obligations arising under the Agreement prior to
the Effective Time of the Assignment and Assignee will be responsible for any
obligations arising under the Agreement after the Effective Time of the
Assignment.
UNITED MEDICAL MANUFACTURING COMPANY
By:/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
