SECOND AMENDMENT
This is a Second Amendment to the License Agreement between THE GENERAL
HOSPITAL CORPORATION, a not-for-profit corporation doing business as
Massachusetts General Hospital, having a place of business at Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("GENERAL") and Palomar Medical Technologies, a
Delaware corporation having offices at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
("PALOMAR"), effective August 18, 1995 ("LICENSE AGREEMENT").
For good and valuable consideration GENERAL and PALOMAR hereby agree to
amend the License Agreement by amending certain paragraphs and adding the
following new paragraphs to the LICENSE AGREEMENT, effective February 14, 1997
("THE AMENDMENT EFFECTIVE DATE"):
Add the following "Whereas" clauses after the sixth existing "Whereas" clause:
WHEREAS, under research programs funded by GENERAL and the U.S.
Government, GENERAL, through research conducted by Dr. R. Rox Xxxxxxxx, has
developed inventions pertaining to methods of hair removal using epilation
("Additional Invention"); and
WHEREAS, GENERAL and PALOMAR have entered into a Research Agreement
effective March 1, 1997, attached hereto as Exhibit A-2 ("Epilation Research
Agreement"), under which PALOMAR is providing funds and equipment to support
research at GENERAL of said invention pertaining to methods of hair removal
using epilation; and
WHEREAS, GENERAL is interested in licensing the Additional Invention to
PALOMAR so that PALOMAR can commercially develop, manufacture, use and
distribute products and services based on said Additional Invention throughout
the world;
IN SECTION 1, "DEFINITIONS", AMEND PARAGRAPH 1.10 TO READ AS FOLLOWS:
1.10 The term "TECHNOLOGICAL INFORMATION" shall mean any research data,
designs, formulas, process information, clinical data and other information
pertaining to any invention claimed in PATENT RIGHT which is known to Xx.
Xxxxxxxx on the EFFECTIVE DATE and disclosed to Palomar within thirty (30) days
of the date on which this Agreement is fully executed. THE TERM SHALL ALSO
INCLUDE ANY RESEARCH DATA, DESIGNS, FORMULAS, PROCESS INFORMATION, CLINICAL DATA
AND OTHER INFORMATION PERTAINING TO ANY INVENTION CLAIMED IN EPILATION PATENT
RIGHT WHICH IS KNOWN TO XX. XXXXXXXX ON THE AMENDMENT EFFECTIVE DATE AND
DISCLOSED TO PALOMAR WITHIN THIRTY (30) DAYS OF THE AMENDMENT EFFECTIVE DATE.
This term shall also include information which is disclosed to PALOMAR by
GENERAL in accordance with, and during the term of, the Clinical Trial Agreement
OR THE EPILATION RESEARCH AGREEMENT and which pertains to any PATENT RIGHT
claiming an Invention as defined in EITHER said Agreement.
IN SECTION 1, "DEFINITIONS", ADD THE FOLLOWING NEW PARAGRAPHS:
1.12 The term "EPILATION PATENT RIGHT" shall mean the U.S. Patent
Application Serial Number 08/314,082, filed September 28, 1994, naming Dr. R.
Rox Xxxxxxxx as inventor, and titled "Method of Hair Removal", and the PCT
Application Serial Number PCT/US95/12275 filed September 22, 1995, or any
division, continuation and any foreign counterparts of the aforementioned patent
applications or the equivalent claims of any Letters Patent or the equivalent
thereof issuing thereon or reissue, reexamination or extension thereof.
EPILATION PATENT RIGHTS shall also include those claims in any
continuation-in-part of the aforementioned patent applications which claim an
invention described or claimed in said patent applications.
1.13 The term "EPILATION PRODUCT" shall mean any article, device or
composition, the manufacture, use or sale of which would, absent the licenses
granted herein, infringe a VALID CLAIM of an EPILATION PATENT RIGHT, or does not
infringe a VALID CLAIM of any EPILATION PATENT RIGHT licensed to PALOMAR
hereunder but the discovery, development, manufacture or use of which employs
TECHNOLOGICAL INFORMATION.
1.14 The term "EPILATION SERVICE" shall mean any method or service, the
use, performance, or sale of which would, absent the licenses granted herein,
infringe a VALID CLAIM of an EPILATION PATENT RIGHT, or does not infringe a
VALID CLAIM of any EPILATION PATENT RIGHT licensed to PALOMAR hereunder but the
discovery, development, manufacture or use of which employs TECHNOLOGICAL
INFORMATION.
1.15 The term "EPILATION LICENSE FIELD" shall mean hair reduction
and/or removal using chromophores which, when excited by laser pulses, destroy
hair follicles by mechanisms other than photochemical mechanisms.
IN SECTION 2, "GRANT", ADD THE FOLLOWING NEW PARAGRAPHS:
2.6 GENERAL hereby grants PALOMAR, subject to the rights of the United
States Government, an exclusive, worldwide, royalty-bearing license in the
EPILATION LICENSE FIELD to make, have made, use and sell EPILATION PRODUCTS and
to perform EPILATION SERVICES. In the event an exclusive license is not
available in a country, GENERAL will xxxxx XXXXXXX the most exclusive license
available in that country.
2.7 The above licenses to sell EPILATION PRODUCTS include the right to
grant to the purchaser of products from PALOMAR, its AFFILIATES, and
SUBLICENSEES the right to resell and to use such purchased EPILATION PRODUCTS in
a method coming within the scope of the corresponding PATENT RIGHT.
2.8 The granting of any license hereunder is subject to GENERAL's and
GENERAL's AFFILIATES' right to make and to use the subject matter described and
claimed in EPILATION
PATENT RIGHT for research and clinical purposes but, for those PATENT RIGHTS
exclusively licensed, for no other purpose.
IN SECTION 3, "DUE DILIGENCE", ADD THE FOLLOWING NEW PARAGRAPH:
3.3 PALOMAR shall itself, or through its AFFILIATES or SUBLICENSEES,
use reasonable efforts to develop and make commercially available EPILATION
PRODUCTS or EPILATION SERVICES for commercial sales and distribution throughout
the world in the EPILATION LICENSE FIELD. Such efforts shall consist of:
(a) Entering into the Epilation Research Agreement with General
attached hereto as Exhibit A-2 and providing the funding specified in said
Agreement;
(b) Within six (6) months of the conclusion of the research governed by
said Agreement, but in no case greater than three (3) years from the AMENDMENT
EFFECTIVE DATE hereof, PALOMAR and GENERAL shall establish (i) additional
objective milestones for the development of EPILATION PRODUCTS or EPILATION
SERVICES, and (ii) a schedule of the dates by which PALOMAR shall achieve such
milestones.
Failure to achieve one or more of the above objectives or the
objectives selected in accordance with (b) above within the agreed upon time
periods or within any extension granted by GENERAL shall result in GENERAL
having the right to cancel upon thirty (30) days notice any exclusive license to
EPILATION PATENT RIGHTS granted hereunder or convert any exclusive license to
EPILATION PATENT RIGHTS to a non-exclusive license. If the parties do not agree
on any such milestones, or if PALOMAR decides not to develop EPILATION PRODUCTS
or EPILATION SERVICES, PALOMAR's license to EPILATION PATENT RIGHTS shall be
terminated. Notwithstanding the foregoing, provided that PALOMAR is in
compliance with the due diligence milestones in paragraph 3.1 of the License
Agreement, and has complied with milestone (a) in this paragraph 3.3, GENERAL
shall only be entitled to terminate PALOMAR's license to EPILATION PATENT RIGHTS
on account of PALOMAR's breach of this Agreement, including but not limited to
any failure by PALOMAR to make the annual minimum royalty payments specified in
paragraph 5.12(a) herein.
IN SECTION 4: "FILING, PROSECUTION AND MAINTENANCE OF PATENT RIGHT", ADD THE
FOLLOWING NEW PARAGRAPHS:
4.3 GENERAL shall be responsible for the preparation, filing,
prosecution and maintenance of all patent applications and patents included in
EPILATION PATENT RIGHTS, and shall keep PALOMAR informed of the prosecution of
such patents and applications in accordance with Paragraph 4.2 of the LICENSE
AGREEMENT.
4.4 PALOMAR shall reimburse GENERAL for one-half of its Costs for the
prosecution and maintenance of EPILATION PATENT RIGHTS incurred prior to and
subsequent to the AMENDMENT EFFECTIVE DATE, provided that, if GENERAL grants
license rights in EPILATION PATENT RIGHTS to DUSA Pharmaceuticals, Inc. and any
other
entity, PALOMAR shall pay the same fraction of Costs as said other licensees,
which in no event will exceed one-third.
IN SECTION 5, "ROYALTIES", ADD THE FOLLOWING NEW PARAGRAPHS:
5.9 PALOMAR shall pay a license fee of ten thousand ($10,000) dollars
within thirty (30) days of execution of this Amendment, which is attributable to
EPILATION PATENT RIGHTS. No portion of said license fee shall be creditable
against future royalties.
5.10 For sales of any PRODUCT or SERVICE as defined in the LICENSE
AGREEMENT that is, or incorporates, an EPILATION PRODUCT or an EPILATION
SERVICE, the royalties shall be determined as follows:
(a) For sales governed by Paragraph 5.1(b)(i) of the LICENSE AGREEMENT,
the royalty specified therein shall be increased by one-half (0.5%) percent,
except those sales governed by Paragraph 5.1(b)(i)(B)(III), for which the
royalty specified therein shall be increased by one-quarter (0.25%) percent, in
addition to any increase in accordance with Paragraph 5.10(a) hereunder.
(b) For sales governed by Paragraphs 5.1(b)(ii) or 5.1(b)(iii) of the
LICENSE AGREEMENT, the parties will negotiate a commercially reasonable royalty
as specified in the LICENSE AGREEMENT, provided that the maximum value specified
for said commercially reasonable royalty rate shall be increased by one-half
(0.5%) percent, except those sales governed by Paragraph 5.1(b)(iii)(C), for
which the maximum value specified for the royalty specified therein shall be
increased by one-quarter (0.25%) percent, either of which increase shall be in
addition to any increase in accordance with Paragraph 5.10(b) hereunder.
5.11 For sales of any EPILATION PRODUCT or EPILATION SERVICE within the
LICENSE FIELD specified in Paragraph 1.3 of the LICENSE AGREEMENT that is not a
PRODUCT or SERVICE, as the case may be, under the LICENSE AGREEMENT, the
applicable royalty shall be that specified in paragraph 5.1(b) of the LICENSE
AGREEMENT which would have been the case if the EPILATION PRODUCT or EPILATION
SERVICE, were a PRODUCT or a SERVICE, as the case may be.
5.12 The annual minimum royalties specified in Paragraph 5.1(b)(iii)(D)
of the LICENSE AGREEMENT shall be calculated based on the royalty rates selected
for PRODUCTS and SERVICES in accordance with paragraphs 5.1(b)(ii) and
5.1(b)(iii) of the LICENSE AGREEMENT and paragraph 5.10 of this Amendment. In
addition, PALOMAR shall pay the following annual minimum royalties.
(a) In consideration for the licenses to EPILATION PATENT RIGHTS
granted herein, twenty thousand ($20,000) dollars per AGREEMENT YEAR, beginning
with the AGREEMENT YEAR next following the completion of PALOMAR-funded clinical
trials at GENERAL, until the last AGREEMENT YEAR in which PALOMAR holds an
exclusive license in the EPILATION LICENSE FIELD to EPILATION PATENT RIGHTS
hereunder.
IN SECTION 5, "ROYALTIES", AMEND PARAGRAPH 5.4 TO READ AS FOLLOWS:
5.4 In addition to the royalties provided for above, PALOMAR shall pay
GENERAL ten percent (10%) of any and all income, other than a royalty or other
payment made pursuant to paragraphS 5.1, 5.10 OR 5.11 of the LICENSE AGREEMENT,
including, by way of example, license issue fees and milestone payments received
by PALOMAR from its AFFILIATES and SUBLICENSEES, in consideration for the
sublicensing of any right or license granted to PALOMAR under this Amendment.
IN SECTION 7, "INFRINGEMENT", ADD THE FOLLOWING NEW PARAGRAPH:
7.5 The provisions of this Section 7 shall apply only to any PATENT
RIGHTS exclusively or co-exclusively licensed to PALOMAR in the country in which
the alleged infringement is taking place.
Agreed to:
PALOMAR THE GENERAL HOSPITAL CORPORATION
BY /s/ Xxxxxxx X. Xxxxxxxx BY /s/ Xxxxx X. Xxxxx
TITLE President TITLE Managing Director
Office of Technology Affairs
DATE February 14, 1997 DATE February 18, 1997
EXHIBIT A-2
RESEARCH AGREEMENT
This Agreement is made as of the 1st day of March, 1997 ("Effective
Date"), between Palomar Medical Technologies, a Delaware corporation having
offices at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 ("PALOMAR"), (hereinafter
called "PALOMAR"), and The General Hospital Corporation, a not-for-profit
Massachusetts corporation doing business as Xxxxxxxxxxxxx Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called "GENERAL").
WHEREAS, in an Amendment to the License Agreement between GENERAL and
PALOMAR effective August 18, 1995, effective on February 14, 1997 and executed
on even date herewith ("the AMENDED LICENSE AGREEMENT"), GENERAL has granted
PALOMAR an exclusive license within the EPILATION LICENSE FIELD (as hereinafter
defined) to certain patent rights relating to hair removal; and
WHEREAS PALOMAR desires GENERAL to perform research and evaluation in
the field of hair removal relating to said patent rights, herein described upon
the terms provided.
NOW THEREFORE, the parties hereto agree as follows:
1. The research project described in Appendix A and funded by PALOMAR
("Project") shall be performed by Dr. R. Rox Xxxxxxxx (the "Principal
Investigator") and other GENERAL personnel working under the direction of the
Principal Investigator ("Investigators"). At the conclusion of the Project, a
report disclosing the results of the research shall be provided to PALOMAR,
which shall have the right to use such results to the extent such use does not
infringe any GENERAL patent not expressly licensed to PALOMAR herein.
2. This agreement shall remain in effect for a term of two years from
the Effective Date, provided however that, prior to the commencement of the
human study that is the subject of "Aim 4" in Appendix A, the parties will
execute a clinical trial agreement substantially equivalent to the agreement
included in Exhibit A of the AMENDED LICENSE AGREEMENT, and the terms of said
clinical trial agreement shall govern said human study.
3. PALOMAR agrees to provide GENERAL with a grant of two hundred three
thousand seven hundred fifty seven dollars ($203,757) which includes the full
direct costs of the Project and the full indirect costs attendant thereto, as
shown in the Budget attached hereto as Appendix B. The foregoing grant shall be
paid on the following schedule:
$50,090 upon execution of this Agreement;
$50,000 on or before September 1, 1997;
$ 51,833.50 on or before March 1, 1998; and
$ 51,833.50 on or before September 1, 1998.
Payment shall be made to "The General Hospital Corporation" and shall be sent
to:
Vice President for Patents, Licensing and Industry Agreements
Office of Technology Affairs
Massachusetts General Hospital
Thirteenth Street, Building 149, Suite 1101
Xxxxxxxxxxx, XX 00000
4. In the event that PALOMAR discloses to any GENERAL personnel any
information which relates to the Project that PALOMAR considers confidential,
the rights and obligations of the parties with respect to such information shall
be governed by the terms and conditions set forth in Appendix C.
5. The Principal Investigator shall have the right to present or
publish the results of the research done at GENERAL and shall provide an early
draft of any such presentation or manuscript or abstract for review by PALOMAR
prior to its first presentation or submission for publication, at least thirty
(30) days in advance in the case of a presentation or manuscript, and at least
seven (7) days in advance in the case of an abstract. At the end of such thirty
or seven days, as the case may be, the Principal Investigator shall have the
right, in his/her discretion, to make such presentation or to submit such
manuscript for publication, provided, however, that upon notice by PALOMAR
within said thirty or seven day period that PALOMAR reasonably believes a patent
application claiming an Invention (as defined in paragraph) should be filed
prior to such publication, such submission for publication shall be delayed
until any patent application or applications have been filed by GENERAL,
pursuant to paragraph 6.
6. The Principal Investigator and any other Investigator who shall
conceive and reduce to practice an invention, solely or jointly, in the
performance of Project (hereinafter referred to as "Invention") shall promptly
report such Invention to GENERAL and shall assign all of his or her rights,
title and interest in the Invention to GENERAL. GENERAL shall promptly advise
PALOMAR in writing of each Invention disclosed to GENERAL and shall discuss with
PALOMAR whether a patent application or applications (Hereinafter referred to,
together with any patents issued thereon, as "Patent Rights") pertaining to such
Invention should be filed and in which countries. In the event of joint
inventorship between PALOMAR personnel and GENERAL Investigators, PALOMAR
personnel shall assign all of their rights, title and interest in the Invention
to PALOMAR, and GENERAL Investigators shall assign all of their rights, title
and interest in the Invention to GENERAL, and the Invention will be deemed to be
jointly owned. If both parties mutually agree that Patent Rights should be
filed, applications assigned solely to GENERAL shall be filed by GENERAL, and
applications owned jointly by GENERAL and PALOMAR shall be filed as mutually
agreed upon by the parties. In the event PALOMAR is not interested in having
Patent Rights filed with respect to a particular Invention, PALOMAR shall advise
GENERAL of such fact within ninety (90) days from the date on which the
Invention was
disclosed to PALOMAR by GENERAL and GENERAL shall be free to file and prosecute
Patent Rights on such Invention at its own expense and to license such Patent
Rights to any other party.
All information given to PALOMAR by GENERAL in accordance with this
paragraph 6 will be held in confidence by PALOMAR so long as such information
remains unpublished or publicly undisclosed by GENERAL.
All patent costs pertaining to any Patent Rights filed by mutual
agreement of PALOMAR and GENERAL, including preparation, filing, prosecution,
issuance and maintenance costs, shall be borne by PALOMAR as follows. For any
Patent Right, the scope of which is no broader than the EPILATION LICENSE FIELD
defined below, PALOMAR shall bear one hundred percent (100%) of patent costs,
and for any Patent Right, the scope of which is broader than the EPILATION
LICENSE FIELD or which contains embodiments outside the EPILATION LICENSE FIELD,
PALOMAR shall bear patent costs as provided in paragraph 4.4 of the AMENDED
LICENSE AGREEMENT.
As to any Patent Rights assigned in whole or in part to GENERAL and
filed by mutual agreement of the parties, to the extent not prohibited by the
United States Government or prevented by the obligations of GENERAL to any other
sponsor of research at GENERAL, PALOMAR shall have for the twelve (12) months
next following the filing of such Patent Rights in the United States Patent and
Trademark Office the option to obtain a world-wide, royalty bearing, exclusive
license under GENERAL's rights therein with the right to sublicense, in the
field of hair reduction and/or removal using chromophores which, when excited by
laser pulses, destroy hair follicles by mechanisms other than photochemical
mechanisms (the "EPILATION LICENSE FIELD"). In the event that GENERAL is
prohibited or prevented as aforesaid from granting an exclusive license within
the EPILATION LICENSE FIELD to any Patent Right hereunder, GENERAL will grant to
PALOMAR the most exclusive license within the EPILATION LICENSE FIELD that it is
able to grant to PALOMAR. It is understood that GENERAL will reserve the right
to use any Invention for research, clinical and educational purposes, and that
if federal funding supports the Invention, PALOMAR's license will be subject to
the royalty-free non-exclusive license granted to the U.S. government by statute
(35 USC sec.202(c)(4)).
This option is to be exercised by written notice to GENERAL during said
twelve month period and the negotiation, during the six (6) months next
following such notice, of an amendment to the AMENDED LICENSE AGREEMENT granting
PALOMAR a license to Patent Rights under the terms thereof, unless the parties
otherwise agree in writing. In the absence of such notice by COMPANY and
agreement on license terms, GENERAL may grant a license to such Patent Rights to
any other party.
7. GENERAL and PALOMAR shall each be responsible and shall hold the
other harmless for any injury to persons or damage to property to the extent
that such injury or damage is caused by the negligence or willful misconduct of
their employees or staff in carrying out the Project; provided, however, PALOMAR
will defend, indemnify and hold harmless GENERAL
and its trustees, employees and staff against any and all actions, suits,
claims, demands or prosecutions that may be brought or instituted against
GENERAL and/or its trustees, employees and staff based on or arising out of the
manufacture, use, sale or other distribution of any product by PALOMAR, its
affiliates or licensees excepting any such action, suit, claim, demand or
prosecution which is based solely on the negligence or willful misconduct of
GENERAL and/or its trustees, employees or staff in the use of such product.
8. Each party agrees that it will not use the name or logo of the other
party or of any employee or staff member of the other party in any advertising,
promotional material or publicity without the prior written approval of the
party or person whose name or logo is to be used.
9. If either party shall fail to faithfully perform any of its
obligations under this Agreement, the non-defaulting party may give written
notice of the default to the defaulting party. Unless such default is corrected
within thirty (30) days after such notice, the notifying party may terminate
this Agreement upon written notice.
10. The obligations of the parties under Paragraphs 5,6,7 and 8 shall
survive the termination of this Agreement.
11. This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, regardless of the choice of law rules of any jurisdiction.
IN WITNESS WHEREOF, GENERAL and PALOMAR have caused this instrument to
be executed.
PALOMAR THE GENERAL HOSPITAL CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxxxx BY: /s/ Xxxxx X. Xxxxx
TITLE: President TITLE: Manging Director
Office of Technology Affairs
DATE: February 14, 1997 DATE: February 18, 1997
I have read paragraphs 5 and 6 of the foregoing Agreement and agree to comply
with the obligations of the Principal Investigator stated therein. In addition,
I have read Appendix C and agree to comply with the obligations of GENERAL
stated therein.
/s/ R. Rox Xxxxxxxx
---------------------------------
DATE: February 14, 0000
XXXXXXXX A
Dye-assisted laser injury to hair follicles
R. Rox Xxxxxxxx, MD
Xxxxxxxxx Xxxxxxxx, MD
Xxxxxxxxx Xxxxxxxx, MD
The broad goal is to evalute dye-assisted laser hair removal.
Aim 1: (6 months) Screen FDA=-approved aqueous dyes which absorb at 690-800 nm.
for the ability to penetrate deeply into hair follicles and/or stain follicular
epithelium, in skin IN VITRO.
a. 3 dyes (ICG; carbon suspension; MB)
b. effect of vehiccle (range of C1-C4 alcohols; effect of
surfactants; DMSO)
c. role of epilation
Aim 2: (4 months) Quantify follicular injury with vs. without dye, in skin IN
VITRO.
a. most promising dye + xxxx
x. most promising dye(s) + diode
Aim 3: (2 months) Write and submit human study for approval of IRB, FDA.
Aim 4: (9 months) Compare laser hair removal with vs. witout dye in a pilot
human study.
a. one dye and one laser -- depends on findings of aims 1, 2
b. open-label bilateral comparison study in 12 volunteers,
backs/thighs
c. fluence and dye concentrations depend on findings in aims 1, 2
d. quantitative hair counts and re-growth (paired comparison in
each volunteer)
APPENDIX B
INVESTIGATOR: X.X. Xxxxxxxx, M.D.
TITLE OF STUDY: Dye-assisted laser injury to hair follicles
SPONSOR: Palomar
BUDGET PERIOD: 3/1/97-2/28/99
PERSONNEL
NAME % EFFORT SALARY FRINGE YEAR 1 YEAR 2
BENEFITS TOTAL TOTAL
HMS-APPNT 26.20%
X.X. Xxxxxxxx, MD A.N. None Requested 0 0 0
Xxxxxxxxx Xxxxxxxx, MD A.N. None Requested 0 0 0
Xxxxxxxx Xxxxxxxx, MD 80% $48,000 12,576 60,576 62,999
NON-HMS APPNT 21.90%
Senior Technician 25% $9000 1,971 10,971 11,410
Total Personnel 71,547 74,409
EQUIPMENT 0 0
SUPPLIES
Misc. Disposables 1,000 1,000
Misc. Dyes 1,000 1,000
Film And Film Developing 525 525
Cryostat Xxxxxx 500 500
Barrier Filters For Dye Detection 400 400
Office Supplies And Screening Time 750 750
Total Supplies 4,175 4,175
TRAVEL 600 600
PATIENT CARE COSTS
Subject reimbursement (estimate) 2,000 2,000
MISCELLANEOUS COSTS
Advertising and telephone expenses 250 250
Histology 1,500 1,500
Total Miscellaneous 1,750 1,750
TOTAL DIRECT COSTS 80,072 82,934
INDIRECT COSTS (25%) 20,018 20,733
TOTAL COSTS $100,090 $103,665
======== ========
/s/ Xxxxxx X. Xxxxx 2/13/97
-------------------------------------
Xxxxxx X. Xxxxx
Director for Proposal and Award Mgmt.
APPENDIX C
PALOMAR PROPRIETARY INFORMATION
It is anticipated that in the performance of the Project, the Principal
Investigator will be provided with or given access by PALOMAR to certain
information which PALOMAR considers proprietary (GENERAL and Principal
Investigator are referred to herein each as a "RECIPIENT" and collectively as
"RECIPIENTS.") The rights and obligations of the parties with respect to such
information are as follows:
1. PROPRIETARY INFORMATION. For the purposes of this Agreement, "Proprietary
Information" refers to information of any kind which is disclosed by PALOMAR to
RECIPIENTS and which, by appropriate marking, is identified as confidential and
proprietary at the time of disclosure. In the event that proprietary information
must be provided visually or orally, obligations of confidence shall attach only
to that information which is confirmed by PALOMAR in writing within ten (10)
working days as being confidential.
2. USE AND CARE OF PROPRIETARY INFORMATION. For a period of three (3) years
after receipt of Proprietary Information, each RECIPIENT agrees to use
reasonable efforts, no less than the protection given its, his or her own
confidential information, to use Proprietary Information received from PALOMAR
and accepted by that RECIPIENT only in accordance with this paragraph 2.
(a) Each RECIPIENT shall use PALOMAR's Proprietary Information solely
for the purposes of carrying out the Project described in the Research Agreement
attached hereto. Each RECIPIENT agrees to make Proprietary Information available
only to those employees and students of GENERAL who require access to it in the
performance of the Research Agreement and to inform them of the confidential
nature of such information.
(b) Except as provided in subparagraph 2(a), each RECIPIENT shall keep
all Proprietary Information confidential unless PALOMAR gives specific written
consent for release.
(c) If any RECIPIENT becomes aware of any disclosure not authorized
hereunder that RECIPIENT shall notify PALOMAR and take reasonable steps to
prevent any further disclosure or unauthorized use.
(d) When the Proprietary Information is no longer required for the
purposes of this Research Agreement, each RECIPIENT shall return or dispose of
any tangible records of it as directed by PALOMAR.
(e) It is agreed by PALOMAR and GENERAL that the transfer of
Proprietary Information shall not be construed as a grant of any right or
license with respect to the information delivered except as set forth herein or
in a duly executed research or license agreement.
3. INFORMATION NOT COVERED It is agreed by PALOMAR and GENERAL that information
shall not be deemed Proprietary Information in the event:
(a) it is publicly available prior to the date of the Agreement or
becomes publicly available thereafter through no wrongful act of GENERAL;
(b) it was known to GENERAL prior to the date of disclosure or becomes
known to GENERAL thereafter from a third party having no obligation to PALOMAR
to keep such information confidential;
(c) it is disclosed by GENERAL in accordance with the terms of
PALOMAR's prior written approval;
(d) it is disclosed by PALOMAR without restriction on further
disclosure;
(e) it is independently developed by GENERAL; or
(f) GENERAL is obligated to produce it pursuant to an order of a court
of competent jurisdiction or a valid administrative or Congressional subpoena,
provided that GENERAL (i) promptly notifies PALOMAR and (ii) cooperates
reasonably with PALOMAR's efforts to contest or limit the scope of such order.
