EXHIBIT 10.1
LICENSE AGREEMENT
THIS AGREEMENT made and entered into this eighteenth day of July, 2003,
by and between DUKE UNIVERSITY, a North Carolina corporation not-for-profit,
(hereinafter called the "LICENSOR"), having its principal office at Xxxxxx,
Xxxxx Xxxxxxxx 00000, and CELSION CORPORATION, a corporation organized under the
laws of Delaware (hereinafter called the "LICENSEE"), having its principal
offices at 00000-0 Xxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000-0000.
WHEREAS, LICENSOR has the right to grant licenses under the invention
covered by the Patent Rights (as hereinafter defined), and wishes to have the
invention covered by the Patent Rights utilized in the public interest; and
WHEREAS, the LICENSOR represents that it is the sole owner of the
entire right, title and interest in and to said invention and patent
applications; and
WHEREAS, LICENSOR has certain data, know-how and other information
relating to said invention and patent rights and its manufacture and use, which
it is willing to make available to LICENSEE subject to the terms of this
Agreement; and
WHEREAS, LICENSEE has certain know-how, abilities, and facilities which
will enable LICENSEE to perfect and develop the invention covered by the PATENT
RIGHTS into a marketable and saleable form
NOW THEREFORE, in consideration of the premises and the faithful
performance of the covenants herein contained, IT IS AGREED:
ARTICLE 1 - DEFINITIONS
1.01 - For the purposes of this Agreement, and solely for that purpose,
the terms and phrases set forth hereinafter in capital letters shall be defined
as follows:
a. "FIELD" shall mean all applications of the SUBJECT TECHNOLOGY.
b. "SUBJECT TECHNOLOGY" shall mean the technology licensed
hereunder described in detail in Exhibit A attached hereto and
made a part hereof, and alterations thereto for use in the
FIELD which have heretofore been conceived and/or reduced to
practice by LICENSOR, its employees, faculty members or
students, as
evidenced by written records. Exhibit A is hereby acknowledged
to consist of pending U. S. Patent Application(s) Serial No(s)
10/437,838
c. "PATENT RIGHTS" shall mean all U.S. and foreign Patent
Application(s) filed and any patent now issued or hereafter
issuing on any such patent application, substitutes,
continuations, continuations-in-part, divisionals, or reissues
thereof.
d. "LICENSED PRODUCT" shall mean any product which is produced or
sold by LICENSEE that utilizes the SUBJECT TECHNOLOGY or
infringes one or more claims of the PATENT RIGHTS, and which
is intended for use in, or is used in, the FIELD.
e. "NET SALES" shall mean the gross sales of LICENSED PRODUCT
sold pursuant to this Agreement, less allowances to customers
for spoiled, damaged and returned goods less any freight,
taxes, or shipping insurance. LICENSED PRODUCTS used by
LICENSEE for its own use in the FIELD shall be considered to
be "Net Sales" for purposes of computing royalty obligations,
except such LICENSED PRODUCT used for non-revenue producing
activity such as promotional items or field trials.
f. "EFFECTIVE DATE" shall be the date when the License Issue Fee
(*)1 is received by LICENSOR.
ARTICLE 2 - LICENSE
2.01 - The LICENSOR hereby grants to the LICENSEE and LICENSEE hereby
accepts from LICENSOR, upon the terms and conditions herein specified, an
exclusive license to make, have made, use and sell LICENSED PRODUCTS, with the
right to sub-license. Such license is worldwide to the full end of the term or
terms for which PATENT RIGHTS are issued, unless sooner terminated as
hereinafter provided.
2.02 - LICENSEE shall have the right to grant sub-licenses with the
prior written approval of the LICENSOR, such approval not to be unreasonably
withheld. Any such sub-licenses shall be subject to terms of this Agreement.
Royalties due to LICENSOR on sublicenses of the SUBJECT TECHNOLOGY shall be
calculated as though sales of LICENSED PRODUCT by the sublicensee were made by
LICENSEE; i.e., for the purposes of calculating royalties due on sublicenses,
Net Sales shall be based upon gross sales of LICENSED PRODUCT by sublicensee
less deductions as allowed by Section 1.01 (e). Should revenues
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(1) Material has been omitted and filed separately with the Commission.
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to LICENSEE under a sublicense not be based upon product sales by sublicensee,
or include payments to LICENSEE in addition to those based upon product sales by
sublicensee, then LICENSEE shall pay LICENSOR a royalty equal to (*2) of
LICENSEE's revenues from the sublicense that are not based upon product sales by
sublicensee. Royalties from sublicenses shall not be creditable against minimum
royalty requirements (3.03) or due diligence requirements (4.02) herein.
LICENSOR and LICENSEE will negotiate the terms of any non-cash sub-licenses.
LICENSEE agrees to be responsible for the performance hereunder by its
sub-licensees, if any. If, for any reason, this license agreement is terminated,
LICENSEE agrees to assign all such sub licenses directly to LICENSOR.
2.03 - Within thirty days following the execution of this Agreement and
thereafter during the period of this Agreement, the LICENSOR agrees to provide
LICENSEE with access to all technical know-how it may have relative to the
SUBJECT TECHNOLOGY, and copies of any and all patents or patent applications
owned or controlled by the LICENSOR covering the SUBJECT TECHNOLOGY or the use
of the SUBJECT TECHNOLOGY or processes for the manufacture of the SUBJECT
TECHNOLOGY, including all Patent Office actions received and amendments filed,
if any, relative thereto.
2.04 - LICENSOR shall provide reasonable opportunities for LICENSEE'S
personnel to have access to the inventor so that inventor can provide training
and information with respect to the SUBJECT TECHNOLOGY and PATENT RIGHTS. Once
available information concerning SUBJECT TECHNOLOGY and PATENT RIGHTS has been
transferred to LICENSEE, inventor shall be entitled to be compensated by
LICENSEE if additional training or consulting is necessary. Such arrangements
shall be made between inventor and LICENSEE and shall comply with all
regulations and policies of LICENSOR governing faculty consulting relationships.
Information disclosed under this provision shall be subject to the
confidentiality constraints of Section 6.03.
ARTICLE 3 - LICENSE FEE, ROYALTIES, RECORDS AND REPORTS
3.01 - LICENSEE shall pay to LICENSOR a license issue fee of (*3) on
execution of this AGREEMENT. License issue fees shall not be creditable against
minimum annual royalties (3.03).
3.02 - LICENSEE shall pay to LICENSOR an annual license maintenance fee
of (*4) in year 2 and year 3 which is creditable against royalties due in each
year, respectively.
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(2) Material has been omitted and filed separately with the Commission.
(3) Materials has been omitted and filed separately with te Commission.
(4) Materials has been omitted and filed separately with te Commission.
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3.03 - At the times and in the manner set forth hereinafter, LICENSEE
shall pay to LICENSOR a running royalty on NET SALES of LICENSED PRODUCTS. These
LICENSED PRODUCTS shall include both disposable and non-disposable items
designed for use with the INVENTION. Such royalty shall be at the rate of (*5)
of NET SALES.
If LICENSEE demonstrates, through written records, that it is necessary to
license additional technology from third parties in order to commercialize the
LICENSED PRODUCT and that additional license for necessary technology obligates
LICENSEE to pay royalties on NET SALES of LICENSED PRODUCT such that aggregate
royalties on NET SALES due to third parties exceeds (*6) of NET SALES, then
LICENSEE shall be permitted to reduce the royalty due LICENSOR under this
AGREEMENT by one-half such additional royalties to third parties in excess of
(*7) of NET SALES of LICENSED PRODUCT; provided, however, in no case shall
royalty payable by LICENSEE to LICENSOR when reduced by any royalties to third
parties for necessary technology, be less than (*8) of NET SALES.
3.04 - Minimum annual royalties shall commence at the earlier of the
first commercial sale or 3 years from execution of this AGREEMENT, and shall be
payable to LICENSOR as specified in paragraph 3.05 below. Should the running
royalties due for the calendar year not equal the amount specified for minimum
royalties, LICENSEE shall pay to LICENSOR in each such year the difference
between the minimum sum specified below in paragraph 3.05 and the total earned
running royalties paid in such year. Minimum annual royalties, when they are
due, will be prorated based upon the fraction of the calendar year for which the
obligation is effective. For example, if the obligation to pay minimum annual
royalties begins on June first of the year, the minimum annual royalty for that
calendar year will be 7/12 of (*9) or $(*10).
3.05 - Minimum annual royalties shall be (*11) per calendar year.
3.06 - LICENSEE shall render to LICENSOR prior to February 28th and
August 31st of each year a written account of the NET SALES of LICENSED PRODUCTS
subject to royalty hereunder made during the prior six month periods ending
December 31st and June 30th, respectively, and shall simultaneously pay to
LICENSOR the royalties due on such NET SALES in United States Dollars. Minimum
annual royalties, if any, which are due
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(5) Materials has been omitted and filed separately with the Commission.
(6) Materials has been omitted and filed separately with the Commission.
(7) Materials has been omitted and filed separately with the Commission.
(8) Materials has been omitted and filed separately with the Commission.
(9) Materials has been omitted and filed separately with the Commission.
(10) Materials has been omitted and filed separately with the Commission.
(11) Materials has been omitted and filed separately with the Commission.
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LICENSOR for any calendar year, shall be paid by LICENSEE along with the written
report due on February 28 of each year. All payments required by this AGREEMENT,
if not paid within thirty days of the due date, shall bear interest at the rate
of one and one-half percent (11/2%) per month, compounded monthly, or the
maximum interest rate allowed by applicable law, whichever is less.
3.07 - LICENSOR may terminate this Agreement or convert this Agreement
to a non-exclusive Agreement if at least *%(12) of the minimum royalties due
(3.05) are not earned in each year following the second calendar year after
first commercial sale.
3.08 - LICENSEE shall keep full, true and accurate books of accounts
and other records containing all particulars which may be necessary to properly
ascertain and verify the royalties payable by them hereunder. Upon LICENSOR's
request, LICENSEE shall permit an independent Certified Public Accountant
selected by LICENSOR (except one to whom LICENSEE has some reasonable objection)
to have access during ordinary business hours to such of LICENSEE's records as
may be necessary to determine, in respect of any quarter ending not more than
two (2) years prior to the date of such request, the correctness of any report
and/or payment made under this Agreement. If such examination results in a
determination that LICENSEE has underpaid its obligations to LICENSOR by more
than five percent (5%), then the cost of such examination shall be borne by
LICENSEE.
ARTICLE 4 - PERFORMANCE OBLIGATIONS
4.01 - LICENSEE shall use its best efforts to bring LICENSED PRODUCTS
to market through a thorough, vigorous and diligent program for exploitation of
the PATENT RIGHTS, to develop manufacturing capabilities, and to continue
active, diligent marketing efforts, in all applicable fields of use, for
LICENSED PRODUCTS throughout the life of this Agreement.
4.02 - In addition, LICENSEE shall adhere to the following
requirements:
(a) Promptly upon execution of this Agreement, LICENSEE shall
determine the first LICENSED PRODUCT to be developed by LICENSEE,
and LICENSEE shall then promptly notify LICENSOR of LICENSEE's
plan with respect to that first product, including a firm plan and
schedule for acquiring any necessary regulatory approvals.
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(12) Material has been omitted and filed separately with the Commission.
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(b) LICENSEE shall secure the first Regulatory Approval (if required),
on a country by country basis within 48 months of the EFFECTIVE
DATE.
(c) LICENSEE shall achieve first sale of a LICENSED PRODUCT within 6
months of receipt of regulatory approval (if required), on a
country by country basis, or within 12 months of EFFECTIVE DATE if
regulatory approval is not required
(d) LICENSEE shall make a (*13) dollar (*14) payment to LICENSOR upon
first regulatory approval, or first sale if regulatory approval is
not required
(e) LICENSEE shall provide a production sample to LICENSOR for
approval prior to first sale, such approval not to be unreasonably
withheld.
(f) LICENSEE shall diligently seek sublicensees to exploit any areas
of the FIELD not pursued by the LICENSEE.
4.03 - LICENSEE agrees to explore the feasibility of developing and
commercializing the SUBJECT TECHNOLOGY in the additional areas listed below, and
shall notify LICENSOR of LICENSEE's decision in each area within the timeframes
set forth below:
(a) In conjunction with existing chemotherapeutic agents for the
breast within 6 months of the EFFECTIVE DATE.
(b) In conjunction with standard radiation therapy for the breast
within 12 months of the EFFECTIVE DATE.
(c) In conjunction with heat sensitive gene therapy for the breast
within 24 months of the EFFECTIVE DATE.
Each area chosen by LICENSEE shall be subject to performance obligations as set
forth in Section 4.02. Should LICENSEE decide not to pursue any area through its
own resources or through an allowed sublicense then this Agreement shall not
extend to that area, and LICENSOR shall be free to license rights in that area
to a third party. Said performance obligations for each area shall commence on
the date when LICENSEE gives LICENSOR its decision whether or not to develop and
commercialize each area. (vida supra)
4.04 - During the term of this Agreement, LICENSEE will submit annual
progress reports to LICENSOR by February 28 of each year which discuss the
progress and results, as well as ongoing plans, including a three year rolling
forecast of global sales, with respect to the SUBJECT TECHNOLOGY. LICENSOR shall
have the right to request one meeting per year to discuss such information. The
first plan, which will include major global target markets and
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(13) Materials has been omitted and filed separately with the Commission.
(14) Materials has been omitted and filed separately with the Commission.
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a three year forecast of sales in terms of units and US dollars, will be
submitted within 12 months of the EFFECTIVE DATE of this AGREEMENT.
4.05 - If LICENSEE fails to meet any of the performance milestones of
this Article 4, and fails to correct the shortcomings within a ninety (90) day
period, LICENSOR may immediately terminate the AGREEMENT in accordance with
Section 7.03.
ARTICLE 5 - PATENTS
5.01 - Subsequent to the EFFECTIVE DATE of this Agreement, the LICENSOR
shall continue to have sole responsibility for the filing, prosecuting and
maintaining of the appropriate United States patent protection for the SUBJECT
TECHNOLOGY, and all of the expenses of such protection shall be reimbursed by
LICENSEE. LICENSEE shall reimburse LICENSOR for all out-of-pocket legal
expenses, which have been incurred to date. LICENSOR shall keep LICENSEE advised
as to the prosecution of such applications by forwarding to LICENSEE copies of
all official correspondence relating thereto. LICENSEE agrees to cooperate with
LICENSOR in the prosecution of the U.S. Patent Applications to insure that the
application reflects, to the best of LICENSEE's knowledge, all items of
commercial and technical interest and importance. All final decisions with
respect to the prosecution of said application are reserved to LICENSOR.
5.02 - LICENSEE shall designate the foreign countries, if any, in which
LICENSEE desires patent protection, and LICENSOR agrees to proceed to obtain
such protection. LICENSEE shall pay all expenses with regard to such foreign
patent protection. LICENSOR may elect to seek patent protection in countries not
so designated by LICENSEE, in which case LICENSOR shall be responsible for all
expenses attendant thereto; however, in such instances LICENSEE shall forfeit
its rights under this license agreement as to those countries unless LICENSEE
shall agree to pursue such protection within thirty (30) days after receiving
written notice.
5.03 - Upon learning of the infringement of PATENT RIGHTS by a third
party, the party learning of such infringement shall promptly inform the other
party in writing of that fact along with any evidence available pertaining to
the infringement. LICENSEE may at its own expense take whatever steps are
necessary to stop the infringement and recover damages. In such case, LICENSEE
will keep LICENSOR informed of the steps taken and the progress of any legal
actions taken. LICENSEE will pay to LICENSOR twenty percent (20%) of any such
damages recovered that are in excess of legal expenses incurred by the LICENSEE
in enforcing its PATENT RIGHTS. If LICENSEE does not undertake, within sixty
(60) days of notice, to enforce the PATENT RIGHTS against the infringing party,
the LICENSOR shall have the right, at its own
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expense to take whatever steps are necessary to stop the infringement and
recover damages, and shall be entitled to retain all damages so recovered.
5.04 - LICENSEE shall give LICENSOR prompt notice of each claim or
allegation received by it that the manufacture, use or sale of LICENSED PRODUCTS
constitutes a significant infringement of a third party patent or patents.
LICENSEE shall have the primary right and responsibility at its own expense to
defend and control the defense of any such claim against LICENSEE, by counsel of
its choosing. The settlement of any such actions must be approved by LICENSOR,
which approval may not be unreasonably withheld. LICENSOR agrees to cooperate
with LICENSEE in any reasonable manner deemed by LICENSEE to be necessary in
defending or prosecuting such action. LICENSEE shall reimburse LICENSOR for all
expenses incurred in providing such assistance. Notwithstanding the foregoing,
LICENSOR shall, in its sole discretion, be entitled to participate through
counsel of its own choosing in any such action.
ARTICLE 6 - GOVERNMENT CLEARANCE, PUBLICATION,
CONFIDENTIALITY, OTHER USE, EXPORT
6.01 - LICENSEE agrees to use commercially reasonable best efforts to
have the SUBJECT TECHNOLOGY cleared for marketing in those countries in which
LICENSEE intends to sell LICENSED PRODUCTS by the responsible government
agencies requiring such clearance. To accomplish said clearances at the earliest
possible date, LICENSEE agrees to file, according to the usual practice of
LICENSEE, any necessary data with said government agencies. Should LICENSEE
cancel this Agreement, LICENSEE agrees to assign its full interest and title in
such market clearance application, including all data relating thereto, to
LICENSOR at no cost to LICENSOR.
6.02 - LICENSEE further agrees that the right of publication of the
invention and said SUBJECT TECHNOLOGY shall reside in the inventor and other
staff of LICENSOR. The LICENSOR shall use its best efforts to provide a copy of
such publication forty-five (45) days in advance of publication for review by
LICENSEE, but such review will be in no way construed as a right to restrict
such publication. LICENSEE shall also have the right to publish and/or co-author
any publication on the SUBJECT TECHNOLOGY based on data developed by LICENSEE.
6.03 - Each party shall keep confidential and not disclose, directly or
indirectly, for a period of five (5) years from the date of disclosure, and
shall not use for the benefit of itself or any other individual or entity any
CONFIDENTIAL INFORMATION of the other, except as expressly allowed by this
LICENSE, or with the prior written approval of the disclosing party (the
"DISCLOSING
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PARTY"). CONFIDENTIAL INFORMATION means any trade secrets or confidential,
proprietary information, whether written, oral, digital or other form, which is
unique, confidential or proprietary to the DISCLOSING PARTY, including but not
limited to, the applicable SUBJECT TECHNOLOGY, PATENT RIGHTS, LICENSED PRODUCT
and any other materials or information related to the business or activity of
the DISCLOSING PARTY which is not generally known to others engaged in similar
businesses or activities. Information disclosed in written media shall be
clearly marked "CONFIDENTIAL" in order to be entitled to protection as
CONFIDENTIAL INFORMATION. Information disclosed orally or in other media shall
be considered CONFIDENTIAL INFORMATION only if the information is reduced to a
written summary by the DISCLOSING PARTY, and if said written summary is marked
"CONFIDENTIAL" and sent to the party receiving the disclosure within thirty (30)
days of the date of disclosure. The recipient of such CONFIDENTIAL INFORMATION
has no confidentiality obligation hereunder with respect to CONFIDENTIAL
INFORMATION that (a) was in the possession of, or was rightfully known, by such
recipient without a confidentiality obligation prior to receipt of such
CONFIDENTIAL INFORMATION from the DISCLOSING PARTY; (b) is, or becomes,
generally known to the public without violation of this AGREEMENT; (c) is
retained by such recipient in good faith from a third party having the right to
disclose such CONFIDENTIAL INFORMATION without a confidentiality obligation; (d)
is independently developed by such recipient without the participation of
individuals who have access to the CONFIDENTIAL INFORMATION; (e) is required to
be disclosed by law or government authority, provided such recipient provides
the DISCLOSING PARTY with reasonable advance written notice.
6.04 - It is agreed that, notwithstanding any provisions herein,
LICENSOR is free to use the SUBJECT TECHNOLOGY and PATENT RIGHTS for its own
educational, teaching, research and clinical purposes without restriction and
without payment of royalties or other fees.
6.05 - This license agreement is subject to all of the United States
laws and regulations controlling the export of technical data, computer
software, laboratory prototypes and other commodities and technology.
ARTICLE 7 - DURATION AND TERMINATION
7.01 - This Agreement shall become effective upon the EFFECTIVE DATE,
and unless sooner terminated in accordance with any of the provisions herein,
shall remain in full force and effect for the life of the last-to-expire of the
patents included in the PATENT RIGHTS.
7.02 - LICENSEE may terminate this Agreement by giving LICENSOR written
notice at least three (3) months prior to such termination, and thereupon
terminate the manufacture, use or sale of LICENSED PRODUCTS.
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7.03 - Either party may immediately terminate this Agreement for fraud,
willful misconduct, or illegal conduct of the other party upon written notice of
same to that other party. Except as provided above, if either party fails to
fulfill any of its obligations under this Agreement, the non-breaching party may
terminate this Agreement, upon written notice to the breaching party, as
provided below. Such notice must contain a full description of the event or
occurrence constituting a breach of the Agreement. The party receiving notice of
the breach will have the opportunity to cure that breach within ninety (90) days
of receipt of notice, except in the case of payment obligations where the cure
period will be thirty (30) days. If the breach is not cured within that time,
the termination will be effective as of the ninetieth (90th) day after receipt
of notice, or thirtieth (30th) day in the case of failure to meet payment
obligations. A party's ability to cure a breach will apply only to the first two
breaches properly noticed under the terms of this Agreement, regardless of the
nature of those breaches. Any subsequent breach by that party will entitle the
other party to terminate this Agreement upon proper notice.
7.04 - Upon the termination of this Agreement, LICENSEE may notify
LICENSOR of the amount of LICENSED PRODUCT LICENSEE then has on hand and in
production, and LICENSEE shall then have a license to sell that amount of
LICENSED PRODUCT, but no more, provided LICENSEE shall pay the royalty thereon
at the rate and at the time provided for.
7.05 - If during the term of this Agreement, LICENSEE shall become
bankrupt or insolvent or if the business of LICENSEE shall be placed in the
hands of a receiver or trustee, whether by the voluntary act of LICENSEE or
otherwise, or if LICENSEE shall cease to exist as an active business, this
Agreement shall immediately terminate.
ARTICLE 8 - LAW TO GOVERN
8.01 - This Agreement shall be construed and enforced in accordance
with the laws of the State of North Carolina.
ARTICLE 9 - ASSIGNMENT
9.01 - This Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto. However, LICENSEE
may not assign its rights in this Agreement without approval by LICENSOR, such
approval not to be unreasonably withheld. Notwithstanding the foregoing, the
LICENSEE may assign its rights under this Agreement without the consent of the
LICENSOR, to (i) a majority owned subsidiary or (ii) a third party which
acquires all or substantially all of its assets.
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ARTICLE 10 - NOTICES
10.01 - Notice hereunder shall be deemed sufficient if given by
registered mail, postage prepaid, and addressed to the party to receive such
notice at the address given below, or such other address as may hereafter be
designated by notice in writing.
LICENSOR LICENSEE
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Office of Science and Technology Celsion Corporation
Duke University 00000-0 Xxx Xxxxxxxx Xxxx
Attn: License Administrator Columbia, MD 21046-1705
Xxx 00000
Xxxxxx, XX 00000
cc: Duke University
Office of Counsel
0000 Xxxxx Xxxxxx, Xxxxx 0000
DUMC Box 3024
Xxxxxx, Xxxxx Xxxxxxxx 00000
ARTICLE 11 - INDEMNITY, INSURANCE, REPRESENTATIONS, STATUS
11.01 - LICENSEE agrees to indemnify, hold harmless and defend
LICENSOR, its officers, employees, and agents, against any and all claims,
suits, losses, damages, costs, fees, and expenses asserted by third parties,
both government and non-government, resulting from or arising out of the
exercise of this license. The LICENSEE shall not be responsible for the
negligence or intentional wrongdoing of the LICENSOR.
11.02 - LICENSEE shall maintain in force at its sole cost and expense,
with reputable insurance companies, general liability insurance and products
liability insurance coverage in an amount reasonably sufficient to protect
against liability under paragraph 11.01 above. LICENSOR shall have the right to
ascertain from time to time that such coverage exists, such right to be
exercised in a reasonable manner.
11.03 - Nothing in this Agreement shall be deemed to be a
representation or warranty by LICENSOR of the validity of any of the patents or
the accuracy, safety, efficacy, or usefulness, for any purpose, of any SUBJECT
TECHNOLOGY. LICENSOR shall have no obligation, express or implied, to supervise,
monitor, review or otherwise assume responsibility for the production,
manufacture, testing, marketing or sale of any LICENSED PRODUCT, and LICENSOR
shall have no liability whatsoever to LICENSEE or any third parties for or on
account of any injury, loss, or damage, of any kind or nature, sustained by, or
any damage assessed or asserted against, or any
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other liability incurred by or imposed upon LICENSEE or any other person or
entity, arising out of or in connection with or resulting from:
a. the production, use, or sale of any LICENSED PRODUCT;
b. the use of any SUBJECT TECHNOLOGY; or
c. any advertising or other promotional activities with respect to any
of the foregoing.
11.04 - Neither party hereto is an agent of the other party for any
purpose whatsoever.
ARTICLE 12 - USE OF A PARTY'S NAME
12.01 -Neither party will, without the prior written consent of the
other party:
a. use in advertising, publicity or otherwise, any trade-name,
personal name, trademark, trade device, service xxxx, symbol, or
any abbreviation, contraction or simulation thereof owned by the
other party; or
b. represent, either directly or indirectly, that any product or
service of the other party is a product or service of the
representing party or that it is made in accordance with or
utilizes the information or documents of the other party.
ARTICLE 13 - SEVERANCE
13.01 - Each clause of this AGREEMENT is a distinct and severable
clause and if any clause is deemed illegal, void or unenforceable, the validity,
legality or enforceability of any other clause or portion of this AGREEMENT will
not be affected thereby.
ARTICLE 14 - TITLES
14.01 - All titles and article headings contained in this AGREEMENT are
inserted only as a matter of convenience and reference. They do not define,
limit, extend or describe the scope of this AGREEMENT or the intent of any of
its provisions.
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ARTICLE 15 - ENTIRE UNDERSTANDING
15.01 - This Agreement represents the entire understanding between the
parties, and supersedes all other agreements, express or implied, between the
parties concerning the FIELD, including the SUBJECT TECHNOLOGY.
IN WITNESS WHEREOF, the parties have caused these presents to be
executed in duplicate as of the date and year first above written.
LICENSOR: DUKE UNIVERSITY LICENSEE:
BY:________________________________ BY:____________________________________
Xxxxxx X. Xxxxx, Ph.D. PRINTED NAME: _________________________
Vice Chancellor TITLE: ________________________________
Science & Technology Development
EXHIBIT A
SUBJECT TECHNOLOGY - PATENTS
DUKE FILE NO. 2193
US Serial No. 10/437,838 Pending
Title - "Non-invasive Apparatus and Method for Providing RF Energy Induced
Localized Hyperthermia"
Inventor - Xxxxxxxx Xxxxxxxx, Ph. D.
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