EXHIBIT 10.20
AGREEMENT NUMBER CPO32284
COST TYPE
Between
BATTELLE MEMORIAL INSTITUTE
through its
BATTELLE COLUMBUS OPERATIONS
hereinafter called
BATTELLE
and
EXIGENT DIAGNOSTICS, INC.
hereinafter called
CLIENT
BATTELLE agrees to provide CLIENT with services on the concept development for a
diagnostic disposable and pilot production line substantially in accordance with
BATTELLE's Proposal No. CPO32284, which is incorporated herein, subject to the
following terms and conditions (the "PROJECT"):
1.TERM
BATTELLE 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 five (5)
months, subject to the terms and conditions of this Agreement.
2.PAYMENT
BATTELLE estimates that the price to the CLIENT for performance of the PROJECT
will be Five Hundred Thousand Dollars ($500,000.00) payable upon receipt of
monthly invoices for costs incurred. CLIENT shall not be required to reimburse,
and BATTELLE shall not be required to incur, any charges for performance in
excess of the above price, unless mutually agreed upon in writing.
Travel expenses are not included in the above estimate and, when authorized by
CLIENT, will be invoiced separately when incurred.
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 BATTELLE 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 BATTELLE 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. BATTELLE agrees 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.
4. INVENTIONS
If BATTELLE employees conceive and first actually reduce to practice an
invention within the scope of the PROJECT while working on the PROJECT, BATTELLE
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, BATTELLE will also assist CLIENT in
CLIENT's preparation and prosecution of applications 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
BATTELLE 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. BATTELLE agrees that during its business dealings with CLIENT and
thereafter for a period of five (5) years (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 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
BATTELLE agrees to render 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, subject to the
following:
a. CLIENT agrees not to use or imply the BATTELLE name for advertising,
promotional purposes, raising capital, recommending investments, or in
any way that implies endorsement by BATTELLE without the written consent
of BATTELLE. CLIENT or BATTELLE may publicly disclose, in a news context,
the fact that an agreement has been entered into, including the name of
the CLIENT or BATTELLE and the general nature of the PROJECT.
b. CLIENT agrees not to use any PROJECT results in any dispute, litigation,
or other legal action.
BATTELLE agrees to provide a high standard of professional service and shall
exert its best efforts within time and funds provided toward achievement of the
technical objectives of the PROJECT authorized pursuant to this Agreement.
However, as the results of the PROJECT will be developmental in nature, in no
event shall BATTELLE or its employees and agents have any obligation or
liability for damages, including but not limited to consequential damages,
arising out of or in connection with CLIENT'S use or inability to use the
PROJECT results. BATTELLE PROVIDES NO WARRANTY OR GUARANTEE OF RESULTS,
INCLUDING WARRANTIES OF FITNESS FOR PURPOSE OR OF MERCHANTABILITY FOR ANY ITEM
OR RESULT THAT MAY BE DELIVERED UNDER THIS AGREEMENT. BATTELLE agrees 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 Proposal
No. CPO32284.
7. INDEPENDENT CONTRACTORS
CLIENT and BATTELLE are independent contractors are not related and shall not be
construed as co-employers, joint venturers, partners or otherwise. BATTELLE
shall be responsible for payment of all wages and/or salaries and benefits due
to its employees. Upon CLIENT'S request, BATTELLE 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 BATTELLE employee is employed.
8. INSURANCE AND INDEMNITY
CLIENT agrees to maintain adequate product liability insurance coverage for any
CLIENT products that may be developed based in whole or in part on BATTELLE'S
work, and CLIENT agrees to provide evidence of such insurance upon written
request.
CLIENT agrees to indemnify and hold BATTELLE harmless from any and all
liability, claims, demands, and damages, and all costs and expenses in
connection therewith, for or arising out of BATTELLE's performance under this
Agreement, other than for injury or damage occurring (i) during performance of
the Agreement on BATTELLE-owned premises, except to the extent of CLIENT's
contribution to such injury or damage, or (ii) as a result of the gross
negligence or willful misconduct of BATTELLE. contributing cause.
9. NATURE OF SERVICES
CLIENT agrees that BATTELLE's performance of services on PROJECTS pursuant to
this Agreement is that of a professional service provider, and not a
manufacturer or supplier. CLIENT shall retain all final decision-making
authority and responsibility for the formulation, manufacturing, marketing,
design and selling of CLIENT's products. BATTELLE shall not have any
responsibility for providing product labels, warnings, or instructions for the
users of CLIENT's products and shall have no responsibility for obtaining FDA
premarket approval for any product or device unless mutually agreed upon in
writing.
10. FORCE MAJEURE
Neither CLIENT nor BATTELLE 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.
11. EARLY TERMINATION
Either party shall have the right to terminate this contract upon fifteen (15)
days' written notice. In the event of early termination, BATTELLE agrees to: (i)
provide CLIENT with all reports, materials, or other deliverable items available
as of the date of termination, and (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 BATTELLE
including costs of termination, within thirty (30) days of receipt of a final
invoice.
12. LATEST DATE OF ACCEPTANCE
This agreement will become effective upon receipt of a fully executed copy by
BATTELLE, except that it will be void if not executed and received by BATTELLE
within sixty (60) days of the date of signature by BATTELLE.
13. GENERAL
This Agreement and Proposal No. CPO32284 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 the CLIENT may
assign this Agreement to an affiliate without the prior written consent of
BATTELLE. This Agreement shall be governed by and is to be construed in
accordance with the laws of and enforced within the jurisdiction of Ohio.
EXIGENT DIAGNOSTICS, INC. BATTELLE MEMORIAL INSTITUTE
Columbus Operations
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx Xx.
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Xxxxxx X. Xxxxxxx Xx.
Title V.P. of R.D Contracting Officer
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Date 12/12/96 Date December 5, 1996
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