LICENSE AGREEMENT
This
license agreement ("Agreement") specifies the terms and conditions upon which
Phlebotics, Inc., a Delaware corporation having an address of 000 Xxxxxx
Xxxxx,
Xxxx Xxxxxxxxx, XX 00000 ("Licensee"), agrees to license from Bioanalytical
Systems, Inc. ("BASi"), an Indiana corporation having an address of 0000
Xxxx
Xxxxxx, Xxxx Xxxxxxxxx, XX 00000, certain patent rights and other rights
owned
by BASi. This Agreement shall be effective on this 28th day of September,
2007
(the "Effective Date").
1. DEFINITIONS
As used
in this Agreement, the following terms shall have the meaning stated in this
Section
1:
a. "Field"
shall mean all human applications.
b. "Improvements"
shall mean any and all developments, modifications, discoveries, inventions,
or
improvements to the Licensed IP.
c. "Know-How"
shall mean the trade secrets, know-how, manufacturing processes, clinical
strategies, product specifications, software modules, scientific data, clinical
trial data, market analyses, formulae, designs (including circuits and
subassembly designs), training manuals, and other non-public information
existing as of the Effective Date of this Agreement, that are in the possession
of BASi, and that relate to the design, development, and manufacture of the
Licensed IP.
d. "Licensed
IP" shall mean the Licensed Patents and Know-How.
e. "Licensed
Patents" shall mean any patent, divisional, continuation, continuation-in-part,
and registration, including any foreign counterparts, issuing from: (1) U.S.
Application Serial No. 10/914,733, filed August 9. 2004, entitled "Portable
Sampling or Testing Device and Method for Pharmacokinetics and Physiology
Studies", having a priority date of August 9, 2004, and published on May
18,
2006; and (2) U.S. Application Serial No. 10/612,484, filed July 2, 2003,
entitled "Device and Method for Drug Delivery to Animals", having a priority
date of July 3, 2002, and published on March 18, 2004.
f. "Licensed
Product(s)" shall mean any and all products (i) covered by any Valid Claim
of
the Licensed Patents and/or (ii) incorporating any of the Know-How.
g. "Territory"
shall mean worldwide.
h. "Valid
Claim" shall mean a claim in any issued and unexpired Licensed Patent which
has
not been held unenforceable, unpatentable or invalid by a decision of a court
or
other governmental agency of competent jurisdiction, unappealable or unappealed
within the time allowed for appeal, and which has not been abandoned, disclaimed
or admitted to be invalid or unenforceable through reissue, disclaimer or
otherwise.
2. LICENSE
AND SUBLICENSE RIGHTS; IMPROVEMENTS
a. Subject
to the terms and conditions hereof, BASi hereby grants to Licensee an exclusive
license under the Licensed IP to develop, make, have made, use, sell and
offer
for sale the Licensed Product(s) in the Territory for use in the Field. For
purposes of clarification, Licensee is granted no rights under the Licensed
IP
outside of the Field; provided, however, that Licensee shall be permitted
to use
the Licensed IP with animals solely in connection with pre-clinical trials
conducted for the purpose of obtaining regulatory approvals for the Licensed
Products. For purposes of clarification, Licensee does not receive any other
intellectual property of BASi, including but not limited trademarks of BASi,
such as the CULEX, EMPIS, EMPIS (and Design), and FLEABOT
trademarks.
b. Licensee
shall
have the right to sublicense the rights granted under Section
2a.
above to
any of its affiliates and/or any third parties; provided, however, that Licensee
shall give BASi at least 30 days' prior written notice of the proposed
terms of any sublicense and shall discuss in good faith any concerns that
BASi
may have with such sublicense. Licensee shall remain liable for royalty payments
resulting from Net Sales by any sublicensee pursuant to Section
4.
Each
sublicense shall have confidentiality provisions at least as restrictive
as
those contained in this Agreement, and shall specify that BASi has no liability
under the sublicense agreement. Licensee shall provide BASi with complete
copies
of all sublicense agreements promptly following execution thereof. Licensee
shall be responsible for the acts and omissions of the sublicensee, and shall
indemnify, defend, and hold harmless BASI and its affiliates, and their
respective directors, officers, employees, and agents from and against all
damages, losses, liabilities, costs, expenses, claims, demands, suits, penalties
and judgments as well as administrative and judicial orders, including
reasonable counsel fees and expenses incurred, assessed or sustained by or
against the same with respect to, resulting from or arising out of the
sublicense between Licensee and the sublicensee.
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c. Any
Improvements that are conceived or developed by a party after the Effective
Date
shall be owned exclusively by such party. BASi shall have a right of first
negotiation with respect to Licensee's patented Improvements pursuant to
Section
8c.
herein.
Effective upon the date of the expiration or termination of this Agreement,
Licensee hereby grants to BASi a royalty-free, worldwide, non-exclusive license
(with the right to sublicense) under any Improvements owned by Licensee that
are
not covered under any issued patent as of such date for use outside of the
Field.
3. PATENT
PROSECUTION
a. BASi
shall be responsible for and control the prosecution and maintenance of all
U.S.
and foreign patents and patent applications included in the Licensed
IP.
b. Licensee
shall reimburse BASi for fifty percent (50%) of BASi's reasonable costs and
fees
(including all attorneys' fees and costs, patent office fees, fees and costs
incurred by foreign attorneys at the request of BASi) incurred by BASi after
the
Effective Date in fulfilling its obligations under Section
3.a
hereof.
c. BASi
will
promptly notify Licensee in the event of a decision to abandon any U.S. or
foreign patent or patent application included in the Licensed IP, and, if
BASi
is notified in writing by Licensee within thirty (30) days of such notice
by
BASi that Licensee wishes to continue such prosecution or maintenance, BASi
shall assign such patent or patent application to Licensee and Licensee may
proceed to control the prosecution and/or maintenance of such patent or patent
application.
d. Licensee
shall, at no cost to BASi, cooperate with BASi in the prosecution of the
License
Patents, including but not limited to causing any employee of Licensee who
may
be an inventor of the Licensed Patents to be available to BASi in support
of
such prosecution.
e. Licensee
shall provide BASi with prompt written notice of the development of any patented
Improvements to the Licensed IP.
4. ROYALTY
PAYMENTS
a. Licensee
shall
pay to BASi a royalty on the sales of Licensed Products by Licensee or by
any
sublicensee as follows:
(i) With
respect to any Licensed Product covered by one or more Valid Claims under
a
Licensed Patent, Licensee shall pay to BASi a royalty equal to five percent
(5%)
of Net Sales of such Licensed Product. Licensee's obligation to pay royalties
under this Section 4a.i. with respect to any Licensed Product in any given
country shall expire upon the expiration in such country of the last-to-expire
Licensed Patent with a Valid Claim.
(ii) With
respect to any Licensed Product that incorporates Know-How but is not covered
by
a Valid Claim, Licensee shall pay to BASi a royalty equal to five (5%) of
Net
Sales of such Licensed Product. Licensee's obligation to pay royalties under
this Section 4a.ii. shall expire seven (7) years from the first commercial
sale
of any Licensed Product in the United States.
b. As
used
herein, "Net Sales" shall mean the total gross revenues received by Licensee,
or
the sublicensee, as applicable, for the sale of Licensed Products, less any
deductions (to the extent and only to the extent that such deductions are
separately and customarily stated on the invoice) for cash or credit discounts,
credits or allowances for product returns, refunds, rebates, commissions
paid to
sales personnel, taxes or shipping or transportation charges.
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c. Royalties
shall be payable on a quarterly basis contemporaneously with the delivery
of the
reports required under Section
6a.
below.
d. If
a
Licensed Product is sold by a sublicensee to Licensee, no periodic payment
shall
be required until the Licensed Product is sold by Licensee, and at that time
the
periodic payment shall be computed according to Sections
4a.i. or 4b.ii.
herein.
e. In
the
event Licensee enters into a royalty-bearing license agreement with a third
party (or third parties) as permitted hereunder (1) due to an infringement
claim
by such third party with respect to a Licensed Product, or (2) based on the
good
faith opinion of Licensee that an infringement against a third party's patents
may occur without such a license, then the royalty payable to BASi pursuant
to
Section
4a.
shall be
reduced by fifty percent (50%).
5. MAINTENANCE
FEES; SUBLICENSE FEES
a. Licensee
shall pay to BASi a license maintenance fee equal to $20,000 per year beginning
on January 1, 2010, and on each subsequent anniversary thereof during the
term
of this Agreement.
b. In
the
event that Licensee receives from any sublicensee up front or milestone fees
or
payments in consideration for a sublicense under the Licensed Patents or
Know-How ("Sublicense Fees"), and such Sublicense Fees are non-refundable
and
are not credited against future royalty obligations under such sublicense
(e.g.
pre-paid royalties), then Licensee shall pay to BASi an amount determined
as
follows:
|
Date
Sublicense Fees
Are
Received by Licensee
|
Amount
of Payment to BASi
|
|
Effective
Date - October 1, 2010
|
50%
of the Sublicense Fees
|
|
October
2, 2010 - October 1, 2012
|
25%
of the Sublicense Fees
|
|
After
October 1, 2012
|
10%
of the Sublicense Fees
|
6. REPORTS
AND PAYMENT OF ROYALTY PAYMENTS
a. Within
thirty (30) days following the end of each calendar quarter, commencing with
the
calendar quarter during which Licensee or any sublicensee makes the first
commercial sale of a Licensed Product, Licensee shall send to BASi a report
of
the Licensed Product(s) sold by Licensee or its sublicensees in the preceding
calendar quarter, showing the respective descriptions, quantities, net sales,
and calculations of royalty payments as required by Section 4
above.
Any payment required under this paragraph shall be in the form of a check
made
payable to BASi and shall be sent to BASi 's address specified above, or
to such
other address as may be designated by BASi, or by electronic transfer to
accounts specified by BASi.
b. Licensee
shall maintain complete and accurate records of Licensed Product sold, showing
the respective descriptions, quantities, Net Sales, and calculations of royalty
payments due and payable thereon, for the three (3) year period after the
sale
of such Licensed Product. BASi or its agent may, not more than once per year,
inspect and copy Licensee's records during reasonable business hours for
purposes of verifying the completeness and accuracy of all reports to BASi.
BASi
shall provide fifteen (15) days advance notice of such inspection. If any
inspection indicates that a payment has been underpaid by more than five
percent
(5%), Licensee shall upon BASi's request reimburse BASi for BASi's reasonable
cost of the inspection.
c. Any
and
all amounts not timely paid to Licensee hereunder shall bear interest at
the
rate of eight percent (8%) per annum, or the maximum amount permitted by
law,
whichever is less.
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7. TECHNOLOGY
TRANSFER
Within
thirty (30) days of the Effective Date, BASi will provide to Licensee copies
of
all documents and records that comprise Know-How. In addition, during the
first
sixty (60) days of the term of this Agreement, Licensee may schedule with
BASi,
through BASi's Executive Vice President or his designee, meetings to permit
for
oral communications between BASi personnel having knowledge of the Know-How
and
no more than two (2) representatives of Licensee. Licensee shall reimburse
BASi
at a reasonable hourly rate for time spent by BASi participants in excess
of
twenty (20) hours in the meetings required under this Section
7.
8. LICENSEE'S
OBLIGATIONS AND WARRANTIES
a. Licensee
shall in good faith diligently use its commercially reasonable efforts to
develop, obtain government approvals for, and promote the sale of the Licensed
Products.
b. Except
as
expressly permitted in Section
2a.,
Licensee represents and warrants that it shall not make, have made, use,
sell,
or offer for sale any product that embodies any of the Licensed IP for use
outside the Field.
c. Licensee
shall provide BASi with prompt written notice of any patented Improvements
owned
by Licensee. Such notice will also include an offer to BASi to license the
Improvements for uses outside the Field. BASi will have sixty (60) days to
consider and negotiate such a license. Licensee agrees that it will not offer
a
license or assignment of the Improvements until the conclusion of this sixty
(60) day period. Licensee further agrees that, during the term of this
Agreement, Licensee shall not grant a license to any Improvements for use
outside of the Field to any direct competitor of BASi.
d. Licensee
agrees that it will not use or adopt any trademark for the Licensed Products
or
any other product or service that is confusingly similar to the trademarks
or
trade name of BASi; provided, however, that Licensee shall be permitted to
use
and adopt trademarks and/or tradenames for "Phlebotics" and any derivative
thereof (e.g. "Phlebot").
e. Licensee
represents and warrants that it is a valid corporation existing under the
laws
of the State of the State of Delaware; that it has the authority to enter
into
this Agreement; and that it is not a party to any oral or written agreement
or
understanding with any third party that is either inconsistent with or will
conflict with Licensee’s ability to fulfill its obligations under this
Agreement.
f. Licensee
represents and warrants that it will not provide any source code for any
computer programs included in the Licensed IP, or derivative works to such
programs, to any third party, and that such source code shall be considered
Confidential Information, as defined under this Agreement.
g. Licensee
represents and warrants that it and its sublicensees will not challenge the
validity or enforceability of any right in the Licensed IP.
9. TERM This
Agreement shall take effect as of the Effective Date and shall continue until
its expiration in accordance with this Section 9
or
termination in accordance with Section 10.
This
Agreement shall expire on a country-by-country basis when Licensee has no
further royalty payment obligations with respect to a given country. At that
time, the license granted hereunder with respect to Know-How in the given
country shall be deemed perpetual and fully paid up.
10. TERMINATION
Notwithstanding any other provisions of this Agreement, and in addition to
all
other legal remedies available to the parties, this Agreement may be terminated
by any one of the following circumstances:
a. In
the
event that Licensee or BASi breaches any provision of this Agreement, the
one
party may notify the other party thereof in writing. Following said notice,
if
said breach remains uncorrected for a period of thirty (30) days thereafter,
then the one party may elect to terminate this Agreement by further written
notice to the other party.
-4-
b. BASi
may
terminate this Agreement by written notice to Licensee if Licensee fails
to (a)
deliver to BASi a comprehensive business plan for the Licensed Products within
nine (9) months of the Effective Date; (b) raise a minimum of two million
dollars ($2,000,000.00) in funding (whether through the issuance of equity
or
debt securities, receipt of grant funding or otherwise) within two (2) years
of
the Effective Date; (c) complete a prototype Licensed Product within three
(3)
years of the Effective Date; (d) submit to the applicable reviewing body
(an
Institutional Review Board (IRB) or the U.S. Food and Drug Administration
(FDA))
an application for Investigational Device Exemption for a Licensed Product
within four (4) years of the Effective Date; or (e) submit a 510k application
to
the FDA for a Licensed Product within six (6) years of the Effective Date.
Licensee shall notify BASi in writing (the "Milestone Notice") if it fails
to
meet any of the foregoing milestone deadlines. Licensee shall deliver the
Milestone Notice as soon as practicable, but no later than thirty (30) days
after the applicable milestone deadline. If Licensee fails to deliver the
Milestone Notice during such period, BASi shall have the right to terminate
this
Agreement. In order to terminate this Agreement for Licensee's failure to
meet
the milestones set forth above, BASi must deliver to Licensee a written notice
of termination within thirty (30) days of BASi's receipt of the Milestone
Notice.
c. Licensee
may terminate this Agreement at any time upon ninety (90) days prior written
notice to BASi; provided, however, that such termination will not relieve
Licensee for any payment obligation accruing prior to the date of
termination.
d. This
Agreement shall terminate automatically in the event that Licensee
has
(a) commenced a voluntary proceeding under any insolvency law, (b) had
an involuntary proceeding commenced against it under any insolvency law which
has continued undismissed or unstayed for sixty (60) consecutive days,
(c) had a receiver, trustee or similar official appointed for it or for any
substantial part of its property, (d) made an assignment for the benefit of
creditors, (e) had an order for relief entered with respect to it by a
court of competent jurisdiction under any insolvency law, (f) been dissolved
under applicable corporate law, or (g) ceased all commercialization efforts
with
respect to the Licensed IP and the Licensed Products. For purposes hereof,
the
term "insolvency law" means any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect.
e. In
the
event of termination, all obligations for future payments by Licensee shall
cease. The provisions of Sections
2c., 9, 12b., 12c., 13 and 15 shall
survive termination of this Agreement for any reason.
11. ENFORCEMENT
AND DEFENSE OF LICENSED IP
a. If,
over
the duration of this Agreement, either party discovers that any right in
the
Licensed IP in the Field is or appears to be infringed by a third party,
such
party shall notify the other party of such discovery in writing. BASi shall
have
the first right to bring and control an enforcement action against such third
party for infringement. Licensee shall provide reasonable assistance in
connection with such enforcement action, for which Licensee shall be reimbursed
for its reasonable time and expense. In the event BASi has not initiated
an
enforcement action for such infringement within sixty (60) days after becoming
aware of the infringement, then Licensee may initiate an enforcement action
on
its own behalf by providing BASi with written notice thereof. BASi shall
provide
reasonable assistance in connection with such enforcement action, for which
BASi
shall be reimbursed for its reasonable time and expense. Any
settlement or monetary award relating to infringement within the Field shall
belong to Licensee and shall be deemed Net Sales for royalty payment
purposes.
b. If,
over
the duration of this Agreement, any third party asserts a claim, demand,
action,
suit or proceeding against BASi or Licensee alleging that any Licensed Product
infringes the intellectual property rights of such third party (a "Third
Party
Claim"), then such party shall promptly notify the other party thereof in
writing specifying the facts, to the extent known, in reasonable detail.
The
party that is subject to such Third Party Claim shall have the right and
responsibility, at its sole cost and expense, to defend and settle such Third
Party Claim. Notwithstanding the foregoing, if BASi is entitled to
indemnification pursuant to Section
12b.ii.
in
connection with a Third Party Claim, Licensee shall have the right, at its
sole
cost and expense, to defend and settle such Third Party Claim; provided that
settlement of any such claim shall be subject to written consent by BASi,
which
consent shall not be unreasonably withheld. In the event that BASi is named
as a
defendant in any Third Party Claim, Licensee shall file with the applicable
court a motion (and such other pleadings as deemed appropriate by Licensee)
to
have BASi removed as a defendant in such Third Party Claim. In the event
that
the court denies such motion and BASi is not removed as a defendant, then,
at
the request of BASi, Licensee shall discontinue any alleged infringing
activities, including selling any Licensed Products that are the subject
of such
Third Party Claim, for so long as BASi remains a defendant in such claim;
provided, however, that (i) any such request by BASi must be based on its
reasonable determination that Licensee would be unable to indemnify BASi
with
respect to its potential damages under such Third Party Claim, and (ii) Licensee
shall not be required to discontinue any such activities if BASi has promoted
or
marketed the Licensed Products in the Field without the prior written approval
of Licensee. The parties shall cooperate in the defense of any infringement
claim.
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12. INSURANCE,
INDEMNIFICATION, AND EXPORT CONTROLS
a. Licensee
represents and warrants that, prior to offering any Licensed Product for
sale,
Licensee shall have insurance at levels appropriate to the industry.
b. Without
prejudice to any other right or remedy BASi may have under this Agreement
or
otherwise, Licensee shall indemnify, defend, and hold harmless BASi, its
affiliates, and their respective directors, officers, employees, and agents
from
and against all damages, losses, liabilities, costs, expenses, claims, demands,
suits, penalties and judgments as well as administrative and judicial orders,
including reasonable attorneys' fees and expenses (collectively, "Losses"),
incurred, assessed, or sustained by or against the same with respect to,
resulting from, or arising out of: (i) any breach of this Agreement by Licensee;
(ii) any action by a third party related to the manufacture, use or
commercialization by Licensee or a sublicensee of any Licensed Product,
including but not limited to actions of product liability and actions for
infringement of third party intellectual property rights (but expressly
excluding any infringement claims related to BASi's use of the Licensed Patents
and Know-How outside of the Field); and (iii) any negligence or willful
misconduct of Licensee in its performance under this Agreement.
c. Without
prejudice to any other right or remedy Licensee may have under this Agreement
or
otherwise, BASi shall indemnify, defend, and hold harmless Licensee, its
affiliates, and their respective directors, officers, employees, and agents
from
and against all Losses incurred, assessed, or sustained by or against the
same
with respect to, resulting from, or arising out of: (i) any breach of this
Agreement by BASi; and (ii) any negligence or willful misconduct of BASi
in its
performance under this Agreement.
d. It
is
understood that Licensee is subject to United States laws and regulations
controlling the export of technical data, computer software, laboratory
prototypes, and other commodities (including the arms Export control Act,
as
amended, and the Export Administration Action of 1979), and that Licensee's
obligations hereunder are contingent upon Licensee's compliance with applicable
United States export laws and regulations. The transfer of certain technical
data and commodities may require a license from the cognizant agent of the
United States Government and/or written assurances by Licensee that Licensee
shall not export data or commodities to certain foreign countries without
prior
approval of such agency. Licensee shall obtain all necessary United States
and
foreign country approvals or licenses required to fulfill its obligations
hereunder and with regard to the Licensed Products.
13. CONFIDENTIALITY
a. Each
Party agrees to maintain secret and confidential all identifiable know how,
experience, data, results, materials, technical and commercial information
and
analogous sensitive and proprietary information, including, without limitation,
the Licensed IP (except as otherwise permitted herein) (hereinafter
“Confidential
Information”), obtained from the other pursuant to this Agreement and in
contemplation of it and all other information that it may acquire from the
other
in the course of this Agreement and to disclose the same only to those of
its
employees and permitted sublicensees to whom and to the extent that such
disclosure is reasonably necessary in using the Confidential Information
as
permitted hereunder. Each party agrees not to use the other party's Confidential
Information except in exercising its rights and performing its obligations
under
this Agreement. The terms and conditions of this Agreement shall be deemed
the
Confidential Information of both parties. Licensee may disclose the existence
of
this Agreement. Licensee may also disclose the terms and conditions of this
Agreement to any potential investor.
-6-
b. The
forgoing obligations of Section
13.a
above
shall not apply to Confidential Information that: (1) was in the recipient's
possession before receipt from discloser and not subject to any obligation
restricting use or disclosure; or (2) is or becomes a matter of general public
knowledge through no fault of the recipient; or (3) is received by the recipient
on a non-confidential basis from a third party that has the right to disclose
the information without restriction; or (4) is independently developed by
the
recipient; or (5) must be disclosed under applicable laws or regulations
or
court order, provided the recipient first gives the discloser notice and
uses
all reasonable efforts to secure confidential protection of such Confidential
Information.
c. Each
party's employees and the employees of each party's affiliates shall be
permitted to use the other party’s Confidential Information exclusively for the
purposes of carrying out that party's obligations under this Agreement and,
subject to the terms and conditions of this Agreement, Licensee's sublicensees
shall be permitted to use that portion of the Confidential Information necessary
for the sublicensee to carry out its obligations under the sublicense agreement;
provided, however, that such use by a sublicensee must be consistent with
the
confidentiality requirements of this Agreement.
14. PUBLICITY
Neither
party shall release any press release regarding this Agreement without the
prior
written consent of the other party.
15. BASI'S
WARRANTIES
BASi
represents and warrants that:
a. BASi
owns the
Licensed Patents and has not granted to any person other than Licensee a
license, covenant not to xxx or similar right with respect to the Licensed
Patents in the Field.
b. No
person
has asserted a claim or initiated a lawsuit against BASi challenging the
ownership, validity or enforceability of any of the Licensed Patents or alleging
that BASi's use or practice of the Licensed Patents infringes, violates or
misappropriates the intellectual property rights of any person, or seeking
to
enjoin or restrain such use or practice.
c. BASi
is a
valid corporation existing under the laws of the State of the State of Indiana;
that it has the authority to enter into this Agreement; and that it is not
a
party to any oral or written agreement or understanding with any third party
that is either inconsistent with or will conflict with BASi's ability to
fulfill
its obligations under this Agreement.
d.
EXCEPT AS EXPRESSLY STATED HEREIN, BASI MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION REPRESENTATIONS OR WARRANTIES
WITH REGARD TO MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR
PURPOSE WITH REGARD TO ITS RIGHTS OR OBLIGATIONS OR THE LICENSED
IP.
16. LIMITATIONS
In no
event shall either party be liable for any special, indirect, consequential,
incidental, punitive, or exemplary damages, or for lost profits, even if
it has
been advised of the possibility of such claim. This Section
16
shall
not apply with respect to a breach by either party of Section
13.
17. NOTICE
a. Any
notice hereunder by either of the parties upon the other shall be in writing
and, subject to being changed by written notice, shall be directed to the
parties at the addresses specified above.
b. Any
notice may be sent by registered or certified mail, return receipt requested,
with all registry fees and postage prepaid, or telex or cable. If so sent
by
registered or certified mail, the notice shall be effective as of the time
it
was mailed. If sent by telex or cable, the notice shall be effective when
received.
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18. FORCE
MAJEURE
No party
to this Agreement, or sublicensee hereunder, shall be considered to be in
breach
of its obligations hereunder if it shall fail to fulfill the same for reasons
arising wholly or principally from acts of God, war, riot, civil commotion,
tempest, flood, fire, strike, lock-out, or any other circumstances beyond
the
control of the party or sublicensee, which would (but for the provisions
of this
Section) be in default of its obligations.
19. ASSIGNMENT
This
Agreement, any right or obligation of Licensee, and/or the license granted
herein, may not be assigned by Licensee without the prior written consent
of
BASi.
20. ASSIGNS,
AND SUCCESSORS OF BASI
This
Agreement, the rights and obligations of BASi, and the royalties and payments
due BASi hereunder shall inure to the benefit of the assigns and successors
in
interest of BASi.
21. MARKING
Licensee
shall xxxx each Licensed Product, and promotional materials therefor, with
a
legally sufficient notice identifying the patent(s) covering the Licensed
Product.
22. GENERAL
No
waiver, negligence, relaxation, or delay by one party hereto in enforcing
any of
the terms and conditions of this Agreement, or the granting of time by one
party
to the other party, shall prejudice, affect, or restrict the rights and powers
of the one party. This Agreement represents the full and complete agreement
and
understanding of the parties hereto, and supersedes and cancels any previous
agreements or understandings. This Agreement shall not hereafter be changed
or
modified in any respect except by a written memorandum embodying such changes
or
modifications, duly stated, signed by both parties hereto, and bearing distinct
reference to this Agreement.The
headings to the provisions of this Agreement are to facilitate reference
only,
and do not form a part of this Agreement, and therefore shall not in any
way
affect the interpretation of the provisions in this Agreement. If any provision
of this Agreement is held illegal, invalid, or unenforceable, the illegal,
invalid, or unenforceable provision shall be null and void and shall be deemed
deleted from this Agreement, and all the remaining provisions of this Agreement
shall remain in full force and effect. This Agreement shall be governed and
construed according to the laws of the state of Indiana, excluding its choice
of
law provisions. All proceedings arising hereunder shall be exclusively brought
and exclusively maintained in state or federal courts located in Indiana,
and
the parties consent to jurisdiction and venue therein and hereby waive any
right
to object to jurisdiction or venue. This Agreement may be executed in one
or
more counterparts, all of which shall be considered one and the same document
as
if all parties had executed a single original document. This Agreement may
be
executed by facsimile copy and each signature thereto shall be and constitute
an
original signature, again as if all parties had executed a single original
document
IN
WITNESS WHEREOF, the parties acknowledge that they have read, understand,
and
agree to this Agreement.
|
PHLEBOTICS,
INC.
|
BIOANALYTICAL
SYSTEMS, INC.
|
|
By:
/s/
Xxxxx X. Xxxxxxxxx
|
By:
/s/
X.X. Xxxxxxxx
|
| Xxxxx X. Xxxxxxxxx, Authorized Representative | |
|
Name:
X.X.
Xxxxxxxx
|
|
|
Title:
President
& CEO
|
|
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