IVIVI TECHNOLOGIES, INC.
000 XXXXXXX XXXXXX
XXXXXXXXX, XX 00000
January 12, 2010
Ivivi Technologies LLC
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxxxxx:
Re: Master Services Agreement in connection with New Jersey Tax
Credit Program
This letter Agreement (the "Agreement") is entered into by Ivivi
Technologies, Inc. (the "Company") and Ivivi Technologies LLC (the "Customer")
in connection with the Company's potential tax benefit under the New Jersey Tax
Credit Transfer Program (the "Program") offered by the New Jersey Economic
Development Authority (the "EDA"). Under the Program, the Company may be
entitled to approximately $770,000 in tax benefits generated from the Company's
net operating losses as of March 31, 2009 and may be entitled to further tax
credits for future operating losses if the Company continues to operate its
business in compliance with the Program.
The parties hereto acknowledge and agree that in the event the Company
receives at least $770,000 in tax credits under the Program, the Company and the
Customer will enter into a Master Services Agreement in the form attached hereto
as Exhibit A pursuant to which the Company will provide engineering, regulatory
and technology services to the Customer for a flat monthly service fee of
$26,000.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors, assigns and legal
representatives.
For the convenience of the parties, any number of counterparts of this
Agreement may be executed by the parties hereto and may be executed via
facsimile. Each such counterpart shall be deemed an original instrument, and all
such counterparts taken together shall constitute one and the same Agreement.
[Signature Page Follow]
Please indicate your acknowledgement of this Agreement and acceptance
of the promises and covenants as stated herein.
Very truly yours,
Ivivi Technologies, Inc.
By: /s/ Andre' X. XxXxxx
--------------------------
Andre' X. XxXxxx
Executive Vice President
Acknowledged and Accepted:
Ivivi Technologies LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Member
Exhibit A
CONFIDENTIAL
FORM OF MASTER SERVICES AGREEMENT
By and Between
IVIVI TECHNOLOGIES, INC. and
IVIVI TECHNOLOGIES LLC
This Master Services Agreement (this "Agreement") is entered into and effective
as of January ___, 2010 ("Effective Date") by and between IVIVI TECHNOLOGIES,
INC. ("Contractor") and IVIVI TECHNOLOGIES LLC ("Customer").
In consideration of the mutual promises set forth below, the parties hereby
agree as follows:
1. Definitions.
"Confidential Information" means all confidential and proprietary information of
a party ("Disclosing Party") disclosed to the other party ("Receiving Party"),
whether orally or in writing, that is designated as confidential or that
reasonably should be understood to be confidential given the nature of the
information and the circumstances of disclosure, including the terms and
conditions of this Agreement (including pricing and other terms), business and
marketing plans, technology and technical information, product designs, and
business processes. Confidential Information shall not include any information
that: (i) is or becomes generally known to the public without breach of any
obligation owed to the Disclosing Party; (ii) was known to the Receiving Party
prior to its disclosure by the Disclosing Party without breach of any obligation
owed to the Disclosing Party; (iii) was independently developed by the Receiving
Party without breach of any obligation owed to the Disclosing Party; or (iv) is
received from a third party without breach of any obligation owed to the
Disclosing Party.
"Deliverables" means all works of authorship, whether in hard copy or electronic
form, including but not limited to designs, models, analyses, reports,
documentation, summaries, manuals, supporting materials, test results,
recommendations and drawings, which are provided by Contractor to Customer.
"Invention" shall mean any idea, design, concept, technique, invention,
discovery, or improvement, regardless of patentability, made solely or jointly
by Contractor and/or Contractor's employees, or jointly by Contractor and/or
Contractor's employees with one or more employees of Customer, during the term
of this Agreement and in performance of any work under any SOW under this
Agreement, provided that either the conception or reduction to practice thereof
occurs during the term of this Agreement and in the performance of work under an
SOW issued under this Agreement.
"Services" means the services provided by Contractor and its subcontractors as
defined in an SOW issued under this Agreement.
"Statement of Work" or "SOW" means the document(s) agreed upon in writing and
executed by Contractor and Customer which defines the Services to be performed
under this Agreement, and the Deliverables to be provided. The terms of each SOW
is incorporated herein by reference, and, to the extent that an SOW contains
additional terms or terms that conflict with any terms of this Agreement, the
SOW shall control.
2. Services and Statement of Work. Contractor will make available and manage the
Services as described in the SOW(s) attached hereto as Exhibit A. The Services
may be provided by Contractor's employees or, with the prior written approval of
customer, individuals or organizations under contract with Contractor. A
separate SOW will be required for each project, assignment or task requested by
Customer. Each SOW will become part of this Agreement by this reference when
signed by Contractor and Customer and shall include: (a) a detailed description
of Contractor's and Customer's respective responsibilities; (b) an estimated
performance schedule including milestones, if applicable; (c) pricing and
payment terms; and (d) identification of Contractor and Customer contacts. A SOW
may only be amended or modified by a written document signed by authorized
representatives of Contractor and Customer.
3. Confidentiality.
3.1 Confidentiality. The Receiving Party shall not disclose or use any
Confidential Information of the Disclosing Party for any purpose outside the
scope of this Agreement, except with the Disclosing Party's prior written
permission.
3.2 Protection. Each party agrees to protect the confidentiality of the
Confidential Information of the other party in the same manner that it protects
the confidentiality of its own proprietary and confidential information of like
kind, but in no event shall either party exercise less than reasonable care in
protecting such Confidential Information.
3.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose
Confidential Information of the Disclosing Party, it shall provide the
Disclosing Party with prior notice of such compelled disclosure (to the extent
legally permitted) and reasonable assistance, at Disclosing Party's cost, if the
Disclosing Party wishes to contest the disclosure.
3.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose
or use) any Confidential Information of the Disclosing Party in breach of this
Section 3, the Disclosing Party shall have the right, in addition to any other
remedies available to it, to seek injunctive relief to enjoin such acts, it
being specifically acknowledged by the parties that any other available remedies
are inadequate.
4. Ownership.
4.1 All Deliverables shall be owned by Customer and shall be considered works
made for hire by Contractor for Customer. Furthermore, Customer shall own all
United States and international copyrights in the Deliverables.
4.2 Contractor hereby assigns to Customer (including its successors and
assigns), all Inventions (as defined below) conceived, created or reduced to
practice by Contractor or Contractor's employees, agents or subcontractors in
the course of the performance of this Agreement, together with the right to seek
protection by obtaining patent rights therefor and to claim all rights
thereunder, and the same shall become and remain Customer's property regardless
of whether such protection is sought. Contractor shall execute (and shall cause
its employees, agents and subcontractors to execute) such documents, render such
assistance, and take such other actions as Customer may reasonably request, at
Customer's expense, to apply for, register, perfect, confirm and protect
Customer's rights in any intellectual property hereunder.
4.3 Contractor shall promptly make a complete written disclosure to Customer of
each Invention not otherwise clearly disclosed to Customer in the pertinent
Deliverables. Contractor shall, upon Customer's request and at Customer's
expense, cause patent applications to be filed thereon and shall sign all such
applications over to Customer. Contractor shall give Customer and its solicitors
all reasonable assistance in connection with the preparation and prosecution of
any such patent applications and shall cause to be executed all such assignments
or other instruments or documents as Customer may consider necessary or
appropriate to carry out the intent of this Agreement.
5. Fees and Payments.
5.1 Fees. Customer shall pay Contractor for the Services in accordance with the
fees, rates and payment terms set forth in the applicable SOW.
5.2 Expenses. Unless expressly contemplated in an SOW, Customer shall not be
required to reimburse Contractor for travel and other out-of-pocket expenses
incurred by Contractor in connection with performance of the Services.
6. Warranty and Disclaimer.
6.1 CONTRACTOR WARRANTS THAT ALL SERVICES RENDERED PURSUANT TO THIS AGREEMENT
WILL BE PERFORMED IN PROFESSIONAL MANNER CONSISTENT WITH INDUSTRY PRACTICES AND
ALL SERVICES PROVIDED HEREUNDER SHALL SUBSTANTIALLY CONFORM TO THE APPLICABLE
SOW.
7. Consequential Damages Waiver. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER
THIS AGREEMENT FOR (A) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS,
LOST DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF SUCH PARTY HAS BEEN INFORMED OF
THE POSSIBILITY THEREOF, OR (B) ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF
SUBSTITUTE EQUIPMENT OR SERVICES
8. Injunctive Relief. Unauthorized use of Confidential Information or
Deliverables, or any information contained therein will diminish the value to
each party of its trade secrets or proprietary information. Therefore, if either
party breaches any of its confidentiality or other obligations hereunder, the
other party shall be entitled such equitable relief as may be determined
appropriate under the circumstances by a court or tribunal of competent
jurisdiction to protect such party's interests therein, including but not
limited to injunctive relief, in addition to any monetary damages to which it
may be entitled.
9. Term and Termination.
9.1 The term of this Agreement shall commence on the Effective Date and shall
continue in full force for a period of one year thereafter, unless terminated
earlier under the provisions of this Section 9. This Agreement shall
automatically renew for additional one-year periods, unless either party
notifies the other party in writing of its intent to terminate this Agreement at
least 30 days prior to the end of the then-current term. Notwithstanding the
foregoing, either party may terminate this Agreement at any time and for any
reason upon 180 days prior written notice to the other party.
9.2 Failure by either party to comply with any material term or condition under
this Agreement or a SOW issued hereunder shall entitle the other party to give
the party in default written notice requiring it to cure such default. If the
party in default has not cured such default within 30 days of receipt of notice,
the notifying party shall be entitled, in addition to any other rights it may
have, to terminate this Agreement (and all SOWs issued hereunder) and/or the
individual SOW by giving notice effective immediately. Notwithstanding the
foregoing, this Agreement and/or any SOW hereunder may be terminated immediately
by Customer in the event of Contractor's breach of Sections 3 or 4.
9.3 This Agreement or individual SOW may be terminated immediately by either
party through written notice in the event that the other party makes an
assignment for the benefit of creditors, or if there are instituted by or
against the other party party proceedings in bankruptcy or under any insolvency
or similar law or for reorganization, receivership or dissolution.
9.4 The right of either party to terminate this Agreement and/or a SOW shall not
be affected in any way by its waiver of or failure to take action with respect
to any previous default.
9.5 Upon termination of this Agreement and/or any SOWs, Customer shall pay
Contractor for all work performed under the affected SOW(s) up to the effective
date of termination at the agreed upon prices, fees and expense reimbursement
rates set forth in the relevant SOW(s). In addition Contractor agrees, within 10
days after termination, to deliver to Customer the original and all copies of
the Deliverables and related materials in connection with the terminated work
for which Contractor has been paid in the course of performance.
9.6 The rights and remedies of each party provided in this Section 9 shall not
be exclusive and are in addition to all other rights and remedies provided at
law, in equity or otherwise under this Agreement or SOWs hereunder.
9.7 Sections 3, 4, 6, 7, 8, 9 and 10 of this Agreement and any accrued rights to
payment shall survive termination, regardless of the reason for termination.
10. General Provisions.
10.1 Relationship of the Parties. This Agreement does not create a partnership,
franchise, joint venture, agency, fiduciary or employment relationship between
the parties.
10.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to
this Agreement.
10.3 Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed facsimile, or 48 hours
after being deposited in the regular mail as certified or registered mail with
postage prepaid, if such notice is addressed to the party to be notified at such
party's address or facsimile number as set forth below, or as subsequently
modified by written notice.
10.4 Delays. Neither party shall be responsible for failure to fulfill its
obligations under this Agreement (except for payment of money) due to causes
beyond its reasonable control, including without limitation, acts of God,
strikes, transportation delays, fires, floods, riots, political uprisings or
revolutions, labor disputes, freight embargoes, shortage of labor, inability to
secure fuel or power at reasonable prices or on account of shortages thereof, or
laws or acts of any Federal, state or local government affecting the conduct of
the parties, including export licensing restrictions or other export
restrictions.
10.5 Waiver and Cumulative Remedies. No failure or delay by either party in
exercising any right under this Agreement shall constitute a waiver of that
right. Other than as expressly stated herein, the remedies provided herein are
in addition to, and not exclusive of, any other remedies of a party at law or in
equity.
10.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the provision shall be modified by
the court and interpreted so as best to accomplish the objectives of the
original provision to the fullest extent permitted by law, and the remaining
provisions of this Agreement shall remain in effect.
10.7 Assignment. Neither party may assign any of its rights or obligations
hereunder, whether by operation of law or otherwise, without the prior express
written consent of the other party. Notwithstanding the foregoing, Customer may
assign this Agreement together with all rights and obligations hereunder,
without consent of Contractor, in connection with a merger, acquisition,
corporate reorganization, or sale of all or substantially all of its assets. Any
attempt by a party to assign its rights or obligations under this Agreement in
breach of this section shall be void and of no effect. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
10.8 Governing Law. This Agreement shall be governed exclusively by the internal
laws of the State of New Jersey, without regard to its conflicts of laws rules.
10.9 Export Control Laws. Each party shall comply with all United States and
foreign export control laws or regulations applicable to its performance under
this Agreement.
10.10 Entire Agreement. This Agreement, including all exhibits and addenda
hereto, constitutes the entire agreement between the parties, and supersedes all
prior and contemporaneous agreements, proposals or representations, written or
oral, concerning its subject matter. No modification, amendment, or waiver of
any provision of this Agreement shall be effective unless in writing and signed
by the party against whom the modification, amendment or waiver is to be
asserted. Notwithstanding any language to the contrary therein, no terms or
conditions stated in a Customer purchase order or in any other Customer order
documentation shall be incorporated into or form any part of this Agreement, and
all such terms or conditions shall be null and void.
10.11 Counterparts. This Agreement may be executed in counterparts, which taken
together shall form one legal instrument
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the later date set forth below:
IVIVI TECHNOLOGIES, INC. IVIVI TECHNOLOGIES LLC
By:____________________________________ By:______________________________
Name:__________________________________ Name:____________________________
Title:_________________________________ Title:___________________________
Date:__________________________________ Date:____________________________
EXHIBIT A
STATEMENT OF WORK (SOW)
Dated ______________, 2010
Description of Services
Contractor will perform the services described in Appendix A hereto.
Staffing
Contractor will employ no fewer than four qualified full-time engineers
or, with the prior written consent of Customer, contract with a third
party that will provide an equivalent level of services.
Performance Standards; Termination
In the event that Customer is dissatisfied with the performance of the
Services hereunder for any reason, in addition to any remedies set
forth in the Agreement, Customer may notify Contractor in writing,
specifying in reasonable detail the deficiencies in the Services
provided by Contractor. If such deficiencies are not cured by
Contractor to Customer's satisfaction within 30 days following such
notice, Customer may terminate this SOW and/or the Agreement
immediately or mutually agree with Contractor to reduce the Monthly
Service Fee.
Monthly Service Fee; Payment Terms.
Customer shall pay to Contractor a flat monthly service fee of $26,000,
payable in advance at the beginning of each calendar month. In the
event that the initial month or final month of the term of this SOW or
the Agreement is not a full calendar month, the payment for such month
shall be appropriately pro rated.
APPENDIX A
Description of Services (Statement of Work dated ________, 2010)
Services to be provided by Contractor
Engineering (including QA and QC), Regulatory Compliance and Other
Engineering Services
Electronic, Mechanical, Software & QA-QC Disciplines
Project management and reporting
Engineering support for basic and applied R&D
Bread-board proof-of-concept prototyping
Documentation and CAD Drawing support for patent submissions and other needs
Conceptual to commercial engineering
Conceptual prototyping and Pre-production modeling
Clinical Trial Technical Support
Production design - Circuit design, schematics, mechanicals, documentation,
testing
Interface for potential partners and due diligence on engineering, design and
production
Liaison for outsourced design and/or production
Engineering support for FDA, CE, ETL, ISO filings
Certification control of test and lab equipment
QA-QC creation, implementation and maintenance
Regulatory Compliance System
FDA On-site Inspections
GMP Documentation and Process
SOP Maintenance and Updating pursuant to revised standards
Document Change Notice system
DMR, DHF, Design Review, Design Verification
Complaint processing and MDR Reporting
CAPA System and Implementation
CE Applicable provisions of above, plus:
On-site Inspections
Technical File Control and Revision
International Standards Maintenance
13485 Applicable provisions of above, plus:
On-site Audit and Inspection
Documentation control
Standards file (14907)
ETL Applicable provisions of above, plus:
Quarterly on-site inspections
Standards control (60601, etc.)
CMDCAS Applicable provisions of above, plus:
On-site and telephonic audits
Registered US site for service
Submission of Change Notices
Operations Services
Fulfillment including warehousing, shipping and related paperwork
