AGREEMENT
between
VANDERBILT UNIVERSITY
and
BIOSIGNAL INC.
RELATING TO:
OPTICAL ASSAY of PROTEIN INTERACTIONS
SEPTEMBER, 1998
VANDERBILT UNIVERSITY OPTICAL ASSAY AGREEMENT
This Agreement is entered into between the Vanderbilt University, through the
Office of Technology Transfer, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (hereinafter, VANDERBILT) and BioSignal Inc.,
having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter,
BIOSIGNAL).
RECITALS
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ Piston, faculty members of VANDERBILT, have
developed an invention named Optical Assay for Protein Interactions; and
WHEREAS, VANDERBILT has all rights of the Inventors to the invention and to any
patents issued with respect to the invention and VANDERBILT is willing to grant
a license to the invention and to patents rights issued for said invention; and
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VANDERBILT UNIVERSITY OPTICAL ASSAY AGREEMENT
WHEREAS, BIOSIGNAL desires to acquire, and VANDERBILT desires to grant to
BIOSIGNAL, a license to make, use and sell Licensed Products and Services, as
hereinafter defined, and to grant sublicenses upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is agreed by the parties as follows:
1. DEFINITIONS
1.1 "INVENTION" shall mean methods and materials to assay protein interactions
using any combination of luciferases and fluorescent proteins that undergo
Bioluminescence Resonance Energy Transfer (▇▇▇▇), whether or not patentable or
otherwise protectable as intellectual property, which has been conceived as a
result of work done by Dr. ▇▇▇▇ ▇▇▇▇▇▇▇ and Dr. David Piston (Inventors).
1.2 "MATERIALS" shall mean any appropriate luciferase and green fluorescent
protein mutations including the following biological materials generated in the
laboratories of the Inventors and includes [* * *]:
[* * *]
1.3 "PATENT RIGHTS" shall mean the United States and foreign patents and/or
patent
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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VANDERBILT UNIVERSITY OPTICAL ASSAY AGREEMENT
applications covering the INVENTION.
1.4 "LICENSED PRODUCTS and SERVICES" shall mean all research applications
including drug discovery and all research reagents which are derived from,
incorporate or which could not have been made but for the INVENTION and
MATERIALS which are:
(a) covered in whole or in part by an issued, unexpired claim or a
pending claim contained in the PATENT RIGHTS in the country in
which any such product or part is made, sued or sold; or
(b) manufactured by using a process or is employed to practice a
process which is covered in whole or in part by an issued,
unexpired claim or in a pending claim contained in the PATENT
RIGHTS in the country in which any LICENSED PROCESS is used or
in which such product or part thereof is used or sold.
1.5 "NET SALES" shall mean [* * *] less returns and allowances actually granted,
insurance costs, taxes or excise duties imposed on the transaction
(if separately invoiced), and wholesaler and cash discounts in amounts
customary in the trade, excepting discounts for early payment. [* * *].
1.6 "FIELD-OF-USE" shall mean all life sciences research including drug
discovery (pharmaceutical, biotech, academic and government-funded) and
specifically excludes any and all clinical, diagnostic or therapeutic
applications.
2. GRANT
2.1 VANDERBILT hereby grants to BIOSIGNAL a worldwide, exclusive License to
manufacture, distribute and sell, and to sublicense the manufacturing, sales and
distribution of LICENSED PRODUCTS and SERVICES within the FIELD OF USE.
2.2 This License specifically includes the right of BioSignal to sublicense the
right-to-use of LICENSED PRODUCTS and SERVICES to customers within the
FIELD-OF-USE for their own internal research purposes.
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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VANDERBILT UNIVERSITY OPTICAL ASSAY AGREEMENT
2.3 Transfer Of Material. Providing VANDERBILT has access to MATERIAL,
VANDERBILT agrees to provide BIOSIGNAL with samples of the MATERIAL, and at
reasonable cost to replace the MATERIAL, in the event of its unintentional
destruction, except that VANDERBILT will not be required to provide BIOSIGNAL
with samples any more frequently than once per calendar year, except at the sole
discretion of VANDERBILT. BIOSIGNAL also shall make appropriate arrangements to
store the MATERIAL.
2.4 In order to provide BIOSIGNAL with a period of exclusivity, VANDERBILT
agrees it will not grant licenses under the INVENTION to others except as
required by VANDERBILT's obligations in paragraph 2.6 or as reserved in
paragraph 2.7.
2.5 Licensing and Sublicensing by BIOSIGNAL. BIOSIGNAL has the right to grant
royalty bearing sublicenses in the FIELD OF USE to third parties. BIOSIGNAL
agrees to give VANDERBILT reasonable notice of BIOSIGNAL's intent to grant any
such sublicense, including the proposed terms thereof. All sublicenses shall
bind the sublicensee to meet BIOSIGNAL's obligations to VANDERBILT under this
Agreement . Copies of all sublicense agreements shall be provided to VANDERBILT.
2.6 United States Government Rights Reserved. Notwithstanding the exclusive
license granted herein, the United States Government shall receive all the
rights to the Invention required by law or regulation to be reserved to the
government. The parties agree that the United States Government is hereby
granted a non-exclusive, non-transferable, irrevocable, royalty free license to
practice or have practiced on its behalf throughout the world the Invention.
2.7 Reservation of Rights. VANDERBILT reserves the right to make, use and
further develop the INVENTION and the MATERIAL for its own educational and
research purposes and to grant licenses to third parties rights to make, use and
sell the INVENTION and MATERIALS for uses in fields not expressly granted
herein.
3. CONSIDERATION & ROYALTIES. In consideration of the grant in Paragraph 2.1
above, BIOSIGNAL hereby agrees to make the following payments to VANDERBILT:
3.1 Within thirty (30) days of the execution of this Agreement, BIOSIGNAL agrees
to pay VANDERBILT within ninety (90) days of the receipt of the MATERIAL by
BIOSIGNAL, a
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nonrefundable license issue fee of [* * *].
3.2 BioSignal will pay to Vanderbilt a royalty rate of [* * *] on the Net Sales
of LICENSED PRODUCTS and SERVICES from independent third parties, sold by
BIOSIGNAL or its sublicensees.
3.3 In order to maintain the exclusive license, beginning one year after first
commercial sale of Licensed Products or Services, BIOSIGNAL shall pay to
Vanderbilt annual minimum royalties of [* * *] which shall be creditable
against earned royalties in the same year for which the minimum is paid.
3.4 BIOSIGNAL shall pay Vanderbilt [* * *] of any up front license fees, other
than royalty on sales, received for sublicensing the rights to independent
third parties for internal use.
3.5 BioSignal will pay all of the costs incurred in filing for Patent protection
of the ▇▇▇▇ technology in the United States (USA) and Canada estimated at
fifteen thousand US dollars ($15,000). Vanderbilt shall be provided copies of
all official communications, amendments and responses with respect to patent
applications and patents sufficiently prior to filing to allow for review,
comment and approval by Vanderbilt, which will not be unreasonably withheld.
3.6 All payments required under this agreement shall be in U.S. dollars, and
shall be made by check or bank draft and made payable to VANDERBILT. All such
payments shall be sent to the following address: Office of Technology Transfer,
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇.
3.7 If BIOSIGNAL desires to offer for sale a LICENSED PRODUCT or SERVICE in
combination with other of its products and/or services (`COMBINATION PRODUCT" or
"COMBINATION SERVICE"), it shall notify VANDERBILT and describe in sufficient
detail the nature and composition of the COMBINATION PRODUCT or COMBINATION
SERVICE in order that the parties may in good faith determine a reasonable
royalty share of such transactions.
4. REPORTS.
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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4.1 BIOSIGNAL agrees to make written reports to VANDERBILT University within
sixty (60) days after the end of each calendar half year ending June 30 and Dec.
31. This report shall state the number, description and aggregate NET SALES of
LICENSED PRODUCTS and SERVICES made, sold, or otherwise disposed of, and the
total gross income received by BIOSIGNAL from leasing, renting, or otherwise
making LICENSED PRODUCTS and SERVICES available to others without sale or other
disposition transferring title, during such completed calendar year, and
resulting calculation pursuant to Paragraph 3 above and shall also send a copy
of the report to VANDERBILT at the Mailing Address for Notices indicated on the
Signature Page of this Agreement. Prior to the first commercial sale, BIOSIGNAL
shall provide annual written reports within thirty (30) days after December 31
of each Calendar year which shall include progress in research and development
of LICENSED PRODUCTS and SERVICES. Late charges will be applied to any overdue
payments at the rate of the prime rate quoted in the Wall Street Journal on the
first business day on which such payment is due, plus [* * *]. The payment of
such late charges shall not prevent VANDERBILT from exercising any other rights
it may have as a consequence of the lateness of any payment.
5. RECORD KEEPING.
5.1 BIOSIGNAL shall keep complete and accurate records and books of account
containing all information necessary for the computation and verification of the
amounts paid hereunder. BIOSIGNAL shall keep these records and book for a period
of [* * *] years following the end of the accounting to which the information
pertains. BIOSIGNAL agrees, at the request of VANDERBILT, to permit one or more
accountants selected by VANDERBILT ("accountant") to have access to BIOSIGNAL's
records and books of account during ordinary working hours to audit with respect
to any payment period ending prior to such request, the correctness of any
report or payment made under this Agreement, or to obtain information as to the
payments due for any such period in the case of failure of the BIOSIGNAL to
report or make payment pursuant to the terms of this Agreement. The Accountant
shall not disclose to VANDERBILT any information relating to the business of
BIOSIGNAL except that which is necessary to inform VANDERBILT of: (a) the
accuracy or inaccuracy of BIOSIGNAL's reports and payments; (b) compliance or
noncompliance by BIOSIGNAL with terms and conditions of this Agreement; and (c)
the extent of any inaccuracy or noncompliance. Should the accountant believe
there is an inaccuracy in any of the BIOSIGNAL's payments or noncompliance by
the BIOSIGNAL with such terms and conditions, the Accountant shall
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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have the right to make and retain copies (including photocopies) of any
pertinent portions of the records and books of account. In the event that
BIOSIGNAL's royalties calculated for any semi-annual period are under-reported
by more than [* * *], the costs of any audit and review initiated by VANDERBILT
will be borne by BIOSIGNAL; but, otherwise, VANDERBILT shall bear the costs of
any audit initiated by VANDERBILT.
6. [* * *].
7. DUE DILIGENCE.
7.1 BIOSIGNAL shall use commercially reasonable efforts to introduce the
LICENSED PRODUCTS and SERVICES into the commercial market as soon as
practicable. Upon the first commercial sale, until the expiration of this
Agreement, BIOSIGNAL shall use commercially reasonable efforts to keep the
LICENSED PRODUCTS and SERVICES accessible to the public. BIOSIGNAL's failure to
perform in accordance with this paragraph 7. shall be grounds for VANDERBILT to
render this license non-exclusive. In making this determination VANDERBILT shall
take into account the normal course of such programs conducted with sound and
reasonable business practices and judgment and shall take into account the
reports provided hereunder by BIOSIGNAL.
8. TERM and TERMINATION.
8.1 This agreement shall become effective on the date when the last party to
sign has executed this Agreement and shall extend as long as LICENSED PRODUCTS
and SERVICES continue to be sold or, if a patent embodying the Invention issues,
to the expiration of the last to expire of such issued patent, unless previously
terminated according to Paragraphs 7, 8.2, or 8.3 below.
8.2 BIOSIGNAL may terminate this Agreement upon sixty (60) days written notice
to VANDERBILT. Upon termination of this Agreement, BIOSIGNAL agrees to return
all MATERIALS to VANDERBILT, or provide VANDERBILT with certification of their
destruction, and BIOSIGNAL shall immediately cease the production and sale of
LICENSED
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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PRODUCTS and SERVICES except for PRODUCTS and SERVICES which have been sold,
transferred or sublicensed to third parties.
8.3 VANDERBILT may terminate this Agreement if BIOSIGNAL is in default in the
performance of any material (under Paragraphs 3,7 and 9) or reporting (under
Paragraph 4 or 10) obligation under this Agreement, and if the default has not
been remedied within sixty (60) days after the date of written notice by
VANDERBILT of such default. VANDERBILT may terminate this Agreement in the event
BIOSIGNAL shall at any time fail to make payments, render reports, maintain
standards of quality and performance, or otherwise abide by the terms herein
provided or attempt to exercise ownership rights over the MATERIALS.
8.4. Effect of Termination. Upon termination of this Agreement, BIOSIGNAL shall
cease all production and sale of LICENSED PRODUCTS and SERVICES except for the
production and sale of LICENSED PRODUCTS and SERVICES on which production had
begun prior to notice of such termination. BIOSIGNAL may continue to sell such
LICENSED PRODUCTS and SERVICES for up to one year after such notice upon payment
of royalties accruing thereon, and shall render an accounting to VANDERBILT of
any royalties which may be due, and any sublicenses granted hereunder shall be
assigned to VANDERBILT. By mutual consent of VANDERBILT and a sublicensee, the
sublicense rights granted by BIOSIGNAL may be granted de novo by VANDERBILT
directly to the sublicensee. Immediately upon termination all rights of
BIOSIGNAL, except as expressly stated in this Paragraph, shall revert to
VANDERBILT.
8.5 Paragraphs 1, 8.4, 9.1, 9.2, 9.3, 9.4, 11, 12 and 13 of this Agreement shall
survive termination.
9. WARRANTIES, INDEMNIFICATION AND INSURANCE.
9.1 BIOSIGNAL agrees to indemnify and hold harmless VANDERBILT from any claims,
costs, damages or losses that may arise from or through [* * *] or in
connection with any claims, suits, actions, demands or judgments arising out
of any theory of law (including, but not limited to, actions in the form of
tort, warranty, or strict liability) concerning [* * *]. Such indemnity
obligation shall include [* * *].
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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[* * *]
9.2 Regarding the indemnity and hold harmless provisions, under Paragraph 9.1,
VANDERBILT shall give prompt written notice to BIOSIGNAL of the commencement of
any action, suit, or proceeding for which indemnification may be sought, and
BIOSIGNAL, through counsel reasonably satisfactory to VANDERBILT shall assume
the defense thereof; provided, however, that VANDERBILT shall be entitled to
participate in any such action, suit, or proceeding with counsel of its own
choice, but at its own expense. If BIOSIGNAL fails to assume the defense within
a reasonable time, VANDERBILT may assume such defense and the reasonable fees
and expenses of its attorneys will be covered by the indemnity provided for in
Paragraph 9.1. [* * *] Notwithstanding anything in this Paragraph to the
contrary, BIOSIGNAL shall not, without the written consent of VANDERBILT,
which consent shall not be unreasonably withheld:
[* * *]
9.3 NO WARRANTIES, EXPRESSED OR IMPLIED, ARE OFFERED AS TO THE MERCHANTABILITY
OR FITNESS FOR ANY PURPOSE OF THE MATERIAL PROVIDED TO BIOSIGNAL UNDER THIS
AGREEMENT, OR THAT THE LICENSED MATERIAL MAY BE EXPLOITED WITHOUT INFRINGING THE
PATENT RIGHTS OF ANY THIRD PARTIES. BIOSIGNAL ACCEPTS LICENSE RIGHTS TO THE
MATERIALS "AS IS", AND VANDERBILT DOES NOT OFFER ANY GUARANTEE OF ANY KIND.
9.4 Insurance. (a) Beginning at the time as any LICENSED PRODUCTS and SERVICES
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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are being commercially distributed or sold by BIOSIGNAL or by a sublicensee, or
agent of BIOSIGNAL, BIOSIGNAL or such other, shall procure and maintain
comprehensive general product liability and tort liability insurance in amounts
not less than [* * *] per incident and [* * *] annual aggregate and name
the Indemnitees as additional insureds. Such comprehensive general liability
insurance shall provide (i) product liability coverage and (ii) broad form
contractual liability coverage for BIOSIGNAL's indemnification under this
Agreement. If BIOSIGNAL elects to self-insure all or part of the limits
described above, such self-insurance program must be reasonably acceptable to
VANDERBILT. BIOSIGNAL agrees that no amount greater than the sum of [* * *]
shall be deductible under BIOSIGNAL's primary coverage for VANDERBILT and
BIOSIGNAL against any claims or suits arising from alleged defects in LICENSED
PRODUCTS and SERVICES. The minimum amounts of insurance coverage required shall
not be construed to create or limit BIOSIGNAL's liability with respect to its
indemnification under this Agreement.
(b) BIOSIGNAL represents and warrants that its product liability and
general tort liability is [* * *]. Within thirty (30) day after the date of
the first commercial sale of a LICENSED PRODUCTS or SERVICES hereunder,
BIOSIGNAL shall provide VANDERBILT with a certificate or certificates of
insurance evidencing that VANDERBILT has been named as an additional
insured party and evidencing the insurer(s) is required to notify
VANDERBILT in writing at least thirty (30) days in advance of any
termination of the policy or certificate, or any modification that would cause
BIOSIGNAL no longer to be in compliance with the provisions of this Paragraph,
or would cause the representation and warranties set forth above in this
Paragraph no longer to be true, such written notification to specify the reason
for such termination, the nature of the proposed modification, as the case may
be. It is expressly agreed by the parties that the provisions of this Paragraph
regarding insurance shall in no way limit BIOSIGNAL's indemnity obligations,
except to the extent that BIOSIGNAL's insurer (s) actually pays VANDERBILT
amounts for which VANDERBILT is entitled to be indemnified under this Agreement,
nor shall VANDERBILT have any obligation to pursue any insurer as a precondition
to its rights to be indemnified by BIOSIGNAL. As used in this Paragraph, the
term "VANDERBILT" shall include VANDERBILT, and its officers, directors, agents
and employees. If BIOSIGNAL does not obtain replacement insurance within such
thirty (30) day period specified above, VANDERBILT shall have the right to
terminate this Agreement effective at the end of such thirty (30) day period
without notice or any additional waiting periods.
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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(c) BIOSIGNAL shall maintain such comprehensive general product liability
and tort liability insurance or self-insurance beyond the expiration or
termination of this Agreement during (i) the period that any product relating
to, or developed pursuant to, this Agreement is being commercially distributed
or sold by BIOSIGNAL or by a sublicensee or agent of BIOSIGNAL and (ii) a period
not less than the statute of limitations for product liability claims in the
state in which the product is being used.
10. PROSECUTION AND MAINTENANCE OF PATENTS
10.1 Upon execution of this License Agreement, BIOSIGNAL agrees to pay for all
prosecution and maintenance of United States and Canadian patents included in
this Agreement. BIOSIGNAL shall have control over prosecution and maintenance of
patent applications and patents related to the Invention, provided however that
VANDERBILT shall have reasonable opportunities to advise BIOSIGNAL and shall
cooperate with BIOSIGNAL as to the filing, prosecution and maintenance of such
patent applications and patents. BIOSIGNAL shall furnish or require its patent
counsel to furnish to VANDERBILT copies of documents relevant to any such
filing, prosecution or maintenance sufficiently prior to filing to allow for
review, comment and approval by Vanderbilt, which will not be unreasonably
withheld.
BIOSIGNAL shall be obligated to make timely payment of all maintenance
fees following the issuance of the Patent. If BIOSIGNAL elects to no longer pay
the expenses of a patent application or patent included within the Patent
Rights, BIOSIGNAL shall notify VANDERBILT not less than sixty (60) days prior to
such action or deadline required to preserve the Patent Rights.
11. CONFIDENTIALITY
11.1 It may be necessary for one party to disclose to the other party certain
confidential or proprietary information. In such event, the receiving party
agrees to preserve such identified information as confidential. The obligation
of confidentiality in this paragraph shall apply to any and all information
contained in any patent application or draft thereof provided by VANDERBILT to
BIOSIGNAL, including those applications confidentially provided to BIOSIGNAL
prior to the effective date of this Agreement. The obligation of confidentiality
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shall not apply to information which:
(a) is now in the public domain or which becomes generally available to the
public through no fault of the receiving party; or
(b) is already known to, or in the possession of, the receiving party prior
to disclosure by the disclosing party as can be demonstrated by documentary
evidence; or
(c) is disclosed on a non-confidential basis from a third party having the
right to make such a disclosure; or
(d) is independently developed by the receiving party (by activity not
associated with the Licensed Technology) as can be demonstrated by documentary
evidence; or
(e) the recipient party notifies the providing party is required to be
disclosed by the recipient pursuant to a legally enforceable order, direction,
or other regulation but any disclosure shall be only so far as necessary to give
effect thereto.
11.2 Term. The confidentiality obligations of this Article shall continue for a
period of [* * *] beyond the termination of this Agreement.
12. BIOSIGNAL is encouraged to publish the results of its research projects
using the MATERIALS. In all oral presentations or written publications
concerning the MATERIALS, BIOSIGNAL will acknowledge the contribution of Dr.
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ Piston.
13. Nothing contained in this Agreement shall be construed as conferring any
right to use in advertising, publicity or any other promotional activities any
name trademark or other designation of a party hereto including any contraction,
abbreviation or stimulation of any of the foregoing, unless the express written
permission of the other party has been obtained. BIOSIGNAL hereby expressly
agrees not to use the name Vanderbilt University and/or "Vanderbilt " without
prior written approval from VANDERBILT.
14. This Agreement shall be construed in accordance with the laws of the United
States as interpreted and applied by the Courts of the state of Connecticut.
[* * *] Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934,
as amended.
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15. This Agreement constitutes the entire understanding of VANDERBILT and
BIOSIGNAL and supersedes all prior agreements and understandings with respect to
the MATERIALS.
16. The provisions of this Agreement are severable, and in the event that any
provision of this Agreement shall be determined to be invalid or unenforceable
under any controlling body of law, such invalidity or unenforceability shall not
in any way affect the validity or enforceability of the remaining provisions of
this Agreement.
17. RESOLUTION OF DISPUTES.
17. In the event of a dispute or disagreement (hereinafter called
"dispute") arises between the parties in connection with the interpretation of
any provision of this Agreement or the compliance or noncompliance therewith, or
the validity or enforceability thereof, or the performance or nonperformance of
either party to the Agreement, the following Dispute resolution process shall be
followed by the parties:
(1) A Dispute will be deemed to have arisen upon the delivery of
a written notice by one party to the other describing the Dispute (hereinafter
called the "Dispute Notice"). Upon delivery of the Dispute Notice, the parties
agree to attempt to resolve the Dispute in a prompt and expeditious manner.
Except for the Dispute Notice, all communication between the parties will be on
a without prejudice basis.
(2) If the parties have not been able to resolve the Dispute in a
prompt and expeditious manner after delivery of the Dispute Notice, either party
may at any time thereafter request by written notice to the other party that the
dispute be escalated to Senior Management.
(3) In the event such a request with written notice is made, each
party shall make available the senior executives specified in the following
subparagraph ("Senior Management") who shall meet within fifteen (15) business
days after such request is made at the Offices of the party which received the
request to attempt to resolve the Dispute.
(4) The Senior Management appointee for each party is as follows:
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BIOSIGNAL: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D.,
President and CEO
BioSignal Inc.
VANDERBILT: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D.
Director, Office of Technology Transfer
Vanderbilt University
Each party may change its Senior Management appointee upon prior written
notice to the other.
18. PROVISIONS CONTRARY TO LAW.
18.1 In performing this Agreement, the parties shall comply with all applicable
laws and regulations. In particular, it is understood and acknowledged that the
transfer of certain commodities and technical data is subject to United States
laws and regulations controlling the export of such commodities and technical
data, including all Export Administration Regulations of the United States
Department of Commerce. These laws and regulations among other things, prohibit
or require a license for the export of certain types of technical data to
certain specified countries. BIOSIGNAL hereby agrees and gives written assurance
that it will comply with all United States laws and regulations controlling the
export of commodities and technical data, that it will be solely responsible for
any violation of such by BIOSIGNAL or its Affiliates or sublicensees, and that
it will defend and hold VANDERBILT harmless in the event of any legal action of
any nature occasioned by such violation.
Nothing in this Agreement shall be construed so as to require the
violation of any law, and wherever there is any conflict between any provision
of this Agreement and any law the law shall prevail, but in such event the
affected provision of this Agreement shall be affected only to the extent
necessary to bring it within the applicable law.
19. LANGUAGE
19.1 This Agreement is formulated in the English language only, which language
shall be controlling in all respects, and all versions in any other language
shall not be binding upon the parties hereto. All communications made or given
pursuant to this Agreement shall be in the
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English language.
BIOSIGNAL has requested that this Agreement and all related documents be drawn
up in the English language, with which request VANDERBILT agrees.
BIOSIGNAL a demande que le present contrat ainsi que toute la documentation
d'accompagnement soient rediges en anglais, requete a laquelle VANDERBILT
consent.
20. NOTICES.
20.1 Any notice or other communication required or permitted to be given by
either party hereto shall be deemed to have been properly given and be effective
upon the date of delivery if delivered in writing to the respective addresses
set forth below, or to such other address as either party shall designate by
written notice given to the other party. If notice or other communication is
given by facsimile transmission, said notice shall be confirmed by prompt
delivery of the hardcopy original.
If to BIOSIGNAL: If to VANDERBILT:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office of Technology Transfer
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇: President Nashville Tennessee
FAX: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇
ATTN: DIRECTOR
FAX: 615/▇▇▇-▇▇▇▇
IN WITNESS WHEREOF, the Parties hereby execute this Agreement effective
the date last written below.
ACCEPTED BY:
for VANDERBILT for BIOSIGNAL
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Signature) (Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D, Director ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D., President
Sept. 11, 1998 Sept. 10, 1998
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(Date) (Date)
Office of Technology Transfer ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, 110 21stAvenue., Montreal, QC
Nashville Tennessee USA ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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