DNAPRINT/GENOMED CONTRACT GENOTYPING AGREEMENT
This Contract Genotyping Agreement (this "Agreement") is made and entered into
as of January 15, 2002 (the "Effective Date") by and between DNAprint genomics,
a Utah corporation, (hereinafter "DNAPRINT") and GenoMed LLC, a Delaware
corporation (hereinafter "GENOMED").
Recitals
DNAPRINT is the owner of certain genotyping equipment (a SNPstream 25K platform,
Xxxxxxx multi-mek and ancillary front end and back end equipment ), and desires
to provide identified genotyping services for GENOMED.
GENOMED is the owner of certain genotyping equipment (the UHT platform). GENOMED
is also the owner of certain DNA samples and related medical information
collected from patients with various diseases, and of certain rights therein.
GENOMED is in the business of disease research and product development, and
desires to contract the genotyping portion of the research with DNAPRINT.
GENOMED wishes to increase the genotyping throughput of DNAPRINTs laboratory so
that DNAPRINT can perform this work in a timely manner.
NOW, THEREFORE, in consideration of these premises, as well as the obligations
herein made and undertaken, the parties hereto do hereby agree as follows:
1. EQUIPMENT
1.1. Placement. Subject to the terms and conditions of this Agreement, GENOMED
will purchase from Orchid Biosciences (hereafter referred to as "ORCHID")
and place at DNAPRINT a UHT genotyping platform system. On behalf of
GENOMED, ORCHID will install and train DNAPRINT workers on the use of this
equipment. In addition to this, GENOMED will purchase and place at DNAPRINT
one or more thermal cyclers such that the number of amplifications that can
be processed at once is at least 1,536. In addition, GENOMED will purchase
and place one automated liquid handling system if determined by both
parties that this item is necessary for DNAPRINT to execute under the terms
of this Agreement. DNAPRINT will operate all equipment autonomously and the
placed equipment shall remain at DNAPRINT for the duration of the
agreement.
1.2. Maintenance. DNAPRINT will assume financial responsibility for maintenance
of the SNPstream 25K system. GENOMED will assume financial responsibility
for maintenance of the UHT plate reader, UHT twister arm and, if placed,
thermal.
1.3. Operation. Only DNAPRINT employees or individuals approved by DNAPRINT may
operate the equipment.
1.4. Insurance. DNAPRINT is responsible for insuring the equipment against theft
or destruction.
2. SERVICES
2.1. Provision. DNAPRINT will provide GENOMED with at least 3 Million genotypes
during the first year of this agreement. GENOMED will provide DNAPRINT with
DNA specimens for genotyping. DNAPRINT will provide all necessary
consumables, labor and non-UHT equipment for determining and transferring
these genotypes.
2.2. Payment. Subject to the terms and conditions of this agreement, and within
30 days from DNAPRINTs request, but no more frequently than once per month,
GENOMED will pay DNAPRINT a sum equal to 40 cents per determined and
transferred genotype. In addition to this, if GENOMED realizes a net profit
that exceeds $10,000,000 USD which was directly or indirectly enabled by
compositions of matter produced under the terms of this Agreement, then
GENOMED will provide DNAPRINT with a royalty of 5% on these realized net
profits.
2.3. Transfer. DNAPRINT will physically or electronically transfer genotyping
data to GENOMED in a manner agreed upon by both parties.
3. SERVICES FOR THIRD PARTIES.
3.1 Services. DNAPRINT may perform commercial genotyping operations for third
parties, using GENOMED equipment, only with GENOMED approval. For third
party contracts, DNAPRINT will provide all overhead, management and labor,
1
and DNAPRINT and GENOMED will share total net profits at a ratio of 3:1 to
reflect their capital and physical contribution to such contracts.
4. CONTINUATION, TERM and TERMINATION.
4.1. Services. The minimum term of the agreement is 2 years. After this minimum
term, the Agreement shall continue indefinitely, but may be terminated by
either party upon a material breach by the other, provided, however, that
the breaching party has been given thirty (30) days to cure such breach.
Sections 2.2 (Payment), 3.2 (Termination), 4 (Restrictions on Use), 5
(Limited Warranty), 6 (Mediation and Arbitration), 7.5 (Assignment), 7.6
(Governing Law), and 7.7 (Severability) shall survive expiration or early
termination of this Agreement.
4.2. Termination. Upon discontinuation of the agreement, GENOMED will satisfy
any and all outstanding debts to DNAPRINT and DNAPRINT will return GENOMEDs
equipment to GENOMED.
5. RESTRICTIONS ON USE
5.1 DNAPRINT and GENOMED may sign subsequent to this Agreement, DNAPRINT agrees
and understands that the genotyping data is the property of GENOMED, and
that it acquires no rights therein and that it can use GENOMEDs Samples,
including any Documentation, only for legitimate scientific research as
directed by GENOMED, and for no other purpose whatsoever. DNAPRINT may not
resell the Samples, or any portion thereof, for any reason.
5.1 Privacy. Genotyping data is the property of GENOMED, and DNAPRINT may not
sell, loan, disclose or present GENOMEDs data in any manner whatsoever,
unless requested by or agreed to by GENOMED.
5.2 Equipment. During the term of this Agreement, DNAPRINT is permitted to use
GENOMED equipment for its own internal research and development. DNAPRINT
is permitted to use GENOMED equipment for other contract genotyping
customers only with GENOMED prior approval, and under the terms of this
agreement.
6. Limited Warranty; Limitation of Liability
6.1 Limited Warranty. DNAPRINT represents and warrents to GENOMED that DNAPRINT
has the authority and licenses necessary to use its equipment for the
purpose of contract genotyping. DNAPRINT also warrants the quality of the
genotyping data delivered to GENOMED. GENOMEDS sole and exclusive remedy
for DNAPRINTs breach of this limited warranty shall be a refund of the
Payment. DNAPRINT disclaims all other warranties, express or implied, with
regard to the data, including all implied warranties of merchantablity,
fitness for a particular purpose, title, and non-infringement.
6.2 Limitation on Liability. Neither party shall be liable to the other for any
indirect, consequential, special or incidental damages (including damages
for loss of business profits, business interruption, loss of business
information, and the like) arising out of this Agreement even if such party
has been advised of the possibility of such damages.
7. Mediation and Arbitration
7.1 Mediation and arbitration approach. The parties agree to select a mutually
agreeable, neutral third party to help them mediate any dispute that arises
under the terms of this Agreement. Costs and fees associated with the
mediation will be shared equally by the parties.
7.2 Arbitration. If the mediation is unsuccessful, the parties agree that the
dispute will be decided by binding arbitration under the rules of the
American Arbitration Association. The decision of the arbitrators will be
final and binding on the parties and may be entered and enforced in any
court of competent jurisdiction by either party. The prevailing party in
the arbitration proceedings will be awarded reasonable attorney fees,
expert witness costs and expenses, and all other reasonable costs and
expenses incurred in connection with the proceedings, unless the
arbitrators for good cause determine otherwise.
8. General
8.1 Notices. Any notice required or permitted hereunder must be in writing, and
will be effective on the date of delivery when delivered personally, the
next business day after dispatch when sent by Federal Express or other
recognized overnight courier service, or the fifth business day after
dispatch when sent by certified mail, postage prepaid, return receipt
requested. Notices should be addressed to the other party at the address
shown below or at such other address as a party may designate by ten days'
advance written notice to the other party:
DNAPRINT GENOMICS, INC. GENOMED INC.
000 Xxxxxxxx, Xxx. 0000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000 Xx. Xxxxx, XX 00000
8.2 Entire Agreement; Modifications. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be modified
or amended only by a writing executed by a duly authorized representative
of each party.
8.3 Force Majeure. Neither party will be liable to the other for any failure or
delay caused by events beyond such party's control, including, without
limitation, sabotage, terrorism, riots, insurrections, fires, flood, storm,
explosions, war or earthquakes. However, if such events have a material
impact on the satisfaction of this Agreement, and shall continue for thirty
(30) days or more, the other party shall have the option of terminating
this Agreement by giving written notice of termination.
8.4 Change in Law; Change in Circumstances. No party shall make or receive any
payment or take any action under this Agreement if any judicial decision,
legislative action, or regulatory or other administrative interpretation,
whether federal or state, would render illegal the conduct of either party
under this Agreement. If performance by either party of any term of this
Agreement should be deemed illegal by any party or third party who is
essential to performance of this Agreement for any such reason, either
party shall have the right to require that the other party renegotiate the
terms of this Agreement.
8.5 Assignment. This Agreement will be binding upon and inure to the benefit of
the parties hereto, their successors and permitted assigns. Either party
may assign this Agreement in its entirety to a successor corporation upon
notice to the other party in the event of a merger or an acquisition of all
or substantially all of the assets of the assigning party. This agreement
between DNAPRINT and GENOMED will survive and insure to the benefit of the
other party through any and all mergers, acquisitions, or change in
ownership.
8.6 Governing Law. All questions concerning the validity, operation,
interpretation, and construction of this Agreement will be governed by and
determined in accordance with the laws of the State of California, without
regard to its conflict of laws provisions. Application of the United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded.
8.7 Severability. If a court of competent jurisdiction determines that any
provision of this Agreement is invalid, illegal, or otherwise
unenforceable, such provision shall be replaced with a valid, enforceable
provision as nearly as possible in accordance with the stated intention of
the paties, while the remainder of this Agreement shall remain in full
force and effect. To the extent any provision cannot be enforced in
accordance with the stated intentions of the parties, such provision shall
be deemed not to be a part of this Agreement.
8.8 Counterparts. This agreement may be executed in any number of counterparts,
all of which together will constitute one and the same instrument.
IN WITNESS THEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as set forth below:
DNAPRINT GENOMICS GENOMED
By:/s/ Xxxx Xxxxxxxx By:/s/ Xxxxx X. Xxxxx
Xxxx Xxxxxxxx, Ph.D. Xxxxx X. Xxxxx
CEO President and CEO
